Rule on Mandatory Legal Aid Service issued by Supreme Court

I’m not sure if other professionals are required to render free service to the community. Lawyers, on the other hand, are now required to provide free legal aid service. The Supreme Court recently issued the Rule on Mandatory Legal Aid Service. As provided under Bar Matter No. 2012, all practicing lawyers must render a minimum of sixty (60) hours of free legal aid services to indigent litigants in a year. The minimum amount of time is spread within twelve (12) months, which means that a practicing lawyer must render a minimum of five (5) hours of free legal aid services each month.

Not all lawyers are covered. The Rule defines a practicing lawyer

Practicing lawyers are members of the Philippine Bar who appear for and in behalf of parties in courts of law and quasi-judicial agencies, including but not limited to the National Labor Relations Commission, National Conciliation and Mediation Board, Department of Labor and Employment Regional Offices, Department of Agrarian Reform Adjudication Board and National Commission for Indigenous Peoples. The term “practicing lawyers” shall exclude:

(i) Government employees and incumbent elective officials not allowed by law to practice;

(ii) Lawyers who by law are not allowed to appear in court;

(iii) Supervising lawyers of students enrolled in law student practice in duly accredited legal clinics of law schools and lawyers of non-governmental organizations (NGOs) and peoples’ organizations (POs) like the Free Legal Assistance Group who by the nature of their work already render free legal aid to indigent and pauper litigants and

(iv) Lawyers not covered under subparagraphs (i) to (iii) including those who are employed in the private sector but do not appear for and in behalf of parties in courts of law and quasi-judicial agencies.

The Rule on Mandatory Legal Aid Service, which was published in the PhilStar and Inquirer on 14 February 2009, takes effect on 1 July 2009. A subsequent en banc Resolution, however, deferred the effectivity to 1 January 2010.

For the full text of Bar Matter No. 2012, please click here. (As an aside, you may have noticed that the url of the Supreme Court website was changed, from www.supremecourt.gov.ph to http://sc.judiciary.gov.ph/). I see a very interesting and passionate debate on this issue (please use the comment section below). The poll is also found below.

[poll id=”11″]

31 comments

  1. the idea itself is noble and laudable. But it is easier said than done. Supposing here i am, a lawyer, ready to render service pro bono, in observance of the requirement. Where do i get the clients who would be willing to let me handle their cases pro bono? will they be assigned to me by the courts? will i have to ask the PAO if they can spare me some cases? or check the police blotter from time to time if there are indigent suspects or victims? worse, do I have to go ambulance-chasing and convince any offender or offended party to litigate? And, if i do get a client for the purpose, how long must I stay on the case? until its conclusion? or will I just bid the client farewell right after I have consumed the required 60 hours of service? also, isn’t it also required that I be honest with the client that I will be serving him for only 60 hours? and if he realizes this, will he ever agree to let me handle the case? or is it ok to hide this from the client, for anyway, beggars cannot be choosers?… just a thought…

  2. just some questions. anybody can answer. me and some buddies were debating on this rule recently. it was quite a heated (but fun) discussion. maybe you guys can share your thoughts.

    a) to those who say this is involuntary servitude, what makes this different from being appointed counsel de officio when in court? if this rule is involuntary servitude, shouldn’t that be considered involuntary servitude as well?

    b) this is a supreme court issuance right? so what do you test it against? the purpose and means test is applicable only when police power is exercised but i don’t think the sc exercises police power when making rules. if i remember correctly (i never was a good student), only the legislative exercises police power. the sc has that rule making power under art. 8, sec. 5, par. 5. so if someone does question its constitutionality, wont it be the sc anyway who decides? malabo atang i-reverse nila sarili nila…

    c) on the equal protection issue, isn’t there a substantial distinction between litigators and non-litigators?

    im trying to remember some of the other points raised but for now, yan na muna.

  3. @ Atty. Yehey:

    a. Obviously, it is involuntary servitude. Nevertheless, the SC, for sure, will invoke the supremacy of its constitutional power to regulate the practice of law in the Philippines.

    b. Yep. It is pursuant to SC’s rule-making power and power to regulate practice of law… The most we can do is to get the attention of the SC… Like, if IBP, will make a statement regarding this, or if you are bold enough, you can actually right directly to the Chief Justice and other Justices and tell them your issues regarding the rule (i almost did).

    c.I believe there is a substantial distinction, but, due consideration must be given to other practising lawyers, who, although appear for and behalf a party, but do not have control over their time (like me. i’m working 8-5 in a law firm) should also be exempted. Otherwise, I will be forced to absent myself in our office or hearings in the cases of our office, just to be able to attend to the requirements of this new rule… And surely, my big bosses won’t be happy about that.

  4. To answer the issue raised by Alpha_Mike:

    b) this is a supreme court issuance right? so what do you test it against? the purpose and means test is applicable only when police power is exercised but i don’t think the sc exercises police power when making rules. if i remember correctly (i never was a good student), only the legislative exercises police power. the sc has that rule making power under art. 8, sec. 5, par. 5. so if someone does question its constitutionality, wont it be the sc anyway who decides? malabo atang i-reverse nila sarili nila…

    Sir, isn’t it that in the same provision you mentioned that the rule making power of the SC has limitation? The part that says, “…the rules promulgated should not diminish, modify or impair substantive rights…” First, won’t the rights of lawyers to substantive due process be in a way impaired or diminished if this Rule passes? Second, is the due process clause limited to only the exercise of police power? From what i read from the book of Justice Cruz is that the due process clause is a limitation to the “arbitrary powers of the State.”hindi po ba included sa state ang judiciary?

    Tapos regarding po dun sa sino magdedecide kung constitutional or not… Hindi ba pwede po magkamali ang ating SC sa mga decisions nila? 🙂

    I’m just asking these questions because my thesis is actually regarding the validity of the MaLAS.

    1. Hi, I don’t know if you’ll still be able to read this or if you’d still remember (since it’s been 6 years now) but if it’s okay, I would like to know whether the stand of your thesis regard MaLAS as a valid and constitutional law and your reasons as to why… I’m asking because I am also doing a position paper on it now. Would like to get more information and opinions of other people to see arguments and counterarguments.

      Right now, I understand the purpose of this law and see it as a positive impact however, this law has a lot of things to be tuned up.

  5. Chile’s Constitutional Court Strikes Down Mandatory Free Legal Advice

    August 28th, 2009

    by Domingo A. Lovera Parmo

    The avarice of lawyers seems to be a widely-shared belief. Not in vain has the so-called legal profession received too many critiques around the world, being as they are often the most radical adversaries of the lower classes. I still remember a cartoon I once saw which said: “Little money… little law,” evidently suggesting (and dramatically describing) those who have money to pay fancy and well-trained lawyers will have greater chances of being satisfied in a trial. Are these unfair sayings?

    Chile’s Bar Association (”El Colegio de Abogados”) recently filled a petition before the Constitutional Court, arguing the unconstitutionality of mandatory free legal advice (article 595 of the C.O.T.). According to a legal regulation which lasted almost 60 years – but which can be traced back in the Middle Ages, according to Fernando Orellana Torres – lawyers were bound to provide free legal assistance to people living in conditions of poverty who could not afford a private lawyer. Lawyers were designated by a lot conducted by the Judiciary and, once assigned, were “on duty” for a month – and were required to continue providing legal advice until the end of their client’s case. In practical terms, free legal advice never posed a serious demand on lawyers since it coexisted with the Legal Assistance Service – a government-rooted office, which also provides legal counsel to people who cannot afford a private lawyer. In this latter case, law students – who did not get paid – carried out most of the work. (In fact, this so-called “legal practice” lasts for six months, and is a necessary requirement to becoming a lawyer in Chile.)

    Criminal cases (including those before military trials) might have presented a different situation; lawyers designated to their “on duty” role were normally consulted in criminal cases, while in labor and civil cases, people preferred to ask the Legal Assistance Service. Currently, free legal advice in criminal cases is assumed by a public office (“Defensoría Penal Pública”) – implemented with the reform to the criminal proceedings which started in 2000.

    What were the Bar’s main arguments? It basically claimed the violation of two constitutional rights. First, that mandatory legal duties were violations of the equality clause, since the mandatory free legal advice imposed disproportionate legal duties on a specific class of people, namely lawyers – when compared with other mandatory legal charges for which people get paid (i.e. military service). Secondly, it also claimed the violation of the right to get fairly retributed (meaning paid) for a job, a right that – so the Colegio claimed – emanates from the liberty to conduct economic enterprises, a right recognized in the Chilean Constitution.

    The field was in some way prepared. The Court had previously declared the inapplicability of the same institution – a requirement needed to be met in order to ask for the nullification of a law – so that the “Colegio” relied heavily on the Court’s previous decision. According to this previous decision (Constitutional Court, Rol No 755, 24th June, 2008), the Constitutional Court decided that the duty’s lack of payment was unconstitutional, though the purposes sought by the government (that of providing free legal advice to those who cannot pay private counsel) were not. In implementing that decision, the Supreme Court essentially designated the lawyers “on duty” anyway, by asking them to sue the government for recovering the salary due because of their job. The Bar also claimed this was a new undue public charge on lawyers, who would face new costs in suing the recovery.

    The Court limited its decision to the duty’s payment – according to the previous inapplicability decision – and also remarked that the unconstitutionality of the law was something exceptional, considering the “respect towards the legislator’s labor”. In that light, it struck down the duty’s lack of payment, therefore ordering the legislator to regulate the way designated lawyers working “on duty” will get paid. The Court’s main arguments were the following.

    Regarding the right to equality before the law

    According to the Court, people are treated with equal respect and consideration as long as they receive same governmental treatment when under the same circumstances. Therefore, those in different circumstances may receive different legal treatment. The Court did find reasons to justify lawyers’ different legal treatment. As the Court said, when analyzing other liberal professions we found no other workers being legally required to work freely to satisfy a governmental end. However, lawyers, who are invested by the judiciary, fulfill a quite different social role: that of being actual justice’s assistants.

    Even when the distinction was reasonably justified (on the grounds of considering lawyers to play a crucial social role), the Court decided to determine whether the State was by means of this distinction pursuing a constitutional (and legitimate) end. The Court again concluded that it was. The state was legitimately and constitutionally seeking to provide every people who cannot afford private counsel with legal advice. That end was itself established in the Constitution.

    Equality before the law, however said the Court, demanded much more than just reasonable distinctions and the pursuing of constitutional ends – already fulfilled. It also demanded the analysis of the means by which the ends were to be achieved. According to the Court, equality before the law is affected when the right’s regulation (in this case the reasonable distinction) is inadequate, unnecessary, and intolerable. In other words, the Court decided to evaluate the proportionality of the restriction imposed on the right (the unequal legal treatment). In assessing the proportionality the Court insisted on the end’s legitimacy while it rejected the means used. Lack of payment – the court argued – posed on lawyers an unreasonable charge their social role was not meant to bear.

    Was the “duty” a disproportionate public charge too? Chile’s Constitutional system allows the imposition of public charges, understood – as the Court quoted – as “personal or patrimonial charges being not taxes, the law may impose on people in pursuing ethic, moral and legal ends.” Military service is an example of personal charge. According to the Constitution, however, public charges were to be imposed equally, meaning charges cannot be discriminatory duties imposed only on a certain class of people. The “duty” of mandatory free legal advice imposed upon lawyers, the Court said recalling its previous arguments on equality, was discriminatory since it was a public charge not remunerated – as it does occur with military service. Curiously enough, the Court decided public charges impose on the State the duty to remunerate them, a constitutional duty it extracted from the mere fact other public charges were.

    Did the gratuity of the “duty” also affect the right to work? The Court said it did; since lawyers were not allowed to charge their honoraries, the “duty” had become – so the Court said – a sort of forced work, which the Constitution forbids. Declaring these legal duties to be within constitutional bounds would eventually lead to the total abrogation of the autonomy to determine whether to perform a work (or not) and what work. Besides that, it was (and is) the Constitution itself that enshrines the right to a fair retribution – even when the work is legally imposed.

    The Constitutional Court decided that the State acted pursuing a constitutional end, which also was a constitutional duty. In fact, the Court argued the State not only acted well in trying to provide the worst-off with legal advice, but also acted in that way because the Constitution itself imposed that obligation. However, the means chosen by the State were measures that affected lawyers’ rights in a disproportionate way. Being forced not to charge for their legal advise meant, the Court said, that the State discharged its obligation (of providing free legal counsel to the worst-off) on lawyers who, after all, are private people like any other.

    Though noticing the “duty” had become a default assistance and barely used, its lack of payment proved to be highly violating of several constitutional rights – as showed above. One of the factors had caused a decreasing use was that of the implementation of public legal assistance services (in criminal, family law, and labor rights proceedings); hence the Court called upon the legislator to implement a public service alike. This decision – the Court was clear – should not be interpreted as constitutionally allowing lawyers to charge their clients with a fee, but to seek its professional retribution from the state.

  6. Located in the UK and working within the legal sector for over 12 years, I am of the opinion that this concept would add to the additional pressure that firms are already facing at the moment. Numerous firms have already decided to abandon Legal Aid work, which is for clients who cannot pay privately. The margins are very low. The thought of all lawyers having to conduct your concept would be disasterous here!

  7. @ Atty. Yehey:

    a. Obviously, it is involuntary servitude. Nevertheless, the SC, for sure, will invoke the supremacy of its constitutional power to regulate the practice of law in the Philippines.

    b. Yep. It is pursuant to SC’s rule-making power and power to regulate practice of law… The most we can do is to get the attention of the SC… Like, if IBP, will make a statement regarding this, or if you are bold enough, you can actually right directly to the Chief Justice and other Justices and tell them your issues regarding the rule (i almost did).

    c.I believe there is a substantial distinction, but, due consideration must be given to other practising lawyers, who, although appear for and behalf a party, but do not have control over their time (like me. i’m working 8-5 in a law firm) should also be exempted. Otherwise, I will be forced to absent myself in our office or hearings in the cases of our office, just to be able to attend to the requirements of this new rule… And surely, my big bosses won’t be happy about that.

  8. Mandatory Legal Aid Service (MLAS) is another burden for solo practitioners and other lawyers. They do not have that many clients anymore because of the high filing fees in court. They already spend for the Mandatory Continuing Legal Education which is not cheap. They are prohibited to appear in small claims cases nowadays. Now they are required to render free legal services of 60 hours a year. The little income they earn will be further reduced.

  9. I believe I am covered by exception number 4. It is only after 2 years of practicing that I realized that lawyering is not my cup of tea. I then decided to close my office and just take care of my child.

    I’ve read bm no. 2012 & it states that lawyers covered by exception number 4 shall fill up and submit a form prepared by the NCLA together with the payment of P4,000?!?! That’s not cheap especially for me. Wala na nga akong hawak na kaso, & I don’t earn that much tapos pagbabayarin niyo pa ako ng P4000???

  10. this is very taxing and virtually impossible to comply with because of the following: (1) where will we find indigents who have legal problems – not all indigents have legal problems; (2) say all lawyers complied 100% with this new rule, there will come a time that there will be no client to attend to, the supply will dry out; (3) this allows ambulance chasing because in order to comply, say naghahabol ka na, a lawyer will find someone whome he can render free service – magaagawan pa ang mga abogado sa client; (4) the PAO, in conjunction with 2 and 3, will soon have no use, but for now they are the competition of lawyers who are forced to comply wiht this rule; (5) this may even amount to involuntary servitude depending on how the same will be argued =)

  11. the recent notice of a new totally new rules of court is distressing . free flowing testimony ??? thats fine fine indeed but the better solution to the clogging of court dockets is to convert our courts into a jury system just like in the u.s.a. A jury of 5 people is enough to decide a case . Let the 5 people jury members decide and thats it . wala ng tse tse bureche ….and do not be passing new laws where lawyers who are expert in litigation are not consulted . they know best …

  12. mahina kayo . dinudurog na ang chief justice wala parin kayo ginagawa . anong klase na mga attorney kayo !!!!!! hoy gising !!!!

Leave a Reply

Your email address will not be published. Required fields are marked *