Legalprofessions
5.1 Teachingoflaw
In 1980 a law dean succinctly summarised the challenge faced by Philippine law schools: �How does one start to plan the best possible model of a law school in a country of 42 million people living in an archipelago consisting of 7100 islands with a land area of 115 000 square miles, an economy at the take-off stage for industrialization, a political system in a state of becoming and in which Roman Civil Law, English Common Law, the canon law of the Catholic Church and Muslim Law have met and produced a system that has practically replaced indigenous law?'[1208]
The educational requirements for a law profession are a four-year bachelor’s degree in arts or science[1209] and, further, a four-year law degree - an LLB (Bachelor of Laws) or JD (Juris Doctor).
As a graduate degree, it in itself is a boost to the academic qualifications of the holder even without him or her passing the licensing examination for lawyers.Reared in the civil law tradition[1210] where Codes (Civil Code, Family Code, RevisedPenal Code, Corporation Code, among others) are seen as the comprehenÂsive authority on a subject, credits assigned to each course depend on the number of codal provisions to be mastered. Courses during three of the four years pertain to the study of the Bar subjects listed under r 138 of the Rules of Court: politiÂcal law, labour law, civil law, criminal law, remedial law, taxation, commercial law and legal ethics. In the fourth year, elective courses are offered but half of these are Bar review classes, which merely repeat subjects taken in the first three years.
Law is taught through a combination of lectures and the Socratic method. Professors ask students about the assigned lesson, which could consist of legal provisions, commentaries of experts, decided cases and relevant journal articles.
In many law schools in the Philippines, a premium is placed on students who have �photographic’ memories, given that this translates into reciting the laws ad verbatim, complete with punctuation marks. This skill is considered useful for the Bar exams. In the University of the Philippines (UP) College of Law, more than any of the 108 law schools in the Philippines, more importance is given to honing analytical skills and less to the literal approach and reliance on rote memorisation of legal provisions. Through class recitations, students learn how to separate the grain from the chaff, the relevant from the irrelevant. UP adopted this method in fleshing out laws and legal doctrines to help students understand the rationale for the law, comprehend the reason and ruling of the court, and craft persuasive arguments on any side of a legal debate. One hopes students find their own insights, ask their own questions and provide solutions for legal and social problems. In short, the entire four years in law school is aimed at the daunting task of teaching the student how to think. This is one way of bridging a perceived difference between the objectives of legal education in civil law countries, where the lawyer is seen as �a technician, as the operator of a machine designed and built by others', and common law countries, where a lawyer is �a sort of social engineer, as a person especially equipped to perceive and attempt to solve social problems'.[1211]
5.2 TheBarexams
After graduating from law studies in March, most enrol in a frenzied five-month Bar review in time for the month-long Bar exam given on the four Sundays of September. This obsession with the Bar exams has led to the proliferation of several review centres that also provide �pre-week Bar review' in order to give the 6364 candidates a fighting chance to be part of the 20 per cent national passing rate.[1212] Those who do not make it are allowed a total of three attempts at the Bar exam, after which they are required to take a year of Bar review subjects before they try another three times.
On the other hand, Bar �top-notchers' enjoy the benefit of having their photo on the front pages of all leading newspapers, and attracting the coverage of TV and radio, where there is some curiosity about the person's family and economic background. Theybecome instant celebrities and are assured of job offers from the largest law firms.
Passing the Bar exam is a requirement for the practice of law as a judge, prosecutor, litigation attorney or professor. But in the Philippines, when one is asked whether one practises law, the person posing the question wants to know if the lawyer appears in court, still considered the quintessential lawyerly activity in the Philippines. In this limited view, only litigation lawyers practise law. However, in Cayetano v Monsod,[1213] the term �practice of law' was defined to include �any activity in or out of court, which requires the application of law, legal procedure, knowledge, training and experience'. Even among the court's ranks, the majority decision was widely criticised. One Justice[1214] pointed out that the broad definition requires �virtually every lawyer to be engaged in the practice of law even if he does not earn his living or at least a part of it as a lawyer’, so long as �his activities are incidentally (even remotely) connected with some law, ordinance or resolution’. Another Justice said that he failed to see how a person could claim to be in the practice of law unless he �has dedicated his life to the law’, a rather romanticised and exacting standard.[1215]
The practice of law is a profession very closely regulated by the Supreme Court. It is described as a �privilege which may be withheld or extended in the exercise of sound judicial discretion’[1216] as well as a right, since those who passed the Bar are entitled to practise their profession unless there is a valid ground against this. In deciding who may continue to enjoy this privilege, the Court looks at the duties of a lawyer as stated in the Rules of Court as well as in the Code of Professional Responsibility.
In one case, the Supreme Court held that �[t]he admission of a lawyer to the practice of law is upon the implied condition that his continued enjoyment of the privilege conferred is dependent upon his remaining a fit and safe person to society. When it appears that he, by recklessness or sheer ignorance of the law, is unfit or unsafe to be entrusted with the responsibilities and obligations of a lawyer, his right to continue in the enjoyment of this professional privilege should be declared terminated’.[1217]5.3 Disciplinary cases against members of the Bar
The Supreme Court’s treatment of disciplinary cases against lawyers varies in severity. In SelanovavMendoza,[1218] the respondent Judge was unaware of the legal prohibition against contracts for the personal separation of husband and wife and for the extrajudicial dissolution of their conjugal partnership. He prepared such a void agreement and was found grossly ignorant of the law. However, because he was admitted to the Bar before the passage of this law, the Court let him off with a severe censure. In Navarro v Domagtoy,[1219] an administrative case was filed against a Municipal Circuit Trial Court Judge, Hernando Domagtoy, for gross misconduct, inefficiency in office and ignorance of the law. The Judge solemnised a wedding despite knowledge that the groom was merely separated from his first wife. Because of this legal impediment, the second marriage was bigamous and void. Notwithstanding the gravity of the consequences of the Judge’s ignorance, the Court merely suspended him for six months with a stern warning.
The Court has been less forgiving of moral lapses than it has of serious profesÂsional incompetence of judges and lawyers. In a recent case, the Supreme Court merely suspended Family Court Judge Arcaya-Chua for six months without pay for gross ignorance of the law and for issuing a temporary protection order (TPO) in favour of a male litigant in violation of RepublicAct 9262 (Anti-Violence Against Women and Their ChildrenAct of2004).
The Court pointed out that from the title of the law alone, the Judge should have known that a TPO cannot be issued in favour of a man against his wife's acts of violence. In contrast, the Court dismissed the same Family Court Judge for gross misconduct and ordered the forfeiture of all benefits and perpetual disqualification from public office. The Court found substantial evidence showing that Judge Arcaya-Chua did not report in her Monthly Reports the actual number of marriages she had solemnised and that the solemnisation fees that were paid did not correspond to the number of marriages that were solemnised by her.[1220]Consistently applying a stringent standard for moral unfitness the court disÂbarred Jordan Terre, who as a law student, inveigled the complainant Dorothy Terre to contract a second marriage with him and then abandoned her after she had supported him through law school. He left her without means for the safe delivery of his own child and then contracted a second marriage with another woman while his first marriage with Dorothy was subsisting. The court held that this constituted â€?grossly immoral conduct' under s 27 of Rule 138 of the Rules of Court.[1221] Likewise, in Narag v Narag,[1222] lawyer Dominado Narag was found guilty of gross immorality for abandoning his family in order to live with another woman. The court said that Narag has a duty to himself and the court to show moral fitness to remain a member of the Bar. The court underscored that â€?when his moral character is assailed, such that his right to continue practicing his cherished profession is imperiled, he must meet the charges squarely and present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to have his name in the Roll of Attorneys'. Failing this, he was disbarred.[1223]
One way to address the first concern of keeping abreast with the law is through the Mandatory Continuing Legal Education[1224] (MCLE) program.
This affords lawyers the opportunity to know the most recent laws and cases in their area of practice. More importantly, it compels them to learn about other substantive areas of law in which they typically do not have mastery. With the trend towards globalisation, a wider comprehension of laws and legal cultures is definitely useÂful. Mandatory continuing legal education works on the assumption that lawyers who are up to date will be more competent in carrying out their responsibilities as officers of the court. On the other hand, there is no analogous training that can instil personal ethical norms among lawyers.Aformer chief justice explained that there is a requisite commitment oflawyers to have an ethical compass since â€?[q]uality justice always begins with a high standard of ethics'.106 For this reason, there should be evenness in the manner in which the court evaluates professional and moral foibles. The rigour by which the court deals with personal morality assumes that moral fitness goes into the performance of duty given that immoral behaviour demands secrecy and could very well be a potential source of illicit pressure. However, the court has shown leniency with professional unfitness despite the fact that the same reasoning applies. Worse, breach of professional ethics affects the quality of service to the public, causes an actual detriment to the public, and damages the credibilityof the judicial system. After all, people rely on the professional knowledge of lawyers and judges in making decisions that have serious, lifelong repercussions.
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