Sometimes, the Catholic Church falters badly

Sometimes, the Catholic Church falters badly

x x x.

Sometime in the 1950’s they blindly obeyed the unreasonable bias against the art of ballet dancing by the then papal nuncio. Without a dissenting voice or a plea for reason, upon his say-so, all Catholics were forbidden to have anything to do with ballet. All Catholic schools were conscripted to threaten their students with expulsion if they continued ballet studies. Ballet was demonized. Ballet performances were abolished. Ballet schools withered on the vine, ballet teachers were stripped of their livelihoods. My two sisters, my friends and classmates who were taking ballet had to stop or they would be expelled from their schools. Yet universally ballet was a revered art and accepted by civilization including by the Church everywhere else. But in the Philippines on the whim of the Catholic hierarchy with no papal bull, no theological argument, no dogmatic teaching, ballet was banned. The decree was sweeping, effectively killing ballet here for decades. Eventually that papal nuncio left, the animus against ballet was forgotten and it came back. Well and good, but wasn’t the war against it condemnable?

When I was about to graduate from high school in a small class of 13 students in Baguio, we were on the receiving end of warnings and threats about going to the University of the Philippines, the “godless” school that would ruin our souls. It was the usual prattle that would emanate in all Catholic schools just before graduation, perhaps based on some regulation from higher Church authorities. Finally, the bishop himself paid us a visit and ringingly brought down to us the dangers of going to UP. I had a scholarship to a Catholic school so while it did not affect my plans, I was somewhat perplexed by the high decibels. It certainly unnerved my classmates who were UP-bound. Some went anyway and their lives did not deteriorate to “godlessness.” And now UP is no longer reviled in Catholic schools, thank goodness and reason. This little episode of mind control, heavy-handed strictures and little logic rankled. It should not have happened.

Finally, when in college the bill on the mandatory reading of Jose Rizal’s Noli Me Tangere and El Filibusterismo came up, there was a hue and cry from the Catholic hierarchy opposing it for its criticism of the colonial friars, We were catechized that reading these novels would bring hellfire on us. That these books were the devil’s work and a direct attack on the church.. Our erstwhile admirable teachers were called upon to testify against the novels even if they themselves had never read them. An official opinion had already come down and they were merely to echo it at the Senate. When they lost that battle, they continued the war by trying to have Catholic schools exempted. This was beyond logic. And today anyone can read these novels, go through Rizal’s portrayal of the good and the bad friars and not lose one’s faith.

This was another ill-thought, ill-advised and totally unnecessary war instigated by the Catholic hierarchy.

In the light of these past instances for which no official apology or exculpating explanation has ever been given by our Catholic hierarchy, their present rabid and irrational take on the RH bill becomes suspect for its tactics that eschew truth and fairness.

For example, there is no provision or mention of abortion in the RH bill but time and again it is invoked as part and parcel of the bill. This is at the very least misleading and perhaps closer to the truth, deliberate falsehood. Very few contraceptives are abortifacients as they have been sweepingly labeled. Yet time and again they are indiscriminately defined as such. Where in the bill is it said that families must be limited to two children? Yet we have heard ravings against that phantom provision. As an institution that claims moral ascendancy and as the shepherd of the majority of this country, it is to be expected that the debating givens it uses should be true and accepted by the other side. That and the other misrepresentations of a foreign conspiracy (as compared to advocacy) and an indifference to unacceptably high maternal deaths and the surveys showing an unmet demand to limit families particularly by poor women, is disappointing and infuriating. Why can’t Catholics in this country be treated as adults with consciences? Why can’t poor women be listened to? After numerous catechism lessons regarding conscience and how it is the highest feature of a decision-making process for Catholics, why is it suddenly cast aside and denigrated when it comes to deciding on the RH bill?

x x x."

Is getting De Lima short-listed worth the cost? | Inquirer Opinion

Is getting De Lima short-listed worth the cost? | Inquirer Opinion

"x x x.

Get Real

Is getting De Lima short-listed worth the cost?

By: Solita Collas-Monsod
Philippine Daily Inquirer

10:11 pm | Friday, August 10th, 2012

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As I write this column, the Judicial and Bar Council is scheduled to decide whether to relax its disqualification rules, as proposed by Rep. Niel Tupas, before it decides on the short list of candidates for chief justice to be submitted to P-Noy.

One thing is sure. If it does amend—or whatever other description will be used, like “suspend”—those rules, the JBC’s name will be mud, having lost its credibility and showed itself to be a politicized, rather than independent, constitutional body; P-Noy will be perceived to be at least as guilty as his predecessor in interfering with and distorting the selection process for the judiciary; and the Philippines will suffer another blow to its governance rankings insofar as the international community is concerned.

Is getting Leila de Lima’s name on the short list really worth all that cost? Because that’s what it seems to be all about, Alfie.

Let’s look at the situation. The present JBC rules on disqualification, as approved by the council way back in 2000 under the chairmanship of Chief Justice Hilario Davide, are:

“SECTION 5. Disqualification. The following are disqualified from being nominated for appointment to any judicial post or as Ombudsman or Deputy Ombudsman:

“1. Those with pending criminal or regular administrative cases;

“2. Those with pending criminal cases in foreign courts or tribunals; and

“ 3. Those who have been convicted in any criminal case; or in an administrative case, where the penalty imposed is at least a fine of more than P10,000, unless he has been granted judicial clemency.”

The JBC has, to my knowledge, been very strict in implementing those rules, under its Rule IV, dealing with Integrity. The Reader is reminded that Agnes Devanadera, then President Gloria Macapagal-Arroyo’s justice secretary (or solicitor general, as she was both), and a candidate for the Supreme Court was disqualified by the JBC despite pressures supposedly applied by Malacañang and all kinds of pleas from Devanadera. Because there was at least one case pending against her.

Now, the shoe is on the other foot.  The general belief is that P-Noy wants Justice Secretary De Lima to be chief justice, but first he has to get her name on the JBC short list. Which, given the rules, is an impossibility because De Lima has a couple of disbarment cases against her. But he (or his lieutenants) is trying to make the impossible possible.

First, by exerting pressure on the Integrated Bar of the Philippines to get the disbarment case dismissed (I am told by unimpeachable sources that the members of the IBP board of governors were approached by various parties supposedly close to Malacañang, and asked to cooperate). It is to their everlasting credit that the vote was unanimous that the disbarment cases be fully investigated (I am also apprised that the vote in the Supreme Court to refer the disbarment cases to the IBP was also unanimous, so it wasn’t an Arroyo-justices-versus-Aquino-justices situation).

And second, by trying to get the JBC to amend the Section 5 rules. At first glance, it seemed that fortune was on Malacañang’s side because last year, Tupas, a member of the JBC (until further notice because, alas, the high court blinked in an eyeball-to-eyeball confrontation with the legislature), proposed a “relaxing” of the Section 5 rules. Because of unforeseen circumstances (e.g., the impeachment case), this has not yet been resolved by the JBC.

How did Tupas want to relax the rules? By adding to the first two items on the list the phrase “if, in the determination of the Council, the charges are serious or grave as to affect the fitness of the applicant for nomination.” In other words, the JBC would be given discretion to include for consideration candidates with pending criminal cases here or abroad, or candidates with regular administrative cases here, so long as the JBC thinks the charges against them are not “serious or grave.” Tupas also proposed to raise the disqualification bar for those convicted of administrative charges from a P10,000 penalty to a P20,000 penalty.

But that would be at first glance.  Because a second glance would show that Tupas’ proposal was met with a storm of objections from practically all the so-called judiciary stakeholders. In the “consultations” conducted by the JBC in September 2011 on the matter, there was not a single stakeholder (at least as far as the news reports were concerned) who declared support for the proposal. Retired Chief Justices Davide and Reynato Puno shot it down; former Sen. Aquilino Pimentel Jr. (who was a member of the JBC in his time) also shot it down. Associations of law deans and judges shot it down. Various nongovernment organizations involved in law and justice shot it down. If anything, they wanted stricter rules.

What is even more noteworthy, Reader, is that Justice Secretary De Lima herself, sitting as ex officio member of the JBC, also shot it down. You can google the reports quoting from her three-page formal comment, as well as from interviews with her: “Ako nga apat na kaagad ang kaso ko sa Ombudsman. Even if ganoon, though, I realize that, sa tingin ko, hindi maganda i-relax because practically, [the] JBC is preempting the appropriate body na mag-decide sa case.”

Which puts her in a dilemma. The charges against her have not been dismissed. But she knows that Malacañang wants the JBC rules to be amended to accommodate her. Should she stick to principle and withdraw her candidacy, or should she cheer Malacañang on? Principle or position?

x x x."

How to Handle a Government Investigation: 13 Things You Should You Do Immediately If the Government Comes Knocking | David Baris - JDSupra

How to Handle a Government Investigation: 13 Things You Should You Do Immediately If the Government Comes Knocking | David Baris - JDSupra

The tips contained in this article apply to the PHL setting, too.


'x x x.

Actions you take, or don’t take, in the early hours of a government investigation can have costly and far-reaching consequences for a company. At the root of this is the importance of having a plan in place should your company come under investigation, as the last thing you want to be is caught flat-footed. Do your key employees and legal department staff know what to do immediately if the government initiates an investigation?

Below, BuckleySandler’s Government Enforcement and White Collar attorneys identify 13 steps a company and its employees should take immediately when it becomes aware of a government investigation.

1. Inform your in-house counsel. Establish a protocol to ensure that counsel is contacted immediately.
2. Preserve documents. Inform all necessary employees of the need to retain documents, including electronic documents, with a document hold memo that replaces standard document retention policies for potentially responsive materials.
3. Establish early dialogue with the investigating agency. Communication is critical to understanding the scope of the investigation and to establishing a working relationship with the government.
4. Assume a parallel investigation will be initiated. Questions about self-reporting, production, and other strategic decisions should be made under the assumption that a parallel criminal or civil suit will follow.
5. Alert the Board of Directors and/or Audit Committee. Schedule a meeting with key executives to carefully review the situation and discuss possible remedies and corrective actions. Be mindful that meeting minutes, notes, or emails may be discoverable.
6. Consider implementing internal restrictions on the trading of company stock. Be sure all rules regarding insider trading are upheld.
7. Evaluate disclosure issues and formulate a plan to address. With the commencement of a government investigation, a number of governance issues will arise. Carefully consider any and all disclosures that may be necessary and take appropriate action.
8. Put your insurance carrier on notice. Put your insurer on notice early to increase your chances of having insurance pay for some or all of the investigation and/or litigation costs.
9. Determine if actions are needed with respect to employees who are possible wrongdoers. This may involve implementing restrictions or additional oversight of their activities or even dismissal. All issues involving employees need to be carefully considered from a variety of angles, including employment laws, anti-retaliation provisions, and possible future civil litigation.
10. Identify remedial measures if needed. It may be necessary to conduct a gap analysis of existing compliance programs and make changes to avoid a future recurrence.
11. Prepare for any anticipated media coverage. Any and all public statements will be carefully scrutinized by the media, the public-at-large, and the investigating agency. Therefore, it is critical that sufficient care and attention is given to any public comments by the company or its spokespeople.
12. Notify employees of possible contact by the investigating agency and advise them of their rights and obligations. It is important to remind employees of their responsibility to be truthful when speaking with agents of the government, but that they may choose to have an attorney present if they do decide to be interviewed. You should also reiterate your company’s policy on cooperating with investigations and request that employees inform the legal department of any discussions or contacts with the government.
13. Commence an internal investigation if necessary. An internal investigation can help your company determine whether the allegations have merit or not, and if they do, the cause and extent and possible corrective actions.

You may also be interested in reading our related blog post on How to Respond to a Subpoena: 10 Things You Should Do Immediately.

 x x x."

ABA OKs disclosure of client information between firms

ABA OKs disclosure of client information between firms


CONFLICT OF INTEREST is an ethical issue that is universal.


"x x x.

Aug 8 (Reuters) - The American Bar Association House of Delegates this week approved an amended model rule that for the first time recognizes as ethical the disclosure of client information when lawyers are seeking to move from one firm to another.

Previously, ABA ethics rules did not address the issue of whether lawyers involved in job or firm merger talks could disclose the identities of their clients or how much business these clients generate.

Under the new model rule, the ABA is advising that such disclosures are permitted in order to determine whether client conflicts exist between the lawyer and a prospective firm. But the model rule says these disclosures should be limited to the identities of clients and should not include detailed billing or other financial information.

The rule is advisory only, though state bars typically adopt the ABA model rules. Currently many state bar associations, including those in California, New York and Illinois, do not have rules covering whether client information can be disclosed during lateral partner hiring or law firm merger discussions.

Some state and city bars that do have rules covering this issue, including Colorado and Boston, mirror the new ABA rule and hold that client disclosures should be done on a limited basis only, to check conflicts of interest.

"Our hope is that with clear rules there will be less disclosure of client information that shouldn't be disclosed," said Jamie Gorelick, the co-chair of the ABA Commission on Ethics 20/20, which recommended the rule. Gorelick said the rule would bring "more certainty by both lawyers and clients as to what can be said."

Michael Traynor, another co-chair of the commission, said the change was made to ensure a law firm can't use a lawyer's client information as an "insidious device to open the door to any trade secrets."

David Eisen, a Los Angeles lawyer who specializes in disputes between lawyers and law firms, acknowledged the need for a rule regarding client disclosures. He said he has handled a number of cases in recent years involving disputes between lawyers and law firms focused on disclosure of clients.

While Eisen declined to discuss specific matters, he said he has recently handled cases in which law firms end discussions with a prospective hire and then use client information the lawyer disclosed to poach business.

"It's a real issue," Eisen said.

At the ABA meeting, held in Chicago, the proposed model rule drew opposition from the ABA litigation section. Critics said the rule should require lawyers to receive consent from clients before disclosing their information.

But the ABA House of Delegates, in a voice vote Monday, rejected that approach.

Now it's up to the state bar associations to either adopt the rule or not. The process can take some time.

"It's a complicated change and we haven't begun to study whether to advance it in New York," said Lise Bang-Jensen, a spokeswoman for the New York State Bar Association.

(Reporting By Casey Sullivan)

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The United States of America’s Supreme Court has FINALLY Banned Life Without Parole for Juveniles Convicted of Murder | Global Youth Justice Daily Blog

The United States of America’s Supreme Court has FINALLY Banned Life Without Parole for Juveniles Convicted of Murder | Global Youth Justice Daily Blog


The PHL juvenile justice system must emulate this pro-youth legal doctrine.


"x x x.

USA Supreme Court Bans Life Without Parole for Juveniles Convicted of Murder

On Monday, June 25, 2012, the Supreme Court ruled that state laws that mandatorily sentence juveniles convicted of murder to life in prison without parole are unconstitutional. Life without parole for juveniles violates the Eighth Amendment’s prohibition on cruel and unusual punishment, the high court ruled in a 5-4 decision. The ruling could affect nearly 2,500 juvenile prisoners.

This decision reflects recent Supreme Court rulings on juvenile sentencing. The high court in 2010 declared juveniles found guilty of non-homicides could not receive life without parole, and in 2005 the court banned the death penalty for juveniles.

Resources:

To view the decision, go to www.supremecourt.gov/opinions/11pdf/10-9646g2i8.pdf.

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PAO or IBP for free legal aid

Advisory:

To my readers/followers, for free legal aid, visit the PAO or IBP chapter in your area. I don't accept pro bono cases or give free legal advice via email or the Net. Thanks.


Atty. M. J. Laserna Jr.
Las Pinas City, MM, PHL

How to be Prepared: When an Employee’s Misconduct Leads to Termination | The National Law Review

How to be Prepared: When an Employee’s Misconduct Leads to Termination | The National Law Review


The advice given in this article meets the standards of the PHL labor laws.


"x x x.

Terminating an employee can be one of the most difficult tasks for a business owner or human resource manager. It is however the responsibility of both positions and a necessary part of doing business. Termination is difficult under most circumstances because of the personal information an employer may know about an employee. After an employee becomes part of the workforce supervisors often discover personal information, such as an employee’s financial hardships or family difficulties, which makes difficult decisions uncomfortable.

Besides the emotional stress of terminating an employee, there are also legal concerns. Every employer should have steps in place that protect the company against wrongful termination or discrimination lawsuits. 

The most important factor when terminating an employee is documentation. You cannot document enough. Employee documentation should describe in detail, all actions and behaviors that lead to all disciplinary actions and ultimately the termination of the employee. Every incident report and reprimand should be documented, clearly outlining the actions taken. (To read more about documentation of misconduct visit http://mcbrayeremploymentlaw.com/2012/08/03/how-to-be-prepared-when-an-employees-misconduct-leads-to-termination/)

Of course, we more easily think to document the incidents and reprimands of an employee, but it is also important for a company to document all trainings, meetings and attempts to assist or improve the employee’s behaviors.  It is best to review with the employee all performance expectations and conduct policies, before the employee starts to work and again after any incident of misconduct.  Each time and employee is reminded of the expectations and conduct policies; the communications should be documented by the employer and signed by the employee. 

If this practice is followed, prior to termination, an employee will have received several reprimands and incident reports that relate to poor performance or policy violations.  Even though you have documented this all in the employee’s file, and they have read and signed each document, one more step should solidify the documentation necessary to ensure a proper termination of a difficult employee.  Draft a final warning letter, outlining each time the employee has had a problem, and the steps the company has taken to resolve the issue.  This letter is similar to a termination letter, in that it spells out exactly what repercussions the employee will suffer (i.e.; termination) if the behavior is not corrected.

If the company has a well-documented employee file, the likelihood of encountering trouble from terminating an employee are greatly minimized.

© 2012 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

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ABA House to Consider Ethics Rule Changes to Help Young and Mobile Lawyers - News - ABA Journal

ABA House to Consider Ethics Rule Changes to Help Young and Mobile Lawyers - News - ABA Journal

US legal ethics influence PHL law practice. It's useful to monitor new ABA policies.

'x x x.

The policymaking ABA House of Delegates will be asked to consider the needs of younger lawyers in a tough job market when it considers changes to the association’s model ethics rules for lawyers on Monday.

The ABA Commission on Ethics 20/20 was appointed in 2009 to study the impact of technology and globalization on the legal profession. It has completed its task and is asking the House to approve a series of changes in the ABA Model Rules of Professional Conduct.

One proposal makes it easier for young lawyers to move to new jurisdictions without taking the bar exam. The measure would amend the ABA Model Rule on Admission by Motion to say that lawyers seeking to practice in a new jurisdiction through this procedure need to have actively practiced law for only three of the past five years. The previous version of the rule required active practice for five of the last seven years.

Admission by motion procedures now exist in 40 jurisdictions. The resolution urges jurisdictions that have not adopted the Model Rule on Admission by Motion to do so.

Another new model ethics rule would allow lawyers moving to a new jurisdiction to practice there for up to a year, subject to some restrictions, while seeking admission to the bar. The new ABA Model Rule on Practice Pending Admission would allow lawyers to practice in the new state if they have an active license in another jurisdiction and have been engaged in the active practice of law for three of the last five years.

Some proposed ethics changes take account of technology’s impact, including amendments dealing with Internet-based lead generation, duties to prospective clients when discussions are online rather than oral, and lawyers’ obligations when they receive digital documents containing metadata. Lawyers who would like to steer clear of technology issues would get a warning in a proposed new comment to Rule 1.1 on the duty to provide competent representation. Lawyers have a duty to keep abreast of the benefits and risks associated with technology, according to the proposed language.

The Commission on Ethics 20/20 decided against recommendations that would allow nonlawyers to have some form of limited ownership in law firms, but the issue is still scheduled to come before the House in a resolution proposed by the Illinois State Bar Association and the Senior Lawyers Division. They want the House to reaffirm ABA policy against nonlawyer ownership of law firms.

The 560-member House of Delegates will meet Monday and Tuesday to close out the ABA's Annual Meeting in Chicago. During the policymaking sessions, the ABA will honor Morris Dees, co-founder and chief trial attorney of the Southern Poverty Law Center. Dees is to receive the ABA Medal, the association’s highest honor.

Other resolutions on the agenda include:

• Concur in new ABA standards that bar law schools from publishing misleading consumer information.

• Oppose laws that prevent physicians from talking to their patients about gun ownership and firearms safety.

• Amend ABA policy against racial and ethnic profiling by police to state that religious profiling should also be banned.

• Urge adoption of breed-neutral dog laws.

• Call on lawmakers to consider extending statutes of limitation for child sexual abuse.

• Urge federal agencies to pursue regulatory cooperation with their foreign counterparts. A report to the House says awareness and participation in foreign regulatory processes can help U.S. agencies maintain the safety of food and drugs and remove barriers to trade and exports.

x x x.'

Comelec starts registering detainees | ABS-CBN News

Comelec starts registering detainees | ABS-CBN News

"x x x.

MANILA, Philippines - A total 2,633 detainees whose convictions are pending appeal are being registered as voters at the National Bilibid Prisons (NBP) starting Monday.

The Commission on Elections (Comelec) kicked off its week-long detainee registration at the NBP on August 6.

The kick-off was attended by Commission on Elections Commissioner Rene Sarmiento, chairman of detainee voting, and Bureau of Corrections Chief Gaudencio Pangilinan.

The poll body previously approved Resolution 9371 on detainee registration, in which BuCor availed of the mechanism for a special polling place inside the prison.

Inmates at the maximum security jail were registered at the social hall of the administration building while those in the medium security compound (MSC) and the reception and diagnostic center were registered at the MSC. The same venues will be polling places on election date.

Comelec personnel trained BuCor personnel to assist in the registration of illiterate voters.

Inmates like wheelchair-bound Jerome, a detainee for one year over an illegal drugs offense, welcomed the development. Jerome was nabbed in a buy-bust operation for marijuana.

Jerome said he is happy for the chance to register, saying he voted in previous elections.

During the press briefing, Sarmiento explained that convicts whose cases are on appeal still enjoy the right to vote till their convictions become final and executory.

He also explained that convicts who are released after their convictions are overturned may change their place of registration from the NBP to their place of residence until the time Comelec finalizes the list of voters.

Sarmiento said once the voters’ list is final, convicts subsequently released after an acquittal will have to vote at the NBP.

There were 17,000 detainees who registered as voters in the 2010 elections.

There are about 20,000 inmates at the NBP. The BuCor controls 7 penal farms and colonies nationwide.

Sarmiento explained that the substantial number of inmates who can vote may spell the difference in elections at the local level where races tend to be close.

Muntinlupa Rep. Rodolfo Biazon, for his part, showed up uninvited during the registration to check if there is a need for any legislation for any problems that may come up.

Biazon wants the Comelec to coordinate closely with the DOJ in case the convictions of the inmates become final just days before the elections.

Meanwhile, Biazon could not yet say if he or his son, Customs Commissioner Ruffy Biazon will run for the Senate next year. He said the decision is up to the Liberal Party, of which both Biazons are members.

x x x."

Domestic Workers Convention: Labor Rights Treaty to Take Effect | Human Rights Watch

Domestic Workers Convention: Labor Rights Treaty to Take Effect | Human Rights Watch

"x x x.

(Manila) - The Philippines’ ratification of the Domestic Workers Convention will bring the groundbreaking international treaty into legal force, promising better working conditions and key labor protections for millions of domestic workers. The convention takes effect one year after the second ratification.

The Philippine Senate ratified the instrument today; President Benigno Aquino III signed it on May 18, 2012, following the treaty’s first ratification, by Uruguay, on April 30.

“The Philippines’ ratification of the Domestic Workers Convention means that basic labor rights for domestic workers are finally becoming a reality,” said Nisha Varia, senior women’s rights researcher at Human Rights Watch. “As the treaty goes into effect, millions of women and girls will have the chance for better working conditions and better lives.”

The Domestic Workers Convention sets the first global standards for the estimated 50 to 100 million domestic workers worldwide, the vast majority of whom are women and girls. Domestic workers face a wide range of serious abuses and labor exploitation, including excessive working hours without rest, non-payment of wages, forced confinement, physical and sexual abuse, forced labor, and trafficking. Under the treaty, domestic workers are entitled to protections available to other workers, including weekly days off, limits to hours of work, and minimum wage and social security coverage. The convention also obliges governments to protect domestic workers from violence and abuse, and to prevent child labor in domestic work.

The Philippines has approximately two million domestic workers at home and millions more abroad. Remittances from Filipino migrant domestic workers, mostly women, constitute a significant source of the country’s foreign exchange. Filipinos working abroad send home over US$20 billion per year.

Migrant domestic workers are often at heightened risk of exploitation due to excessive recruitment fees, language barriers, and national policies that link workers’ immigration status to individual employers. Human Rights Watch has documented abuses against Filipino migrant domestic workers in Jordan, Lebanon, Kuwait, Saudi Arabia and Singapore, including beatings, confiscation of passports, confinement to the home, overlong working hours with no days off, and in some cases, months or years of unpaid wages.

The Domestic Workers Convention includes specific provisions to protect migrant domestic workers, including detailed requirements to regulate private employment agencies, investigate complaints, and prohibit the practice of deducting from domestic workers’ salaries to pay recruitment fees. The convention also requires that migrant domestic workers receive a written contract that is enforceable in the country of employment and requires governments to strengthen international cooperation to protect domestic workers. 

“The Philippines’ leadership in ratifying the convention sets an important example for other countries,” Varia said. “President Aquino and the Philippine Senate should be commended for the ratification. However, the government should move quickly to adopt national legislation to protect domestic workers at home.”

A draft bill, the  Philippines’ Domestic Workers Act (“Kasambahay” bill), would raise the minimum wage for Filipino domestic workers, require a written contract, extend social security, and improve protection from violence and abuse. The draft legislation, originally filed in the mid-1990s, has been designated as “urgent” by President Aquino and was adopted by the Senate in 2010. The House of Representatives is expected to vote on the measure in the coming days. 

The Philippines chaired two years of negotiations on the Domestic Workers Convention. Hans Cacdac, director of the Philippine Overseas Employment Administration, chaired the final negotiations leading up to the convention’s adoption by an overwhelming majority of members of the International Labor Organization at the International Labor Conference on June 16, 2011. The Domestic Workers Convention required two ratifications to enter into legal force.

Human Rights Watch has investigated conditions for domestic workers in over 20 countries around the world, documenting routine exclusions from national labor law, exploitation, and labor and criminal abuses. Domestic workers who are children – nearly 30 percent of the total – and migrants are often the most vulnerable to abuse and exploitation.

x x x.'

The Lifeblood of Your Practice: Getting Your Attorney Fees « CEB Blog – Your Partner In Practice

The Lifeblood of Your Practice: Getting Your Attorney Fees « CEB Blog – Your Partner In Practice

In whatever nation a lawyer finds himself, how to collect his lawyer's fees is the basic problem of law practice to insure the survival of a law firm.


'x x x.

As crass as it may sound, the key to a successful law practice is getting paid. Generally, each party pays its own attorney fees, regardless of who wins. But there are some important exceptions to this rule and all attorneys anxious to get paid should be well-versed in them.

California follows the “American Rule,” as codified in CCP §1021, under which each party generally agrees on and pays its own attorney fees. In case you were wondering, this rule is called the “American Rule” to distinguish it from the approach taken in England, in which attorney fees are normally awarded to the prevailing party (the “English Rule”).

x x x."

Click the link above. Read he article in full.

The dying breed of independent contractors

Labor: The dying breed of independent contractors

This has some similarity with PHL law on independent service contractors under the PHL Labor Code.


"x x x.

Governments at all levels continue to struggle to pay their bills and deliver the services their constituents desire and deserve. From the federal government to states and municipalities, the last several years have been fiscally challenging. To address revenue shortfalls, some states have looked to curtail the notion that a worker who is not paid a salary is an independent contractor immune from various requirements attendant to employees. Many employers, on the other hand, cling to the notion that not paying a salary absolves them from requirements of minimum wage or overtime laws.

Massachusetts is no state in which to bet on independent contractor status

The Commonwealth of Massachusetts took strong legislative action not long ago when it enacted a three-pronged statute placing the burden on employers to demonstrate that a worker is an independent contractor. The employer must satisfy each of the legislation’s three elements to effectively label a man or woman in its employ as an independent contractor:

1. The employee must be free from the employer's control
2. The services that are provided must be rendered outside the employer's usual place of business
3. The worker must be engaged in an independent trade, occupation or business of the same nature as the employer

Several recent cases illustrate the problematic nature of this statute for employers seeking to classify workers as independent. Oliviera v. Advanced Delivery Systems, Inc. involved workers at a home services delivery management company who were required to wear uniforms, use cell phones, adhere to daily manifests and consent to monitoring by an agent of the employer. In finding the workers to be employees, the court's opinion emphasized the employer’s control.

In Fucci v. Eastern Connection Operating, Inc., the employer required delivery service workers to sign a contract indicating that they had control of their work life. Nonetheless, the court found the workers to be employees because, while the parties' agreement indicated that the plaintiffs controlled their work environment, it also related that they had to comply with the company's logistical and pick-up regimen.

Massachusetts courts have not limited their opinions to everyday business operations. Even strip club operators have attempted unsuccessfully to suggest that exotic dancers are independent contractors. In two similar cases (Sandoval v. M. J. F. Bowery Corp. and Jenks v. B & B Corp. d/b/a The Golden Banana), the Superior Court found that nude dancers were employees because they did not provide their services outside the employer's usual place of business and they were not engaged in an independent trade of the same nature. 

Illinois and Oregon take an equally dim view of independent contractor designation

Massachusetts is not alone in its stringent view of independent contractor status. Oregon has adopted a four-part test, each prong of which must be satisfied for an employer to prove a worker is independent. Among the four elements are a lack of control by the employer and the employee being engaged in an independent business or trade. Oregon courts have strictly construed this provision. Last November, in McKenzie Fence Co. v. Department of Revenue, a court determined that an individual construction worker who performed services more or less when and how he wished was nonetheless an employee because he was not engaged in an independent business.

Illinois has a statute similar to one enacted in Massachusetts. Its independent contractor test, too, is conjunctive, placing the burden on the employer to show that the employee is free from its control and that his or her services are part of an independent trade or business. Thus, in Emergency Treatment, S. C. v. The Department of Employment Security, the court found that doctors working at a medical center staffed by a service with which the center had a contract were, in fact, employees.

In-house counsel need to be wary of local independent contractors provisions

The moral of the story is that in-house counsel need to know the requirements of the states in which they engage those who work for the businesses they advise. States are scrutinizing the status of independent contractors with a far more critical eye than they have historically and the courts are supporting them. While it may appear at first that a worker is independent, it may well be that he or she is not independent enough for an employer to avoid the often burdensome legal requirements attendant to employees.

About the Author

Richard Glovsky

Richard D. Glovsky is a partner and nationally recognized trial lawyer and employment law attorney with Edwards Wildman Palmer LLP. He can be reached at rglovsky@edwardswildman.com.

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Chief Justice of the Philippines? No such thing | Inquirer Opinion

Chief Justice of the Philippines? No such thing | Inquirer Opinion

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It is precisely this sense of history that should put paid to any and all arguments against politicians joining the Supreme Court. Some of the best justices to have served on our high court were either political giants (e.g., Jose Laurel, Claro Recto) or reputable politicians (e.g., Marcelo Fernan, Hilario Davide). Political experience, by itself, is not a disqualification. In fact, it can be a decided advantage, since most constitutional issues that reach the Supreme Court will have a political cast.

If we take a peek, again, at American judicial history, we find that some of the US Supreme Court chief justices generally reckoned to be among the greatest were politicians too (John Marshall, who served as John Adams’ secretary of state; Charles Evans Hughes, who ran as Republican Party presidential candidate against Woodrow Wilson; Earl Warren, who maneuvered his way into the Court from the governorship of California).

That same sense of history, however, should also remind us that the Supreme Court has been well-served by non-politicians as well as outright outsiders. Indeed, if a formula were to be pulled together from the experience of successful Courts, the equation it seems must include at least two factors: the composition of the Court as a good mix, a balance between politicians and academics, between career judges and prominent practitioners; and the leader of the Court as a lawyer who is both genuinely consultative and strongly strategic. In other words, a court general—to borrow from our rich basketball lore.

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Law school graduates from Oregon and the nation lost in debt, looking for work | OregonLive.com

Law school graduates from Oregon and the nation lost in debt, looking for work | OregonLive.com

The PHL has not yet faced this dilemma but I've the feeling a few years from now this problem will soon bother our country.  We, too, face high costs of law education and over supply of lawyers. But the irony is that in many poor rural towns, you can't find even one private trial lawyer. Lawyers focus on cities.


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Law firms are downsizing, a handful are going bankrupt. Nearly 9 percent of law firm associates lost their job in 2009. Clients are demanding a new cost-sensitivity, an environment that leaves precious little room for new law school grads. 

The struggling young lawyers personify one of the great public policy dilemmas of our time. A highly educated citizenry has never been more vital to America's global competitiveness. But is higher education worth the ever-increasing cost? Is the trillion-dollar torrent of student loans bankrolling the system sustainable? Is a system that leaves some of the best and brightest of the young generation mired in debt doing anyone any favors? 

The issue raises hard questions for the very big business of higher education. What is the morality of law schools collecting $4 billion-plus in annual tuition and fees to produce another 43,000 lawyers when supply far exceeds demand? 


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