46 LEGAL Counscune For Pracnicine LaWvers: Just like doctors of medicine some of whom are specialists and some are general practitioners, such that when a patient who is diagnosed for a heart ailment consults a general practitioner, the latter usually refers the patient to a specialist in heart diseases among his peers. Lower overhead — Obviously if a number of lawyers pool their common resources in a partnership, there will be a reduction in overhead costs. There will be savings from the use of a common reception area, library, storage facilities, as well as in personnel and equipment. More clients — As the number of partners increases, the number of opportunities for meeting clients through active participation in civic and club activities, likewise increases. As a matter of fact, in some partnerships one partner is the “outside or contact man” who makes a point of getting around and promoting the public relations aspect of the partnership, short of advertising the partner- ship in a salestalk fashion that is violative of the ethics of the profession, CHAPTER Ill WORKLOAD OF A LAWYER ‘A lawyer's workload cannot be excluded from the sub- ject of legal counseling, if for no other purpose than to ‘acquaint and polish the legal practitioner of the bread and butter of his profession. Any omission of this important aspect from the standard work tasks of a legal practitioner, would spell a difference in the success or failure of his law practice. Here we need to reproduce the essential features that were written in the previous edition on Legal Counsel- ing by this author, without which this work would not be complete. The standard yardstick of successful lawyering may be defined from the accomplishment of the following work tasks of the practicing lawyer, to wit: a) Advice b) Negotiation and conciliation ©) Drafting, whether of pleadings to be filed in court, or of documents and written contracts; @) Litigation e) Financing ) Property management a748 LecaL Counseunc For PRacnicine Lawyers: 8) Acting as executor or trustee of a will, or special administrator in the case of intestate succession; h) Specialization In the field of advice, every lawyer is presumed to be competent in giving spontaneous and off-hand advice to prospective clients during the first interview, at least on a foreshadowing and relative outcome of a potential litiga- tion. This is to pre-empt the falling out from conciliation and mediation process. But if there is even a glimmering hope of pursuing further negotiations and compromises, this process should first be pursued relentlessly and ex- haustively before giving up. For in the layman’s language, better a bad settlement than a good litigation, with all the attendant anxiety, mental torture, recurrent stress and sleepless nights. On matters involving an intricate question of law and the latest ruling of the Supreme Court, the lawyer should be frank to the client, that the same cannot be answered on the spot, hence, needs a reservation on your part to make prior research and verification with the recent applicable Jurisprudence and statute, from textbooks of renowned authors, the SCRA, Philippine Reports, Official Gazette and latest Supreme Court reports. Giving of advice is the task lawyers most commonly perform, and whatever else they do for clients is almost invariably accompanied by advice. This task is usually based in a large measure on the lawyer's conception and learning of relevant substantive law and doctrines applica- ble on the particular facts and subject involved. The advice may also revolve on the informations and probable out- come based on the following considerations such as: Woitiaono oF a Lawyer 49 i 1) anticipated reactions of courts and other admin- istrative agencies or official or quasi-judicial bod- ies; 2) _ probative value of evidence; 3) desires and resources of clients and other af- fected parties; and 4) alternative courses of action. The following are alternative courses of action that the lawyer may suggest to his client, he should pursue either any or all of them: 1) __ Indicate the preference as to which course of ac- tion should be pursued by the client; 2) Proceed to argue persuasively as to why the cli- ent should adopt this course of action; or 3) He may try to avoid showing any preference at all on which course of action should be taken, merely posing available alternatives in as neutral terms as possible. In pursuing the latter alternative, the lawyer merely restricts his role to illuminating choices, not recommending and any opinion he expresses are directed only at the relevancy and merits of the alternatives, not at deciding among them. But he should never seek to coerce the client, or to threaten to impose sanctions if the client does not decide a certain way. His role is to assist the client in deciding he has no power to force him to do so, although he frequently will point out the dangers of coercion from other sources."* "© Lawyers and Their Work, p. 88.50 LEGAL Counscuine For PracricINs Lawyers a) Non-legal advice Not infrequently lawyers are asked to give advice hav- ing little or nothing to do with legal doctrine or law: making or adjudicating bodies. Lawyers who are holding positions in government and business often become trusted counselors on a wide range of family, business, administra- tive and political problems. Widows, spouses with marital troubles, and small businessmen in financial difficulties are among those likely to seek non-legal advice from their lawyers. As long as the performance of these acts do not ptejudice the interest of the public or are done outside of office hours, there is nothing wrong in the acts of govern- ment 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) Role conflict in giving advice In advising clients, the lawyer can often run into tole conflict giving rise to the following questions: 1. When should the lawyer be the client's servant and when his critic? 2. To what extent should he identify with the cli- ent’s goals and follow his expressed wishes? 3. To what extent should he question them? ‘Most of the answers to these questions focus on what the client wants, He may want the lawyer to be a sounding board, a neutral evaluator of client ideas, or he may just want approval for his ideas, reassurance to bolster his morale, or perhaps respectable authority to strengthen his WoikxLono oF & LawveR 5 : hand on the bargaining table with potential adversaries. Here the lawyer may have difficult time determining what the client wants, and the real problem may not be one of role conflict but of sole definition. Whatever the real motive of the client is, before he expresses concrete over- tures on hiring your services, simply accommodate in answering his queries with honest and straightforward explanations on the probable outcome of his problem by the court’s adjudication. Even if his motive is merely to test your knowledge and competence, the moment he feels satisfied with your briefing, rest assured that he will come back to sign a contract of legal services. c) The lawyer's ultimate word ‘The best approach in dealing with this particular client is to define right upon the acceptance of the employment or before giving any advice, the extent of the client's role. He should be impressed that as a lawyer his wishes can be followed insofar as they appear to be legally feasible and do not collide with the lawyer’s oath. Frankness is the name of the game, The lawyer's role is to stand foursquare with his client’s interests, but only to such limit that will not allow him to compromise your professional and moral standards, by advising on a course of conduct bordering on ethical principles. d) Essential factors on negotiation and conciliation ‘Among others, the most common task a lawyer en- counters in his daily practice is, the dealing with another or potential adversary in an effort to reach an accord between the client and the other party. These factors may consist in, 1) proposals to the other side, 2) counter-proposals; 3)82 LEGAL Counse.ine For PracmicIns Lawes reconsiderations; 4) compromise; 5) advice to clients; and 6) client instructions to counsel. Usually, there are only two parties that are involved in a negotiation, and most often 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. In real estate transactions, brokers often engage in ne- gotiations representing one side, as may tax advisers, architects, contractors, or other professional and business personnel. Lawyers for large chain store operations some- times negotiate mortgages for owners of real properties who have agreed to remodel and lease to the client if it ean secure a mortgage financing for the owner. Oftentimes, conciliation takes center stage and requires patient prod- ding and bold initiatives by the disadvantaged and captive debtor, even while the main action has been commenced and pending in the trial court, and the availment of all ancillary remedies and appellate courses of action up to the Supreme Court appears to be working effectively in favor of the debtor. For once the creditor’s cause is threatened by reversal and its evidence tends to nose-dive before the appellate courts, the prospect of a compromise agreement becomes compelling. ) Effective negotiation techniques Negotiation usually transpires in a face to face confer- ences, by the active role of a third party negotiator (and now there are mediation offices installed by the Supreme Court in every city or province). But some or all exchanges Wigton oF & Laver 53 7 may be accomplished by telephone or correspondence. In some cases a key figure in negotiation, perhaps a lawyer, may go to each party individually and secure commit- ments, 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. But there is nothing more effective medium of negotia- tion that leads to a quick compromise agreement than, when the trial Judge himself personally intervenes with or without their lawyers, in having the parties litigants attend an impromptu conference, by inviting them inside his chambers, playing the role of a baton leader or like a conductor in an orchestra. A Judge who simply waits for the parties to break the ice, is a lazy Judge who will even tolerate frequent postponements by the lawyers and be- haves in a lackadaisical manner simply waiting for his salary check every fifteenth and end of the month. He does not give a heck whatever happens to the case of the parties litigants, as long as he is happy with his salary and 13" month checks. The reason why some RTC Judges were forced into retirement without having received their retirement pay, is because upon reaching the retirement age of 70, some still have an overload of undisposed cases and unresolved incidents numbering more than a hundred. ‘This author is talking thru experience as a former RTC Judge. During his incumbency as Presiding Judge, Regional Trial Court, Branch 61, Negros Occidental, this author had a personal encounter with a couple whose relationship was rocked by a petty family problem. One day in the thick of hearing of multiple criminal cases that have been left54 LEGAL CounscLNG FOR PRACTICING LAWYERS unclogged by his predecessor, this author was confronted by this family squabble — a Petition by the wife to regain custody of their three-year old child in the custody of the husband who refused the wife to visit the child. When their case was called for hearing, this author asked the couple if, there is any chance they could reconcile and give their marriage a second try. The wife appeared so furious with her denial and cried aloud inside the courtroom, forcing this author to suspend the hearing and invited them inside his chambers. Inside his office, the mother of the wife was alrgady waiting and hurling innuendos against her son-in- law. When this author asked the couple if how really deep is their misunderstanding that they cannot find peace with each other, the wife began to cry reasoning that her hus- band is a cruel and beastly husband, and that she would rather die than reconcile with him. This author first or- dered the Sheriff to accompany the wife's mother outside who was more talkative than the parties themselves. After listening to their heated arguments and conflict- ing versions, this author threw these questions to them. He asked the husband if he still remembers the day when he was courting his wife, when he promised the moon, the stars, his body and soul and his undying love for his wife. He then tured to the wife and asked her how she felt when she accepted her husband’s proposal for marriage, causing them to taste the first fruits of sex. Of course, she did not deny that she was smitten by her husband who was her first love, and in fact, they had already consummated countless pre-marital sex even before they took each other for better or for worse, in sickness or in health, for richer or poorer till death do they part before an officiating Catholic priest. Hence, this author urged them to once again relive those ecstatic moments when they were Woitkioan oF & Lawyer 55 i performing pre-marital sex, of how they felt to be in each others arms as if they were in the seventh heaven on reaching the apex of languid love-making. After giving them a brief discourse on the sanctity of marriage, that it is designed not only for sex, but is an indissoluble social institution which God Himself had sanctified by creating a woman out of Adam's rib, and glorified it at the wedding in Cana, this author left them alone inside his chambers, and locked the door of his office. Roughly about thirty (30) minutes thereafter, this author returned to his chambers, and when he opened the door, he saw the couple locked into each others lips and embracing each other so tightly as if even an iron bar cannot separate them. When asked if they still desire to go to trial, both the wife and husband chorused that they have agreed to reconcile and go back to their empty home, and prayed for the dismissal of the pending case for child custody. However, as their wallets were empty and had no money with which to pay for their fares in going home, this author who had ten (10) thousand pesos inside his wallet having just received his 13" month pay, handed to the wife five thousand pesos and warned them not to quarrel anymore. ‘The purpose of relating the foregoing incident, is to emphasize that if the Judge is truly committed to his sworn task as a true and seli-less arbiter of justice, he can go out of his way from simply sitting inside his air-conditioned room all day long, by actively participating in bringing the parties to the negotiating table. As aptly said earlier, the Presiding Judge must act like a maestro or a conductor orchestrating the parties to a compromise agreement, and ‘we see no reason why the parties litigants and their law- yers would not listen to the disinterested intervention of an56 LEGAL Counsc.inc FoR PRACTICING LAWYERS impartial Judge who is committed in preserving family solidarity and lessening the backlogs from the court's docket. And even in the appellate courts including the Su- preme Court, if only these Honorable Magistrates are truly dedicated to an efficient administration of justice in this country, there is no need of those high tech proceedings, of what they now propose — an automaton style of court proceedings. They can sit on their swivel chairs inside their air-conditioned offices with their pockets overflowing with vartous perks and allowances and 13" month pay, from the start of office hours in the morning, up to even past six o'clock in the evening writing decisions for cases that have been long pending for adjudication, some with pendency for 15 up to 20 years on their tables. This author was told by a reliable informant, that dur- ing the incumbency of the late Justices Cayetano Arellano, Jose P. Laurel and Justice Gregorio Perfecto, to mention a few outstanding members of the judiciary, they would start from 8:00 o'clock in the morning up to 8:00 o'clock in the evening writing decisions for cases that have pend for a number of years in the S.C.’s docket, with only a few breaks to take their meals, then back again to their tables in the Supreme Court at Padre Faura. There was no dream of automaton then, nor of paperless rule or judicial affida- vit rule which more often lead into a misrule or delay by procrastinating lawyers who file all sorts of motions and pleadings to justify their fat fees, Their staffs were equipped with old typewriters only and few stenographic reporters who take dictations from their Justices. There were no computer machines during their time, nor xerox copiers to speed up the reproduction process of court orders and final judgments to be furnished to parties Woiik.oA0 oF A Laver 87 i litigants. And those Justices aforementioned did not agitate Congress for another increase in their budgetary outlays, as they were already contented and were able to discharge their duties efficiently on a limited budget from the Gen- eral Appropriations Act. ‘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 a 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 power of attorney or special written authority from the client, renders the judgment based on a compromise agreement null and void. But once approved by the court, a compromise agreement has the force of res judicata between the parties, unless vitiated by forgery or other vices of consent. (Wesca vs. Gilinsky, 526 SCRA 533) Our law on agency under Article 1878 of the Civil Code requires a special power of attorney in the following: 1) To make such payments as are not usually con- sidered as acts of administration; 2) To effect novations which put an end to obliga- tions already in existence at the time the agency was constituted; 3) To compromise, submit questions to arbitration, to renounce the right to appeal from a judgment, waive objections to the venue of an action, to abandon a prescription already acquired; 4) To waive any obligation gratuitously;58 LEGAL Counse.ine For PracTioINe Lawyers 5) To enter into any contract by which the owner- ship of an immovable is transmitted or acquired either gratuitously or for a valuable considera- tion; 6) To make gifts, except customary ones for charity or those made to employees in the business man. aged by the agent; 7) To loan or borrow money, unless the latter act be urgent and indispensable for the preservation of things which are under administration; ¢ 8) To lease am yy real property to another pers more than one year; wae 9) To bind the principal to render some services without compensation; 10) To bind the principal i ipal in a cont ce nntract of partner- 11) To obligate the pri principal a: coe ipal as a guarantor or 12) To create or convey real rights over immovable property; 13) To accept or repudiate an inheritance; 14) To ratify or recognize obligations contracted be- fore the agency; 15) Any other act of strict dominion; “A special power to sell excludes the Power to mort- gage, and a special power to mortgage do: Power to sell.” (Art, 1879, NCC) ee ee “A special power to compromi ‘As ipromise doe: i submission to arbitration.” (Art. 1880, NCC) ‘uthoriae Weta oaD OF A Lawyer a 2 f) _ Ageneral power does not include special power ‘The principle is that, a general power of attorney does not include a special power to perform a particular act. Thus, the special authorities necessary in the above enu- merated acts are not included in the general authority of a lawyer to bind his client within the scope of his contract of employment. Nevertheless, the performance of the acts without the consent of the client does not ipso facto render the transaction or deed void, but only voidable until ratified by the client. ‘The need for such special authority is indispensable especially for a lawyer who appears for his client in a court proceedings, so that in case the parties have reached an amicable settlement, which is allowable during any stage of the proceedings, as long as the judgment has not yet become final and executory, as in a judgment based on a compromise agreement, judgment on the pleadings or confession of judgment could be rendered by the court. But without such special authority from the client the judgment of the court based on the compromise agreement cannot be enforced it being null and void, unless ratified thereafter but before the finality of the decision. 9) Most common subject of negotiation Lawyers play a prominent role in negotiating such real estate matters as: a) closings; b) coverage of title; ¢) insurance policies; d) eminent domain awards; e) conflicts between real estate brokers over sales commissions; f) mortgages; g) real estate tax adjustments; h) lease terminations; i) tenant relocations and settlement litigations.60 LEGAL Counse.ina FoR PRACTICING LaWvERS ‘The more money involved, the greater possibility that lawyers will be brought into negotiations. In settlement negotiations, the more chances of lawyer participation are increased, the closer the parties get into litigation. Settle- ‘ment efforts are common in cases of alleged breach of legal duty, as most clients and many lawyers are strongly pre- disposed not to litigate. Many clients are fearful of becom- ing emotionally distressed by the uncertainties of trial, and the expense of litigation also encourages settlement. The bottomline therefore is, that it is not only benefi- cial for a client to settle small claims rather than litigate, but also advantageous to a lawyer who wants to save time and effort, since the total claim being made less than what it would cost to defend. For new lawyers who lack experience in court litiga- tion or ability to try cases, settlement should be urged if they do not want to lose their fees, and possibly their clients by referrals to qualified and reputable trial lawyers. Settlement is the name of the game because litigation is time-consuming and takes lawyers away from their more profitable office practices. h) Availment of effective negotiation tech- niques 1)_ Delay is one of the effective techniques in negotia- tions designed to increase on the other side and to act as a deprivation at least before the case reaches the court. Thus without reaching the brink of unethical practice, a lawyer should prefer to have his client absent during the process of negotiation if the other side is pressed for time, because this prevents him from making on-the-spot decisions and enables the lawyer to always postpone further by saying, “I must consult with my client before giving you an answer.” Weiak.oAD oF A Lawyer 6 i Of course, it is the duty of a lawyer to speed up litiga- tion process, but as long as there is bright hope for settle- ment, further delay in going to trial, even though the plaintiff has a good claim, will in the long end redound to the benefit of all parties concerned, as well as lawyers, as the plaintiff may need money and be willing to take less now from a settlement than more later from a judgment after protracted hearings with attendant mental anguish and emotional stress. i) Concealment of facts Concealment of facts, particularly when the intentions of the bargainer’s principal is a conventional negotiation tactic, and one resorted by lawyer-negotiators. It is not unethical for a lawyer to lawfully conceal from the other side the least favorable terms that their clients are willing to accept, as long as it is done with the primary purpose of forestalling the possibility of a court litigation or of abbre- viating a court trial already started. This technique should be distinguished from suppression of evidence in a full dress trial. Better results can be realized if a lawyer-negotiator should start negotiations by making demands extremely favorable to his client, often by tendering proposed instru- ments consistently slanted his way. The motive is that if your client is too weak to hold out for such terms, his subsequent withdrawal will look like concessions meriting reciprocal concessions by the other side. “We give way; so should you.” And if the other side is uninformed and careless, there may be hope that these extreme demands will be accepted.62 LEGAL Counse.inc For PracTicInG Lawyers Another approach which a lawyer-negotiator should adopt in order to rake beneficial resuits is by not asking for more than you think you can get, thereby developing a reputation for fair dealing that makes negotiations faster and increases the chances of getting what you want be- cause of the aura of trustworthiness that this approach creates, A relational approach that can yield wondrous results when matters are not doing well, is that of attempting a shift of negotiations to the final decision maker or someone clqse to him, going over the head of the subordinate with whom the negotiator had been dealing. Lawyers, however, are prohibited by a rather rigorously adherence to Canons of Professional Ethics, from giving over a fellow lawyer's head to his client. ‘An alternative negotiation problem that is troublesome to a lawyer is, what he should do during the course of dealing with the other side and what he should refer back to the client for decision. The more experience that a lawyer has had with a particular client, the better he can judge not only what to refer back, but also as to when to make a big decision, although this will depend largely on the lawyer's discretion. At any rate, there is nothing wrong with being cautious and make final consultations with the client especially on matters that will bind the client's wallet. 1. Drafting Another work load of which the practicing lawyer is constantly kept busy and cannot persevere without, is the drafting and writing, and revision of written instruments. As the term is used in the profession, it includes not only Woitizonn oF & LAWYER 63 i the preparation and drafting of written documents, like deeds of conveyance, every written contract of sale, mort- gages, building contracts of Engineers and Architects, memoranda of agreement for multi-faced negotiations involving public interest, and every written agreement in the course of business, including the review and modifica- tion by others. A practicing lawyer may be called upon to draft many kinds of instruments, including originally phrased documents tailored to a single transaction or series of transactions and standard forms adaptable to various transactions. The following are typical of such instruments creating legal rights and non-legal matters that occupy the day to day activities of the practicing lawyer, as well as constitute as lucrative sources of his life-blood, to wit: 1. usual contracts and deeds; 2. sales; 3. leases; 4, mortgages; 5. wills; 6. partnership agreement; 7. articles of incorporation; 8. pleadings, compromise agreements; 9. decisions and resolutions; 10. press releases; 11. letters of demand and various kinds of written communication; 12, staff memoranda;64 LEGAL CounscuNne For PracTicine Lawyers 13. advertisements; 14. special powers of attorney; 15. petitions and motions to be filed in appellate courts; 16. appeal briefs; 17. appeal memoranda; 18. letters of administration; 19. letters rogatory; 4 20. letters of publication. Documents of these kinds may relate to some crisis in- volving the client’s legal rights, and it is felt that these rights will be best protected if the lawyer himself does the drafting. But sometimes the lawyer is called on to draft such documents merely because he writes well. (1) Clarity and precision writing The ability to write with clarity and precision and to anticipate all relevant legal and factual considerations is a lawyer's skill of high order. Some lawyers consider this their major skill and with a craftsman’s sense of pride and creative mastery, draft documents carefully shaped to their clients’ individual needs. There are those to whom a perfect instrument becomes an end in itself, But unless the lawyer drastically cuts his hourly charges, clients cannot afford the perfect drafting job, even when their lawyers have the patience and competence to do the work of such high caliber, This is one reason why small-town and neighborhood lawyers in particular, turn out so much careless, poorly Woit.onb oF @ Lawyer 6 3 thought and ill adopted written work. Generally, there is not enough at stake to merit time and charges required for better performance. Drafting is so time-consuming that some highly paid lawyers even turn it over to their less paid juniors. Anyway, the need for expensive research work in well-equipped libraries like the Supreme Court and Court of Appeals, becomes a compelling necessity in the area of drafting. For routine drafting of court pleadings and customary deeds, the use of legal forms of reputed authors will suffice without having to entail the trouble and expense of coming to Manila in the case of small-town practitioners. This is the reason why the subject on legal forms and legal writing have been incorporated into the model law curriculum in order to train the not so gifted lawyer-to-be in the art of drafting of legal and non-legal documents. (2) Gifted document drafter not required Nevertheless, 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 testa- tor, 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 implementors of the will, other than holographic will. The better practice is to keep 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 conven-66 LEGAL COUNSELING FoR PRacTicING LaWvERs ience so as to avoid delay especially when the lawyer is running against time, is to compile these sample copies into loose-leaf volumes or in a separate cabinet duly marked in chronological order within reach, so that when the need arises, you do not have to grope or cram for them especially when you are preparing for trial. In real estate draftings, originality should be the pri- mary consideration, although the format may be patterned after standard legal forms that are defined in the textbooks of reputed authors. You cannot copy verbatim from the mére skelton format from books on legal forms, for every transaction involved variable terms and conditions that the parties may agree upon. The drafting process which usually refers to occasional big deals, the drafting process usually consists of interlineating and striking out clauses in printed forms, or assembling lengthy documents by piecing to- gether clauses drawn from diverse forms, with an occa- sional sentence rephrased or original clause inserted into the body of the document. In fine, negotiation then determines whether or not clauses and conditions depending on the agreement of the parties, will be added, deleted or revised from the stereo- typed and printed forms, that are usually provided by financing firms especially banking institutions. Otherwise, should the party to the transaction happens to be a debtor- borrower, to compel him to affix his signature to the ready- made and printed form provided by the bank or real estate firm, the contract would be violative of the caveat against adhesive contracts, or take it or leave contract which is lacking in mutuality of contracts, hence, the written agreement becomes null and void for lack of voluntary consent by one contracting party, resulting in a WeiakioA0 oF & Lawyer 67 ; vitiated consent which is an essential element of a bilateral agreement. By and large, knowledge of available forms and their merits and demerits can be more important to good drafts- manship than facility at original phrasing. In addition to the expense and time that forms save, they frequently have the advantage of being known and acceptable to lawyers and clients on the other side. Thus, precedent has force in the drafting of legal instruments as it does with judicial decisions of controversies. Litigation Litigation is the last and crucial aspect in the lawyer's work load. When despite all avenues and pressure-packed attempts at conciliation and negotiation by the practicing lawyer have failed, there can be no more alternatives left to protect the rights and interests of your client except to g0 to court. That is the purpose for which courts of law have been organized in a civilized society-to-settle all controversies thru the medium of confrontational presenta- tion of evidence before a trained sifter of evidence. This is so because we live under the government of laws, and not of men. Gone were the days when might is right and the mighty is the law. Accordingly, the term litigation is frequently used to refer only to proceedings before courts, but in the follow- ing discussion, it is intended to connote a broader mean- ing. Here it means proceedings 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 heard by68 LecaL COUNSELING For PracTicins Lawyers: 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) Litigation and negotiation di guished In litigation, a third party decides issues involving others; whereas, in negotiation, parties with conflicting ingerests seek to resolve or accommodate to them by mutual agreement among themselves. The lawyer's task in litigation vary greatly de on whether the proceedings are contested or uncentescee A case is contested as long as each side seriously threatens to oppose the other before the decision making tribunal. It ordinarily is uncontested if the defendants default or fail to appear. A large number of Philippine litigation is uncon- tested, 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 an. nulment of marriage cases. Frequently, both parties desire that the court terminate the marriage, thus, the defendant does not oppose proceedings paving a speedy vehicle to contract a second marriage. (2) How to proceed effectively in uncontested annulment suits This issue was featured in the previous edition of this book, and it still sa sound and effective strategy, now and hereafter that, if a lawyer wants to end the litigation very quickly in an annulment of marriage suit, all that the WORKLOAD OF & Lawrer 6 parties have got to do is to arrange thru their counsels for ‘an uncontested litigation (non-contendere). This is achieved by an out of court understanding that the defen- dant 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, com- plainant can then move for reception of his or her evidence exparte which will serve as basis for the court’s decision granting annulment. Of course this practice may appear unethical, bordering on collusion which the law abhors. There is for example a certain safeguard which should be observed before a decree of annulment can be issued 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 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 “ There is of course an extra-legal dimension involved in this kind of practice, which needs the exercise of subtle tact and diplomacy with the public prosecutor not to interpose objection, and to make a favorable written recommenda- tion/manifestation to be submitted to the court, that the situation of the parties is beyond reconciliation. But the quickest remedy is to persuade the prosecuting attorney not to appear in court anymore, and upon proof of service of notice to the prosecutor, counsel for the defendant may now move for the dismissal of the complaint for lack of interest on the part of complainant. But the foregoing proceedings and remedies can be realized only with the court’s approval, upon compliance70 LecaL Counseunc For Practice LawyERS with Article 58 of the Civil Code which provides that, “an action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition.” This provision likewise applies to annulment suits or petitions for the declaration of absolute nullity of marriage. ‘The purpose of the law is to afford the spouses a sec- ond chance to reconcile, given that the Family Code of the Philippines is uncompromising on the sanctity of marriage. The thaw of six-months before the court is allowed to hear the case, is referred to as the cooling-off period, which is intended to give the warring spouses to contemplate on the atrocious effects of separation, especially as it affects emotionally their children of tender age, who cannot understand the causes of their parents’ quarrel. It is during these formative years in the minor’s adolescent life that the minor who is caught in the cross fire of a petty or violent fight between their parents, most need parental guidance and paternal love so necessary for making them emotion- ally secure and becoming future law-abiding citizens. Otherwise, they become confused and insecure with no faint knowledge as to who will take care for their support and schooling, thus forcing them to turn to generous sugar daddies who could give them protection and a paltry sum to buy their meals. This is the root cause why female minors who are products of broken homes, turn to prosti- tution in order to survive, or become potential criminals and victims of drug addiction. Hence, the cooling-off period more often than not, cre- ate wonders during which quarreling spouses are allowed ample time for their passions and personality frictions to subside and become once more enamoured to each other into giving their marriage a second try. This is so because Werex.oAD oF A LAWYER m ; our laws on marriage are influenced by Catholic traditions and belief that marriage is indissoluble and a sacred social institution designed for the procreation and reproduction of the species according to Divine will, and not merely for the temporary pleasures of the contracting parties. (3) Recommended short-cuts to non-contested suits Insofar as criminal cases are concerned, a recom- mended short-cut remedy is to enter a plea of guilty when the imposable penalty for the offense thus charged, does not exceed prision correccional or not exceeding six (6) years, in which case, the convict can avail of the benefits of the Probation Law at once upon promulgation of the decision in open court as long as he does not suffer from the following disqualifications, such as (a) not having been convicted of subversion or any crime against national security or the public order; (b) he has not been previously convicted by final judgment of an offense punished by an imprisonment of not less than one month and one day and/or fine of not less than two hundred pesos; (c) he has not been once on probation under the provisions of P.D. 968; and (d) that he is already serving sentence at the time the substantive provi- sions of P.D. No. 968 became applicable. If the accused is on bail, he can avail of his bail bond for his immediate release, or apply for a recognizance by any responsible person in the community who can guaran- tee his appearance whenever the court requires his per- sonal appearance, and the offended party does not inter- pose objection, pending the evaluation and approval of his application for probation by the court.72 LecaL Counseuns FoR PracricIns Lawyers Suits to quiet title, common real estate title clearing procedures in many Regional Trial Courts in the provinces are seldom contested. This practice of uncontested litiga- tion 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 eliminated. The same procedure may be achieved in settlement of ebtates of deceased persons, administration of estates of incompetents and minors. In most cases proceedings before administrative or quasi-judicial bodies like the Securities and Exchange Commission, Land Transportation Office, Patent Office, Immigration Bureau, National Relations Commission, Labor Arbitration Commission, Bureau of Lands, Bureau of Customs and the Department of Agrarian Reform Adjudications Boards and the respective Provincial and Regional Adjudicators, among others, end up in happy compromise agreements thru the unselfish efforts of lawyers who are worth their salt. While it is true that success in contested cases help build a good reputation for a trial lawyer, yet much con- tested litigations are poorly paid, considering the element of time that must be spent in preparation, preliminary court appearances, waiting for trial and the actual trial. In exceptional cases for the purpose of accommodating the best paying clients, trial work is emotionally stressful and many lawyers dislike it for this reason. Besides, another factor that deserves serious thinking is, that although in theory courts exercise independence of judgment by the principle of separation of powers, in Wofxtonn oF A Lawyer 73 i reality some judges are vulnerable to political influence and corruption, Some specific instances could affirm this fact, by the dismissal from the service of Justice Gregory Ong of the Sandiganbayan, for allegedly fraternizing with the brains of pork barrel scam Janet Napoles. This is one eye-opener that every practicing lawyer in this country ought to be aware of and accept as a fact and be prepared to devise a stop gap or remedy either judicially or extra- judicially, even to the extent of filing a petition for the inhibition of the Presiding Judge whose actuations are suspect. There is no use indulging in self-delusion that only thru the merits of the case or the strength and quality of evidence, can a lawyer win his case in this jurisdiction. Such is an exception rather than a general rule nowadays. The much rumored close relationship between the ex- Justice Renato Corona with ex-President Gloria Macapagal Arroyo, which at first only started as a proverbial smoke but later spread like wildfire that resulted in the impeach- ment of Corona, is a grim lesson for practicing lawyers to be wary with the success of their cause even before the highest tribunal of the land. So much so that without the timely filing by Justice Secretary Leila de Lima for a hold- departure order, Gloria Macapagal would have left the country in a hush and thus evaded arrest and detention. Nor is litigation the only setting in which lawyers should be alert to public relations, risks and surprises. For example, in negotiating for a client in a strong bargaining position, the lawyer should calculate the risks to client reputation of striking a hard bargain. In advising a creditor on remedies against defaulting debtors, he should consider the danger that some remedies may make the client appear mercenary and ruthless. Shaping and guarding his client's74 LecAL Counseuine For PracricIne Lawyers reputation may be part of the lawyer’s job in most any kind of law practice, Of overall significance although of minor importance, probably more important in real estate transactions, than any other phase of lawyer's work, is participation as princi- pal in business deals with clients. The lawyer receives a share in the venture in return for cash or legal services. The more risky the venture and less financially prosperous the client, the more chances that the client will want the lawyer to come in. This practice presents an excellent opportunity for making money, although an argument may be raised against a lawyer going in on 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 law- yer'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 attor- ney’s fees usually on a contingent basis in sums fatter than what he could realize from court litigations. ‘Sometimes, when the client cannot put up an advance payment of the lawyer’s remuneration, he will be com- pelled to agree on exorbitant amounts or shares out of the deals which are unproportionate to the actual services rendered. But as long as the retainer’s contract does not require for an assignment of the client’s property to take effect during the pendency of the litigation, there can be no violation off the lawyer’s oath nor anything unethical Weii.on0 oF a Lawver 75 i with the gargantuan fees, provided they are not champer- tous. Newsmakers with rife facts to backup their reports, are unequivocal that there are lawyers who act as brokers or entrepreneurs in putting together and promoting real estate deals and in connection with these deals seek financ- ing from present and past clients of their law practice. There is nothing unethical about these business deals which have no taint of shady or fraudulent underpinnings. ‘As a matter of fact, most successful practitioners in this country engage in numerous business transactions and/or make their law offices merely as forefronts of their huge business ventures. In fact, big law firms and enterprising lawyers merely appear in court to trumpet their compe- tence in litigation, although earning relatively modest income from such court appearances and confrontational hearings, but the most lucrative source of their earnings come from business deals and out of court settlements realizing fat contingent fees. (4) Property Management and Leasing Considered of lesser lucrative value is a segment in the lawyer’s task especially patterned for small law firms and solo practitioners, focusing on property management for clients. These work tasks include leasing, eviction, contract for repairs, rent collection, arranging for maintenance services and insurance, payment of taxes and other expenses of clients, and acting as executors and trustees. a) Leasing — is a common lawyer's work task of those who practice law in the United States, but there are also clients here in the Philippines with enormous real76 LecaL COUNSELING FoR PRACTICING LAWYERS estate holdings which hire the services of lawyers to effec- tively manage their properties without incurring consider- able loss both in income, and wasteful payment of taxes as well. A lawyer who is skilled in this kind of specialization, can save his client from liability under the rental law, by the employment of appropriate language in the lease contract to suit the terms and conditions more favorable to clients in the leasing of larger properties. In the event of litigation arising from the interpretation of contracts of ledse, the job of a lawyer pay more dividends than that of an ordinary layman, Under our rental law for example, no apartment owner is allowed to increase the amount of monthly rental of his apartment unit beyond 20% annually. Some practic- ing lawyers in Manila make a separate contract with their clients providing for payment of retainer’s fee consisting of 10%, while the other 10% goes to the apartment owner. Additional attorney's fees shall become due and payable to the lawyer once the lessee defaults in the payment of rentals the moment the task of collection reaches the hands of the lawyer. Some lease contracts expressly provide that the moment the collection case reaches the hands of the lawyer, the tenant becomes liable for the payment of attorney's fees consisting of 25% of the total monthly rental. Since most of these tenants are afraid to face court litigation, they would rather sacrifice paying the lawyer's fees, than go to court with the risk of being evicted and incur unnecessary expenses of litigation. Accordingly, payment of 25% attorney's fees coming from the defaulting tenant, to be added to a separate retainer's fee coming from the apartment owner, would mean a comfortable income derived from the lawyer's job WekkkLoaD oF A LAWvER 7 i of property management alone. Should court litigation materialize(s) and reach(es) the court, the lawyer would still be entitled to the payment of attorney's fees for not less than P1,000.00 per court appearance for each eject- ment case, plus additional attorney’s fees which the court may award should the case attain a victory verdict, based on the plaintiff s prayer for relief. Assuming therefore, that the client has 100 apartment units all of which have de- faulting tenants who have received letters of demand from the lawyer, a simple arithmetic would show a very lucra- tive law practice on the part of the lawyer generated from property leasing. Multiply the foregoing amounts derived from small claims alone of rental collection, if these fees were based on a larger scale of lease collection from big landed estates belonging to different property owners like vast subdivision lots located in Metro Manila and prosper- ous suburban neighborhood like Tagaytay City and Taguig City and you will be awe-stricken to know the lawyers of these vast subdivision lots have become billionaires over- night. The income of a solo practitioner who is not a reputed trial lawyer but with political clout with the slum dwellers and started only from backyard piggery to now multimillion resort owner in Batangas province with an air- conditioned piggery, cannot pale into insignificance com- pared to the sporadic income of a big-time trial lawyer with multifloored law office located at Ayala Avenue. b) Rent collection and eviction In a rent collection aspect, whatever technique the lawyer may adopt to make it more effective and speedier, should be pursued with no let-up. Otherwise, the default ing debtor will find a healthy climate to snob demand letters, and eventually frustrate the collection process by a lackadaisical attitude and prolonged inaction. There is78 LEGAL Counseua For PRACTICING LAWYERS more than meets the eye in a demand letter signed by a lawyer accompanied by threats of eviction. A demand letter giving the lessee a specific period within which to comply at the risk of being dragged into an unlawful detainer suit for failure to comply, creates a feeling of insecurity and mental torture that can compel the delinquent tenant to comply and comply speedily. But in the case of stubborn tenants, an ultimatum should be the tenor of the demand letter to comply, in which case the lawyer should be true to his words in making good his threat by filing an ejectment case in court upon the refusal of the tenant-lessee to respect the ultimatum, without prejudice to making your options open for an amicable settlement during any stage of court proceedings. Be sure not to commit an error in filing your ejectment complaint with the court of proper original and exclusive jurisdiction in forcible entry and detainer cases, which are cognizable by the MeTC, MCTC and MTC. The Statute of Limitations requires the filing of ejectment cases not later than one (1) year from final demand, after which the next remedy is accion publiciana to recover possession of the property after the expiration of one (1) year, which is cognizable by the Regional Trial Court. Aside from the filing of the complaint for ejectment or illegal detainer, the rent-collector lawyer may avail of specific ancillary reme- dies like preliminary mandatory injunction and preliminary attachment of the lessee’s properties, and/or garnishment under Rule 39, Section 9(c) of the 1997 Rules of Civil Procedure, to secure payment of the indebtedness. Gar- nishment, however, may be availed of only after a favor- able judgment has become final and executory. Acertain gray area however in ejectment cases, relates to the procedure of appeal. While the right to appeal a Wiican oF & Laven 9 3 final judgment of the court is granted by law to the losing party in an unlawful detainer case, one should not lose sight of the fact that, the same judgment is immediately executory, unless the defendant has perfected an appeal to the Regional Trial Court. Under Rule 70 of the Revised Rules of Court, the appeal is not deemed perfected to stay the execution of the judgment, unless the defendant complies with the following requisites: 1) _ posting of supersedeas bond in the amount to be fixed by the court condition to answer for all loses and damages that plaintiff may suffer should the judgment be affirmed on appeal; 2) payment of periodic deposits to answer for the reasonable use and occupation of the premises down to the final judgment by the appellate court and during the pendency of the appeal, the same amount to be deposited with the sentencing court. ‘A problem however poses in the event the posting of supersedeas bond is delayed, for there are some bonding companies that are difficult to deal with in this respect. Hence, delay in the posting of supersedeas bond often results in the immediate execution of the decision by the judgment court, unless the matter is elevated to the higher court purposely to determine whether delay was really incurred in the posting of the supersedeas bond. This is one of the dilatory tactics that lawyers usually avail of, the raising of this issue to the higher court, so that the contro- versy shall devolve more on giving priority to the resolu- tion of this technicality forgetting meanwhile the merits of the case. A different scenario however obtains in case the de- fendant is declared in default. The proper remedy here is80 LecAL Counse.ine For PRacTiciNe LawvERs not appeal, but to move to vacate the order of default within one (1) day from the time defendant learns of the default order. If the default order is not vacated or set aside, defendant loses his standing in court and will no longer be entitled to any service of notice or copies of court processes except the default judgment. Once the default order is set aside and vacated, defendant's personality is again restored, and only from that moment shall he be entitled again to notice and service of court processes and pleadings. 4 Should the defendant fail to set aside the default or- der, there is still one more remedy left for the defaulting defendant, and that is to file a Petition for Relief under Rule 38 of the 1997 Rules of Civil Procedure, on the ground of mistake, accident, fraud or excusable negligence, which shall be substantiated by an idavit of merit to be attached as ANNEX to the Petition for Relief (not an affidavit of good faith), showing facts that constitute as mistake, fraud, accident or excusable negligence. Without such affidavit of merit, the Petition amounts to pro-forma which the Court is not bound to entertain, nor the Clerk of Court is duty bound to accept and is considered not filed. Last but not the least, appeal does not lie from the decision of the Regional Trial Court in the exercise of its appellate jurisdiction, to the Court of Appeals in ejectment proceed- ings, but rather by Petition for Review under Rule 42 within fifteen (15) days from notice of the decision, or denial of the motion for new trial or reconsideration. This author is reminded of an embarrassing experience he was confronted with when he appeared as counsel for the Plaintiff in a foreclosure action filed by PNB against the Plaintiff before the Regional Trial Court of Antique, Branch 64. In one instance, when counsel for PNB failed to appear WeiacoAo oF & Laver a i despite due notice, he filed a motion for reconsideration of the court’s Order allowing the Plaintiff to introduce his evidence ex-parte. PNB’s counsel attached to his motion for reconsideration, an affidavit of good faith, instead of an Affidavit of Merit, in which he related the circum- stances of how he was prevented from appearing at the scheduled hearing, alleging mistake and excusable negli- gence. Of course, this author had to object not only that the narrative of circumstances contained in counsel’s Motion did not per se constitute as mistake or accident that will justify his non-appearance, but above all monstrous proce- dural aberration committed by a PNB lawyer is, that his Affidavit of Good Faith is misplaced and procedurally moribund that should be expunged from the case record. A lawyer of PNB, a banking institution whose lawyers almost everyday pore over legal documents that are required for the validity of Chattel Mortgage contracts, among which is an Affidavit of Good Faith, cannot escape from being called an ignoramus for attaching such odd document to his motion for reconsideration filed with the court of law. ¢) Effect of perfection of appeal under Rule 41 Still being considered a lawyer's nightmare including that of the Presiding Judge, is the effect of perfection of an appeal. But before we proceed further, make no mistake that the authority to dismiss an appeal on the ground that it is frivolous or taken manifestly for delay, or based on any ground for that matter, is not certainly within the province of the court @ quo, whose decision is in issue but with the appellate court. Here is another Judge whose name can be added to the ranks of ignoramus, a bad egg in the rooster82 LEGAL Counseuine FoR PRACTICING LaWvERS of competent arbiters of justice. (Ortigas & Company limited Partnership vs. Judge Tirso Velasco, 234 SCRA 455) In keeping with the uniform procedure rule, the per- fection of an appeal has the same effect with respect to appeals from the Municipal Court to the Regional Trial Court in the exercise of its appellate jurisdiction, as those appeals from the Regional Trial Court to the Court of Appeals, both of which are governed by the provisions of Section 9, Rule 41 of the 1997 Rules of Civil Procedure. Under the old Interim Rule, the trial court loses jurisdiction ovér the entire case, upon perfection of the appeal by filing a notice of appeal or upon expiration of the last day to appeal by any party, and upon approval of the record on appeal, where appeal is taken by record on appeal (Sec. 20, Interim Rules of Procedure) On the other hand, under Section 9, Rule 41 of the 1997 Rules of Civil Procedure, the court does not lose jurisdiction, upon perfection of appeal by notice of appeal or approval of the record on appeal by any party, filed in due time within the reglementary period to appeal. In plain, the appeal is deemed perfected only with respect to the parties who have taken their appeal in due time, but the court a quo retains jurisdiction over the remaining subject matter not covered by the appeal, and with respect to the other parties who have not filed a notice of appeal or record on appeal as the case may be, and who still have pending incidents which are unresolved by the court a quo. Simply put and in appropriate cases, the court of ori- gin cannot be deprived of its power to exercise jurisdiction over matters in the exercise of its residual jurisdiction, for the “preservation and protection” of the rights of the parties which do not involve any matter litigated by the appeal. Many pitfalls have been committed in this area of Wiican oF & Lawyer 83 jurisdiction, that has spawned the deluge of certiorari proceedings in the Court of Appeals under Rule 65, and thus had dragged a number of trial court Judges to certio- rari Petitions, on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction. In some specific cases where the Judge a quo had refused to entertain the parties’ Motion to approve a compromise agreement after the perfection of an appeal by notice of appeal but before the transmittal of the record to the appellate court, thus resulting in the dismissal of such trial Judges from the service for ignorance of the law, or have suffered the imposition of administrative sanctions ranging from cen- sure to suspension for a definite period, including but not limited to forfeiture of retirement benefits and monthly pension. “For example, neither can the rest of the parties be de- prived of their right_to ask f or the execution of the decision ending appeal, nor to move for the approval of compromise agreements, or to be allowed to liti gate as pauper litigant in meritorious cases. Not to mention cases of separate or multi- le appeals arising from counter claims, cross-claims and third party complaints, pertaining to matters which do not involve anv matter litigated by the parties, as long as the original record of the case has not yet been transmitted to the appellate cour Of course, the foregoing prayers made with the court of origin before the transmittal of the record to the appel- late tribunal, must really be premised on an unequivocal ground, that the overriding purpose is the preservation and protection of the rights of the parties over matters not involved in the appeal, and not to resolve incidents that are considered alien to such purpose or whose purpose is to promote movant’s extra-legal claims and remedies.84 LecAL Counseunc FoR PracricIne LawyERS Fortune Life and General Insurance Co., Inc. vs. Court of Appeals 224 SCRA 829 FACTS: This is a Petition for Review on certiorari brought by Petitioner Fortune Life and General Insurance Co. Inc. to the Supreme Court from the ruling of the Court of Appeals annulling and setting aside the Orders of the Regional Trial Court of Manila, in Civil Case No. 85-29991, granting Fortune Life’s motion for reception of evidence on the application for damages against the bond of private rdspondent Delsan Transport Lines, Inc. Earlier, the court @ quo rendered judgment ordering Fortune Life to pay Delsan P1,952,302.00 for damages and P50,000.00 for attorney's fees. On this basis, Delsan filed a motion for execution pending appeal. It invoked as “good reason” petitioner's alleged fraud and deceit in not informing respondent Delsan of the latter’s change of corporate name. The motion was supported by a bond in the amount of P500,000.00 answerable in favor of appellant Fortune Life. Private respondent filed a motion for reconsideration which was denied by the court a quo. Thereafter, private respondent filed another motion for reconsideration assail- ing the trial court’s jurisdiction in issuing the questioned orders, and praying that the records of the case be imme- diately elevated to the appellate court pursuant to the notice of appeal filed by Petitioner. Thenceforth, private respondent filed a petition for certiorari, prohibition and mandamus before respondent Court of Appeals, seeking to annul the questioned orders, and to compel the trial court to forward the records to the Court of Appeals, since it has allegedly lost jurisdiction in view of petitioner's appeal, to which CA ruled in favor of private respondent. Hence, this petition under Rule 45, Wekkk oan oF A LAWYER 85 i HELD: The sole issue raised by the petition is upon perfection of petitioner’s appeal of the trial court's decision, does said court retain jurisdiction to hear the application for damages against the bond that was posted in support of private respondent's motion for execution pending appeal? ‘There is no controversy that the appeal of petitioner has been perfected. As a necessary consequence thereof, the trial court was divested of jurisdiction over the case. Section 9, Rule 41 of the Rules of Court mentions three (3) instances where the trial court is allowed to exercise residual jurisdiction, after the perfection of the appeal, namely, (1) to issue orders f or the preservation and protect ion of the rights of the parties which do not involve any matter litigated by the appeal; (2) to approve compromises offered by the parties prior to the transmittal of the record on appeal to the appellate court, and (3) to permit the prosecu- tion of pauper’s appeal. Petitioner relies on the first instance as basis for its stand that the trial court has the authority to hear its application for damages. Its reliance thereon is misplaced. Although the application for damages is beyond the scope of the matter litigated by the appeal, there is no “protec- tion and preservation,” of its right to speak of. Re- spondent CA was emphatic in its disquisition on this subject matter: Petitioner's application for damages being heard by the respondent court, may not be considered an exception to Section 9, Rule 41 of the Rules of Court. The provisions speaks of “protection and preservation” of the rights of the parties which do not involve any matter litigated by the appeal. The action for damages, in fact, and in actuality, however, is an act of vindication, is punitive in nature and not an act to protect and preserve, but to punish and make one party, the private respondent86 LecAL Counseuna FoR Practice LaWvERS herein, to pay damages. The demolition aspect of the deci- sion subject of the writ of execution pending appeal cannot be implemented without special order for that purpose. The Power to grant or deny a motion for execution is discretion- ary with the court, unless it is prevented by an ancillary preliminary injunctive relief. 5) Acting as Executor or Trustee It is very likely that when a client hires a lawyer to draft his will, he will just as well appoint the same lawyer td act as executor of said will. He needs no further briefing and extended and repetitious inquiry of matters which had already been covered by his first interview of the client. Drafting of wills requires such thorough investigation and gathering of facts, records, date and documentary evi- dence, 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. So also, the lawyer who drafted the will and had ac- quired sufficient knowledge and identification of the testator’s properties and nature of his bounty, should be the logical person to discharge the task of trustee in the management of the real and personal properties of the decedent in his fiduciary capacity. With respect to those large estates and multifaceted business conglomerates that operate complex ventures involving a wide spectrum of transactions making it difficult for a single individual to handle, management thereof 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 a vast knowledge of the law on wills and WORKLOAD OF A LAWYER 87 : succession. He must be conversant about how much por- tion of the testator’s estate he is permitted to dispose of by will without encroaching on the legitimes of compulsory heirs. He should be precise about the specific area and kind of property of the decedent's estate that should pertain as aliquot share of each and every devise and legatee in oder to prevent intestacy. In the end, every lawyer needs no further enlighten- ment if how lucrative are the fees that he can realize from this kind of lawyer’s task. Anyway, much of the lawyer's fees depend on how knowledgeable and effective he is in the employment of appropriate language in the making of a will granting tremendous powers and benefits to the executor. In some cases the lawyer-executor of a will, even receives mote benefits and share from the decedent's bounty, than one legitimate heir, especially in the making of a will granting tremendous powers and benefits to the executor, especially when the decedent has several heirs and successors in interest. But as long as the executor does not betray the trust allowed by law unto his fiduciary responsibility, he will continue to enjoy the goodwill of his client and the courts. And in order to avoid any charge of maladministration, negligence and/or incompetence, the executor’s remuneration must be specified in the will which is self-implementing even without a court’s order. 6) Specialization Specialization refers to the work task of a practicing lawyer who specializes or has vast expertise or is highly competent at performing a specific kind of work or prac- tice. There are lawyers for example who specialize in trial work, a corporation lawyer who specializes in dealing with legal problems involving corporations, a practicing lawyer88 LecaL Counseue For PRACTICING LAWYERS who specializes in insurance cases or legal problems involving insurance. Specialization may likewise refer to trial lawyers who specialize in a particular field of law, such as criminal lawyer, a civilist, a practicing lawyer who specializes in naturalization proceedings, immigration law, patent law, titling of properties, labor cases, special proceedings like adoption, guardianship, hospitalization of mentally re- tarded, 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 with 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 client in almost any kind of matter if the client will pay the practitioner's going rate. All lawyers are blocked out by conflict of interest from taking some legal matters which may cause impairment or violation of his oath bordering on ethical grounds. Clients demanding unethical conduct by counsel to pursue an illegal or immoral course of action should be rejected. Although the yardstick on this area may sometimes compel the lawyer not to reject the employment where he is appointed by the court as counsel de oficio in defense of an indigent accused, or any defenseless detention prisoner who cannot afford to pay the services of a counsel de parte. Almost all lawyers who are beginners in the practice of law or have just passed the bar examinations cannot qualify for the word specialist. Small town and neighbor- hood general practitioners with considerable experience, are usually referred to as specialists in matters that make WoRKLOAD OF A LAWYER 89 ; up the bulk of small town practices: drafting simple wills, administering decedent estates, conveying real estates, fore- closing mortgages, obtaining legal separation, annulment of marriages, contracts and titles, defending personal injury claims, collection cases, preparing small income tax returns, and defending against criminal charges in lower courts. More often and indiscriminately, one can be a general practitio- ner and specialist at the same time. It all depends on the lawyer’s attitude to take the risk and work hard on the problem confronting him. After all, the extensively experi- enced or trained lawyer is not necessarily an able one. ‘Those who practice in the provinces, none could be classi- fied as a specialist or general practitioner, as long as the client’s purse is capable of paying the fees agreed upon.