BIR’s Kim Henares’ announcement that
her agency is crafting a memorandum circular that would require Lawyers and
Doctors to post a schedule of rates they charge their clients/patients (just
like sari-sari store) is, at least, at the point of view of a lawyer,
preposterous for a number of reasons:
1. The timing is awful, coming on the
heels of yet the most pervasive and massive corruption scandal (pork barrel
scam) involving lawmakers, politicians, and members of the executive
department. Given what she is trying to achieve: “to collect more to finance
the expenditure of the government.” Who’s going to buy it at this time? What
this sounds to taxpayers is to collect more so that the thieves in government
can funnel more into their own pockets.
It sounds like saying that taxpayers have
not sacrificed enough; the thieves have not built enough mansions, have not
acquired enough posh flats; have not partied enough; have not bought enough
luxury cars… ENOUGH!
2. It is the Supreme Court that has the power
to regulate all aspects of the practice of legal profession, broad enough to include
whether to post rates or not (honestly I can’t believe I even have to discuss
this, the genius) so it is clearly a case of an executive agency overstepping
its authority.
Section 5, Article VIII, of 1987 Philippines
Constitution provides:
“Section 5. The Supreme Court shall have
the following powers: xxx
(5) Promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts,
the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged.
Such rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure
of special courts and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.”
It is the Supreme Court’s longstanding
view that lawyering is not a business, but a noble profession thus, not to be
peddled like a commodity or a commercial undertaking. That explains why in its
Canons embodied in the Code of Professional Responsibility (Rule2.03), lawyers
are not allowed to advertise (whether on TV or paper, or any other means)
except only to list in professional directories which one hardly knows exist,
if in fact, they do, or even actively seek referrals.
This makes the playing field more tilted
in favor of big law firms who can afford a not-so-innocent media exposure
–calculated to go around the prohibition– to
gain publicity, popularity, and further their marketability, while the small
private practitioners, regardless of their ability to deliver the same quality
of service, are left in oblivion. This has enormous impact on their ability to
make a living.
Now, imagine while lawyers are not allowed
to advertise or even to hang or mount an attractive law office sign, but only a
plain drab insignificant unnoticeable signage bearing their name and title,
they are being required to post their rates, in color I surmise.
“Rule 2.03 - A lawyer shall not do or
permit to be done any act designed primarily to solicit legal business.”
Under the same Canon and Code, a lawyer is
prohibited from charging a rate lower than the custom, but qualified by
circumstances of the prospective client or his case. That makes uniform rates
unfeasible, if not improper.
“Rule 2.04 - A lawyer shall not charge
rates lower than those customarily prescribed unless the
circumstances so warrant.” (emphasis
and italics supplied)
3. It is no one-size-fits-all for legal services,
and so for the fees. Unlike in the case of doctors, where medical cases may be
homogeneously categorized, e.g. if its heart surgery, it is relatively the same
across all patients as it involves the same human heart and procedure, and
involves the patient alone.
In the case of lawyers, a case of
ejectment would vary a great deal depending on who you are trying to eject: take
into account the resistance the defendant puts up or exerts or is expected to
put up, and the consequent risk it presents on the life of a lawyer; the period
it is likely to take to conclude the case; the complexity which, often, a
lawyer cannot conclusively evaluate until the defendant’s answer reveals it is
part of a squatting syndicate, so forth and so on.
Times have changed as I have learned
firsthand, there is quite a number of squatting syndicates now hell bent on
usurping and wresting possession and ownership of properties from their lawful
owners through tactics and stratagem of intimidation, connections, and
exploiting the weakness of our justice system – knowing its inner workings.
5. Not all lawyers are in private
practice. While obviously, the target of Henares’ pronouncement are those in
private practice, it demonizes lawyers in general as tax evaders, even
comparing miserably to teachers in terms of alleged average tax annual payments.
That is stupid, and a lie! A lawyer in an LPO pays as much as two hundred
thousand pesos in taxes a year, and withheld.
Even if they say a lawyer is not covered
by the memorandum (I’m even just guessing) if he doesn’t intend to practice
privately, it is still onerous because if and when a lawyer decides to take a
case, even if it’s pro bono, and even
if it’s a single case in a year, he will have to comply with the memorandum,
and is subjected to corresponding penalty. The prospect of harassment I can
only imagine.
6. What
Henares should preoccupy herself today, paying a little respect and sensitivity
to, and solidarity with, the grief that has gripped the public over the
multi-billion scam (including lawyers and doctors), is to investigate all who
are involved in the pork barrel mess to see if they have paid taxes for their
loots, since money earned whether legally or illegally is liable for taxes. Why
isn’t she as adamant in her investigation on these politicians as she is on
Napoles? (not in any way to side with Napoles)
Lastly, she has to learn one unwritten
rule: Timing makes sense.
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