Case Synthesis: Practice of Law

Cases:
1 - In Re David, 93 Phil 461 (1954)
2 - Philippine Lawyers association vs Agrava, 105 Phil 173 (1959)
3 - People vs Villanueva, 14 SCRA 109 (1965)
4 - Ulep vs Legal Clinic, 223 SCRA 378 (1993)
5 - Cayetano vs Monsod, 21 SCRA 210 (1991)

     In the case of In Re David, 93 Phil 461 (1954), the act of being a legal consultant is a practice of law. To engage in the practice of law is to do any of those acts that are characteristics of the legal profession. As such, neither can he allow his name to appear in such pleading by itself or as a part of a firms name under the signature of another qualified lawyer as he is under suspension from the practice of law. Thus, he cannot do indirectly what the Constitution prohibits directly.

     In Philippine Lawyers association vs Agrava, 105 Phil 173 (1959), the practice of law iss not limited to the conduct of cases or litigation in court. It embraces any activity in or out of court that requires the application of law, legal principles, practices or procedures and calls for the legal knowledge, training and experience. Moreover, only the Supreme Court has the exclusive and constitutional mandate (Art 8, Sec. 5(5))with respect to the admission to the practice of law in the Philippines. And, any member of the philippine Bar in good and regular standing may practice law anywhere and before any entity, whether judicial or quasi-judicial or administrative in the Philippines.

     In the case of People vs Villanueva, 14 SCRA 109 (1965), practice of lawimplies the customary or habitual holding of oneself to the public as a lawyer and demanding compensation for his services. Moreover, private practice is more than an isolated appearance for it consist of frequent customary actions, a succession of acts of the same kind. It may, however, amount to practice of law in relation to the rule prohibiting some persons from engaging in the exercise of the legal profession (e.g all members of the judiciary, judges, President, Vice-president, etc.)

     In Ulep vs Legal Clinic, 223 SCRA 378 (1993), the practice of law is not limited to the conduct of cases in court. It includes legal advise and counsel, as well as preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be pending in a court. When a person participates in a trial and advertises himself as a lawyer, he is in the practice of law. One who confers with his clients, advises them as to their legal rights and then takes the business to an attorney and asks the latter to look after the case in court is also practicing law. Giving advice for compensation regarding the legal status and rights of another and the conduct with respect thereto constitutes a practice of law. And, the standards of the legal profession condemn the lawyer's advertisements of his talents. A lawyer cannot, without violating the ethics of his profession adevertise his talents or skill in a manner similar to a merchant selling his goods. The only exceptions are when he appears in a reputable law list and use of ordinary, simple professional card.

     And, in the case of Cayetano vs Monsod, 21 SCRA 210 (1991), to engage in the practice of law is to perform those acts which are characteristics of the legal profession. Generally, to practice law is to give notice or render any kind of service, which devises or or services require the use, in any degree, of legal knowledge or skill. As such, Atty. Monsod's past work experiences as a lawyer-economist, lawyer-mangaer, lawyer-entrepreneur of industry, lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and poor verily satisfy the constitutional requirement that he has been engaged in the practice of law for at least 10 years.

Case Digest: People vs Jalosjos

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO G. JALOSJOS,

accused-appellant.

Facts:

         The victim of rape in this case was a minor below twelve (12) years of age, who herself narrated the shameful details of the dastardly act against her virtue. The victim was peddled for commercial sex by her own guardian whom she treated as a foster father. Because the complainantwas a willing victim, the acts of rape were preceded by several acts of lasciviousness on distinctlyseparate occasions..The accused was then CongressmanRomeo Jalosjoswho, inspite of his having been charged and convicted by the trial court for statutory rape, was stillre-elected to his congressional office. On December 16, 1996, two (2) informations for the crime ofstatutory rape and twelve (12) for acts of lasciviousness, were filed against accused-appellant

      

      The victim, Maria Rosilyn, grew up in a two-storey apartment in Pasay City under the care of SimplicioDelantar, whom she treated as her own father. Simplicio was a fifty-six year old homosexual whose ostensible source of income was selling longganiza and tocino and accepting boarders at his house.He, however, was also engaged in the skin trade as a pimp.

          Rosilyn ran away from home with the help of one of their boarders. They went tothe Pasay City Police where she executed a sworn statement against SimplicioDelantar. Rosilynwas thereafter taken to the custody of the Department of Social Welfare and Development (DSWD).The National Bureau of Investigation (NBI) conducted an investigation, which eventually led to thefiling of criminal charges against accused-appellant He was also convicted on six (6) counts of acts of lasciviousness.

Issue/s

1.      WHETHER OR NOT THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE

ACCUSED-APPELLANT BASED ON TESTIMONY OF THE PRIVATE COMPLAINANT,

CONSIDERING THE ATTENDANT INDICIA OF INCONSISTENCIES AND UNTRUTHS.

2.      WHETHER OR NOT THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE

OF THE CONFLICTING STATEMENTS GIVEN BY THE PRIVATE COMPLAINANT.

3.      WHETHER OR NOT THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCEOF PRIVATE COMPLAINANT'S FAILURE TO IDENTIFY THE ACCUSED-APPELLANT.

4.      WHETHER OR NOT THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE PRIVATECOMPLAINANT WAS A MINOR LESS THAN TWELVE YEARS OF AGE WHEN THECLAIMED INCIDENTS ALLEGEDLY TOOK PLACE.

5.      WHETHER OR NOT THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WASCOMMITTED AGAINST THE PRIVATE COMPLAINANT.

Ruling

The Supreme Court affirmed the decision of the RTC Makati with modification of penalty.

1.      TESTIMONY OF VICTIM; DOCTRINE OFFALSUS IN UNO FALSUS IN OMNIBUS; APPLICATION THEREOF NOT AN ABSOLUTERULE OF LAW; CASE AT BAR. The contention is without merit. Falsus in unofalsus inomnibus is not an absolute rule of law and is in fact rarely applied in modernjurisprudence.Trier of facts are notbound to believe all that any witness has said; they may accept some portions of his testimony and reject other portions, according to what seems to them, upon other facts and circumstances to be thetruth . . . Even when witnesses are found to have deliberately falsified in some material particulars,the jury are not required to reject the whole of their uncorroborated testimony, but may credit suchportions as they deem worthy of belief.

2.      CREDIBILITY OF WITNESSES; NOT AFFECTED BY SOMEAMBIGUOUS ANSWERS ON WITNESS STAND, WHICH REFERS TO MINOR ANDPERIPHERAL DETAILS; CASE AT BARA reading of the pertinent transcript ofstenographic notes reveals that Rosilyn was in fact firm and consistent on the fact of rape andlascivious conduct committed on her by accused-appellant. She answered in clear, simple andnatural words customary of children of her age.

3.      IDENTIFICATION OF THE ACCUSED; DEFECT IN OUT-OF-COURT

IDENTIFICATION OF THE ACCUSED CAN BE CURED BY AN IDENTIFICATIONSUBSEQUENTLY MADE IN COURT; APPLICATION IN CASE AT BAR.Contrary to thecontentions of accused-appellant, the records reveal that Rosilyn positively and unhesitatingly identified accused-appellant at the courtroom. Such identification during the trial cannot be

diminished by the fact that in her sworn statement, Rosilyn referred to accused-appellant as her abuser based on the name she heard from the person to whom she was introduced and on the name she saw and read in accused-appellant's office.

4.      AGE OF THE VICTIM IN RAPE CASES MAY BE ESTABLISHED BY

DOCUMENTARY EVIDENCE OTHER THAN THE BIRTH CERTIFICATE; PRESENT INCASE AT BAR. — It is settled that in cases of statutory rape, the age of the victim may be provedby the presentation of her birth certificate. In the case at bar, accused-appellant contends that the birth certificate of Rosilyn should not have been considered by the trial court because said birthcertificate has already been ordered cancelled and expunged from the records by the Regional TrialCourt of Manila, Branch 38, in Special Proceedings No. 97-81893, dated April 11, 1997. Even assuming the absence of a valid birth certificate, there is sufficient and ample proof of the complainant's age in the records. Rosilyn's Baptismal Certificate can likewise serve as proofof her age. In People v. Liban, we ruled that the birth certificate, or in lieu thereof.

5.      WHEN CONSUMMATED; SUFFICIENTLYESTABLISHED IN CASE AT BAR. — True, in People v. Campuhan, we explained that thephrase, "the mere touching of the external genitalia by the penis capable of consummating thesexual act is sufficient to constitute carnal knowledge.Theinevitable contact between accused-appellant's penis, and at the very least, the labia of the pudendum of Rosilyn, was confirmed when she felt pain inside her vagina when the "idiniin" part ofaccused-appellant's sex ritual was performed.

6.      STATUTORY RAPE; ELEMENTS; ESTABLISHED IN CASE AT BAR. — At the time of commission of the crimes complained of herein in 1996, statutory rape was penalizedunder Section 11 of R.A. 7659, which amended Article 335 of the Revised Penal Code, to wit:When and how rape is committed. — Rape is committed by having carnal knowledge of a womanunder any of the following circumstances: 1. By using force or intimidation; 2. When the woman isdeprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented

Case digest : Caltex vs Palomar

Civil Code Article 8: Judicial decisions applying or interpreting the law shall form a part of the legal system.

Caltex (Philippines), Inc. Petitioner-appellee

Vs.

 Enrico Palomar, Postmaster General Respondent-appellant

Facts:                  

                    In 1960, the petitioner, Caltex (Philippines) Inc., launched a promotional scheme called "Caltex Hooded Pump Contest" which calls for participants to estimate the actual number of liters a hooded gas pump of each Caltex Station will dispense within a specific period. Such contest is open to all motor vehicle owners and/or licensed drivers. There is no required fee or consideration, and there is no need for the contestants to purchase the products of Caltex.  The forms are available upon request at each Caltex Station and there is a sealed can where accomplished entry stubs may be deposited.  Foreseeing the extensive use of mails for publicizing and transmission of communication purposes, Caltex sent representatives to the postal authorities for advance clearing for the use of mails for the contest.  But then, the Postmaster  General, Enrico Palomar, denied the request of Caltex in view of Sections 1954 (a), 1982 and 1983 of the Revised Administrative Code.  The aforesaid sections prohibits the use of mail conveying any information concerning non-mailable schemes, such as lottery, gift enterprise, or similar scheme. Consequently, Caltex invoked a judicial intervention by filing a petition of declaratory relief against the Postmaster General, ordering the Postmaster General to allow the petitioner to use the mails to bring the contest to the attention of the public and that the aforesaid contest is not violative of the Postal Law.

Issue:

Whether or not the petition of Caltex states a sufficient cause for declaratory relief.

Whether or not the ‘Caltex Hooded Pump Contest’ violates the Postal Law.

Ruling:                  

                         Judgment Affirmed.

‘Caltex Hooded Pump Contest’ is not a lottery that may be administratively and adversely dealt with under the Postal Law nor does it transgress any of its provisions. A lottery or gift enterprise comes within the prohibitive statutes only if it exhibits the tripartite elements of prize, chance and consideration; and, there being no consideration derived directly or indirectly from the party receiving the chance with regards to this contest means it is not one. Hence, the appellee may not be denied the use of the mails for the purposes thereof and that the petition herein states a sufficient cause for declaratory relief.