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WORK TASKS OF LAWYERS

Law practice may be classified into the following tasks undertaken

by a lawyer in the pursuit of his profession, to wit:

A. Advice

B. Negotiation and conciliation

C. Drafting

D. Litigation

E. Financing

F. Property Management

G. Acting as Executor or Trustee

H. Specialization

A. Advice

Giving of advice is the task lawyers most commonly perform, and

whatever else they do for clients is almost invariably accompanied by

advice. Lawyer’s advice consists of recommendations as to what course

of action should be followed, and the reasons and data supporting these

recommendations. It usually based in the large part on the lawyer’s

conception and learning relevant substantive law and doctrine applicable

on the particular facts and subject involved. The advice may also center

on the information and probable results based on the following additional

consideration such as:

1) anticipated reactions of courts other administrative agencies

official or quasi-judicial bodies;

2) Probative value of evidence;

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3) Desires and resources of clients and other parties; and

4) Alternative courses of action.

(1) Alternative Courses of Action –

In giving advice, the lawyer should program any or all of the

following alternatives:

1. Indicate his preference as to which course of action should

be followed by the client;

2. Proceed to argue persuasively as to why the client should

adopt this course of action; or

3. He may try to avoid showing any preference at all on which

course should be taken, merely posing available alternatives in as neutral

terms as possible.

(2) Sidelights of Advisory Job –

The lawyer who does his advisory job well makes the law and legal

processes meaningful to clients. In terms understandable to laymen, he

should endeavor to explain the applicability and probable impact of the

substantive law and legal doctrine involved.

(3) Non-Legal Advice –

Not infrequently lawyers are asked to give advice having little or

nothing to do with legal doctrine or law-making or adjudicating bodies.

Lawyers who are holding positions in government and business often

becomes trusted counselors on a wide range of family, business,

administrative and political problems. Widow spouses with marital

troubles, and small businessman in financial difficulties are among those

likely to seek non-legal advice from their lawyers. As long as the

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performance of these acts do not prejudice the interest of the public or are

done outside of office hours, there is nothing wrong in the act of

government lawyers who earn extra income outside of their official

functions. This is quite true with fulltime judges and government

prosecutors who teach in law schools outside of office hours.

B. Negotiation and Conciliation

(1) Essential factors in negotiation

One of those most common lawyer tasks is negotiation, the dealing with

another in an effort to reach an accord between the client and this other

person.

The essential elements in negotiation are:

a) Proposals to the other side

b) Counter-proposals

c) Reconsiderations

d) Compromise

e) Advice to clients

f) Client instructions to counsel

(2) Parties to negotiation

There usually are only two sides involved in a negotiation, and

usually all exchanges between two sides handled by but two persons, one

on each side, with one or both of these persons frequently being lawyers.

But negotiations may involve more than two sides or parties, and

negotiation efforts for any side may be made by a team of persons. The

client and his lawyer are a common team.

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In real estate transactions, brokers often engage in negotiations

representing one side, as may tax advisers, architects, contractors, or

other professional and business personnel. Lawyers for large chain store

operations sometimes negotiate mortgages for owners of real properties

who have agreed to remodel and lease to the chain if it can secure a

mortgage financing for the owners.

(3) Mechanics of negotiation

Negotiation usually occurs in a face to face conferences, but some

or all exchanges may be accomplished by telephone or correspondence,

In some cases a key figure in the negotiation, perhaps a lawyer, may go to

each party individually and secure commitments, thereby piecing together

an agreement without the other participants meeting face to face. Lawyers

may enter negotiations at any stage. Some clients want their lawyers to

participate at the inception of dealings, others wait until after the essential

terms of a bargain have been agreed upon.

One important thing to remember when negotiating for a client is

that the lawyer must be equipped with a special power of attorney before

sitting at the negotiating table. This is so because the essence of lawyer

and client relationship is likened to that of agent and principal in a contract

of agency forging out a compromise agreement. As aptly ruled, a

compromise agreement without a special authority from the client renders

the judgment based on a compromise agreement null and void.

C. Drafting

Drafting by lawyers is the writing and revision of written

instruments, and as the term is used in the profession, includes not only

the complete preparation of an instrument by one person, but its review

and modification to others. A participating lawyer may be called upon to

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draft many kinds of instrument, including originally phrased documents

tailored to a single transaction and standard forms adaptable to many

transactions.

Typical of such legal instruments creating legal rights and non-

legal documents are as follows:

1. Usual contracts and deeds;


2. Sales;


3. Leases;


4. Mortgages;


5. Wills;


6. Partnership agreement;


7. Articles of incorporation;


8. Pleadings, compromise agreement;


9. Decisions, and resolutions;


10 Press releases;


11. Letters;


12. Staff memoranda; and


13. Advertisements.

One does not need to be a gifted writer to be able to draft a nearly

perfect document. Even in the drafting of a will which involves highly

technical and precise legal terms to convey the real wishes of the testator

should not be accomplished with much difficulty as long as it contains the

essential requisites and formalities provided by law. The simpler the

language is used, the better and with much facility can the will be

probated, than with the use of high sounding and obscure language

which often confuse the courts and the implementers of the will, other

than a holographic will.

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The better practice is to keeps sets of legal and non-legal forms in

your private files consisting of carbon or xerox copies of samples of

instruments developed by the lawyer or his firm in past transactions. For

added convenience so as to avoid delay especially when the lawyer is

running against time is to compile these sample copies into loose-leaf

volumes duly marked in chronological order, so that when the need

arises, you do not have to grope or cram for them especially when you

are preparing for trial.

D. Litigation

The term litigation is frequently used to refer only to proceedings

before courts, but in this discussion it is intended to connote a broader

meaning. Here it means proceeding before any tribunal, whether judicial

or quasi-judicial or administrative body vested with jurisdiction to decide

issues involving parties who are entitled to appear before the decision

maker and prosecute their cause. In addition to matters head by courts,

this includes many of the proceedings before government administrative

agencies and even those before such private adjudicative bodies as

arbitration boards and member disciplinary committees of trade and

professional associations. Under such extended definition, examples can

be found that shade off into negotiation and legislation.

(1) Essential difference between negotiation and litigation

a) In litigation a third party decides involving others;

b) In negotiation parties with conflicting interests seek to resolve

or accommodate to them by mutual agreement among themselves.

The lawyer’s tasks in litigation vary greatly depending on whether

the proceedings are contested or uncontested. A case is uncontested as

long as each side seriously threatens to oppose the other before the
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decision making tribunal. It ordinarily is uncontested if the defendants

default of fail to appear. A large number of Philippine litigation is

uncontested, as the defendants make no move to press their position

either through negotiation or before the tribunal. This is true for instance

in many legal separation or annulment of marriage cases. Frequently,

both parties desire that the court terminate the marriage, thus the

defendant does not oppose the proceedings paving a speedy vehicle to

contract a second marriage.

(2) How to proceed effectively in uncontested annulment

suits.

If a lawyer wants to end the litigation very quickly in an annulment

of marriage suit, all that the parties have got to do is to arrange thru their

counsels for an uncontested litigation. This is achieved by an out of court

understanding that the defendant should not answer the complaint, from

which the court may proceed to calendar the case for hearing during

which the defendant does not appear. Upon proof of service of notice to

the defendant, complainant can then move for reception of his or her

evidence ex-parte which will serve as basis for the court’s decision

granting annulment. Of course this practice may appear unethical,

bordering on conclusion which the law abhors. There is for example a

certain safeguard which should be observe before is a decree of

annulment can be used by the court under Article 48 of the Civil Code

which provides that “in all cases of annulment or declaration of absolute

nullity of marriage, the court shall order the prosecuting attorney or fiscal

assigned to it to appear on behalf of the state to take steps to prevent

collusion between the parties and to take care that evidence is not

fabricated or suppressed.”

(3) Recommended short-cuts in non-contested suits

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With respect to criminal cases, they are often disposed of by

guilty pleas, without even any serious contest at the plea negotiation

stage. Suits to quite title, common real estate title clearing procedures in

many Regional Trial Courts in the provinces are seldom contested. This

practice of uncontested litigation is highly recommended and encouraged

where the parties have failed to agree on the negotiating table. Not only

will they be relieved of the anxiety and emotional stress attendant to a

prolonged litigation, but also their litigation expenses will thus be

drastically minimized if not altogether avoided.

E. Financing

A lawyer’s task of over-all minor significance, although probably

more important in real property transactions, than any other phase of

lawyer’s work, is participation as a principal in business deals with client.

The lawyer receives a share in the venture in return for cash or legal

services. The more risky the venture and less financially sound the client,

the more chances that the client will want lawyer to come in. This practice

present an excellent opportunity for making money, although an argument

may be raised against a lawyer going in client deals that if litigation is

likely and he is expected to conduct such litigation, his financial

involvement may contravene the provisions of Article 1491 of the Civil

Code.

The venture may be fraught with dangers to the lawyer’s

profession, but as long as early safeguards against getting entangled with

ethical standards are met, the attendant risks may well be averted. Most

common of these business arrangements between lawyer and client reap

lucrative benefits in favor of the lawyer in terms of attorney’s fees usually

on a contingent basis in sums fatter than what he could realize from court

litigations .Sometimes, when the client cannot put you up an advance

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payment of the lawyer’s remuneration, he will be compelled to agree on

exorbitant amounts or shares out of the deals which are unproportionate

to the actual services reassignment of the client’s property to take effect

during the pendency of the litigation, there can be no violation of the

lawyer’s oath nor anything unethical with the gargantuan fees, provided

they are not champertous.

F. Property management

Another segment of lawyer’s task especially patterned for small

law firms and sole practitioners is doing property management for clients.

These tasks include the following:

1. Leasing


2. Eviction


3. Contract for repairs


4. Rent collection


5. Arranging for maintenance services and insurance


6. Payment of taxes and other expenses


7. Acting as executors and trustees

G. Acting as Executor or Trustee

The traditional practice is that whenever a client hires a lawyer to

draft his will, it is very likely that the same lawyer will be appointed as

executor of the said will. Drafting of will requires such thorough

investigation and gathering of facts, records, date and documentary

evidence, and familiarity with the nature, kind and extent of the estate of

the testator, so much so that it would be difficult for one who did not

participate in the drafting of such will to act as executor thereof.

Having acquired sufficient knowledge and identification of the

testator’s properties, the executor who drafts the will is the logical person
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to act as trustee in the management of the real and personal properties of

the decedent in his fiduciary capacity. Except with respect to large estates

management of which is better left to the care of banks that specialize in

trusteeship tasks,

A lawyer who drafts and acts as executor of a will should possess

vast knowledge on the law on wills and succession. He must be

conversant about how much portion of the testator’s estate he is permitted

to dispose of by will without encroaching on the legitime of the compulsory

heirs. He should be precise about the specific area and king of the devises

and legatees in order to prevent intestacy.

H. Specialization

The term specialist is usually used to refer to what a worker does,

to wit:

1. The task he performs;


2. The goods or services he produces;


3. The persons he works for or with;


4. The place where he works; and

More specifically when applying to practicing lawyers in the

Philippines, a specialist refers to someone who specializes or is highly

competent at performing a specified kind of work or practice. Thus, there

are lawyers who specialize in trial work, a corporation lawyer who

specializes in dealing with legal problems involving corporations, an

insurance lawyer who specializes in insurance cases or legal problems

involving insurance.

There are trial lawyers who specialize in a particular field of law

and they are often referred to as criminal lawyer, a civilest, a practicing

lawyer who specializes in naturalization proceedings, immigration law,

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patent law, titling of properties, labor cases, special proceedings like

adoption, guardianship, hospitalization of the mentally retarded, agrarian

law, transportation law, tax cases and SEC registration.

On the other hand, a general practitioner refers to a lawyer who

engages in general practice of law, incompatible of specialization, even

though there are a few kinds of clients and causes unacceptable to him.

More specifically, a general practitioner is one who is willing to represent

almost any kind of matter if the client will pay the practitioners going rate.

All lawyers are blocked out by conflict of interest from taking some

matters. Clients demanding unethical conduct by counsel to pursue an

illegal or immoral course of action should be rejected.

By the test of acceptability, a general practitioner may also be a

specialist providing that he remains willing to take a sufficiently broad of

range of matters and clients in addition to those in his specialty. The

variety of legal problems is so great that not infrequently no lawyer even if

it is in a big reputable firm, will have any prior familiarity with the complex

legal problems brought in by various clients.

Source: Legal Counseling

By: Recaredo P. Barte

2006 Edition