Wednesday, April 13, 2016

An Indonesian tycoon’s media empire in the Philippines exposed | The Manila Times Online

"x x x.

I had received feedback from people who couldn’t believe such media firms could be controlled by a foreigner, since the Constitution bars foreigners from owning a single share in a media enterprise: “The ownership and management of mass media shall be limited to citizens of the Philippines.” (Article 16, Section 11)

The reality established by indisputable facts, though, is that the Indonesian Salim has practically skirted our laws and the Constitution to control a local media conglomerate, just as he has in the case of his telecom, power and water companies in the country, in which foreign ownership is limited to 40 percent.

Indeed, that we have lost our sense of nationalism and the respect for the rule of law has been clearly demonstrated by the Filipinos’ nonchalance over an Indonesian tycoon’s control of a media empire.

Salim, through intermediary firms, controls 18 percent of the Philippine Daily Inquirer, 77 percent of BusinessWorld and 51 percent of the Philippine Star.

Salim is the country’s first multi-media mogul having control not only of print media outfits but two television and radio networks, TV5 and AksyonTV, which includes more than two dozen radio stations all over the country, the nation’s largest satellite-to-home Cignal TV, and even an internet-only news site,

With his takeover of the Philippine Star in 2014, Salim has become the biggest media mogul in the country, dwarfing the Prieto-Delgado clan of the Inquirer, Emilio Yap’s heirs in the Manila Bulletin, the Lopezes of ABS-CBN, and the three families owning GMA-7.

Indonesian tycoon Salim’s media empire in the Philippines

How has Salim been able to defy the Constitutional ban on foreigners in media? Through PLDT, of which he is the biggest controlling stockholder and as such, wields the power to determine who make up the telecom giant’s management. His control of PLDT itself is now on flimsy grounds because of the 2012 Supreme Court ruling that the firm violated the 40 percent limit on foreign ownership. The Court, strangely though, has not implemented this ruling.

With Salim’s First Pacific Co.’s 25.6 percent stake in PLDT, the 20 percent shares held by two Japanese NTT subsidiaries, and 28 percent by other foreign stockholders (mostly via the stock market), foreign ownership of the country’s biggest telecom totals 74 percent – a situation which, to use the Supreme Court’s words in its decision on the issue, “makes a mockery of our Constitution.”

PLDT’s management controls the pension trust fund, called the Beneficial Trust Fund (BTF), for its 20,000 employees. When BTF started buying into the media sector, its chairman was the same person who had been serving as adviser to Salim and his top executive Manuel V. Pangilinan since they came into the country in 1984 – Albert del Rosario, President Benigno S. Aquino’s foreign secretary since 2010 until he resigned a few months ago.

By 2012, BTF had invested P14.5 billion — or 80 percent of P18.4 billion of its cash assets at the time — in a company called MediaQuest, the holding firm for Salim’s media companies.

MediaQuest is the investing company for the two broadcast enterprises. The first is ABC Development Corp., which owns VHF TV5, its flagship, and the AM Radyo5 broadcast enterprise. The second is Nation Broadcasting Corp, which operates 10 UHF “Aksyon TV” stations and 15 FM radio outfits based in the country’s major cities outside metropolitan Manila.

It is also MediaQuest which owns an investing company, Satventures, which, in turn, owns Cignal TV, now the country’s largest satellite-to-home TV company with 1 million subscribers as of September last year. MediaQuest’s subsidiary, Hastings Holdings Inc., is the holding company for the group’s newspaper investments.

Clever use of pension fund
It has been obviously clever for Salim to use the PLDT employees’ trust fund to set up his media empire, which most probably has aims other than mere profits.

By having the BTF as investor in the media empire, Salim can pretend that his print and broadcast media empire does not violate the constitutional ban on foreign investors in local media enterprises.

Yet, through his power over PLDT as the biggest single stockholder, he controls the media empire through BTF’s Board of Trustees, which has been chaired since del Rosario stepped down to become the Aquino government’s foreign secretary – by Ray Espinosa, chief legal counsel of PLDT, said to be Salim’s and Pangilinan’s top legal adviser.

MediaQuest President Espinosa has been Salim’s man running the media conglomerate. He has been the publisher of Philippine Star and BusinessWorld.

It is astonishing how the Philippine ruling elite pretends that Salim isn’t in control of one of the biggest multi-media conglomerates in the country today, in violation of our Constitution.

BTF’s resources, however, were not enough to fund the huge requirements of Salim’s media enterprises. Its investment in MediaQuest already made up 80 percent of its assets. So Salim borrowed a page from his competitor, broadcast company ABS-CBN Holdings book, which first used in 2013 the so-called Philippine Depository Receipts (PDRs) to get foreign equity injected into its media conglomerate.

PDRs have been a recent invention by the country’s tycoons to go around the constitutional ban or limit on foreign investment in restricted industries. Each PDR represents a share in a restricted company, and when bought by a foreign entity, gives the buyer the right to all the dividends due the shares of stock acquired. The foreigner, therefore, does not technically own a share to create the legal fiction of compliance with the Constitutional restrictions, but will receive the income due that share.

Why would an investor hold a PDR if such paper does not give him a share of the company it represents? The answer is obvious in the case of PLDT’s subsidiary, ePLDT. It does not need to have any control of MediaScape or its subsidiaries since its mother firm, PLDT, already controls this media entity.

P10B for Cignal TV

By September 2013, ePLDT had invested P9.6 billion in MediaQuest to fund Cignal TV, a direct-to-home satellite television service. The massive infusion of funds explains why Cignal TV in just four years became the largest Direct to Home (DTH) Pay-TV operator in the country, with a claimed 1 million subscribers by September 2014.

In March 2013 and then March 2014, ePLDT put in a further P2.45 billion in the form of MediaQuest PDRs, in order to fund its subsidiary Hastings Holdings, Salim’s holding firm for his print enterprises. Some of the P2.45 billion new funding was apparently used as payment to House Speaker Feliciano Belmonte in exchange for his family’s holdings in Philippine Star in 2014.

PLDT, however, took a different tack in funding its TV5 unit. PLDT and its subsidiary Smart Telecommunications made advertising placements with it, paid in advance, which it committed to total P868 million in 2013 and a further P758 million in 2014.

PLDT’s contract with TV5 for these advertising placements started in 2010 for a five-year term, and has been renewed for another five years, to continue up to 2021.

PLDT’s advertising-money support for TV5 has worried the broadcast media industry, as it is obviously the template for channeling not only PLDT’s funds to finance Salim’s media outfits but those of his other firms, especially Meralco.

With advertising funds limited in the country, Salim’s competitors in the media industry could be hit badly, even driven to the ground if the Indonesian tycoon decides for two years to devote the entire amount of advertising funds of PLDT, Smart and Meralco to TV5 and its newspaper, the Philippine Star.

Why has Salim gone into a crowded industry, whose profits would never be really stellar because of the Philippines’ small market, and where the country’s richest tycoons such as the Sys, Gokongweis and the Ayalas haven’t dared to go?

Public opinion

One important reason involves the obvious fact that media plays a dominant role in forming public opinion in the modern era. It is also a major force in politics. Political leaders in the country all woo the friendship of owners and editors of the major broadsheets and TV networks as their media outfits have the power to demonize a political leader and prettify a preferred one.

Salim, in fact, now has in place a perfect machine for controlling a population’s mind. First, a content generator made up of his news enterprises in print, broadcast and the internet; and second, a content disseminator consisting of his cellphone firms Smart Communications, the biggest in the country (with Sun as a cheaper brand) and his direct-to-home satellite television service Cignal TV and his cable news network.

Never in our history has there been such a magnate controlling companies in all forms of media and communications.

The First Pacific conglomerate has become so huge in the Philippines, even if the legality of its controlling stake in public utility firms rests on flimsy legal grounds. Public opinion sympathetic with Salim, no matter if his companies violate the spirit of the Constitution, would be crucial for the holding company’s continued presence in the country. That makes me very curious if he has been a major player in our recent presidential elections.

An Indonesian disregards our Constitution and laws by skirting its regulatory, legal loopholes with the help of the best and brightest of Filipinos. An Indonesian controls a media conglomerate in an industry where the Constitution totally bans all foreign participation.

His conglomerate consists almost entirely of telecommunications, power, water services and infrastructure companies and, therefore, is heavily dependent on government regulation, the implementation, or lack of it, of which depends on the President.

Yet the Philippine elite looks the other way and pretends there is no conglomerate in strategic public utilities and in media controlled by an Indonesian tycoon.

What kind of a country have we become?

x x x."

SC: CA can stop Ombudsman suspension orders | Headlines, News, The Philippine Star |

"x x x.

MANILA, Philippines – The Supreme Court (SC) yesterday junked the appeal of the Office of the Ombudsman regarding its ruling last year upholding the power of the Court of Appeals (CA) to review and stop orders of the anti-graft agency.

The SC justices decided in full court session in Baguio City to deny the motion for reconsideration of Ombudsman Conchita Carpio-Morales. 

The court stood firm on its ruling declaring as unconstitutional Section 14 of Republic Act No. 6770 (Ombudsman Act of 1989) that the ombudsman often invoked in assailing CA rulings against the anti-graft body’s orders on administrative cases.

The high court also affirmed its November 2015 decision insofar as the prospective effect of the abandonment of the condonation doctrine that clears re-elected officials of administrative liabilities for acts committed in their previous term.

In its appeal, Morales asked the high court to reverse the ruling and instead strike down the authority of CA to stop her orders.

She also urged the SC to order the retroactive application of the abandonment of the condonation doctrine so it could apply in the case of dismissed Makati City mayor Jejomar Erwin “Junjun” Binay Jr. over alleged anomaly in the Makati City Hall Building 2 project.

The SC did not see merit in the ombudsman’s appeal and held that all arguments she raised were resolved in the earlier ruling.

In the ruling, the high tribunal struck down paragraph 2 of Section 14 of RA 6770, which is often invoked by the ombudsman in assailing CA rulings against its orders on administrative cases.

The SC deemed as “vague” Section 14, Par. 2 of RA 6770, which prevents a court, apart from the SC, from hearing any appeal or application for remedy against the decision or findings of the ombudsman on pure question of law.

It stressed the portion of the law was vague for two reasons: it is unclear what the phrase “application for remedy” or the word “findings” refers to; and it does not specify what procedural remedy is solely allowable to the SC except that it may be taken only on a question of law.

The SC also deemed as “ineffective” paragraph 1 of the provision, which prohibits any court, apart from the SC, from issuing a writ of injunction to delay an investigation being conducted by the Office of the Ombudsman.

x x x."

Tuesday, April 12, 2016

Do lawyers really suck? No, and potential clients' antipathy can be overcome

(ABA Journal).

"x x x.

A big part of why people don’t like lawyers is because the process of hiring one can be highly unpleasant. Kabiri found that two-thirds of consumers are genuinely stressed out about finding the right lawyer, to the point that they don’t want to bother with the pressure of hiring one. As such, she argued, lawyers need to know what customers are looking for and what they want out of the attorney-client relationship.

According to her research, one-third of all consumers want their attorney to be their savior and do everything for them, while 15 percent want to be in charge and see their lawyers as their employees. That leaves a slight majority of consumers who want to have some kind of collaborative partnership with lawyers.

“Define the relationship upfront,” said Kabiri. “Make sure it’s clear.”

Kabiri also found that consumers were mostly interested finding lawyers that could deliver results. She said consumers have several things in mind when they look for a lawyer, including being determined to help, allowing clients to take control of their situations, offering free consults and having lots of experience. However, being able to deliver results was the runaway winner. Conversely, consumers were less interested in lawyers that described themselves as “aggressive,” “tough,” “trustworthy” or “compassionate.”

x x x."

Monday, April 11, 2016

To allow a presidential candidate to run and be voted for despite the uncertainty of his or her citizenship status makes a mockery of the electoral process

“This ruling of the majority will lead to an absurd result. The majority allows a presidential candidate with uncertain citizenship status to be elected to the  Presidency. In effect, the majority wants the Court to resolve the citizenship status of a presidential candidate only after the candidate is elected. If the winning candidate is later on determined by this Court not to be a natural-born Filipino citizen, then those who voted for the winning, but later disqualified, candidate would have utterly wasted their votes. To allow a presidential candidate to run and be voted for despite the uncertainty of his or her citizenship status makes a mockery of the electoral process. This is not how the Constitution should be interpreted -allowing an absurd result to happen.”

Senior Supreme Court Associate Justice ANTONIO CARPIO
Dissenting Opinion in the resolution of the motions for reconsideration in the cases of: 

MARY GRACE NATIVIDAD S. POE LLAMANZARES, petitioner, v. COMMISSION ON ELECTIONS and ESTRELLA C. ELAMPARO, respondents, G.R. No. 221697, April 5, 2016; and 

Read the full text.


Comelec has the jurisdiction to determine a candidate's qualifications prior to an election

“x x x.

In essence, the ponencia holds that the COMELEC lacks jurisdiction to rule on a candidate's qualifications prior to the elections in a petition to deny due course to or cancel a COC under Section 78 of the Omnibus Election Code. With this ruling, the ponencia should have logically granted the petitions on the sole ground of the COMELEC's lack of jurisdiction to determine a candidate's qualifications, without proceeding to decide the qualifications of the candidate. If the COMELEC has no jurisdiction, then this Court has also no jurisdiction on appeal to rule on the merits and decide the qualifications of a candidate. Once the Court rules that the COMELEC is devoid of jurisdiction, the Court can only annul the decision of the COMELEC. The Court cannot rule on the merits, that is, decide the qualifications of a candidate, because there is no COMELEC decision to review on the merits, the annulled decision of the COMELEC being non-existent.

X x x.”

Senior Supreme Court Associate Justice Antonio Carpio
Dissenting Opinion in: 
MARY GRACE NATIVIDAD S. POE LLAMANZARES, petitioner, v. COMMISSION ON ELECTIONS and ESTRELLA C. ELAMPARO, respondents, G.R. No. 221697, April 5, 2016.

respondents, G.R. Nos. 221698-700, April 5, 2016.


The power of the Supreme Court to determine the qualifications of a presidential candidate vests only if there is an "election contest", i.e., after the election has been held

“x x x.

However, despite ruling that the COMELEC is devoid of jurisdiction, the ponencia proceeded to rule on the citizenship and residency qualifications of petitioner, vesting in the Supreme Court the primary jurisdiction to decide the qualifications of presidential and vice-presidential candidates before the elections. Consequently, the ponencia declared that "petitioner is a QUALIFIED CANDIDATE for President in the 9 May 2016 National Elections." There is, however, no constitutional or statutory provision empowering this Court to initially decide the qualifications of presidential and vice-presidential candidates before the elections. Under Section 4, Article VII of the Constitution, 12 the jurisdiction of the Court vests only if there is an "election contest," which means after the elections as held in Tecson v. COMELEC. X x x.

X x x.”

Senior Supreme Court Associate Justice Antonio Carpio
Dissenting Opinion in: 
MARY GRACE NATIVIDAD S. POE LLAMANZARES, petitioner, v. COMMISSION ON ELECTIONS and ESTRELLA C. ELAMPARO, respondents, G.R. No. 221697, April 5, 2016.



The inevitable absurd result of the SC majority's faulty reasoning in the case of Grace Poe

“x x x.

Prior to the elections, any question on a presidential candidate's qualifications must necessarily be resolved by the COMELEC to safeguard the sanctity of the electoral process and protect the electorate from ineligible candidates. Otherwise, all the nuisance presidential candidates, who were disqualified by this Court for being nuisance candidates, should now be allowed to run and their qualifications to run for President can only be determined after the elections by the Presidential Electoral Tribunal. Likewise, any presidential candidate, claiming to be a natural-born Filipino citizen, regardless of his or her dubious nationality, can now run for President as his or her citizenship qualification can only be questioned after he or she wins the elections. This is the inevitable absurd result of the majority's faulty reasoning.

X x x.”

-Senior Supreme Court Associate Justice Antonio Carpio
Dissenting Opinion in: 
COMMISSION ON ELECTIONS and ESTRELLA C. ELAMPARO, respondents, G.R. No. 221697, April 5, 2016.

ANTONIO P. CONTRERAS and AMADO D. VALDEZ, respondents, G.R. Nos. 221698-700, April 5, 2016.


Thursday, April 7, 2016

SEC files complaint vs firm, affiliates for ‘pyramiding’ | Inquirer Business

"x x x.


The Securities and Exchange Commission has filed a criminal complaint against the Hyper Program International Direct Sales and Trading Corp. (HPI) and its affiliate companies, incorporators and officers for illegally selling securities under what was believed to be a “pyramiding” scam.

The SEC, through its Enforcement and Investor Protection Department, filed on Tuesday the 35-page complaint-affidavit in the Department of Justice against the HPI Group as its investigation showed the group had been soliciting investments that promised to yield as much as 30-35 percent within 40 to 50 days.

HPI, its affiliates and their officers were accused of violating the securities law that prohibited the sale of unregistered securities and selling without registration as brokers, dealers, salesman and associated persons.

The group was said to be engaged in a pyramiding scheme, an investment fraud that rewarded participants for recruiting people into the network.

The scheme is seen inherently injurious to consumers because as a mathematical certainty, the pyramid will eventually collapse.

Typically, a pyramiding scam is masked by layering the investment with products without much value. In the case of HPI, participants are given facial masks, an eco bag and “business codes” that would supposedly allow them to monitor online their investments.

Under the law, the violations cited by the SEC are punishable by fine of no less than P50,000 but no more than P5 million or imprisonment of not less than seven years but no more than 21 years.

Apart from HPI, others named in the criminal complaint are: HPI Direct Sales and Trading Corp. (HPI Direct), Hyper Program International Holdings Corp., Business Icon Premier Trading Inc., Darlito Dela Cruz, Queen Ashley Ablan, Pablito Andal, Aida-Lyn Gabriel, Arleen Dela Cruz, Angelita Basbas, Mary Jane Terrible, Ernesto Lee Pineda Jr., Bernadette Villapaz, Jasem An Vienice Ella, Irene Mercado, Ian Manguera, Mark Anthony Ballesteros, Antony Purganan, Maytham Mutadha Akbar Abbas, Mohammad Murtadha Akbar Abbas, Mark Levonne Cortado, Marlon Bathan Muya, Tom Arthur Dela Cruz, Jeaun Christopher Tolsa, Jenn Santos and several Jane and John Does.

HPI and HPI Direct are both SEC-registered but they do not have license to sell investment securities. Most of the individuals named in the complaint are incorporators or officers of HPI-related firms.

The SEC had formed and sent an investigative team to go to the HPI office pretending to be interested investors and found out the company was offering several investment packages that promised high returns within 40 to 45 days. The “business” packages are worth P7,350 (bronze) to P268,000 (platinum).

The complaint also noted that the group’s website also pitched a project that promised a return of P1 million for an investment of P50,000 in “12 cycles.”

On Nov. 5, 2015, the SEC issued a cease-and-desist order against HPI and HPI Direct, after which the SEC said more complainants had come forward. It appeared, however, that the same group used other entities such as Business Icon Premier and HPI Holdings to continue their scheme.

x x x."

Wednesday, April 6, 2016

5 Malpractice Pitfalls New Lawyers Can Avoid - Strategist

"x x x.

By Casey C. Sullivan, Esq. on October 12, 2015 2:31 PM

x x x.

Thankfully, with a little planning, you can avoid some of the most common malpractice pitfalls facing new attorneys and solo practices.

1. Client Money Is Client Money, Not Your Money

Accounting mistakes and mishandling of client funds are a sure way to end up in ethics trouble. If you can't make your firm's utility payments, it's better to let the lights go out than dip into your clients' funds. After all, it's much easier to pay a late bill than it is to recover from disbarment. And there's simply no way to "borrow" from a client trust account without violating your professional responsibility. Similarly, ethics rules are very clear that attorneys can't comingle client funds.

Make sure you have a clear system to deposit all client funds into separate trust accounts. Institute accounting procedures so you can easily find out what money is where when. Ensure that you never use funds from one client to cover costs not related to their matters.

2. Take Care of Your Calendar

Administrative errors are responsible for almost 30 percent of all malpractice claims. If you're not properly managing your calendar from the get go, it can be easy to get overwhelmed by deadlines, conflicting responsibilities, and simple clerical errors. New firms should set up a strong, centralized calendaring system. It's best to have one person input deadlines and reminders in a centralized calendar, with a second pair of eyes to double check for accuracy.

3. Think Twice About Suing Clients

Is one of your clients refusing to pay their bill? You're a lawyer and know just what to do. Sue 'em! Right?

Probably not. When lawyers sue for unpaid bills, they're almost always met with a malpractice counterclaim. Many quickly drop their suits in order to get rid of the malpractice charges. Consider pursuing alternative channels, like arbitration, instead.

4. Be Careful About Shared Space

Sure, you're not incompetent, but what about the attorney across the hall? If you share office space, but not a practice, you could still get in hot water for another lawyer's errors.

If you do share an office with another solo lawyer or separate practice, avoid confidentiality and conflicts of interest by making sure that client records are kept separate and that shared staff are screened for potential conflicts. Clients should be away that the attorneys in the office aren't in a shared practice, lest you get caught by "partnership by estoppels." Finally, make sure that any referrals you give to office mates don't contradict your jurisdiction's referral rules.

5. Don't Forget the Insurance

Many jurisdictions require legal malpractice insurance, but you should pick some up even if yours does not. Check with your state and local bar associations for malpractice insurers in your area and don't be afraid to shop around. The best type of malpractice insurance for your firm (and its cost) will depend on a variety of factors, including your practice area, your disciplinary record, and your local market. If you're lucky, you'll never need to use it. But if you do, you'll be glad it's there.

Related Resources:

x x x."

- See more at:

3 Warning Signs That Your Lawyer's No Good - Injured

"x x x.

By Ephrat Livni, Esq. on February 19, 2016 5:58 AM

We all have different tastes, and varying notions of what makes a thing great. Some of us tend to the simple yet sophisticated, while others are into ostentation and flair. Just like there is no one way to be well-dressed or well-read, there are different styles of lawyering, and all different kinds of attorneys make good lawyers.

Still, there are some general signs of someone who is, frankly, just no good. If you see these in your personal injury lawyer, you should reconsider representation.

Fast Food Lawyering

Some law firms specialize in fast food lawyering, which is to say they have a single approach to all cases. They make promises, guarantee specific results, insist you settle, and are pretty vague about when they will communicate about your case.

Maybe you will end up with one of these lawyers because they invest a lot of resources in advertising and have offices nationwide. But these firms are commonly referred to as settlement mills because they do not practice law ethically and they don’t put their clients first.

Three Warning Signs

Three signs of a shady injury lawyer to watch for, spelled out, are as follows:

* Guaranteed Results: Any attorney who promises you an outcome is violating an ethical duty he or she was sworn to uphold. No one can promise you particular results. What they can promise is to work for you and do their utmost. Anything more than that is boasting or worse, and may be a sign your lawyer doesn’t walk an ethical line.

* Insistence on Settlement: You are entitled to take your case to trial, even if your lawyer advises against it. An attorney who absolutely insists on settlement and won’t even talk trial is probably trying to maximize the dollar value of their time. Not all cases should go to trial, and the vast majority of cases don’t. But a good lawyer will explain the risks and be willing to consider it.

* Vague on Communication: A lawyer who is uncommunicative will not make a good representative. Your attorney should let you know about developments in your case on a regular basis, and if there are none, if things are stalled, you should know why. Clients are often unhappy about their lawyer’s lack of communication and sometimes unjustly so — even a good lawyer who lets you know what is going on won’t be in constant contact. But if you can’t ever reach your attorney to ask questions or get guidance, you should be asking yourself if you’re getting the right representation.

x x x.

Related Resources:

Have an injury claim? Get your claim reviewed for free. (Consumer Injury)

- See more at:

x x x."

Practice Tips: The "Settle and Sue" Legal-Malpractice Case | Professional Liability | ABA Section of Litigation

"x x x.

By Saleel V. Sabnis – March 27, 2014

Buyer’s remorse has affected the most judicious of us. It’s that gripping sense of regret over having purchased an item that we only later realize we never really wanted or never should have bought in the first place. Of course, no one forced us to make the problematic purchase. It was entirely our own impulsion and belief that the transaction was the best deal at the time. Buyer’s remorse has a deeper psychological explanation, but it manifests itself because it is easier to imagine a better choice retrospectively than to embrace the choice we have already made.

These are the sentiments exhibited by some disgruntled plaintiffs in a recent trend of legal-malpractice cases that some courts and practitioners have termed the “settle and sue” lawsuit. A plaintiff in this type of legal-malpractice action is unhappy with settling a prior lawsuit even after the plaintiff voluntarily agreed to settle the case. In classic buyer’s remorse mode, disgruntled clients regret the decision to settle and focus their litigation crosshairs on their former attorney who advised the “negligent” settlement. The plaintiff’s sentiment is similar to that associated with buyer’s remorse: I made a mistake! In this case, the blame for that mistake is projected toward the former attorney.

The facts of the “settle and sue” case may mirror the following: A client files suit (or is a defendant); the client settles the case with advice from and consultation with his or her counsel and signs a settlement agreement; and the client then sues his or her attorney for legal malpractice, lamenting the deal. The defendant-attorney may be totally blindsided by the lawsuit. After all, was it not the client who executed a settlement indicating he or she was satisfied with resolving the case? The defendant-attorney is now forced to locate and dust off his or her file from storage (think the government warehouse in the last scene of Raiders of the Lost Ark) to defend the decision to settle a case that he or she believed the client had endorsed.

“Settle and sue” cases can allege different conceptions of attorney malfeasance. Allegations may vary from 1) the settlement was transparently unfair, e.g., the settlement was worth far more or less than the terms accepted; 2) material facts that would have affected settlement were not timely disclosed and the defendant-attorney would have uncovered these facts had he or she rendered competent representation; 3) the terms of settlement were too complicated for the client to understand and the lawyer did not give a proper explanation; and 4) the client was “strong-armed” to settle by his attorneys and therefore true client consent was never provided in agreeing to settle.

No General Bar of Such Malpractice Actions

Intuitively, one may have assumed that the settlement of an underlying action, i.e., signing on the dotted line, would operate as a waiver of a “settle and sue” malpractice claim. That is not generally the case. Most states do not consider a client’s decision to settle as a bar to legal malpractice cases against his or her former attorney. “Settle and sue” plaintiffs usually must prove that a better outcome could have been obtained at trial or that a better settlement could have been negotiated. In short, the plaintiff must meet his or her burden on causation, showing that there was a valid claim that would have allowed a collectible judgment or settlement in the plaintiff’s favor and in excess of what the underlying settlement yielded. Other jurisdictions equally focus on the lawyer’s supposedly negligent recommendation to settle and mandate that the plaintiff prove it was somehow unreasonable advice given the facts known at the time. Thomas v. Bethea, 718 A.2d 1187 (Md. 1998). This is often a difficult hurdle because it requires credible evidence that the plaintiff’s adversary in the underlying suit would have paid more to settle the case. Some courts employ a “substantial factor” test to determine whether the former client’s motives for settlement stemmed from attorney negligence. Estate of Campbell v. Chaney, 485 N.W.2d 421 (Wis. Ct. App. 1992).

Very few states have embraced an absolute prohibition of “settle and sue” cases, although such lawsuits are likely to fail when the former client’s motives for filing the legal-malpractice action are at issue. See Muhammad v. Strasburger, Mckenna, Messer, Shilobod & Gutnick, 587 A.2d 1346, 1352 (Pa. 1991) (noting “we foreclose the ability of dissatisfied litigants to agree to a settlement and then file suit against their attorneys in the hope that they will recover additional monies. To permit otherwise results in unfairness to the attorneys who relied on their client's assent. . . .”). Other states favor prohibiting such suits if the settlement was clear and unambiguous and it was clear that there was no client confusion leading up to settlement. Avolio v. Hogan, No. 287684, 2009 WL 3757437, at *4 (Mich. Ct. App. Nov. 10, 2009). Courts also are very unlikely to allow these suits to proceed when the plaintiff has made representations to the court on the record that the underlying settlement was fair and reasonable. Guido v. Duane Morris LLP, 995 A.2d 844, 848 (N.J. 2010) (noting that the plaintiff may be estopped from asserting dissatisfaction with settlement when he or she has testified under oath to the contrary before the court). The Guido scenario is most common in malpractice cases arising from underlying divorce proceedings in which a claimant is subject to direct examination or cross-examination about the terms of the settlement and the court ultimately approves the settlement.

Practice Tips to Defend “Settle and Sue”

An attorney may not be able to absolutely insulate himself or herself from a lawsuit raised by a former client post-settlement, but there are tips that one may follow to allow a more favorable opportunity to defend such a claim. Here are some suggestions.

Establish parameters early in the representation. Use an engagement letter to the client to underscore that your objectives are not necessarily to obtain the highest monetary settlement/verdict or to defend the case so that the least amount of money is paid. Rather, the goal of resolving the case is to reach a settlement that the client can understand and accept given the strengths and weaknesses of the case. In short, don’t promise the moon. Merely promise that you will provide the best recommendations you can.

Get client input. Communicate with your client regularly regarding what his or her expectations of the case are and document his or her potentially evolving impression of the case in writing. Clients change their attitudes and goals frequently. An attorney therefore would be prudent to elicit regular input from his or her client to ensure that there is no miscommunication about what constitutes a “fair” settlement.

Fully explain the release. Clients frequently will assert that they could not understand the legalese of litigation and that no one attempted to explain the legal intricacies. Avoid that issue by showing your client a copy of a standard release early in the process and invite a discussion about the ramifications of signing such a release (for example, it may mean there is no admission of liability and one party is releasing all other potential claims). Again, document that this consultation took place.

Describe the mediation process in writing. If a case mediates, ensure that the client understands what the mediation process entails. This will require putting in writing (a) the qualifications and justification for the selection of the mediator, (b) the strengths and weaknesses of the case, (c) the possible settlement range and verdict range of the case, and (d) an acknowledgment that settlement could bypass a better result at trial. Reiterate that the parties are not obligated to settle just because a mediation has been scheduled and will be paid for by the parties. Rather, the client must be told in writing that he or she should ask questions if he or she does not understand any part of the process, and should never feel forced to settle.

Alert the client to post-settlement responsibilities. The client must be made aware of how any potential liens will affect the collectability of settlement, the time frame for payment, and how the attorney fees may be paid from that settlement. The case is not over the moment an agreement to settle is reached, and the client must be kept apprised of what will be done to bring a final resolution to the case.


A purchaser stricken with buyer’s remorse is consumed by the type of regret evidenced by plaintiffs in “settle and sue” lawsuits. Most jurisdictions agree that settlement of an underlying action does not automatically bar malpractice claims. Regardless of a plaintiff’s motive, the defendant-attorney must understand the law of his or her jurisdiction regarding these type of cases and must take comprehensive steps during the underlying litigation to ensure that there are ample grounds to defend the claim if one arises. The execution of a settlement agreement is usually the final chapter of litigation. At other times, it serves as prologue for the “settle and sue” lawsuit.

Keywords: professional liability litigation, legal malpractice, post-settlement, settle and sue

Saleel V. Sabnis is an associate at Goldberg Segalla LLP in Philadelphia, Pennsylvania.

x x x."

A Happy Client a Day Keeps the Malpractice Suit Away -

"x x x.

By Jonathan R. Tung, Esq. on April 1, 2016 5:58 AM

Malpractice is the potential danger to every attorney that should be regarded with deadly seriousness. If you're a rash go-getter, this can both be good and bad for you. Your personality can be good at the negotiating table in pushing up settlement figures for your client. But it can also have a tendency to make you arrogant and flip. Such lawyers tend to also run legal-mills.

Know this: only dissatisfied or unhappy clients sue you for malpractice. You became an attorney to sue others, not get sued yourself. So take the time to polish up your best practices guide with regards to handling and treating your clients with kid gloves. Sometimes, prevention is can be your best bet.

Prophylaxis: That's Preventative Measures to You

We said it above, but we'll underscore the point here. Clients are much less likely to sue you if they're happy.

As the lawyer, your goals should parallel the client's goals. In fact, it's easier to think of it this way. The main difference between a lawyer and a layman is that the lawyer knows the procedure to get things done and has earned the license to represent others who don't know the procedure. In this way, your goals should ideally be exactly the same as the client's even if the client's goals are hair-brained -- you have no choice.

If there is a disconnect, the client and the lawyer will end up unhappy along the way. Take the steps to prevent that sort of thing from happening:

1. Fee Agreements and Scope: Explain to the client clearly and in writing the purpose, scope of representation, fees and billing schedules. Obtain their IWC -- Informed Written Consent.

2. Communicate and Maintain Composure: Most malpractice begins with a lack of clear communication. Maintain weekly contact with the client with status updates. You can't make decisions for your client.

3. Maintain Realistic Expectations: A lot of attorneys make the mistake of psyching the client into believing they can win the moon. This is unprofessional and potentially hazardous for reasons that should be obvious.

4. Expect the Best From Support: Support staff should be taught courtesy, professionalism and respect. This will foster in the client's mind a notion that you know what you're doing and that the case is moving smoothly.

5. Document all Correspondence: Keep and archive all correspondence between you and the client. This one is very difficult to do, we know. But if you can feel the client becoming more bellicose, you should be doing this.

If Worse Comes to Worse

If a malpractice suit looms, then you can thank yourself for keeping such diligent records -- right?

It is a fair statement to say that a fair bit of professional life is CYA. Some clients may have come to you emotionally charged and are just itching to fight. Let's say you made the mistake of agreeing to represent them and now you're unjustly the new and most immediate target of their wrath. Document everything. Do not record everything because that may run afoul of your jurisdiction's privacy laws. If you work in a firm and your coworkers are bound by firm confidentiality, then try and get witnesses. Sure, they're not the best witnesses because of their obvious bias, but at least you won't have hearsay problems.

In the end, few clients really want to sue their attorneys. But you can help yourself by making it harder for your clients to sue you by maintaining a friendly relationship with them. It's hard to sue your friends because of a sense of guilt, right? If best practices can't help your dodge a malpractice claim from disgruntled client, then you might have to rely on your charm to get you out of that bind.

Related Resources:

x x x."

- See more at:

Tuesday, April 5, 2016

Davao City as a utopia is a fiction: The ones who walk away from Davao | Inquirer Opinion

"x x x.


Red Tani 
Founder and president of the Filipino Freethinkers.

x x x.

Rodrigo Duterte’s supporters would probably object to this analogy. For starters, they’d argue, Davao does not torture innocent children. The victims of the infamous Davao Death Squad (DDS) are all guilty criminals who deserve to die.

Much has been written about why this is not true. Human Rights Watch has investigated a number of cases where the victims were unintended targets—“victims of mistaken identity, unfortunate bystanders, and relatives and friends of the apparent target.” According to Human Rights Watch, there were 16 such victims documented from 1998 to 2008.

Even when the DDS kills its intended victims, the lack of due process or even basic police work makes it likely that many of these alleged criminals are actually innocent. In the same 10-year period, there was no information on the victims’ involvement in crime in more than half of the cases (54 percent, or 363 victims).

So the 16 definitely innocent victims and the 363 potentially innocent victims up to 2008 should be enough to make the Omelas analogy fair.

But I’ll go even further. I’ll argue that most of the victims who are guilty of their crimes are more innocent than most think.

* * *

In most of the cases documented by Human Rights Watch, the victims were involved in small-scale drug dealing, drug use, petty crimes, and gang membership. Aside from being male, most of the victims had two other things in common: They were young and poor.

According to a 2000 study by Tambayan and some other children’s rights groups, most gang members in Davao come from urban-poor families and 81 percent of them are out of school. But they’re out of school not because they or their parents chose delinquency instead of education. Their parents just couldn’t afford to pay tuition.

When DDS supporters think of delinquents and criminals, they typically imagine people who make bad choices because they are evil, not because they are poor.

Thus, they justify summary executions from their privileged perspective: “If I were poor, I’d find a way to make an honest living. I’d find healthy outlets to vent my frustrations and avoid joining gangs and becoming a drug addict.”

They underestimate the reality of poverty—the difficulty of having few good choices, or none at all. Even when their idea of poverty is closer to the truth, they make another mistake. When they imagine themselves in a situation of poverty, they assume that they’d be living with exactly the same brain.

But as studies have repeatedly shown, poverty does not simply rob people of choices; it also makes their brains more prone to making bad ones.

In March 2015, a study by Mike Males of the Center on Juvenile and Criminal Justice in San Francisco showed that it was poverty, not youth, that was most to blame for violent teenage crimes. Previously, people blamed teenage biology—underdeveloped brains, lack of discipline or self-control, etc.—for reckless behavior.

But when Males studied the data, he found that financially secure teenagers behaved as responsibly as stereotypical adults, while poor adults behaved as recklessly as stereotypical teenagers. It wasn’t lack of maturity that encouraged crime; it was simply lack of money. According to Males, “young people do not ‘age out’ of crime, they ‘wealth out.’”

How badly does poverty affect the brain? According to a 2013 study published in the journal Science, it’s equivalent to losing 13 IQ points, comparable to the difference between a normal adult and a chronic alcoholic.

This revises the conventional thinking that people are to blame for their poverty because they keep making bad decisions. Rather, poverty overwhelms people who experience it, affecting the quality of their decisions.

Unfortunately, some of these decisions involve crime. But I hope that by now, crime—especially those committed by the poor, young delinquents of Davao—is seen in its proper context. Not only are they victims of the DDS, they are also victims of poverty, of circumstances that are outside their control. They deserve compassion, not blame, and they certainly don’t deserve death for a situation for which we’re all partly responsible.

* * *

So what should be done?

The dynamics of crime and poverty are complex and complicated, systemic and systematic. Finding a solution to match the problem is hard enough, and implementing it will surely be harder. It will require an upheaval of our economic, political and social institutions. Such a process will probably require the cooperation of the government and civil society—every Filipino—an undertaking that could take decades, if not centuries.

Or we could just kill poor criminals and fix everything in three to six months.

Red Tani is the founder and president of the Filipino Freethinkers.

x x x."

The Left, the Communists, the Militants, and the misled Filipinos

Leftist militant groups Bayan, LFS, KMP, Anakbayan, Anakpawis, KMU and other CPP-NPA-NDF protest the conduct of Balikatan 2016, demanding the withdrawal of all US troops and junking of VFA/EDCA.

The same groups initiated and manipulated the recent Kidapawan violent incident.

Their old paranoia is US imperialism.

If you study Marxism, Leninism, and Mao Tse Tung Thought, their basic means to achieve their political ends are class struggle, revolution, dictatorship of the proletariat (i.e., a one-party system under the Communist Party, as in China, North Korea, and the former Soviet Union), and regimentation of the mind and conscience.

There are two kinds of such destructive forces in our political system now:

(1) The violent underground CPP-NPA-NDF; and

(2) Their legal front in the Lower House, i.e., the leftist partylists Bayan, et. al., which swallow and enjoy their multi-million pork barrels, salaries, perks and junkets in Congress as any other dirty traditional politicians (trapos) do, while secretly sharing portions thereof to their underground counterparts.

As the May 2016 national election approaches, their destabilizing and violent mass actions escalate.

Kidapawan is their latest event.

Freedom-loving, law-abiding and right-thinking Filipinos should not allow themselves to be misled by such violent and undemocratic forces and by the presidential and local candidates who support them, openly or silently, e.g., Duterte of Davao City.

If we want to continue the progress of our country, let us strengthen the democratic and republican tenets and principles enunciated in our Constitution (and reject the Red Book of Mao Tse Tung, the communist writings of CPP-NPA founder Jose Ma. Sison, and the manipulative press releases of his mercenary spin doctors/propagandists in the media).

Atty. Manuel J. Laserna Jr.

Lady chief justice of Ghana speaks: Ghana's legal system - Make the law relevant - CJ to new Lawyers - News - Pulse

"x x x.

The Chief Justice, Mrs Georgina T. Wood, has admonished lawyers to build their ethical edge and develop their moral fibre to ensure credibility in their profession.

"Make no mistake about this: you can neither thrive nor succeed without morality. Ethics is the instrument through which your knowledge can benefit society," the Chief Justice said during the enrollment and call to the bar of 59 lawyers at the New Court Complex in Accra.

x x x.

Mrs Wood charged them to use the knowledge acquired rightly, otherwise they were definitely going to add to the problems facing society.

She, therefore, challenged the new lawyers to develop personal leadership skills and build on integrity and resolve not to become mere additions to the legal profession.

"Resolve to be counted as positive contributors, shaping the frontiers of the law by making it relevant to our times," she said.

She said it was important for the new lawyers to also understand the environment within which they operated so they could function successfully.

Mrs Wood said the country was emerging as a middle income economy with human resource needs for diverse services to keep up with the highly competitive globalised world.

Due to this, Mrs Wood said investors' attraction to the country would depend on the integrity of the legal system and protection it offered to investments.

She, therefore, tasked the lawyers to understand the global dynamics of the law in order to work out legal solutions in response to the emerging trends and complexities at the national and international levels.

The Chief Justice entreated them to study at all times to effectively deal with issues that would rise in their spheres of operations.

She said as new lawyers they were expected to become repository of the nation's law and the conscience of the country, adding, they would be endowed with legal authority and power to deal with human issues, corporate matters, national and international concerns.

"What you put your knowledge to will be influenced by your sense of morality or personal ethics," she told the lawyers.

x x x.

Source: GNA

x x x ."

America’s fascist justice system - and the virtues of Donald Trump?

"x x x.


It is distressing that a British court has agreed to extradite Navinder Sarao to the United States. The claim is that he contributed to the “flash crash” of 2010. In the US justice system, prosecutors are free to intimidate witnesses with threats of indictment and routinely extort perjured testimony in exchange for immunities (including from perjury). They win 99.5 per cent of their cases, 97 per cent without a trial. That is why the United States has ten times as many incarcerated people per capita as the UK and other prosperous democracies, and why it officially has 49 million felons (including me, I am proud to say), and why Bernie Sanders, in the best part of his almost endearing, camp quest for the presidency, is right to call it a fascist system. No serious country should have an extradition treaty with the US; its justice system is a conveyer belt to its bloated and corrupt prison industry.

x x x."

Checks and balances in danger; Kansas Lawmakers Ignore Separation Of Powers, Look To Impeach Supreme Court Justices | ThinkProgress

"x x x.

BY ALAN PYKE APR 1, 2016 12:25 PM

Tired of being told the law doesn’t allow them to enact their radical overhauls of the social contract, Kansas Republicans are out to eject their state Supreme Court justices.

Lawmakers in the state are pushing to replace the American tradition of checks and balances among the three separate branches of government. A bill narrowly passed the state Senate in late March that would give legislators far broader power to impeach judges from the high bench.

Today, judges may be impeached for “treason, bribery or other high crimes and misdemeanors.” Senate Bill 439 would tack on dozens more words, many of them so vague and subjective that the law would effectively give lawmakers veto power over the court.

If lawmakers decide the court is “attempting to subvert fundamental laws and introduce arbitrary power,” “exhibiting discourteous conduct toward litigants,” or “attempting to usurp the power of the legislative or executive branch of government,” they could move to boot justices from office.

The bill barely passed the state Senate, 21-19, in late March. A House committee has yet to take it up, state legislative records indicate.

Conservatives’ beef with the court dates back years. Justices have stymied the right on a handful of social issues, including death penalty and reproductive rights cases. But the temperature of the dispute turned up rapidly as the consequences of Gov. Sam Brownback’s (R) real-life experiment in radical right-wing economic policies started to hit the state.

Kansas has lost hundreds of millions of dollars in revenue since Brownback and his alliesslashed taxes for the rich and eliminated all income taxes for hundreds of thousands of business entities regardless of whether or not they have actual employees. Things got so dire that at one point the state arranged an auction of sex toys to recoup a relatively small amount of money from an adult store owner who’d cheated on his taxes.

With the state’s balance sheet in tatters, lawmakers scrambled to find enough money to keep public schools open. The state’s high court has repeatedly found these fiscal gymnastics illegal on the grounds that they short-change the state’s children to such an extent that they violate lawmakers’ constitutional requirement to provide an education to Kansan kids.

In early 2014, justices ruled that lawmakers had shortchanged low-income districts and ordered reforms. But to come up with $129 million in state aid money for those districts, the legislatureslashed funding from other essential functions of the school system rather than curtailing Brownback’s tax policies.

State leaders shuffled the deck chairs around again the next spring, prompting some schools tocut the academic year short for lack of funding. That episode prompted the state Supreme Court to rap Republicans on the knuckles again this February.

Just before that decision, Brownback launched a loud public campaign against the judges. They weren’t simply enforcing a core tenet of the state’s founding document, he said in his State of the State speech. They were, Brownback said, interfering with “the people’s business, done by the people’s house through the wonderfully untidy — but open for all to see — business of appropriations.” In the governor’s version of the story, the elected politicians subverting a 50-year-old legal protection for low-income K-12 students were actually noble custodians of the popular will and the judges who insist he follow the law are usurping democracy.

The impeachments bill is only the latest in a string of attempts to reduce the state’s independent judiciary to a lapdog for elected officials. State Republicans previously tried to starve the court of funding and take away its authority over lower courts in Kansas. The court found the latter of those laws unconstitutional after Brownback signed it, and lawmakers have since reversed course on the funding power-grab as well.

The supply-side extremists aren’t done trying to muscle the court into ignoring the state Constitution. Some lawmakers have proposed electing state Supreme Court justices rather than relying on an appointments system based in the legal profession. That idea hasn’t gone far, and it remains to be seen if the House will approve the impeachments bill that barely cleared the Senate.

And this fall, voters will get to weigh in. While the state’s high-court judges are appointed, they must periodically be “retained” at the ballot. Five out of seven spots on the bench are up for retention votes this year. Such retention votes used to be pro-forma, but as The New Yorker noted in February, that seems to be changing in certain parts of the country. Iowa voters fired three judges in 2010 after that state’s Supreme Court struck down a same-sex marriage ban. Illinois’ Chief Justice had to scramble to keep his seat that same year amid a smear campaign designed to oust him.

x x x."