Law Student Rule

Problem Areas in Legal Ethics

Arellano University School of Law –
Arellano Law Foundation
2016-2017

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 RULE 138-A
LAW STUDENT PRACTICE RULE
SC Circular No. 19, prom. Dec. 19, 1986

• SECTION 1. Conditions for Student Practice. — A law

student who has successfully completed his 3rd year
of the regular four-year prescribed law curriculum
and is enrolled in a recognized law school's
clinical legal education program approved by the
Supreme Court, may appear without compensation in
any civil, criminal or administrative case before
any trial court, tribunal, board or officer, to
present any indigent clients accepted by the legal
clinic of the law school.

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…LAW STUDENT PRACTICE RULE

• Sec. 2. Appearance. — The appearance of the law

student authorized by this rule, shall be under the
direct supervision and control of a member of the
Integrated Bar of the Philippines duly accredited by
the law school. Any and all pleadings, motions,
briefs, memoranda or other papers to be filed, must be
signed by the supervising attorney for and in behalf
of the legal clinic.

• The phrase "direct supervision and control" requires

no less than the physical presence of the supervising
lawyer during the hearing.
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…LAW STUDENT PRACTICE RULE

• Sec. 3. Privileged communications. — The Rules

safeguarding privileged communications between
attorney and client shall apply to similar
communications made to or received by the law
student, acting for the legal clinic.

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…LAW STUDENT PRACTICE RULE

• Sec. 4. Standards of conduct and supervision. — The

law student shall comply with the standards of
professional conduct governing members of the Bar.
Failure of an attorney to provide adequate
supervision of student practice may be a ground for
disciplinary action.

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 Rule 138 (RRC) Sec. 34

• Rule 138 (RRC) Sec. 34. By whom litigation

conducted. - In the court of a justice of the peace
a party may conduct his litigation in person, with
the aid of an agent or friend appointed by him for
that purpose, or with the aid of an attorney.
In any other court, a party may conduct his litigation
personally or by aid of an attorney, and his
appearance must be either personal or by a duly
authorized member of the bar.

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Rule 138 section 34 does not apply in
cases before the RTC
• The Rules are clear. In municipal courts, the litigant
may be assisted by a friend, agent, or an attorney.
However, in cases before the regional trial court, the
litigant must be aided by a duly authorized member of the
bar. The rule invoked by the Torcinos applies only to
cases filed with the regional trial court and not to
cases before a municipal court. - Bulacan v. Torcino,
G.R. No. L-44388 January 30, 1985

• But for the protection of the parties and in the interest

of justice, the requirement for appearances in regional
trial courts and higher courts is more stringent. –
Bulacan v. Torcino, G.R. No. L-44388 January 30, 1985

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 Reconciling the 2 rules

• There is really no problem as to the application of

Section 34 of Rule 138 and Rule 138-A. In the
former, the appearance of a non-lawyer, as an agent
or friend of a party litigant, is expressly
allowed, while the latter rule provides for
conditions when a law student, not as an agent or a
friend of a party litigant, may appear before the
courts. - Cruz v. Mina GR no. 154207 April 27,
2007

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The phrase“In the court of a justice
of the peace”means:
• The phrase “In the court of a justice of the peace” in
Bar Matter No. 730 is subsequently changed to “In the
court of a municipality” as it now appears in Section 34
of Rule 138, thus:
• SEC. 34. By whom litigation is conducted. — In the Court
of a municipality a party may conduct his litigation in
person, with the aid of an agent or friend appointed by him
for that purpose, or with the aid of an attorney. In any
other court, a party may conduct his litigation personally
or by aid of an attorney and his appearance must be either
personal or by a duly authorized member of the bar. - Cruz
v. Mina GR no. 154207 April 27, 2007
•

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The term "Municipal Trial Courts" as
used in these Rules shall include:
1. Metropolitan Trial Courts,
2. Municipal Trial Courts in Cities,
3. Municipal Trial Courts, and
4. Municipal Circuit Trial Courts.
- Cruz v. Mina GR no. 154207 April 27, 2007

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 BAR MATTER NO.730
June 13, 1997

• For the guidance of the bench and bar, we hold

that a law student appearing before the
Regional Trial Court under Rule 138-A should at
all times be accompanied by a supervising
lawyer.

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 Law student can appear without
supervision of a lawyer

• The rule, however, is different if the law student

appears before an inferior court, where the issues
and procedure are relatively simple. In inferior
courts, a law student may appear in his personal
capacity without the supervision of a lawyer.

• Thus, a law student may appear before an inferior

court as an agent or friend of a party without the
supervision of a member of the bar.

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 Caution when one act
as his own attorney
• This provision means that in a litigation, parties may
personally do everything during its progress -- from
its commencement to its termination. When they,
however, act as their own attorneys, they are
restricted to the same rules of evidence and procedure
as those qualified to practice law; otherwise,
ignorance would be unjustifiably rewarded. Individuals
have long been permitted to manage, prosecute and
defend their own actions; and when they do so, they
are not considered to be in the practice of law. "One
does not practice law by acting for himself any more
than he practices medicine by rendering first aid to
himself.“ – Maderada v. Judge Mediodea, A.M. No. MTJ-
02-1459. October 14, 2003
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Appearing as his own attorney is not
“practice of law”
• Clearly, in appearing for herself, complainant was
not customarily or habitually holding herself out
to the public as a lawyer. Neither was she
demanding payment for such services. Hence, she
cannot be said to be in the practice of law. -
Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459.
October 14, 2003
• The law allows persons who are not lawyers by
profession to litigate their own case in court.
The right of complainant to litigate her case
personally cannot be taken away from her. -
Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459.
October 14, 2003
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 UNAUTHORIZED PRACTICE OF LAW

• CANON 9 - A LAWYER SHALL NOT, DIRECTLY OR

INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF
LAW.

• Rule 9.01 - A lawyer shall not delegate to any

unqualified person the performance of any task
which by law may only be performed by a member of
the bar in good standing.

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 Threefold rationale behind the Law
Student Practice Rule
• 1. to ensure that there will be no miscarriage of
justice as a result of incompetence or inexperience of
law students, who, not having as yet passed the test of
professional competence, are presumably not fully
equipped to act a counsels on their own;
• 2. to provide a mechanism by which the accredited law
school clinic may be able to protect itself from any
potential vicarious liability arising from some
culpable action by their law students; and
• 3. to ensure consistency with the fundamental principle
that no person is allowed to practice a particular
profession without possessing the qualifications,
particularly a license, as required by law.

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 Presiding judge has no discretion
• The matter of allowing a law student to appear
before the court unaccompanied by a supervising
lawyer cannot be left to the discretion of the
presiding judge. The rule clearly states that the
appearance of the law student shall be under the
direct control and supervision of a member of the
Integrated Bar of the Philippines duly accredited by
law schools. The rule must be strictly construed
because public policy demands that legal work should
be entrusted only to those who possess tested
qualifications, are sworn to observe the rules and
ethics of the legal profession and subject to
judicial disciplinary control. - BAR MATTER NO. 730
June 13, 1997
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Appearance of a law student in inferior
courts does not require supervision of
lawyer
• For relatively simple litigation before municipal courts,
the Rules still allow a more educated or capable person in
behalf of a litigant who cannot get a lawyer. - Bulacan v.
Torcino, G.R. No. L-44388 January 30, 1985
• The rule, however, is different if the law student appears
before an inferior court, where the issues and procedure
are relatively simple. In inferior courts, a law student
may appear in his personal capacity without the supervision
of a lawyer. - BAR MATTER NO. 730 June 13, 1997
• A law student may appear before an inferior court as an
agent or friend of a party without the supervision of a
member of the bar. - BAR MATTER NO. 730 June 13, 1997

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 The respondent alleges that the complaint is irregular as
it was signed not by the plaintiff but by one who was not a
member of the bar and who designated himself merely as
"Friend counsel for the Plaintiff." The appellants argue
that the municipal court did not acquire jurisdiction over
the case.

• They invoke Section 5, Rule 7 which states that [SEC. 5.

Signature and address] [e]very pleading of a party
represented by an attorney shall be signed by at least
one attorney of record in his individual name, whose
address shall be stated. A party who is not represented
by an attorney shall sign his pleading and state his
address.

• DECIDE.

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 Held:
• Under the facts of this case, however, the applicable
provision is Section 34, Rule 138 of the Rules of Court
which states:
• SEC. 34. By whom litigation is conducted. In the Court
of a municipality a party may conduct his litigation in
person with the aid of an agent or friend appointed by
him for that purpose, or with the aid of an attorney. In
any other court, a party may conduct his litigation
personally or by aid of an attorney and his appearance
must be either personal or by a duly authorized member
of the bar.
- Bulacan v. Torcino, G.R. No. L-44388 January 30, 1985

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Supervising lawyer should be the one
to sign the pleadings
• Rule 7 (RRC) Section 3. Signature and address. —
Every pleading must be signed by the party or
counsel representing him, stating in either case
his address which should not be a post office box.

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 Signing amounts to certification of
lawyer
• Rule 7 (RRC) Section 3. xxx The signature of
counsel constitutes a certificate by him that he
has read the pleading; that to the best of his
knowledge, information, and belief there is good
ground to support it; and that it is not interposed
for delay.

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 Effect of unsigned pleadings
• Rule 7 (RRC) Section 3. An unsigned pleading
produces no legal effect. However, the court may,
in its discretion, allow such deficiency to be
remedied if it shall appear that the same was due
to mere inadvertence and not intended for delay.
Counsel who deliberately files an unsigned
pleading,xxx, shall be subject to appropriate
disciplinary action.

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 Can a third year law student appear as private
prosecutor in a criminal case and within the
jurisdiction of the inferior court?

• The petitioner, describing himself as a third year law

student, justifies his appearance as private prosecutor
on the bases of Section 34 of Rule 138 of the Rules of
Court.
• The petitioner furthermore avers that his appearance was
with the prior conformity of the public prosecutor and a
written authority of Mariano Cruz appointing him to be
his agent in the prosecution of the said criminal case.
• The MeTC denied permission for petitioner to appear as
private prosecutor on the ground that Circular No. 19
(1997) governing limited law student practice in
conjunction with Rule 138-A of the Rules of Court (Law
Student Practice Rule) should take precedence over the
ruling of the Court laid down in Cantimbuhan (1983).
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 Held:
• Petitioner expressly anchored his appearance on Section 34 of
Rule 138. The court a quo must have been confused by the
fact that petitioner referred to himself as a law student in
his entry of appearance. Rule 138-A should not have been
used by the courts a quo in denying permission to act as
private prosecutor against petitioner for the simple reason
that Rule 138-A is not the basis for the petitioner’s
appearance.
• Section 34, Rule 138 is clear that appearance before the
inferior courts by a non-lawyer is allowed, irrespective of
whether or not he is a law student. As succinctly clarified
in Bar Matter No. 730, by virtue of Section 34, Rule 138, a
law student may appear, as an agent or a friend of a party
litigant, without the supervision of a lawyer before inferior
courts. - Cruz v. Mina GR no. 154207 April 27, 2007

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 Fiscal’s role when there is a
private prosecutor
• The permission of the fiscal is not necessary for one to
enter his appearance as private prosecutor. In the first
place, the law does not impose this condition. What the
fiscal can do, if he wants to handle the case personally
is to disallow the private prosecutor's participation,
whether he be a lawyer or not, in the trial of the case.
On the other hand, if the fiscal desires the active
participation of the private prosecutor, he can just
manifest to the court that the private prosecutor, with
its approval, will conduct the prosecution of the case
under his supervision and control. – Cantimbuhan v. Hon.
Cruz, Jr., G.R. No. L-51813-14 November 29, 1983

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Sections 4 and 15, Rule 110
of the Rules of Court
• SEC. 4. Who must prosecute criminal actions. — All
criminal actions either commenced by complaint or by
information shall be prosecuted under the direction and
control of the fiscal.
• xxx xxx xxx
• SEC. 15. Intervention of the offended party in criminal
action. — Unless the offended party has waived the civil
action or expressly reserved the right to institute it
separately from the criminal action, and subject to the
provisions of section 4 hereof, he may intervene,
personally or by attorney, in the prosecution of the
offense.

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Thanks for your
listening!

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