[ANALYSIS | Deep Dive] Community legal aid service: Too much, too soon?

 

Disclosure: I am a member of the Free Legal Assistance Group (FLAG) and have been a member since 1990; I have also been the Director of the University of the Philippines Office of Legal Aid, the first clinical legal education program in the Philippines, from 2005-2008. My legal practice since being admitted to the Bar in 1991 has been 90% pro bono.

The Supreme Court, in A.M. No. 17-03-09-SC, recently required new lawyers to offer pro bono legal service to those who cannot afford lawyers by reason of indigency.

Citing the constitutional guarantee of access to adequate legal assistance as its rationale, the Community Legal Aid Service (CLAS) Rule requires those who have passed the bar and signed the Roll of Attorneys in any particular year after the Rule’s effectivity – but specifically, those who passed the 2017 bar examinations and were admitted to the bar in 2018 – to render 120 hours of legal service as defined in the Rule. This must be done within their first year of admission to the bar on pain of sanctions.

Is this too much, too soon? Or is this a good solution to address the apparent scarcity of lawyers for indigent litigants?

This week, we take a Deep Dive into the CLAS Rule, its consequences, and what it might mean to require new lawyers to render legal aid to those who are unable to afford lawyers of their own. 

Guaranteeing free access to adequate legal assistance

The 1987 Constitution guarantees in Article III, Section 11 that “(f)ree access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.” It becomes clear simply by reading the provision that the following are guaranteed:

• Free access: which could mean either “no charge” or “unhindered”
• Adequate legal assistance: which should mean that the legal assistance that is provided is responsive to the problem

Section 11 mandates that poverty should not be a hindrance to free and adequate legal representation in all courts and administrative tribunals. It does not, therefore, contemplate just providing lawyers but providing quality representation that is, at the same time, free.

The CLAS Rule

Does the CLAS Rule address these two prongs of the constitutional guarantee?

In Section 2, the CLAS Rule requires that new lawyers must render 120 hours of pro bono legal service within one year of their admission to the bar. Thus, one aspect of “free legal assistance” is addressed, i.e., the professional fees of the lawyers. However, professional fees are only a part of the cost burden of litigants in accessing the justice system. There are filing and docket fees as well as the sundry costs of litigation.

For indigent litigants in civil cases, filing and docket fees may be waived upon motion and a showing that the litigants are unable to reasonably afford the services of a lawyer; however, should the litigation be successful, the fees become charged to any monetary award that is made by the court.

In criminal cases, the prosecution of cases is done without charge as it is undertaken by prosecutors from the Department of Justice’s National Prosecution Service (DOJ-NPS); the defense, on the other hand, may also be undertaken for free by the Public Attorney’s Office (PAO) or by law groups like the Integrated Bar of the Philippines National Committee on Legal Aid (IBP-NCLA), voluntary lawyers groups like the Philippine Bar Association (PBA), or cause-oriented lawyers’ groups like the Free Legal Assistance Group (FLAG) or the National Union of Peoples’ Lawyers (NUPL).

What the CLAS Rule does not address are the other costs of litigation, such as the unpaid hours or days taken off by the litigant or his/her family members to prosecute or defend the case or follow-up papers. So, while the CLAS Rule may actually put in place a system of “free” legal assistance in the sense that the new lawyers handling the cases are not to be paid, it does not address the other aspects of the “free access” that the Constitution contemplates.

Should a litigant or should family members find that it becomes untenable economically to pursue litigation to vindicate their rights due to the economic costs, then they would simply give up thus defeating the intent behind the guarantee.

Section 2 of the CLAS Rule requires only new lawyers, i.e., those who have just passed the bar, to render legal assistance for 120 hours within their first year. And because it is a very new rule, the jury is still out, as it were, on whether the Rule actually fulfills the guarantee of adequate legal assistance under Article III, Section 11. The acts constituting legal services are spelled out in Section 4 of the Rule and these include:

• Representation of qualified litigants in courts and administrative bodies
• Legal counseling, assistance in contract negotiations, and drafting of legal memoranda for the client, which may include policy work involving legal research and advocacy
• Developmental Legal Assistance, which may include rights awareness, capacity-building and training in basic human rights and other similar work that are rendered by public interest law groups
• Legal services rendered by government lawyers
• Legal services rendered to members of marginalized sectors

There are consequences to violation of the Rule. In Section 14, penalties for violations are provided which include delisting the offending lawyer as a member in good standing with the IBP, the consequence of which is that the lawyer may not practice law until reinstated into good standing.

Other strategies and solutions

Is the CLAS Rule enough? Or is it even the answer to the problem?

The simple answer is “No.” The CLAS Rule, while a start, is certainly not the solution to court delay, court decongestion, or even delayed justice. It is simply a part of what ought to be a palette of strategies and solutions available to the Supreme Court.

There are many other strategies and solutions available.

For instance, if the strategy is to provide greater free legal representation, then a review of the Charter of the Public Attorney’s Office (PAO) ought to be considered with the end in view of canalizing the discretion of the PAO to prosecute criminal cases instead of simply defending the accused.

At the moment, depending on the PAO’s discretion, it accepts cases wherein the PAO acts as the counsel for a private complainant working together with the Public Prosecutor thus depriving, in that specific case, the accused of free legal representation.

The idea for an office like the PAO is that it is State-provided free representation for those who are accused in criminal cases and for the complainant, in specific civil cases. It ought not to be allowed to duplicate the efforts of the NPS, which is mandated to prosecute cases whether or not there is a private counsel involved.

If the strategy is to provide adequate legal assistance for free, the Supreme Court is empowered to designate any lawyer to provide legal assistance pro bono. Limiting this to new lawyers is problematic simply because the lawyer is new and certainly not as experienced as his or her opponent who may be a public or private lawyer who has logged years of trial or negotiation work. While the objective is laudable, limiting the Rule to new lawyers may become counterproductive.

What the Supreme Court may consider is putting together a pool of lawyers it deems qualified to provide the legal assistance contemplated by Section 11 to indigent litigants, provide trial courts with the list and, in specific cases, let the courts require these lawyers to handle specific cases pro bono.

The Court may also consider addressing the second understanding of “free” legal assistance, i.e., unhindered, by reviewing costs of litigation in general. Resorting to the courts has become an expensive option simply because of the tucked in costs – absences from work, paying for costs of litigation such as transcripts, sheriffs’ fees, and the like.

Is there a lawyer in the house?

One wonders why this question is hardly asked, unlike when it comes to doctors. Perhaps, it is because we acknowledge that, many times, we have no choice but to accept any lawyer who we are fortunate to hire or any lawyer who would have us.

But that shouldn’t be the situation. Article III, section 11 makes it a demandable right to have adequate legal assistance that is both free of charge and unhindered.

Perhaps the Supreme Court may consider other strategies to make this right not only demandable but also meaningful. – Rappler.com