For The Public Good.docx

“For The Public Good”: A Must Practice for Lawyers

Justice is for the rich. This is the usual connotation by the vulnerable or the poor and disadvantaged people when it comes to the access to justice in our legal system. Worse, they become more vulnerable because they believe that there is no likelihood to defend their rights and win a case because they cannot afford a good lawyer. It cannot be doubted because more often than not, lawyers are seen to be people who have high professional fees. Thus, this is where the concept of “pro bono” should shed light to the people. “Pro bono publico” or “pro bono” in short, is a Latin ph rase which means “for the public good”. In the legal profession, this refers to legal services performed free of charge or at reduced fees for the public good.1 Pro bono is part of the expression of a lawyer’s commitment to the rule of law and to access to justice; it is an ethic of service to the legal system, democracy and the public good.2 It responds to the serious need in the community.

The practice of handling pro bono cases has already been apparent in the legal system in the Philippines especially because of the presence of a large number of people who cannot afford legal representation. However, even though this is present in our system, the motivation of the lawyers in handling these cases is, highly, a question for professional ethics. The question of “Do they exert the best of their abilities in defending their client even though they are not being paid?” is of great importance.

Hence, this paper will tackle about the circumstances of pro bono in the Philippines compared to the United States of America. The issues of demand and quality of such practice, respectively, will also be elaborated in this paper in order to enlighten us on how the said countries deal with the free access of their legal system especially when it is more needed by their people.

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Retrieved from https://www.thebalance.com/what-does-pro-bono-mean-2164411. Maguire, R., Shearer, G., Field, R. (2014). Reconsidering Pro Bono: A Comparative Analysis of Protocols in Australia, the United States, the United Kingdom and Singapore. UNSW Law Journal Vol. 37(3), 1164-1197. 2

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The Philippines vis-à-vis the United States: LAWS OF PRO BONO In the Philippines, pro bono is much needed. Lawyers are expected to protect the victims of oppression and injustice. However, these victims usually turn out to be the weak and the indigent who constitute the large portion of our population. Their oppression usually stems from their inability to procure the services of lawyers when they need them.3 This is the very reason why the Supreme Court as the highest court of the land and as the authority which can promulgate rules and regulations regarding pro bono cases should provide an effective avenue for these people to acquire legal representation.

The Philippine legal system recognizes the importance of free legal assistance as the 1987 Constitution states that “free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.”4 Moreover, Canon 14 of the Code of Professional Responsibility provides that “A Lawyer Shall Not Refuse His Services to the Needy”. The Code requires that absent serious and sufficient cause to decline representation, lawyers must accept certain pro bono cases assigned to them.

Furthermore, to enhance the duty of lawyers to society as agents of social change and to the courts as officers thereof by helping improve access to justice by the less privileged members of society and expedite the resolution of cases involving them, the Rule on Mandatory Legal Aid Service was promulgated by the Supreme Court.5 It requires every practicing lawyer to render a minimum of sixty (60) hours of free legal aid services to indigent litigants in a year. In return, the lawyers will incur tax credits for their services. There is also Republic Act No. 9999 or the Free Legal Assistance Act of 2010 where it seeks to guarantee free legal assistance to the poor and to ensure that every person who cannot afford the services of a counsel is provided with a competent and independent counsel preferably of his/her own choice. 6 3

Lopez, M. G. B. The Poor on Trial in the Philippine Justice System. This article was culled from the author’s thesis, “When the Poor is on Trial: A Social Psychological Interpretation,” for her M.A. in Sociology. 4 CONST. Art. III, Sec. 11. 5 B.M. No. 2012, Sec. 2. 6 R.A. No. 9999, Sec. 2.

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Recently, the “Community Legal Aid Service Rule” was issued by the Supreme Court en banc, dated October 10, 2017 which will require new lawyers to provide 120 hours of pro bono legal services to poor litigants.7 It cannot be denied that the judiciary is aware of the much needed pro bono services by the Filipino people especially that nowadays, there have been a lot of issues with regard human rights violations wherein most of the times, the people who are indicted are the poor. Lawyers are called upon to achieve the noble purpose of administration of justice for all for which their noble profession was established.

Contrary to what we have in the Philippines, there is no mandatory pro-bono in the United States of America. There is generally no mandatory requirement imposed by state bars for attorneys to provide their services pro bono or to report pro bono service. However, the American Bar Association Model Rule 6.1 provides that “Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono public legal services per year.” Although the ABA Model Rules are not mandatory or binding, a number of state bars have adopted the model rule or variations thereof.8 Furthermore, compared to the Philippines, there is also an option of contributions to organizations which support indigent members of their society.

It can be said that US has more robust pro bono practice compare to ours because of the well-known high status of its economy. Nevertheless, both countries face several issues in this practice such as quality of service being rendered by the lawyers and the issue on the barriers for this kind of service.

On the issue of effectiveness of pro bono vis-à-vis ethics of lawyers A lawyer-client relationship is based on the preservation and protection of the relation which will encourage a client to entrust his legal 7

Caliwan, C.L. (2017). New lawyers required to give free legal services. Retrieved from http://www.interaksyon.com/new-lawyers-required-to-give-free-legal-services/. 8 Latham and Watkins LLP (2015), Pro Bono Practices and Opportunities in the United States of America. Retrieved from http://www.probonoinst.org/about-us/.

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problems to an attorney which is of paramount importance to the administration

of

justice.9

Moreover,

in

the

case

of

Regala

v.

Sandiganbayan,10 the Supreme Court elucidated the nature of a lawyerclient relationship by stating that the fiduciary duty of a counsel and advocate is what also makes the law profession a unique position of trust and confidence. Thus, by procuring the services of a lawyer, the client has entrusted to him the protection of his rights. To be lax of this fiduciary duty especially if it is because of non-payment renders the administration of justice to all a mere sham. It should always be noted that in the creation of lawyer-client relationship, there are rules, ethical conduct and duties that breathe into life into it.11

Indeed, pro bono may be viewed from two perspectives-that of the lawyer and that of the client. From the perspective of the lawyer, the important question is whether there is ethical motivation to engage in pro bono. On the other hand, meeting the client's needs is the point of pro bono.12

The scenario in a case is this—a lawyer is engaged for his services but it is pro bono, the lawyer who is expecting no money to gain, has no motivation to win the case. This is not always the situation but still, this should be a pressing issue because it violates the duty of a lawyer which is enunciated in Rule 14.04 of the Code of Professional Responsibility which states “A lawyer who accepts the cause of a person unable to pay his professional fees shall observe the same standard of conduct governing his relations with paying clients”.

Some instances in the Philippines which pose the issue of the quality of pro bono services are when in the case of Agnes v. Republic,13 the pro bono counsels pleaded for leniency for their shortcomings; in the case of

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Hilado v. David, G.R. No. L-961, September 21, 1949. G.R. No. 105938, September 20, 1996. 11 Rhode Island Bar Association v. Automobile Service Association, 100 ALR 226; Cooper v. Bell, 153 SW 844; Ingersoll v. Coal Creek Co., 98 SW 173; Armstrong v. 163 NW 179; Re Mosness, 20 Am. Rep. 55. 12 Sossin, L. (2008). The Public Interest, Professionalism, and Pro Bono Publico. Osgoode Hall Law Journal Vol. 46(1), 131-158. 13 G.R. No. 156022, July 6, 2015. 10

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Fiel v. Kris Security Systems, Inc.,14 there has been an oversight or lapse by petitioners’ attorneys pro bono and in the case of Citibank v. NLRC,15 there was a reason proffered by respondent for lack of communication was that her case was being handled by the said counsel on a pro bono basis. Even though this problem cannot be seen as more apparent than real, it is still important to remind the lawyers of their duty to always give the best of their abilities in giving services to their client in furtherance of the administration of justice for all especially in a country like the Philippines wherein the more vulnerable ones are the poor. It is of great success for our legal system when the poor has an effective legal representation through competent lawyers; thus, avoiding injustice when it comes to court judgments.

In the US, the difference of a competent lawyer in capital cases is also relevant.16 In the case of Gideon v. Wainwright,

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there is a dream of

a vast, diverse country in which every person charged with a crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense. Even if they are aware of the substandard quality of the services of a lawyer when it comes to pro bono cases, there are lawyers willing to spend their own money to investigate cases of the people who are in need;18 thus, veering away from inadequate representation which often leaves the poor without the protection of their rights.

Indeed, there is a difference in the approach of the two countries when it comes to pro bono cases. Even though both countries have pro bono resources or organizations, the assertiveness is more apparent on the part of the US lawyers.19 However, this can still be rooted from the fact that their country is more developed than ours. Nonetheless, it is not 14

G.R. No. 155875, April 3, 2003. G.R. No. 159302, August 22, 2008. 16 Bright, S. B. (1994). 1835 Counsel for the Poor: The Death Sentence Not For the Worst Crime But For the Worst Lawyer. Yale Law Journal. 17 372 U.S. 335, 344-45 (1963). 18 Bright, S. B., supra. 19 There is an abundance of referral organizations throughout the United States at the national state and local level. See Latham and Watkins LLP (2015), Pro Bono Practices and Opportunities in the Philippines; Pro Bono Practices and Opportunities in the United States of America. Retrieved from http://www.probonoinst.org/about-us/. 15

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impossible for our legal system to be more attentive in achieving the adequacy of legal representation for the poor especially in life-changing crimes that the clients are facing.

On the issue of hindrances to pro bono service According to a report,20 the biggest obstacle for pro bono service in the Philippines is the fact that citizens are not aware of their resources and what services are available to them. This might be true but nowadays, we can already say that the people are already well aware of the presence of Public Attorney’s Office (PAO), Legal Aid and pro bono services. Hence, the barrier lies on the communication between the lawyer pro bono and the client.

It cannot be denied that lawyers have overwhelming number of cases and because of this, they do not have time to interview carefully their clients and witnesses who will provide the necessary facts for the case. This inability results in the former’s failure to fully take into account the context of their clients’ case and later on results to the loss of the case. Sometimes, the lawyers also lack the sensitivity to their social responsibility in fulfilling their profession’s mandate to help those less in life have more in law.21 This is evidenced by data which showed that lawyers stood for their clients during inquest, but majority of pro bono clients were represented only during arraignment. This shows that lawyers are usually called on only after the case has been filed in court.22 It was also observed that, it is when the hearings are already happening that the lawyers get to talk to their clients. Thus, it all boils down to the commitment of lawyers to their clients’ cases which is the main hindrance to pro bono services in the Philippines. They should be reminded that despite of the other things that they are doing even if they are also important cases, at the end of the day, they chose to defend the rights of a certain person and thus, they must stand in 20

Latham and Watkins LLP (2015), Pro Bono Practices and Opportunities in the Philippines. Retrieved from http://www.probonoinst.org/about-us/. 21 Lopez, M. G. B. The Poor on Trial in the Philippine Justice System. This article was culled from the author’s thesis, “When the Poor is on Trial: A Social Psychological Interpretation,” for her M.A. in Sociology. 22 UNDP, A Survey of Private Legal Practitioners to Monitor Access to Justice by the Disadvantaged.

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front of the judge ready to defend at all cost the rights of their client. All the case that they are handling should be dealt with equal importance and equal passion as all lawyers are engaged in a noble profession with a noble purpose.

Accordingly, barriers to pro bono work in the United States tend to be practical which also includes lack of time and lack of desire. While thousands of lawyers give generously of their time to pro bono cases, heavy workloads and personal considerations force some lawyers to avoid their pro bono obligation. Moreover, recent economic developments have put additional pressure on firms and associates dedicated to fulfilling their pro bono responsibilities. As business boomed

continuously and

associates’ salaries expanded dramatically, firms had more work than they could handle and needed the billable hours from paying clients to justify associates’ salaries. Many lawyers because of job pressures were forced to cut back on the number of hours of pro bono work they provided.23

Lastly, since in the US, pro bono is not mandatory, one of the biggest problems that their legal system faces is the attitude of lawyers in not making the effort to learn how to handle these cases. Unless, they have experienced it, they would not be able to realize the importance of rendering pro bono services to other people. This may also be applicable in the Philippines but because of the laws promulgated by the Supreme Court, inertia cannot be considered as a barrier as long as the said laws are effectively implemented and supervised.

CONCLUSION The purpose of a person in becoming a lawyer, whether or not for money and whether or not in the Philippines, should make the law and the justice system work for people who have nothing to give but only gratitude. It is in making them realized that lawyers are not reapers of money, but workers of justice.

23

Debroff, S. Pro Bono Guide: An Introduction to Pro Bono Opportunities in the Law Firm Setting. Harvard Law School, Cambridge MA.

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Doing pro bono is giving back something important to the community. It is for the purpose of achieving the social welfare status of our society. It sheds the light to those who are vulnerable and oppressed that despite of their economic circumstances, lawyers will always be just like the knights in a castle who will defend them when the antagonists of injustice are in the verge of attacking the peaceful life of the client. We should understand that it is not the fault of the poor that they are succumbed by the unfortunate legal consequences of their poverty. They should not be indicted because they are poor. That is why it is with more confidence that the presence of a good lawyer on the side of the accused could spell a lot of difference on the outcome of a case. This can be done through pro bono cases. Thus, there should be greater awareness and sensitivity among members of the legal profession about the plight of the poor in our justice system. Ending the predicament of the poor clients and having the realization of their having their day in court in the sense ideally stipulated in our legal statutes is what a lawyer should be today.

But of course, it should not be forgotten that even if there is a presence of a pro bono lawyer, the rigorous attention and assistance are still more important in order to make a better difference to the outcome of a case.

Lastly, as law students, we should not take advantage of the subjects dealing with the social responsibilities of lawyers with regard to the problems of the poor in our system. We should start as early as we are inside the four corners of the classroom to learn and understand that the legal profession is a noble profession and that we should imbibe in ourselves the achievement of justice for all and not justice for the rich. Pro bono public does not mean “for the private good” but “for the PUBLIC good”.

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