Bar exam and legal education (2)

Let me continue last Sunday’s column on the bar examinations which will be held on Oct. 5, 12, 19 and 26. The exams measure the candidates’ theoretical knowledge of these basic subjects: “Political and International Law; Labor Law and Social Legislation; Civil Law; Taxation; Mercantile Law; Criminal Law; Remedial Law; and Legal and Judicial Ethics.” The Supreme Court has issued Bar Bulletin No. 1 describing in detail the scope or syllabus for each of these subjects.

Practice of law. They are also the very subjects, broken into several subtopics in the bar exam syllabus, that law schools “teach” their students. For this reason, the four-year law curriculum is said to be “bar-oriented”—that is, designed to help students pass the bar exam, and nothing more.

The question frequently asked and debated is one of adequacy: whether hurdling or even topping these subjects both in the bar exams and in the law schools adequately prepares students to practice law in the real world. My answer depends on the meaning given to “practice of law.”

If by practice of law is meant “litigation,” then the answer is definitely “no.” Theoretical knowledge alone is not enough to prepare an attorney for court work. In the same manner that passing the medical board exam, by itself, will not magically transform a physician to undertake heart surgery or corneal replacements, hurdling the bar test does not guarantee litigation expertise.

Litigation is a specialization in which not all lawyers, not even all bar topnotchers, can succeed. It requires not only legal knowledge but also command of language, intuition, presence of mind, wit, planning, thinking on one’s feet, even drama.

Moreover, like surgery, litigation has subspecialties. A heart surgeon would normally not dare operate on the brain, in the same way that a criminal law expert may not be competent to litigate international law-of-the-seas cases.

Broad definition. However, if by practice of law is meant the very broad concept set forth by the Supreme Court in Cayetano vs Monsod (Sept. 3, 1991), then my answer is “yes.” In this case, the Court defined practice of law as “any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience… Generally, to practice law is to render any kind of service, which requires the use in any degree of legal knowledge or skill.”

The Court explained that the practice of law is not “limited to the conduct of cases in court.” This definition is comprehensive enough to include teaching of law, giving of any advice that requires legal background, preparation of legal documents (like affidavits and contracts) and management of the legal affairs of corporations.

In reality, many more lawyers are engaged in nontrial work than in litigation. In fact, some of the highest paid lawyers, both here and abroad, have never seen a courtroom.

In the British system, lawyers are classified broadly into solicitors and barristers. The traditional law offices are staffed by solicitors who listen to clients and advise them on how to solve their legal predicaments, and when necessary, refer them to barristers who represent them in court litigations.

Although the solicitor-barrister distinction is not observed here (all bar passers are allowed to appear in court), the big law firms anyway divide functions and responsibilities such that more lawyers get solicitor-type assignments than barrister-associated work.

Compared with those working in law firms, far more lawyers are employed in the government and in private corporations. In fact, many take up law to qualify for promotion because a bachelor of laws degree is given the equivalent of a master’s degree by the Commission on Higher Education.

Expanding legal knowledge. The Supreme Court cannot be faulted for requiring only the most basic knowledge of law to pass the bar exams. Those who want to specialize should undertake further study and training either in graduate schools or in actual practice, or in both.

It is really difficult to require more than this basic knowledge from bar applicants. During the last three decades, law and jurisprudence have expanded exponentially in the Philippines and in the world in keeping with the march of knowledge in all disciplines, especially in science, technology and medicine.

Apart from the Constitution and the basic codes (Civil Code, Penal Code, Corporation Code, etc.), Congress continues to pass new laws totaling over 10,000 at the end of 2013; and, aside from the Rules of Court (and the perplexing rules and regulations issued by various administrative agencies like the National Labor Relations Commission, Bureau of Internal Revenue, etc.), the Supreme Court produces over 1,000 full-length decisions every year.

Given the need to keep up with this humongous legal literature, the Supreme Court instituted the Mandatory Continuing Legal Education Program (MCLE), which requires all lawyers to take continuing legal education seminars and activities every three years, to “ensure that throughout their career, they keep abreast with law and jurisprudence, maintain ethics of the profession and enhance the standards of the practice of law.”

Next week, as the last part of this series, I will take up the valiant effort of the leading law schools to improve legal education and standards, with special mention of the seminal thesis of Justin D.J. Sucgang, a regular member of the Legal Education Board.

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