Legal Profession: In whose perspective?

The concept of due process is one of the features of our Constitution which espouses the idea of “it hears before it condemns”. It gives every person the right to be heard and be defended by a legal counsel. Every person is given the opportunity to have a counsel to protect his/her rights - a counsel who is competent, impartial and independent – a person in the Legal Profession. However, these are the only ideas we have when we speak of counsels or lawyers, but the question is who are they really, other than appearing and making pleadings in courts, what is it that makes it the most prestigious profession?

Historical Background

Tracing its history, Emperor Claudius is the one who legalized advocacy as a profession and allowed the Roman advocates to become the first lawyers who could practice openly—but imposed a fee ceiling of 10,000 sesterces. Like their Greek contemporaries, early Roman advocates were trained in rhetoric, not law, and the judges before whom they argued were also not law-trained. But very early on, unlike Athens, Rome developed a class of specialists who were learned in the law, known as jurisconsults (iuris consulti). Jurisconsults were wealthy amateurs who dabbled in law as an intellectual hobby. Thus, the Romans were the first to have a class of people who spent their days thinking about legal problems, and this is why their law became so "precise, detailed, and technical.

During the Roman Republic and the early Roman Empire, jurisconsults and advocates were unregulated, since the former were amateurs and the latter were technically illegal. Any citizen could call himself an advocate or a legal expert, though whether people believed him would depend upon his personal reputation. This changed once Claudius legalized the legal profession. The centralization and bureaucratization of the profession was apparently gradual at first, but accelerated during the reign of Emperor Hadrian. At the same time, the jurisconsults went into decline during the imperial period. Roman notaries were not law-trained; they were barely literate hacks who wrapped the simplest transactions in mountains of legal jargon, since they were paid by the line.

After the fall of the western Empire and the onset of the Dark Ages, the legal profession of Western Europe collapsed. The legal profession's return was marked by the renewed efforts of church and state to regulate it. In 1231 two French councils mandated that lawyers had to swear an oath of admission before practicing before the bishop's courts in their regions, and a similar oath was promulgated by the papal legate in London in 1237. The new trend towards professionalization culminated in a controversial proposal at the Second Council of Lyon in 1275

that all ecclesiastical courts should require an oath of admission. Although not adopted by the council, it was highly influential in many such courts throughout Europe. The civil courts in England also joined the trend towards professionalization; in 1275 a statute was enacted that prescribed punishment for professional lawyers guilty of deceit, and in 1280 the mayor's court of the city of London promulgated regulations concerning admission procedures, including the administering of an oath.

English Legal Profession vs American Legal Profession

The right and duty of lawyers to keep confidential the information they receive when handling cases is a general rule in all world jurisdictions. However, in the US, this principle has three manifestations: attorney-client privilege (evidence), confidentiality (ethics) and work product, while in the civil law tradition, English tradition, it is a solid concept “professional secrecy” (secreto profesional) In addition, US lawyers consider the privilege to belong to the client, who therefore can waive it, while in English, the professional secrecy is deemed to belong to society and it is absolute so that, even with the permission of the client, it cannot be revealed.

In American legal profession, deposition taking is critical. The parties generally "present" their witnesses, that is, the party who named him as witness first questions the witness. The opponent then has the opportunity to cross- examine the witness (a fundamental component of the adversarial system) with the aim of bringing any evidential weaknesses or contradictions to the jury's attention. The judge does not question the witnesses and only ensures compliance with procedural rules. A court reporter types in each word spoken by the witness, so that at later stage in the trial, a detailed account of what the witness has testified can be given.

In English Legal Profession, the judge is expected to have read the party's pleadings, which may include written statements. However, even without such statements, witnesses may be subpoenaed to testify at the hearing. In this event, the judge puts questions to the witnesses; the role of the lawyer is generally limited to suggesting questions to the judge that should be asked. The lawyer is, of course, given the opportunity to ask additional questions. Cross-examination however, is not part of witness questioning. Normally the judge does not dictate witness testimony word for word. Rather, he summarizes the testimony, restricting it to those issues that he considers as worth reading. In some jurisdictions it is prohibited to brief or “prepare” the witnesses.

Spanish Legal Profession

In Spain, a legal profession means a profession which can only be practiced by someone who has undergone special legal training because it is carried out in the sphere of application of the law. The main legal professions in Spain are those of Fiscal (Public Prosecutor), Jueces and Magistrados (judges and magistrates), Abogados (lawyers), Notaries, Court clerks, Land and Business Registrars and Procuradores (legal representatives).

The first step to practicing any legal profession in Spain is to obtain a law degree from a Spanish university. Until recently this was a licenciatura en derecho (generally a five or a six year degree), however this qualification is being phased out and replaced with a grado en derecho (a four year degree) and a Masters, in order to comply with the Treaty of Bologna and create equivalency with other legal qualifications across the European Union. The grado en derecho is offered by a number of universities across Spain. Courses are accredited by the Consejo de universidades. There is no equivalent to a postgraduate law conversion course in Spain.

Justice is administered on behalf of the King, by the judges and magistrates who make up the Judiciary. They are the only ones who can administer Justice, both by judging and enforcing the judgment. The judges and magistrates are independent of the other State powers, being subject solely to the Constitution and the law.

Access to the Judiciary is based on the principles of merit and ability for carrying out the judicial role and the selection process guarantees, objectively and transparently, equality of access to all citizens who meet the criteria and have the necessary aptitudes, as well as suitability and sufficient professional qualifications to carry out the judicial role.

The Courts exercise their jurisdiction solely in those cases where jurisdiction is attributed to them by one law or another. When exercising judicial power, Judges and Magistrates are independent with regard to all the judicial bodies and the governance of the Judiciary. Judges and Magistrates will have both criminal and civil responsibility in those instances and in the manner specified in the law, and in disciplinary terms in compliance with the provisions of the Organic Law on the Judiciary.

Lastly, the profession of lawyer is a free and independent profession which provides a service to society; it is not dependent on any Public Administration and is carried out under a system of free and fair competition. The role of lawyer is basically to direct and defend the parties in any kind of legal proceedings, to provide legal advice and counsel and to represent their clients when this is not reserved for the other professions.

American Legal Profession

Legal profession includes not only those individuals licensed to practice law, and their occupational activities, but also the law firms and other organizations of lawyers that provide legal services to clients, the judiciary and other adjudicators, bar associations, and law schools.

Essential to the legal system of the United States, as well as legal systems of most all countries, are adjudicators that make determinations as to whether laws have been violated by particular parties, and before whom plaintiffs and defendants may appear and be heard on alleged violations of the law. If an adjudicator concludes that violations by those charged actually occurred, the adjudicator then typically imposes sanctions. The adjudicator's decision generally is final unless one or both parties appeal. Judges are very extensively relied on as adjudicators in the United States. They also are highly important in creating and clarifying legal concepts, and, in doing so, often shape political institutions and political values, including those established by the federal and state constitutions.

Bar associations are highly influential and important legal profession organizations. Comprehensive bar associations in this country include the American Bar Association, the state bar associations of each state, and local bar associations in many counties and cities. The membership of comprehensive bar associations includes lawyers in all types of practices and all types of law firms within a particular geographic area, and they seek to further not only the interests of their members but most all aspects of the justice system as well. Specialty bar associations concentrate their membership and activities on one major segment of law practice or the special interests of one group of lawyers, such as trial lawyers, lawyers whose practice consists largely of family law matters.

Legal education in the United States is and has long been dominated by law schools. The 160 great majorities of U.S. law schools are separate units within universities. The 161 American Bar Association has established standards for law schools, and has approved those schools that meet the standards There are now 195 U.S. law schools approved by the ABA that, with one exception, confer J.D. degrees, 164 and in the fall of 2006, their total enrollment

Students must complete a four-year undergraduate degree in any subject before applying to law school. A three-year J.D. is usually completed immediately or shortly after completion of the undergraduate degree. Students typically begin their undergraduate degree at age 18, immediately after completion of secondary school.

Hence, the U.S. has a common law system.

United Kingdom Legal Profession

Legal Profession in England and Wales is divided into two, the barristers and the solicitors. In Scotland and Northern Ireland, there is a similar division of the Legal Profession but the Legal systems is distinct and the control, discipline and training of lawyers is independent. The judges continue to exercise supervision over attorneys and solicitors profession so that even to this day, solicitor’s profession is subject to close control from the judiciary and from Parliament, the legislator. Barristers have a monopoly of the right of audience in the Superior Court.

Legal education in the UK consists of a three-year LL.B., typically directly after secondary school. Graduates from fields other than law and non-graduates can become solicitors, but the LL.B. is the most straightforward path. Clinical education continues after the LL.B., through the Legal Practice Course (LPC) and training contracts. To become a barrister, graduates are required to complete the Bar Vocational Course (BVC) instead of the LPC and then seek a “pupillage” instead of a training contract though there are a number of differences between barristers and solicitors; the most important is that barristers have full rights of audience to appear in all courts while solicitors can only appear in higher courts if they qualify to become solicitor-advocates.

Legal education in Scotland is slightly different than the rest of the UK, and LL.B. degrees awarded in other parts of the UK are not recognized as part of the qualification process in Scotland (and vice versa).

Students typically begin their LL.B. at age 18; graduate at 21; complete the LPC, two-year training contract, and Professional Skills Course; and qualify as solicitor by 24. There are 89 law schools in the UK (including Scotland). Cambridge, Oxford and the London School of Economics jostled for top spots in 2007 in the three most widely used British rankings

Instead of a bar exam, aspiring solicitors must after graduating complete the Legal Practice Course (a mixture of written exams, course work, and the assessment of skills), obtain a training contract and pass the Professional Skills Course.xiv The pass rate for the LPC in 2005 was 84%. Similarly, would-be barristers must complete the Bar Vocational Course and a pupillage upon graduation. In 2006-2007, 3227 applied for the BVC and 1425 were accepted into the program and passed (44%). Solicitors study for three years after completion of the LL.B., while barristers study for two.

Philippine Legal Profession

Legal Profession in the Philippines is the group of individuals allowed to practice law in particular jurisdiction which aims to promote public interest by making the law a part of their social consciousness.

The Legal education the country began in 1733 with the establishment of the Faculties of Canon and Civil Law in University of Santo Tomas. In 1890, the Universidad Literia de Filipinas was established in Malolos, Bulacan, followed in the year 1899, Felipe Calderon founded the Escuela de Derecho de Manila and adopted the name Manila Law College in 1924. Thus, the University of the Philippines opened its College of Law in 1910 where George Malcolm as the College’s first permanent Dean.

The Supreme Court regulates admission to the Bar and administers the Bar Examinations. Furthermore, the minimum curricular requirements for membership in the Philippine Bar are set forth in the Rules of Court promulgated by the Supreme Court. Law degree programs are considered graduate programs in the Philippines. As such, admission to law schools requires the completion of a bachelor's degree, with a sufficient number of credits or units in certain subject areas.

Graduation from a Philippine law school constitutes the primary eligibility requirement for the Philippine Bar Examination, the national licensure examination for practicing lawyers in the country. The bar examination is administered by the Supreme Court during the month of September every year. Members of the bar in the Philippines are required to take mandatory continuing legal education in order to continue practicing their profession.

The 1987 Constitution of the Philippines has given the Supreme Court the sole power to admit individuals to the practice of law in the Philippines. This power is exercised through a Bar Examination Committee, an ad hoc academic group tasked to formulate questions, administer proceedings, grade examinations, rank candidates, and release the results of the Philippine Bar Examination.

Hence, to be eligible to take the national bar exam, a candidate must be a Filipino citizen, at least twenty-one years of age, and holder of a bachelor's degree and a law degree obtained from a government recognized law school in the Philippines. Graduates of law schools from other countries must obtain a law degree from the Philippines to qualify for the Philippine Bar. In March 2010 the Supreme court issued Bar matter 1153 allowing Filipino who are foreign law graduates to take the Bar exam provided that applicant complies with the following conditions: a) completion of all courses leading to the degree of Bachelor of Laws or its equivalent degree; (b) recognition or accreditation of the law school by the proper authority;

and (c) completion of all fourth year subjects in the Bachelor of Laws academic program in a law school duly recognized by the Philippine Government d) must have completed a separate bachelors degree."

The Philippine Legal Education traced its roots from the Spain, which gave the Roman civil and canon law, the United States which gave the English common law. However, the current state of the Philippine Legal education is bulked by private substantive law influenced by the Romanesque. 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.

Other than the Roman law, with the century stay of the Spanish colonizers in the Philippines, laws on private relations were also influenced and developed. Now, we have our New Civil Code which is a sourced out from the Spanish Civil Code, our Penal Laws, Notarial Laws and other laws which are patterned from the Spanish Private and Public Laws.

Further, the main source of common law is case law. Lawyers therefore focus their research on reviewing court decisions in the relevant jurisdiction, or those of another common law jurisdiction for comparative purposes. However, more legislation has been introduced in recent years. In civil law countries, the first step is generally to review the applicable codes and statutes. Lawyers refer to court decisions only to interpret that legislation.

Thus, because of the passage of RA 7662 or “An Act Providing for Reforms in the Legal Education, creating for the purpose, A Legal Education Board and for other purposes” paves way to the improvement of Legal Education in the country and the creation of the Legal Education Board which supervises all law schools and continuing legal education providers in the Philippines. The Board is headed by a Chairman who is a retired justice of a collegiate court (i.e., Supreme Court, Court of Appeals, Sandiganbayan, Court of Tax Appeals, etc.). Regular members of the Board include a representative from each of the following Integrated Bar of the Philippines (IBP), Philippine Association of Law Schools (PALS), Philippine Association of Law Professors (PALP), active law practitioners and bonafide law students.

The Board has made legal reforms which include—the stricter selection of law students and law professors; improvements in quality of instruction and facilities of law schools;

provisions for legal apprenticeship of law students; and the requirement of attendance to continuing legal education seminars for practicing attorneys.

Prepared by:

Sarah Mae C. Baylon

1E

Sources:

1 United States of America Legal Profession retrieved from http://www.law.harvard.edu/programs/plp/pdf/United_States_Legal_Profession.pdf

2 United Kingdom Legal Profession retrieved from http://www.law.harvard.edu/programs/plp/pdf/United_Kingdom_Legal_Profession.pdf

3 James A. Brundage, "The Rise of the Professional Jurist in the Thirteenth Century," 20 Syracuse J. Int'l L. & Com. 185 (1994).

4 Legal Professions around the Globe retrieved from http://www.brookings.edu/~/media/Research/Files/Articles/2013/10/07%20rise%20lawyers%20chinese%20leadership%20li/Read%20the%20article.pdf

5 European and American Legal Profession retrieved from http://aei.pitt.edu/8220/1/MulleratEU_USlawLong08edi.pdf