Friday, April 24, 2009

The Mandatory Legal Aid

A Supreme Court directive is causing a stir among practicing lawyers all over the country.
I am referring to Bar Matter 2012, approved by the Supreme Court last February 10, 2009.
The Supreme Court has directed that starting July, all court-practicing lawyers--the litigators---shall render mandatory legal aid to the poor, free of charge.
The directive mandates that lawyers must provide at least sixty hours per year(five hours a month) of litigation assistance.
Failure to render such service would result in dire consequences like supsension from the practice of law.
The voice of the gods at mount olympus have been met with opposition from practicing lawyers.
Some have said this is a form of legalized slavery.
Involuntary servitude, say others.
On my part, I have a different take on this.
My personal view is that being a lawyer, it is part of our system to assist those who canot afford.
We should balance things out between the poor and the rich, in terms of access to the courts.
True, there is justice for the rich, and justice for the the poor.
But we should not be stopped from working towards having equal justice for all, whether rich or poor.
So fundamentally, I do not oppose the directive of the Supreme Court.
Perhaps, there can be some modifications here and there, as the directive seems to be shockingly radical to many.
Anyway, a lawyer-friend, May Saga-Aguilar, has written a piece giving her reason why she is against Bar Matter 2012.
She is the former May Saga, fellow-announcer of DYEM-FM, and active student leader during our school days at Silliman.
She presently litigates in Cebu, after years of corporate lawyering in Manila.
She published her piece in her Facebook account.
She permitted me to re-publish. Here it is:

WITH ALL DUE RESPECT. I am in trial practice not for the money, but for the love of litigation, because if truth be told, there is no money in pure trial practice.

I worked for Aboitiz and Company, Inc. for five years, then for SGV and Co., Inc. for almost two years. During those years, I was receiving salary higher than those of most people my age. But I was unhappy because I was not allowed to litigate. So I gave up my handsome pay, and in the next few years, I would wonder if my decision was right.

Being in trial practice has not been financially easy. I pay for the rental of my own office. I pay for the salary and other benefits of my four staff. I pay for overhead expenses like electricity and telephone bills.

My office spends non-revenue time preparing my clients’ monthly Statements of Account, and non-revenue time making follow ups for payment. And then we are lucky if we get paid 70% of our billings for the month.

It is very common for clients to ask me to give them “discounts” on their bills. It is even more common for prospective clients to ask me for a reduction of my proposed fees prior to engagement.

Honestly, considering that I have three children to support, I am amazed that I have lasted eight years on my own. If you ask me if I have become rich in those eight years, the answer is no, and my passbooks will attest to that. I have not been able to buy a house, and I have not been able to buy a new car. I still drive the same second hand car I acquired six years ago.

People think that all lawyers are rich. They are sorely mistaken. The rich lawyers are the ones who work for big companies. Or those who work for big law firms. Or those who are engaged in tax consultancy. Or those who are into real property deals. The true-blue pure trial lawyers who practice on their own literally live on a day-to-day basis.

What fees does a trial lawyer expect from a case, and I mean the usual, normal case? Acceptance and appearance fees. Usually, time charges or hourly fees are absorbed by the acceptance fee – yes, you guessed it right – upon request of the prospective client. Contingent fee is usually done away with. Most cases simply do not give the lawyer enough basis to ask for this fee.

The acceptance fee is paid at the inception of the case. The appearance fees are paid as the case progresses. In other words, after the case is filed in court, the trial lawyer cannot expect any more income from the case other than appearance fees.

How many new cases does an average trial lawyer file in a month? Or to put it bluntly, how many new cases in a month can he afford to file or handle effectively?

There are exceptional trial lawyers who seem to have no problem attracting new clients. But unfortunately, there are even more trial lawyers who are not as lucky, and the only reason they continue to do litigation work is because of their love for it.

And here is the irony. While trial lawyers are not really earning that well, they are expected to look like they are. They must be well-dressed. They must at least drive a car. Having a house of their own is a plus. A trial lawyer who does not exhibit the form required will be thought of as unsuccessful and probably not good in trial practice. He will therefore attract less clients, and will therefore have less income, making him even more unable to comply with the form. And the evil cycle goes on and on.

And now trial lawyers are required to render 60 hours of FREE legal services a year. If the trial lawyer is normally paid P2,000.00 per hour, that is P120,000.00 lost income in one year, on top of the non-revenue hours spent on billings, administrative work, MCLE-related activities, or simply doing nothing because there is no case to handle. And if the trial lawyer earns an average net income of, say, P50,000.00 a month, or P600,000.00 a year, the amount lost to free legal services is about 20% of the his annual income.

I personally believe this is too stiff. This is punishing lawyers for being trial lawyers. This is tantamount to murder of the trial practice.

When I passed the bar examinations, and when I took my oath as a lawyer, I did not swear to render FREE legal services. Indeed, it is not the obligation of the Integrated Bar of the Philippines as a group, or of the lawyers in their personal capacities, to provide FREE legal services. This is the obligation of the Government. Why shift the burden on the trial lawyers?

Lawyers and lawyer groups have been rendering free legal services on their own. This is being done out of generosity, not out of obligation. This act deserves commendation and reward. I am disheartened that the thought of punishment even came into the picture.

Why does the rendering of free legal services have to be mandatory? Why should anyone be punished for not doing something that is not his obligation in the first place? Is it not more in keeping with justice and reason to ENCOURAGE lawyers to render free legal services, rather than to PUNISH them if they fail to do so?

Why don’t we have a program which will give lawyers CREDIT POINTS for rendering free legal services, credit points which they can use to their benefit? For instance, a lawyer who renders 10 free legal assistance hours in one year will be entitled to P100.00 discount on his annual IBP membership dues. Or, he can convert it into a coupon which he can use like money to pay for products and services purchased from selected stores and establishments.

I am sure there are one million ways of encouraging lawyers to render FREE legal services. But I am also very sure that making it mandatory is not one of them. Yes, they will comply, because they are lawyers and they have been wired to obey. But deep in their hearts they will feel that they have been shortchanged and subjected to injustice. And if justice is what we are all fighting for, then this is probably the biggest irony that the legal profession will create in this generation.

1 comment:

Anonymous said...

Hear hear!

I am in awe of your friend's letter. I hope her letter finds its way to the Supreme Court.

I am a lawyer as well, and although I am not in litigation, I feel discriminated against for being employed in the private sector.

I feel that being lawyer is not confined to the four walls of the trial court. I enjoy litigation but my heart isn't in it. This does not mean however that I do not use the skills set or the legal knowledge and experiences I was able to acquire over the years.

This rule discriminates against us Corporate lawyers as well. Although most corporate lawyers do not litigate, this does not mean that we will never be in front of a judicial or quasi-judicial bodies. We take up the legal causes of our families and friends for no fee and this law will prevent us form doing just that.

One of the main reasons I became a lawyer is to be able to protect my family and friends from injustice. If this happens, I will not be able to do that. How else can I squeeze the 50 hours mandatory legal in my work which takes up more than half of my waking hours.

This is just one big mess and i hope they sort it out.