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Elevating the Legal Profession

In the 21st century, the legal field has evolved together with the

progression of laws. Various techniques and styles of lawyering have also

come to the legal scene, enabling lawyers to exercise their profession with

utter variance and uniqueness. The objective of this evolution is to give the

people a wide range of lawyers that vary with their skill and ability to deal

with different cases and specialization of laws. What comes with is

evolution is the lawyer’s ability to adapt to certain jurisprudential and legal

changes. Changes in legal trends shape and re-shape what is ought to be

called as a “practice”, into a “profession”.

Advertising in the Legal Field

With regard to the practice itself, it is a shocking idea to many lawyers, and

to most laymen, that there are various services which are legal work if done

by a lawyer, but which properly qualified laymen may perform without

engaging in the unauthorized practice of law, and yet two examples show the

soundness of the concept.1, and that the obvious reason why the

advertisement or endorsement of legal services was upheld in the

constitution of the United States. In Bates vs. Arizona, a decided case of the

US Supreme court, which upheld lawyer’s rights to advertise their services,

held that lawyer advertising was commercial speech entitled to protection

under the First Amendment (incorporated against the States through

the Fourteenth Amendment).

In contrast to the Philippine legal scene, no advertisements are allowed. The

most worthy and effective advertisement possible is the establishment of a

well-merited reputation for professional capacity and fidelity to trust. In our

country, Lawyers may not advertise their services or expertise nor should

they resort to indirect advertisements for professional employment, such as

securing or inspiring newspaper comments, or procuring his photograph to

be published in connection with causes in which the lawyer has been

engaged or concerning the manner of their conduct, the magnitude of the 1 (Wiles, 1961), A Commentary on the Ethics of the Legal Profession in the '50's

interest involved, the importance of the lawyer's position, and all other acts

of lauding himself, in order to peddle his legal expertise to potential clients.

It is highly unethical for an attorney to advertise his talents or skill as a

merchant advertises his wares.2

We can now see one of the many differences between the legal scenes of our

country to the others, especially in the US. If we put our senses into the right

direction, what is moral is not always legal, and what is legal is not always

moral.

The Role of Information Technology

Technology has formed an integral part in every human being,

modernizing, altering, and alleviating our lifestyle. The progression of

technology also connotes the progression of man itself, in order for it to

adapt and learn new aspects of the world that he is living in. Understanding

and implementing new technologies are difficult and time-consuming for

lawyers. Clients are often ahead of lawyers in implementing new

technologies, and they have increased access to legal information, much of it

readily available on the Internet. However, technology also is the

“equalizer” allowing innovative solo and small-firm practitioners to compete

with larger firms.

Many professionals now rely on information technology (“IT”) to simplify,

automate, or better understand aspects of their work. Such software comes in

varying degrees of sophistication: less sophisticated tools include word

processors, e-mail and instant messaging systems, file servers, and the like,

while more sophisticated tools reach into the analytical core of a

professional’s work. Legal information takes a great variety of forms.

Familiar examples from litigation practice include judicial opinions, court

orders, dockets, briefs, transcripts, jury instructions, and verdict statistics.

There is also an enormous, but less public, body of transactional legal

materials — such as contracts and licenses — that shape commercial

practice, even if such documents are never used in court. In addition to the

core materials that would universally be considered “legal” in nature, there

are many types of documents that are highly relevant to legal practice.3

2 (In re: Tagorda, 53 Phil 42, Mar. 23, 1929)3 (Jenkins, 2008) WHAT CAN INFORMATION TECHNOLOGY DO FOR LAW?, p. 590

IT has become a viable instrument of lawyers in their own private or public

stints as legal servants, not only for client communication and transaction,

but also for information gathering and legal updates as well. It is also used

by the practitioners of law to browse cases and laws through their fingertips,

and exchange ideas with their fellows in the web, through online legal

forums and help desks.

The Philippines has its own repository of cases online, the most notable ones

are LawPhil and the Chan Robles Virtual Library, which can be accessed in

their respective websites. The practitioners may look up into the newest

jurisprudence that they look up online.

It cannot be ruled out, however, that the Philippines still heavily relies on the

manual search for cases, or the “traditional way” of doing so. We have

volumes of the SCRA, or the Supreme Court Reports Annotated, as

reference for the digests or case briefs we craft as students or actual

practitioners, which are accessible in university law libraries. Digests are

also shared and readily available online for downloading and quick-

reference, but it is ill-advised by most professors of law, for it defeats the

sole purpose of learning the true essence of language of the law itself.

The current situation of Legal Education

Legal education in the Philippines normally proceeds along the

following route: Undergraduate education which usually takes for 4 years,

Law school, which also takes 4 years, depending on various circumstances,

the Admission to the bar, by usually by taking a Philippine bar exam and

successfully passing it, and after such examination, a Legal practice and

mandatory continuing legal education is required for all members of the bar.

The current state of Philippine law is succinctly summarized as

follows: First, the greater bulk of Philippine private substantive law is

Romanesque. Second, there has been an increasing infiltration of common

law principles into Philippine jurisprudence due to several causes, to wit: (a)

the automatic substitution of Spanish political law by American political

law, upon the transfer of sovereignty; (b) the continued drawing from

American patterns by the Philippine Legislature in the enactment of new

statutes; (c) the growing reliance by the bar and bench on American

decisions in the application and interpretation, not only of American-derived

statutes but also of the old statutes of Spanish origin; and (d) the imitation of

the system of American legal education by the law schools of the

Philippines.4

Our nation became a melting pot of different legal cultures, thus giving

variation of the styles of legal education and its instruction, in which the

professors of law adapt to. One such example is the usage of the Socratic

Method which is applied into the system of legal education. This method of

teaching where a law professor is supposed to draw the answer out of law

students through a series of questions remains a trademark system of

recitation in the Philippine legal education.

However, there are some debates over this type of instruction if it is viable in

the classroom, and if it is an effective teaching tool for law students. Law

professors and students alike have noted that the lack of feedback allowed

by the Socratic Method can limit their appreciation of what they are doing

well and what they are doing wrong. 5 This is especially true in large classes,

where interaction between students and professor is limited. Another notable

flaw of this teaching method is that it makes no room for practical and

participatory learning.

According to its advocates, one of the main advantages of the Socratic

Method is that it encourages students to prepare for class because only

“intensive and consistent daily preparation (will allow) students to

participate effectively in (the) process”6, but the experiences of universities

that have adopted alternative methods also show that the most effective way

to ensure that students come to class prepared is to make classroom learning

more of a participatory experience. Participatory methods (such as research

and writing projects, presentations, debates, role-play and others) and

activities that require working out practical legal problems make students in

larger part responsible for their own learning.

To promote effective instruction and sufficient subject integration, students

must be treated as real professionals who are responsible for their own

learning; law faculty are encouraged to adopt a mixture of teaching methods,

4 Ibid, An Introduction to Philippine Law, p. 77.5 Anthony Ricky, contribution posted on http://thenonbillablehour.typepad.com/nonbillable_hour/2004/11/five_by_five_an.html6 University of Arkansas, “Law school teaching methods,” from http://www.uark.edu/admin/urelinfo

especially those that conduce to learning and discussion even outside the

classroom, the usage of technology is promoted to enhance the classroom

experience, facilitate greater course coverage, and aid in interactive learning;

and a decided emphasis is placed on exercises and discussions about

practical legal processes and problems.

The MCLE

Continuing legal education is required of members of the Integrated

Bar of the Philippines (IBP) to ensure that throughout their career, they keep

abreast with law and jurisprudence, maintain the ethics of the profession and

enhance the standards of the practice of law.

The Rules on Mandatory Continuing Legal Education (MCLE) for members

of the legal profession in the Philippines were recommended by the

Integrated Bar of the Philippines (IBP), endorsed by the Philippine Judicial

Academy, and reviewed and passed upon by the Supreme Court Committee

on Legal Education in 2001. Under the said Rules, members of the IBP are

required every three (3) years to complete at least thirty-six (36) hours of

continuing legal education activities approved by an MCLE Committee

constituted by the Supreme Court. 7

Failure to attend the said lectures will incur penalties. A lawyer, not being

exempted from MCLE, who fails to comply with the required legal

education activities shall receive a Non-Compliance Notice and shall be

required to explain the deficiency or otherwise show compliance with the

requirements. A member who fails to satisfactory comply therewith shall be

listed as a delinquent member by the IBP, wherein he shall be included in

the inactive status. In addition thereto, he shall be required to pay non-

compliance fee if he fails to comply with the non-compliance notice.8

In addition, it is required that practicing members of the Bar to indicate in all

pleadings filed before the courts or quasi-judicial bodies, the number and

date of issue of their MCLE Certificate of Compliance or Certificate of

Exemption, as may be applicable. Failure to disclose the required

information would cause the dismissal of the case and the expunction of the

pleadings from the records.9

7 Rule 2, Bar Matter No. 850 – Supreme Court of the Philippines8 Rule 12 and Rule 13, B.M. 850– Supreme Court of the Philippines9 Bar Matter No. 1922, June 3, 2008

Multi-disciplinary law practice and Boards of Specialty

In a world that has become both increasingly competitive and

interrelated, the need to learn and develop multi-disciplinary skills has

become more apparent, and must be integrated into the system of a Filipino

Lawyer. Market expectations on the roles of the lawyer and the manager

have expanded to take into account the changes brought about by

technological advances and innovations. When asked to render a legal

opinion or give professional advice, lawyers and managers are expected to

provide tailored solutions to problems that simultaneously consider the

“bigger picture.”

This diversity and difference of lawyers can be seen in their individual

specializations. In this matter, Sen. Angara encouraged lawyers to compete

globally and practice different fields of law. He states, citing the 2010

Financial Times Global Education Report, which noted: “In today’s world, a

‘superman-lawyer’ – one who knows everything about anything (or at least

claims to) – is viewed with skepticism and disregarded in favor of the

specialist.”

“Those who know more about a narrower field, indeed, offer a tremendous

advantage to business in legal conflicts. And if a business in legal trouble

wants to cover its flanks, it should hire specialists in other fields,” Angara

said, adding, “It is like that in warfare, and business is war.”10

Pro-bono Legal Services, and the Privatization of Indigenous Legal

Service

Seeking justice in our country or requesting the court to approve your

annulment, legal separation or other special actions you want the court to do

can be costly. Not only will you be paying for filing fees and other court

fees, but professional fees of lawyers can be very expensive.

In the Philippines, lawyers are required to have mandatory Legal Aid

Service which mandates every practicing lawyer to render a minimum of 60

hours of free legal aid services to indigent litigants yearly, as prescribed by

10 http://newsinfo.inquirer.net/139579/angara-urges-lawyers-to-specialize-and-compete-globally

the Supreme Court on the Rule on Mandatory Legal Aid Service, under Bar

Matter No. 2012.

The rule seeks to enhance the duty of lawyers to society as agents of social

change and to the courts as officers thereof by helping improve access to

justice by the less privileged members of society and expedite the resolution

of cases involving them. Mandatory free legal service by members of the bar

and their active support thereof will aid the efficient and effective

administration of justice especially in cases involving indigent and pauper

litigants.11

For free legal fees and to qualify as an indigent, the Public Attorney’s Office

(or PAO) to handles such cases in court. This office requires submission of

your Income Tax Return (ITR) to show your minimal annual income. The

Integrated Bar of the Philippines (IBP), is also another office which offers

pro-bono cases or free legal fees for poor litigants as part of program. So

visit the nearest regional office near your place to avail of free legal services

if you cannot afford one. Lastly, the Office of the Legal Aid (OLA) of UP

College of Law also offers free legal services.

However, the privatization of such legal services isn’t advisable here in the

Philippines. Studies have shown that private contracts for indigent defense,

instead of a public defender's office, have been tried in other counties, often

resulting in greater expense to the public and a lower quality of legal

representation for the poor. The reason why privatization cannot be possible

is that, litigation cannot itself completely reform social institutions, over-

reliance on courts diverts effort from potentially more productive political

strategies and disempowers the groups that lawyers are seeking to assist, and

private firms will defeat the purpose of agencies that provide free legal help,

and their own purpose of business and income generation. The result is too

much law and too little justice.

Bills and Fees in lawyering

There are common charges and fee rates being observed in various

countries, especially in the US, have standard pay arrangements, which are

of four kinds: Hourly, the attorney gets paid an agreed-upon hourly rate for

the hours worked on a client's case or matter until it's resolved, and depends

11 Sec. 2, B.M. No. 2012

on the lawyer’s experience on handling cases, Flat, involve legal matters that

simple and well-defined, in which lawyers typically charge a flat fee,

Retainer, an advance payment on the hourly rate for a specific case. The

lawyer puts the retainer in a special trust account and deducts from that

account the cost of services as they accrue. During the course of legal

representation, clients should review periodic billing statements reflecting

amounts deducted from the retainer, and Contingent, which in certain types

of cases, attorneys work on a contingent fee basis. Contingent means that the

attorney takes no fee from the client up-front, but gets a percentage typically

one-third (1/3) of the settlement or money upon judgment.

In most cases, out-of-pocket expenses such as filing fees, travel expenses,

printing etc., are excluded from such arrangements. Since these expenses are

incurred for the benefit of the client, they are the client’s responsibility.

In the Philippines, The initial consultation fee is what can be expected from

the attorney to bill for the initial consultation with him or her. While some

lawyers offer free consultation, some charge initial consultation fees. There

are other attorneys who bill on their usual or reduced hourly rate. There is no

standard practice in the Philippines, and the legal practices we inherited

from the mixed legal cultures also includes the payment schemes. It is no

surprise that we have already adopted the US legal billing methods.

Implementing Malpractice Insurance

The American Bar Association prescribes that if a lawyer does not

have legal malpractice insurance it is possible that victims of legal

malpractice will not have any legal recourse against a negligent legal

professional. If a lawyer does have legal malpractice insurance typically two

things can happen in a legal malpractice case. First, the legal professional's

insurance company will defend the client's former attorney against the

claims. Secondly, the insurance company will allot resources to pay the

client in the event that the defendant is found guilty of malpractice.12

In the Philippine legal setting, we do not have any recourse or insurance for

malpractice in the legal field. The only recourse of the aggrieved party is the

suspension of the lawyer or legal counsel responsible, and the suspension

shall depend on certain degrees according to the severity of his unlawful and

12 www.abanet.org/legalservices/lpl/insurance.html

unsanctioned actions. If the aggrieved party wants to get the most of the

damages done toward his person, then he must file for civil action against

the lawyer or legal counsel involved in the predicament.

Economic Situation: Pressures on the Practice

The attorney’s role in society was once sacred. The attorney was a

counselor, a confidant, the most respected members in the community. Over

time, the role of the lawyer has evolved, and societal changes, the economic

downturn, and other factors have forced the attorney to view the practice of

law less as a profession and more as a business. 13 There is increasing

acceptance that the law is a competitive business similar to other

professional services, e.g., finance and engineering. In-house attorneys are in

a position of control and some bring suspicion to the relationship, he said

cautioning that some in-house attorneys believe that their outside lawyers

are charging too much, inflating their bills or failing to explain all of the

known potential disadvantages.

The economic condition of a certain country can cause many lawyers to

pause and reflect upon their profession’s future—a future where many

young lawyers are struggling to find employment and success in an ever-

changing legal marketplace. Not only lawyers pause and reflect upon this,

but also the students of law in our country, whether they would pursue this

strenuous discipline or not, because of time, money, and effort that is

needed.

What, then, can lawyers do to improve their chances of survival?

Developing critical leadership skills can provide a competitive advantage for

young attorneys entering into the new economy.

In the current situation of the legal profession, there is no doubt, that there

are limited job options for a graduate of law, in this case, are limited to

paralegals, legal assistants, and university professors. In the US,

Applications to law schools are down sharply — plunging 38% just since

2010 — hitting a 30-year low. To keep the quality of students from falling,

law schools have been cutting class sizes, and there are predictions that

some of the weakest law schools may begin to shut down. Slowly, the

supply of lawyers is likely to dwindle toward the demand for lawyers.14 13 http://www.reinhartlaw.com/services/buslaw/corpgovern/documents/art1111%20te.pdf14 http://ideas.time.com/2013/05/07/is-there-a-lawyer-bubble/

It may be also the same for the Philippines. However, there is no evident

situation of an oversupply or decline of lawyers practicing their craft in this

country, only law students that stop in the course of their study of law.

Conclusion

The legal profession is in the midst of a dramatic transformation, and

it is not leading the rapid change that is occurring in the world. One of the

biggest differences in how lawyers will practice in the future, according to

resources cited in this report, is how lawyers value and price what they sell.

The first step is to understand that lawyers are selling knowledge, not ‘legal

services’ or ‘time.’

Lawyers must not limit themselves into learning the different branches of

law alone. They must also have this drive to try different areas of learning.

New substantive areas that lawyers can pursue and offer as a niche to

innovative clients include renewable energy, “coming” sciences, atomic

energy, global health, and emerging economies, which they can also apply to

their respective profession.

The changes in the legal field must start with law school education. They

must train lawyers for real life practice challenges, teach entrepreneurial

skills, and visualize and realize a picture of employment opportunities, and

adapt to certain changes in the legal atmosphere.