CHAPTER IV CLINICAL LAWYERING AND COUNSELING A. Interview of Client (1) Establish essential elements of attorney- client relationship The initial step a lawyer should start to perform an act constituting as practice of law, is the establishment of client-lawyer relationship. Until this relationship is clearly defined and created, rights and obligations that arise between them cannot be invoked or enforced like the right to payment of attorney’s fees and the right to the mantle of privileged communication. The best proof of the existence of client-lawyer rela- tionship is, a written contract of lease of services or retainer ship contract. Be as it may, a contract of employment which creates a lawyer-client relationship may be in any form: whether express or implied, and whether verbal or write" Once the lawyer has performed an act that constitutes practice of law, no oj i - ther proof is required to show it Sustence except the primary evidence of the act itself. BU" 90CLINICAL LAWYERING AND COUNSELING a1 in order to forestall any future misinterpretation of the authority that the lawyer should exercise especially in the financial aspect, the lawyer’s remuneration and the extent of contingent fee he is entitled to, a written contract of employment containing specific terms and conditions is still considered a must. For when things go wrong or sour, there can be no more humiliating and embarrassing scene inside the courtroom, than that of a lawyer quarreling with his client for the collection of attorney’s fees, especially when the client is a balasubas, in common parlance, or one who has no word of honor. In the course of interview, the client should be made aware of his responsibilities towards the lawyer, inter alia: a. Lawyer is entitled to attorney's fees It should be impressed upon the client that the law- yers fee is an essential ingredient and guarantee of a satisfactory service, it being the lawyer’s lifeblood. Al- though lawyering is not a mercenary occupation, however, whether as a sheer incentive or to be regarded as a just wage, it stands to reason that one who has rendered an honest and appropriate service should be duly compen- sated. In Albano vs. Coloma, Adm. Case No. 528, Oct. 11, 1967, it is worth re-emphasizing here the Supreme Court’s warning that, “Counsel any counsel, who is worthy of his hire, is entitled to be fully recompensed for his services, with his capital consisting solely of his brains and with his skill, acquired at tremendous cost not only in money but in the expenditure of time and energy, he is entitled to the protection of any judicial tribunal against any attempt on the part of a client to escape payment of his fees. It is indeed92 LecaL Counsetinc FoR PRactiCciING LAWYERS ironic if after putting forth the best that is in him, to se, Just ice for the party he represents, he himself would not et his due. Such an eventuality this Court is determined ;, avoid. It views with disapproval any and every effort of those benefited by counsel’s services to deprive him of his hard. earned honorarium. Such an attitude deserves condemng. tion.” ‘Cure “An express valid contract stipulating for the compen. sation which the attorney is to receive for his services js generally held conclusive as to the amount of compensa- tion.” (Rodfish vs. Fox, 39 Am. Dec. 611; Martin, Legal and Judicial Ethics, p. 170) “Tf a lawyer renders valuable services to one who receives the benefits thereat; a promise to pay reasonable value is presumed unless such services were intended to be gratuitous. (Young vs. Bruere, supra) The mere absence of an express promise will not prejudice the lawyer’s right to recover reasonable fees; formal contracts of employment are not necessary. However, the party sought to be charged must be free to take as well as reject the benefits of such services. He must have acquiesced willingly. If the circumstances give him no choice but to accept the benefits of the lawyer’s services, 10 implied contract to pay reasonable fees arises. (5 Am. Jur: 352; 7 C.J.S 1041; Martin, Legal and Judicial Ethics, p- 178) As to the mode of payment for attorney’s fee, the a ceptance fee which usually is the initial payment upon acceptance of the employment may be made in lump sum cash, or in staggered basis, say 50% down, and the balance payable within a specific period. The appearance fee of the lawyer may depend upon the mutual understanding >* tween the lawyer and client. The appearance fee thal ac 0 practicing lawyers usually charge the client is 1,000CunicaL LawyerRING AND COUNSELING 93 per hearing for appearance before inferior courts, and 2,000.00 per appearance before Regional Trial Courts. In Metro Manila where lawyers spend higher representation expenses, the appearance fee per hearing may range from P2,000.00 to P5,000.00. (2) Client cannot dismiss the lawyer at will The client should be cautioned that while it is his pre- rogative to terminate the lawyer’s services, this right is not absolute without the approval of the court which must first be obtained in a proper proceeding for that purpose. This is especially true when changing a lawyer occurs in mid- stream or while the trial is in progress, without prior notice to the court as to interrupt the hearing abruptly to the prejudice of the proper administration of justice. Before the client can dismiss the services of the lawyer, he must file a motion to that effect informing the court that he is substi- tuting another lawyer for the present one, giving his reasons therefore, to allow the court reasonable time to reset the hearing, and prevent the witnesses who were subpoenaed from incurring unnecessary expenses in coming to court only to be told that the hearing has been cancelled. On the other hand, the lawyer may withdraw his ser- vices under any of the following circumstances: 1. when the client pursues an illegal or immoral course of action in connection with the matter he is handling; 2. when the client insists that the lawyer pursue a conduct violative of these canons or rules;94 Lecat CouNsELING FOR PRacTICING LAWYERS 3. when his inability to work with ¢o-counse| not promote the best interest of the client; 4. when the mental or physical condition of the Jay. yer renders it difficult for him to carry oy the employment effectively; 5. when the client deliberately fails to pay the fee for the services or fails to comply with the ye. tainer agreement. Will 6. Other similar causes. (3) Lawyer’s authority to control trial The lawyer’s authority to control trial should be rec. ognized by the client as limited only to matters of proce- dure. The client therefore has the right to question the lawyer’s authority to choose the proceedings or the legal remedy he will adopt involving his case, and the witnesses he is going to present in support of his cause. Conversely, the client should be honestly apprised, that the lawyers authority does not include the act of releasing a secu- rity or extend the time of payment, release 4 guarantor, accept a certified check as payment of client's claim, compromise his client’s rights or confess judgment nor enter into stipulation of facts, or to agree on a judg: ment based upon the pleadings, without a special authority (special power of attorney) therefor(e) from the client. (4) _ Interviewing techniques (determine facts) The technique in interviewing a client should be all- embracing and exhaustive as possible. A lot of psychol0#! should be applied when sitting face to face with the client always studying his mannerisms, his propensity to prevatCunical LawyerInc AND CounseLInG 95 cate and twist facts, and to exaggerate to the extent of even telling the lawyer to adopt his own strategy and defense. But before allowing him to start with his narra- tion, put him at ease and in a relaxed mood as possible by telling him that you are his faithful friend who will stand by him under all circumstances that led to the violation. Anyway, let him relate spontaneously all that he knows about the case by avoiding a slight interruption as possible. After he had finished his story, ask him if he has not forgotten anything, then let him add some more bit parts to his original version. Let him understand that all that he is supposed to do is to tell the naked truth, and leave the job to you as to what theory or defense to adopt. But do not allow him to dictate on what procedure or theory to follow or course of action to take, because this is a matter of procedure that falls within the ambit of the lawyer’s authority. (5) Be frank and firm to the client Always expect that there are clients who would delib- erately hide the truth from their lawyers and purposely suggest to pursue a different or illegal course of action in violation of professional ethics. So that you must always be on guard for this client’s attitude. In brief, bluntness is the name of the game. Remember that you are the lawyer, and he is only a client who begs for your help, hence, you are supposed to be in control of the situation, and be firm to put a stop to his aggressiveness and naughtiness. You should be blunt with this kind of client by telling him that you do not need his money if he cannot trust you, hence, he had better look for another lawyer.us Lecat CounseLine FoR Practicine Lawyers Above all else, give your client stern warnings: that you will not accept a half-truth or lie, or anything less than the truth: that it is not for him to teach you what to gy with his case in matters of procedure because such is your job. A new practicing lawyer cannot have any assurance that what his client is telling him is the truth. Perhaps, with a very few exceptions, but generally he may not be able to read the mind or even the heart of his client. But as you gain experience through the years, a lawyer who is really experienced and who dedicates himself to the practice of his profession should be able to know from experience, from the background, and from every aspect of practice, when and when not to believe his client. Anyway, no lawyer should hesitate to tell his client what his impression is about him after hearing the prelimi- nary details of his story. And this is what the lawyer should tell the client: “My friend please, I am experienced enough to know that you are not telling me ex- actly the whole thing. Why don’t we be more frank to each other? In that way, I can better handle your case.” From that point, the ordinary lawyer follows up his appeal for frankness and openness on the part of the client with another remark: “Better tell me the truth and there is anything that should be hidden, I will tell you how to do it. This may sound a little bit unorthodo* but as the late Supreme Court Justice Antonio Barre?? says: “I insist that cases must go on and off according @ what is basically right. No other test is supposed to depart from this guideline in interviewing clients, since it is ° first function even in the preparation of pleadings t° ieCuinicaL LAaWYERING aND COUNSELING 97 out what the truth is before putting it down in writing in addition to simplicity.” (6) Avoid frequent interruptions Once the client or witness has started talking, avoid interruption, unless absolutely necessary to complete a point. Not only will his trend of thought be distracted that might lead him to forget certain essential points in his story. But frequent interruptions while the witness is telling his version of the incident might cause the client or witness to be rattled and confused, such that his narrative will appear incoherent and disjointed, Worse, you will waste considerable time in making him repeat his story should he lose track of the details. If you have any questions to ask for the sake of clarification, ask them after he had finished his narration, and continue to ask him whether there are incidents which he missed to relate to you and if there are any then allow him to complete his story. (7) Conduct your interview in the language that the witness speaks It is inconceivable how a lawyer will be able to elicit the cold and naked facts from a witness who cannot under- stand the language of his own tongue. Except in large law firms which employ interpreters, a Filipino lawyer who is engaged in a solo practice, must aside from being articu- late in the English language, learn how to communicate with practically all kinds of dialect that are essentially spoken in the Philippines like Tagalog, Cebuano, Honggo. Iocano, Kapampangan, and Bicolano, and perhaps Chava- cano which is the dialect being spoken in Zamboanga. It is not necessary that he should be a linguist, but it is suffi-9B Lecat COUNSELING FOR PracticING LAWYERS cient that he can drive home his point or be able to explain in the manner understandable to the witness he is inte; viewing. At the end of the interview, make a draft of the wit. ness’s story, as much as possible in typewritten or comput. erized form if you have a computer machine, and allow him to read his version as appears on the paper, likewise in the dialect known to the witness. Thereafter, ask him whether he has related everything as written comprising his problem, and if there are missing points, make some insertions, revisions and amendments in your draft before reducing the same into its final form. This is especially true with respect to affidavits that support a complaint or petitions to be filed in court or the public Prosecutor's office. (8) Interview all available witnesses Since the narration of witnesses shall constitute your evidence in court, not only should the interview be con- fined to the client, but to all available witnesses who will corroborate the client’s version. When all the witnesses have told their stories, classify each according to the importance and probative value of his testimony, by de termining as to who should be put first on the witness stand, who should be considered the star witness, who should be an expert witness and alternate witness in case one or some of them become unable to answer the sub- poena. If as a result of your evaluation, the nature of the te* timony of a witness is merely corroborative, his testimony may be dispensed with. So also if the gist of the witness testimony had already been testified to extensively 2”CunicaL LaWvERING ano CouNSELING 99 impressively by the client himself or by another witness, you may decide to do away with his presentation Since proof beyond reasonable doubt in a criminal case ae pre- ponderance of evidence in a civil case, is not determined by the number of witnesses you present, but by the credibility of a witness’s testimony — which every practicing lawyer should be conversant about. . However, an expert witness should not be dispensed with when his testimony is vital to prove the result of a forensic examination of a handwriting, bullets or slugs recovered from the scene of the incident, determination of the firearm used in the commission of the offense, traces of spermatozoa taken from the body of the rape victim, paraphernalia seized from a drug suspect, determination of whether the suspect is positive for alcohol or prohibited drug, traces of parts of the human body like strands of hair recovered from the scene of the crime, skin cut, finger- prints and footprints that have been photographed or reproduced from the scene of the incident to be utilized for comparison with the suspect’s own physical foot and finger lines, result of autopsy or medical examination to deter- mine the healing period and gravity of the wounds inflicted on the victim’s body, the trajectory of the bullet wound — all of which are crucial to determine whether the proper charge would be consummated, frustrated or attempted homicide or murder, or serious or less serious or slight physical injuries. (9) Trial brief preparation ffective and systematic presentation of est practice is to prepare a trial al. A lot of lawyers do not pay ther because they are too busy For a more ¢ evidence in court, the b brief before going to trial. attention to this practice, eli100 LEGAL COUNSELING FOR PracticING LAWYERS to attend to such meticulous job, or they are just lazy, p a good trial lawyer is usually equipped with a triaj brieg before appearing in court. But whether you agree = disagree with this statement, there can be no substitute for a thorough preparation before entering trial. Even the mog brilliant lawyers prepare a trial brief before Starting the Presentation of evidence to avoid cramming, or disorgan. ized presentation of evidence, overlapping presentation of evidence, or simple mistake or failure to present a vita] evidence for lack of a guide or written reminder in front of him. An eminent jurist once said that, a mediocre lawyer with a thorough preparation and trial brief during trial, may win a case over his brilliant adversary who lacks preparation. Of course, there are government prosecutors whose case load makes it impossible for them to prepare a trial brief for each of the cases they are prosecuting. This author is talking thru experience as a former Assistant Provincial Fiscal of Antique, who used to commute from one RTC Branch to another, by asking the trial Judge in one Branch to defer the hearing until two (2) hours there- after, because he is in the thick of evidence presentation before another sala, where the case he is prosecuting. cannot anymore be moved or reset, because the hearing i8 scheduled for the last and final resetting. And considering that the criminal cases that he used to prosecute for each sala are numbered no less than five (5) cases for each Branch daily, he did not have time even to interview wie witnesses, much less did he have time to prepare 2 brief before appearing in court. Usually, he had no more time to even read the affidavits of the witnesses before appearing in court, where he used to start propound A Se 7 direct examination of the witness by glancing at theCunical LAWYERING ANO COUNSELING 101 ness’s affidavit for the first time. But this routine practice does not assure of any productive results and may end in the dismissal of the case thru demurrer to evidence. Anyway, the trial brief should contain a list of wit- nesses and the order of their presentation as to which witness is going to testify on this or that document or exhibit. In criminal cases, it is a better practice to present first the star witness, who is an eye-witness to the commis- sion of the crime. There is danger in the presentation of the star witness as the last witness, because in the event said witness dies during the pendency of the case in court, or would be kidnapped or bribed by the defendant, you will have lost the testimony of a witnesses considered so vital and irreplaceable. (10) Determine client’s needs and priorities Interviewing techniques must cover questions involv- ing the client’s priorities and needs that produce quick results, as well as for his/her future protection and bene- fits. Marriage problems are the most common priorities of not only a female, but also of male client as well. The lawyer therefore must possess a vast knowledge of our procedural laws and be able to define to his client the remedy on the first interview, and be able to define to his client the appropriate remedy to his/her problem. For example a client comes to you complaining that she cannot anymore withstand her husband’s jealousy, his excessive dependence on his parents in making family decisions especially in the performance of his marital obligations, his continued neglect and refusal to extend support to her and their only child who lives with the mother-in-law, his habitual drunkenness and alcoholism102 Lecat CounsELinc FOR PRACTICING LAWYERS that drives him to violence and beating her whenever he comes home at night — all of which appear to be valiq grounds for initiating a complaint for marriage annulment on the ground of psychological incapacity. Under the surrounding circumstances, the client’s firs, Priority seems to be that of gaining custody of their minor child who lives with the husband’s parents. Otherwise, the child-minor would be deprived of the most essential need for parental care and guidance so indispensable for his health and growth, both physically and mentally during his formative years. But since the child is more than seven (7) years of age, hence, under the Family Code, the welfare of the child should be the paramount consideration in an action for custody of the minor. For minors of this age, a Petition for habeas corpus appears to be the quickest relief to regain custody of the child. However, should habeas corpus proceeding be unable to elicit favorable judgment from the court, then an action for the custody of the minor could be the second best alternative with prayer for sup- port pendente lite and damages. However, if the client-wife prefers an early dissolution of her marriage so that she can contract a second marriage then the proper remedy would be to file an action for annulment of marriage on the ground of psychological incapacity with prayer for damages under Article 36 of the Family Code (R.A. No. 209), Much better if the husband © found to be maintaining a mistress in the light of incom testable and incontrovertible evidence, hence, the OT appropriate remedy would be to file an action to decl@™ the absolute nullity of her marriage, so that she ca? con tract a second marriage once the first marriage is dissolve®Err Cunicat LawyeRING AND COUNSELING 103 The lawyer should be well aware about the intricacies in obtaining an annulment decree from the court which takes a longer time. This is so because under Art. 48 of the Family Code of the Philippines, the court will still order the public prosecutor assigned to his sala to conduct an inves- tigation and to appear for the State to see to it that no collusion exists between the parties, and that the evidence is not fabricated or suppressed. The public prosecutor therefore is burdened with the task to summon the parties and conduct a thorough inves- tigation for this purpose, and only after being convinced that there is no collusion between the warring couple, should he make a recommendation to the court by way of comment whether to grant or deny the Petitioner’s prayer for annulment of her marriage on the ground of psycho- logical incapacity. How long a time is the public prosecutor allowed to terminate his investigation, will depend upon the discretion of the court to set a definite period for the prosecutor to finish his investigation, without prejudice to his asking for an extension on valid grounds. Potential claims and ancillary remedies: a) in the first case, aside from filing a complaint for annulment, habeas corpus Petition may be insti- tuted to regain custody of the minor; b) a separate action for custody of the minor may be availed of; c) prayer for support pendente lite may be consoli- dated in an action for custody of the minor; da) prayer for award of moral, compensatory and consequential damages may be availed of;‘loa Lecat Counseune FoR Practicine LAWYERS e) prayer for the issuance of a TRO commandin, the defendant husband from visiting the minor once custody is awarded by the court to the Wife. There are two conflicting doctrines which have be. come landmark jurisprudence for annulment of marriage on the ground of psychological incapacity. In Chi Ming Tsoi vs. Court of Appeals, et al, G.R. No. 119190, January 19, 1997, which was then the talk of the town and among legal circles, where the Supreme Court has spoken more in keeping with Filipino traits and moral values, and still is regarded as prevailing and sound doctrine, more than the labyrinthian doctrine penned down by former S.C. Chief Justice Artemio Pan- ganiban, in Republic vs. Court of Appeals and Roridel Olaviano Molina, G.R. No. 108763, 13 February 1997. Mr. Justice Justo P. Torres who is the ponente of the Chi Ming Tsoi doctrine, had dignified the basic purpose of marriage. The Chi Ming Tsoi ruling further elaborated that the basic purpose of marriage is procreation and multiplication of the species, over and above all considerations that are dictated by law. For a more vivid and full comprehension of psychological incapacity as a ground for marriage annulment, and in order to guide the virgin law practitio- ner into arriving at a correct evaluation and determination of whether or not the theory of psychological incapacity will prosper, the following findings of the high court 4S culled from the obiter of Chi Ming Choi, relates as follows: “after the celebration of their marriage, the spouses slept together on the sa me bed in the same room at © house of the defendant's mother in Makati; that contrary her expectations, that as newlyweds, they were supp 10 edCunicat LawyerING AND GouNseLING 105 to enjoy making love or having sexual intercourse with each other, defendant (husband) just went to bed, slept on one side thereof, then turned his back and went to sleep. There was no sexual intercourse between them during their first night. The same thing happened on the second, third and fourth nights. Instead of spending their honey- moon in a private place so that they can enjoy their first week as husband and wife, they went to Baguio together with Petitioner’s mother, nephew and uncle whom peti- tioner had invited to join them. There was no sexual intercourse during their four (4) days stay in Baguio City, since defendant avoided her by taking a long walk during siesta time or by just sleeping in a rocking chair. They slept together in the same room and bed since May 22, 1988 until March 15, 1989, but during this period there was no attempt of sexual intercourse between them and she did not even see her husband’s private parts nor did he see hers. In plain, defendant is impotent, as closet homosexual as he did not show his penis. Defendant was using eyebrow pencil and sometimes the cleansing cream of his mother. The result of the medical examination revealed that re- spondent wife is healthy, normal and still a virgin.” In his copious discourse on marital obligations be- tween husband and wife, the ponente stressed that, “husband and wife are obliged to live together, ob- serve mutual love, respect and fidelity, bound only by the sanction of spontaneous, mutual affection between husband and wife and not any legal mandate or court order.” (Cuaderno vs. Cuaderno, 120 Phil. 1298). “Love is useless unless it is shared with another. In- deed, no man is an island: the cruelest act of a partner in marriage, is to say “I could not have cared less.” This is so