Excerpts from my 2000 Ll.M. thesis, containing the recommendations intended, inter alia, to elevate the Philippine legal profession.
x x x.
CONCLUSIONS AND RECOMMENDATIONS
SUMMARY
1. Lawyer Advertising.
Since 1977 the US Supreme Court has allowed US lawyers to advertise their services in recognition of their constitutional freedom of commercial speech and of the basic right of the American consumers of legal services to know, choose and have a fair access to the best and most cost-effective providers of legal services in the legal market.
The ABA Model Rules of Professional Conduct and the ethics rules of most states have been accordingly adjusted since 1977 to allow lawyers and law firms to advertise, subject to certain limitations intended to maintain the dignity of the legal profession.
Advertising by lawyers and law firms through the regular mass media and the Internet and targeted direct mail advertising are allowed in the US, subject to the rule that the same shall be truthful and non-deceptive. In the case of targeted direct mail solicitation, a 30-day cooling off period is imposed and the rules require that the words advertising material be stamped on the letter envelope. Advertising materials shall also contain a disclaimer. In-person solicitation and live telephone solicitation are still banned.
In the case of the Philippines, lawyer advertising, in whatever form or manner, is expressly banned by the 1988 Code of Professional Responsibility and existing jurisprudence, despite an equivalent verbatim provision on freedom of speech in the 1987 Constitution.
2. Multi-Disciplinary Law Practice.
The American Bar Association has adopted this year its final position paper allowing multi-disciplinary law practice, whereby lawyers may associate with experts from other professions or disciplines to form multi-disciplinary professional services corporations or partnerships to better meet the complex multi-disciplinary needs and demands of domestic and international clients.
The final position paper adopted by the ABA contained specific provisions intended to preserve the Bar traditions on confidentiality, conflict of interest and due diligence on the part of lawyers who shall participate or invest in such multi-disciplinary professional services corporations or partnerships. The 1988 Code of Professional Responsibility and existing jurisprudence of the Philippines prohibit a Filipino lawyer from splitting professional fees or associating with non-lawyers in the practice of law.
3. Professional Liability Insurance.
US lawyers are mandated to regularly contribute to a client protection trust fund of the state where he practices his profession. In addition, a great majority of US lawyers also procure private professional liability insurance or malpractice insurance to protect them from malpractice claims by clients and to assure clients that in case of misconduct by such lawyers their clients have a civil recourse to seek indemnification. The Philippines has no equivalent rule. An aggrieved Filipino client has to file an administrative case and/or a civil suit for damages against his erring lawyer.
4. Information Technology and the Legal Profession.
US lawyers and the US Government have a highly visible presence in the Internet as part of their public service to the American people. The US legal profession has learned to maximized the use of information and communication technology to reach its clients and potential market and to render pro bono public information services to the American people. Considering the advance economic stage of the US, the costs of maintaining a presence in the Internet in the US are affordable to most lawyers.
In the case of the Philippines, published data showed that there were only 200,000 Internet users in the Philippines in 1999 and that unlimited Internet access thru digital telephone lines cost between P3,000.00 to P10,000.00 a month in 1999, which, inter alia, explained the very low volume of Internet users in the country, not to mention the fact that the low purchasing power (per capita income) of the Filipino people has made it very difficult for them to acquire modern information and communication technology (ICT) hardware and software. (Yao-Endriga, The Philippine Star, August 6, 1999).
The International Telecommunications Union (ITU), an agency of the United Nations, has recently reported that the digital divide is growing. With only a fraction of people having access to telephones in the developing world, the U.N. telecommunications agency warned that the gap between the information "haves" and "have nots" will continue to grow without concerted global action. Yoshio Utsumi, secretary-general of the ITU, reported in June 2002 that 83 countries in Africa, Asia and the former Soviet Union still have less than 10 telephone lines for every 100 people. He reported that 25 countries have less than one phone line for every 100 people, and 61 countries have less than one percent Internet use, primarily in Africa. UN Secretary General Kofi Annan has expressed the dismal fact that while the globe is becoming more and more wired, "the digital divide still yawns as widely as ever, with billions of people still unconnected to a global society." (Editha M. Lederer, AU.N. Says Digital Divide Is Growing@, Associated Press [AP], Http://news.findlaw.com/ap/ht/1700/6-19-2002/20020619031500_20.html).
5. Pre-Paid Legal Insurance and Legal Referral Networks.
With more than 80 million Americans now covered by pre-paid legal services insurance policies, the US pre-paid legal services insurance industry has become fully developed.
Many private and public companies, as well employees unions and law-related non-governmental organizations, in the US have integrated the pre-paid legal services insurance plan as part of the benefits package of workers.
The pre-paid legal services insurance industry has contributed to the marketing exposure of lawyers and law firms, especially the solo practitioners and small to medium law firms, who are part of the pool of accredited legal service providers of the pre-paid legal services insurance companies.
The industry has likewise contributed to the consumer education of the American public vis-a-vis the availability of the most cost-effective providers of legal services in the US legal market. The Philippines has no equivalent rule or industry.
6.. Boards of Specialty.
Lawyers who specialize in particular fields of law practice may be certified by the state boards of specialty after fulfilling the requirements for specialty certification.
Specialty certification increases a US lawyer’s professional prestige and image and assures the American consumers of the quality and specialized legal services. The Philippines has no equivalent rule.
6. Legal Education.
US Legal education requires a future US lawyer to complete a 4-year college degree (in any field or discipline) and a 3-year law degree (Doctor of Jurisprudence) before taking the state bar examinations.
A US law student has the option to choose his future specialization by enrolling in electives during the second and third years in law school. Multi-disciplinary legal education is encouraged.
Law professors are mostly hired on a full-time basis and are adequately compensated and supported with sabbaticals and research grants.
Most US law schools augment their income from tuition fees by competitive marketing methods and by soliciting donations from external sources.
The case method and legal clinics are the most preferred methods of teaching, although many law schools now include the seminar method as an additional teaching method.
Scholarships and loans are given to law students by the federal and state governments, banks, and law schools.
Most law students in the US are full-time students. About 70 percent of the US bar examinees pass the state bar examinations yearly. Summer law clerks (senior law students who worked during summers in law firms) are adequately compensated. Most law firms compete in the recruitment of graduating law students.
Philippines legal education requires a 4-year college degree and a 4-year law degree. Most law students are working.
Many law schools have adopted a 5-year curriculum for working students and are encouraging the entry of full-time students. In 1989 the law curriculum was revised. In 1993 R.A. 7662 (Legal Education Act of 1993) was passed. It created a Board of Legal Education, where the Bar and the private sector are represented, to improve the state of legal education in the Philippines.
Most Philippine law professors are part-time professors and have no formal training in teaching methods. They are mostly underpaid and treat law teaching as a mere sideline. Most law schools compete for the admission of new students, and tuition alone is not enough to sustain the operations of law schools. Due to the weak financial condition of many law schools and the fiscal deficit of government, scholarships and research grants for law students and law professors are insignificant.
Only between 20 to 30 percent pass the Philippine bar exams annually, and the performance of many private law schools need drastic improvement.
The Legal Education Reform Act of 1993 has somehow begun to set the correct trends in law education reform by introducing the ideas of mandatory legal aid clinic, mandatory continuing legal education, mandatory pro bono services, and re-focusing legal education to the basics of legal ethics, legal counseling, and legal problem-solving and decision-making.
The full realization of all of these goals remain to be seen. No concrete movements to actually implement them are visible at the moment, except perhaps for the pro-forma compliance with the rules on legal aid clinic in law schools and promulgation of the new rules on mandatory continuing legal education (MCLE) applicable to the Bar (see Bar Matter No. 850, c. 2000).
The Integrated Bar of the Philippines, which is the mandatory bar association of Filipino lawyers, is not involved in any manner in the accreditation of law schools and is reactive, not pro-active, in the major task of self-policing and self-educating their own ranks. Moreover, there appears to be no official policy on the part of the State to encourage and promote the development and the federalization of voluntary local bar associations. Existing voluntary local bar associations are not represented in the Board of Legal Education, the Judicial and Bar Council, the national board of the Integrated Bar of the Philippines, and the special committees of the Supreme Court.
Legal education, as a human activity, is a matter of "philosophy", not of money, ambition, greed, or popularity. Money and power are not the ultimate goals of legal education. Legal education is a "mission", not an economic enterprise. Legal education is a "service", not a shopping center where one picks up and buys a skill.
A legal curriculum that inordinately orients and focuses law students to the sole aim of passing the annual bar exams is a "trade school", not a law school. A law school is not a commercialized "recruitment agency" of the Bar. This is a shameful capitalist concept.
The practice of law is not a trade or business. It is an "ethics and justice center" whose main objective is the administration of distributive justice. Thus, the law school system must be de-commercialized. With de-commercialization, one may expect a radical change in the orientation of lawyers and a marked improvement in the administration of justice. Sadly, though, this is not the current trend worldwide.
To many people in many countries the prevailing view is that economic greed and mankind’s insatiable hunger for fame and power have dominated the legal profession globally. The best way to start to become a good lawyer is first to become a good human being.
7. Mandatory Continuing Legal Education.
Both the US and the Philippines have adopted rules for a mandatory continuing legal education. The Philippine MCLE version started only in late 2000. It requires 36 MCLE credit units for every three years (compared with 25 credit units per 3 years in California). Both countries allow the accreditation of private MCLE service providers and the exemption of certain government officials from the program. Non-compliance with the MCLE requirements may result in the suspension or disbarment of a lawyer.
8. Mandatory Pro Bono Legal Services.
There is no rule for a mandatory pro bono publico legal services which require both the US and the Filipino lawyer to allot a certain number of hours per year for free legal aid to the indigent.
However, it is encouraged by both countries. In the case of the Philippines, the Integrated Bar of the Philippines and the voluntary bar associations maintain regular free legal aid programs, although funding is a usual problem. For instance, a free legal aid lawyer of the IBP receives only P4,500.00 monthly as an allowance (although he is allowed free practice by the IBP). The IBP and the voluntary bar associations find it difficult to recruit private lawyers to join their free legal aid programs.
9. Privatization of Legal Services for the Indigent Clients.
In the US, persons accused of criminal cases who cannot afford the services of private defense counsel may avail themselves of the free services of the Office of the Public Defender. In addition, the courts may appoint any private lawyer as pro bono defense counsel.
For civil suits, low- and middle-income US citizens who cannot afford the services of private lawyers may seek the assistance of the US Legal Services Corporation (LSC).
It reimburses the fees of accredited private lawyers or legal aid center who represent indigent litigants in civil suits.
As defined by the Legal Services Corporation Act, the LSC’s mission is to promote equal access to the system of justice and improve opportunities for low-income people throughout the United States by making grants for the provision of high-quality civil legal assistance to those who would be otherwise unable to afford legal counsel. (www.lsc.gov).
LSC does not provide legal services directly. Rather, it provides grants to independent local programs selected through a system of competition.
In 2002, LSC funds 179 local programs. Together they serve every county and congressional district in the nation, as well as the U.S. territories.
Special service areas also address the distinctive needs of Native Americans and migrant farm workers. (id.).
In the case of the Philippines, we have no such equivalent corporation.
The Public Attorneys Office (PAO) serves the needs of indigent Filipinos facing both criminal and civil cases or initiating civil suits as indigent plaintiffs, subject to its threshold income requirement (which is about P15,000.00 per month if the indigent client lives in Metro Manila).
PAO lawyers are generally overworked, resulting in poor delivery of legal services to clients.
10. Attorneys Fees and Billing Methods.
The regular fee billing method in the US is the hourly billing method. Some lawyers, though, apply the contingent fee method, especially in class tort suits where the clients are from the low- and middle-income classes.
Due to growing concerns about fraudulent hourly billings and the tendency of the hourly billing method to produce unnecessary record time or over-zealous litigation, some lawyers are now exploring alternative billing methods other than the hourly billing method and the contingent fee method, e.g. flat fee, modified hourly fee.
In the Philippines, except for the huge law firms which prefer the hourly billing method, most private lawyers use the flat fee billing method (i.e., acceptance fee plus appearance fee per hearing) or contingent fee billing method.
Attorneys’ fees have escalated both in the US and in the Philippines these past years, as result of inflation and other economic factors.
This has resulted in the inability of low- and middle-income consumers of legal services to hire the services of competent lawyers.
The situation in the Philippines is especially pronounced because of the absence of a pre-paid legal services insurance industry and the inability of the PAO to meet the growing demands of the indigent population for free legal aid.
Economic Survival
The legal profession is dedicated to the spirit of public service. Gaining a livelihood is incidental. A law professional must deliver quality services with diligence and zeal whether he is paid or not. His best advertising is his reputation as a lawyer.
This is the ideal. In reality, however, a lawyer, like any ordinary businessman, is subjected daily to the vagaries of economic survival, the pains of the economic natural-selection process, stiff domestic and global competition, and real business and financial risks in the operation and maintenance of his law office and in sustaining the costs of the continuing professional improvement of his legal career, not to mention the regular financial support for his own family.
It is admitted that litigation expenses and the costs of legal services have become prohibitive to the ordinary citizens. The ordinary Filipino citizen feels that the courts are available only in proportion to one=s ability to pay for their use and are accessible only to those able to bear the expense of litigation.
Negative comments have been given by some sectors of society to the effect that the legal profession exists for itself alone and for its own interests, that it is not answerable to anybody outside the profession, that it is as nearly independent of society as any functioning institution can be, and that it is, psychologically, at least, quite outside of the social system. (Ferdinand Lundberg, "The Legal Profession - A Social Phenomenon", Harper's Magazine, Dec. 1938, in Coquia, Jose R. The Legal Profession. Manila: Rex Book Store, 1993 ed., pp. 47-70).
Despite the reported wealth of the legal professionals, Lundberg argues: A very large section of the bar itself is unable to make both ends meet. Contrary to popular opinion, all lawyers are not affluent, as is shown by the American Bar Association in a recently completed study of the economic status of the lawyer. A great section of the bar, composed mainly of newcomers but comprising as well of some elder practitioners, is virtually without clients, because their potential clients are unable to pay them. The existence of so many lawyers who are unable to make a living accounts for the conclusion that the bar is over-crowded and must be made smaller. (Id.).
The Lawyer’s Oath
As an officer of the court, a lawyer is subject to a rigid discipline that demands that in his every exertion the only criterion be that truth and justice triumph. This discipline is what has given the law progression its nobility, its prestige, its exalted place. From a lawyer are expected those qualities of truth, a high sense of honour, full candor, intellectual honestly, and the strict observance of fiduciary responsibility B all of which have been compendiously described as Amoral character. (Justice J.B.L. Reyes, "Objectives of Legal Education in Present-Day Philippine Society", in Coquia, supra, pp. 113-123).
Unfortunately, according to Justice J.B.L. Reyes, many a law practitioner, forgetting his sacred mission as a sworn public servant and his exalted position as an officer of the court, has allowed himself to become an instigator of controversy and a predator of conflict instead of a mediator for concord and conciliator for compromise, a virtuoso of technicality in the conduct of litigation instead of a true exponent of the primacy of truth and moral justice, a mercenary purveying the benefits of his enlightened advocacy in direct proportion to a litigant=s financial posture instead of a faithful friend of the courts in the dispensation of equal justice to the rich and the poor alike. (Id., pp. 176).
Justice Ameurfina Melecio-Herrera, in an address to new lawyers, affirmed the special role of the lawyer in society, thus:
You have foresworn the doing of falsehood or consenting to its commission. Falsehood is professional apostasy. Evidence must not be manufactured to bolster the theory of the case. As advocates, yours is the responsibility to present the truth with candor and fairness. The courts cannot do justice unless they are in possession of the truth.
You have also pledged that your will no wittingly or willingly promote any groundless, false or unlawful suit nor give aid nor consent thereto. Be true to your pledge. Restore prudence in resorting to courts of law. Discourage overuse or misuse of courts. Help expedite the dispensation of justice.
You have solemnly proclaimed that you will not delay any man=s cause for money or malice. This precludes you from resorting to dilatory tactics, from biding your time in any litigation, and from allowing a case to meander through a weakness in the legal procedures. Always aspire for a just, speedy and inexpensive determination of any suit.
You have sworn that you will conduct yourself as a lawyer with all fidelity to the courts as to your clients. This means fidelity to the truth first and foremost. It signifies fidelity to private trust as well as to public duty. Serve your clients with complete fidelity at whatever cost to yourself. But remember that is limited by your duty to do justice. Practice your profession primarily for the common good, for the greater good, and only secondarily for profit. Handle a problem of a client with understanding regardless of ability to pay a handsome fee.
A good man is morally virtuous, and justice is one of the moral virtues. A just man sees not only his own good but that of society as a whole.
(Justice Ameurfina Melencio-Herrera. "Upgrading the Image of The Bar", in Coquia, supra, pp. 304-307).
The Law School
A law school is not a commercialized vocational or skills development centre where the sole objective is the training of students to learn the technical art of trial or advocacy. The development of the moral fiber and the social involvement of lawyers should be the top priority in any program of legal education. Without a sound moral and social foundation an advocate is more likely to be a liability, rather than an asset, to the community. And the more able he is in legal technique, the bigger the threat he will pose to his fellow men@. (Justice Roberto Concepcion, "The Lawyer's Role in Society', in Coquia, supra, pp. 183-189).
Justice Reyes had criticized Philippine law schools for producing generalists who believe that they know what is best for everything; for producing technicians who make no moral judgements; and for producing lawyers who think and work as hired guns and not as servants of the law. (Reyes, supra, at p. 124).
He further stated: “What those attacks amount to in substance is that the present-day law curricula fail to adequately provide for the moral training of the law student. Stress is laid on what is lawful rather than what is just; emphasis is placed on what is permissible instead of what is honourable. The rules of professional ethics and responsibility that place a distinctive import on the legal profession and mark it apart from all others careers are accorded but casual attention in the law course. The unfortunate result of such a distorted sense of values looms large in judicial annals -- Bar candidates denied admission for moral deficiencies; too many lawyers suspended, censured or disbarred for abandoning or neglecting their clients cases, for failing to file on time pleadings or briefs on their behalf, for continual use of delaying tactics, or for not complying with their duties as officers of the Court.” (Id.).
The ethics of law practice cannot be those of the open markets. Law touches too wide a range of human values, and is beset by too many temptations, to admit of any but the highest standards of conduct. From the ranks of lawyers will be drawn judges and prosecutors, legislators and presidents, who will decide the destiny of the nation and of the citizens. No one can escape shivering at the thought that some time in the future his own life or liberty may hinge upon an individual unable to discriminate between what is profitable and what is right, what is expedient and what is just, or whose main interest in life is survival or preferment. (Id., p. 117).
Justice Reyes stressed: “Equally important in the law school training, but hitherto sadly neglected, is the cultivation and consolidation of moral character, civic courage, and ethical principles. The present law curricula, devote only a minuscule portion to professional ethics B those moral rules without which the practitioners would become just license freebooters. Hitherto the law schools appear to have failed to kindle in the hearts of their wards a resolute dedication to the rule of law and fair play, as well as the conviction that every lawyer is and must remain an integral part of the administration of justice. That failure is written large in the court records -- that convert litigations into wars attrition; groundless suits and appeals; abandonment of clients without the courtesy of notice to them or to the court. And outside the courthouse, how many lawyers seek to palliate their failures by charging prejudice or base motives on the part of the judges? How many of them, placed in the positions of power, have practised self-restraint, respect and tolerance for others, and the subordination of self-interest?. (id.).
Image of the Lawyer
In a harsh commentary on the issue of law and morality in our society, the late Dean Jeremias Montemayor of the Ateneo School of Law had stated: “One of the most basic causes of the failure of law in our country is the separation and isolation of law from morality. This has the same effect as that of separating the body from the soul, with the result that the body becomes a dislocated, lifeless, mechanical and ineffective contraption. This find of “unmoral” concept of the background of law tends to make many Filipinos hypocrites. Hence, may of us go to Mass in the morning and through a legal technicality swindle our neighbour in the afternoon; many of as believe in God=s justice but hire the most clever lawyers against our tenants and labourers who demand their share under the tenancy and wage laws; we win an election by undetected cheating and vote-buying and unveil a religious statute immediately after our inauguration; we extra-legally collect >tong= from businessmen whose papers we have to approve and part of that >tong= we contribute to the building of a church”. (Dean Jeremias Montemayor, "New Problems Of An Old Profession", in Coquia, supra, pp. 246-255).
Speaking of the public image of the Filipino lawyer, Dean Montemayor further stated: “Likewise, people have had a superficial and, therefore, negative concept of the lawyer and his profession. The lawyer stays in his law office and people came to him only after they foresee, or are actually involved in, some legal controversy. They never go to him when things go well. He is very nice to have on one=s side in case of trouble but rather unnecessary in a normal situation. Unfortunately, many lawyers have the same superficial and negative concept of their own profession. They think their function is mostly remedial, not constructive and promotional. Consequently, they have not been able to keep pace with the ever-increasing problems and aspirations of the people. As a matter of fact, their capacity to respond to the people=s needs has remained practically constant even as those needs have increased a hundred fold. So much so that not only has the lawyer lost much of his prestige but many people have even developed a positive distaste for him. Some people even consider lawyers as a necessary evil that should be avoided as much as possible”. (Id.).
He added: “The reason why so may lawyers today are without jobs and find it hard to get employment is because they have failed to help society become more productive. In fact, in may cases, lawyers by their opportunistic manipulation, promoting feuds and multiplying and prolonging suits, have destroyed the productive capacity of their fellow men and deprived them of the means to hire legal help”. According to him, the role of the lawyer in society and in the economy is to assist in the settlement of controversies and to promote harmony and greater production, for the richer the society is, the more capacity it will have to use and pay for legal services...and as long as society exists, lawyers will always be needed. (Id.).
Asian Values
There are dangers in completely mimicking US law practice management and law firm marketing techniques, as well as other aspects of the US legal profession, without considering the unique Asian and Filipino culture within which the Philippine legal profession exists and operates.
A premature copying of foreign rules and practices, without taking into account the current cultural consciousness of the Filipino legal profession and the value system of the society within which it works, is likewise risky.
However, it is useful to take into account and study the feasibility of applying in the Philippines setting certain areas of growth and development of the US legal profession which have been empirically proven to be cost-effective, globally competitive, conducive to the protection of the rights of the consumers of legal services, and contributory to the initiation of appropriate reforms in the Philippine legal profession to enable it to face the challenges of the new millennium, i.e. ethical lawyer advertising, multi-disciplinary legal education, multi-disciplinary law practice, multi-jurisdictional or cross-border law practice, pre-paid legal services insurance, clients protection trust fund, professional liability insurance, active presence in the Internet as a mode of delivery of legal services, mandatory pro bono publico legal services, privatized legal services for civil suits, mandatory continuing legal education, licensing of paralegal personnel or legal assistants, law practice specialty certification program, and the promotion of electronic courts and electronic filing of legal pleadings.
RECOMMENDATIONS
PREMISES CONSIDERED, the author respectfully makes the following recommendations:
1. That the Supreme Court create a Standing Committee on Philippine Law Practice Management and Law Firm Marketing, with representatives from the Bench, the Bar, the Law Academe, the Law Studentry, the Civil Society, the Business and Industry Sector, the Mass Media, the Executive, and the Legislature as committee members and/or consultants, as the case may be, to assist the Supreme Court in conducting further and periodic in-depth, scientific and comprehensive studies, surveys, and consultations, in reviewing the existing Code of Professional Responsibility, in forming policy recommendations, in proposing draft congressional bills and/or executive orders for legislative and executive action, where so required by the Constitution, and in proposing appropriate constitutional amendments in the matter of pleadings, practice and admission to the practice of law, if necessary, in relation to the various controversial modern trends and issues discussed in this study that directly or indirectly affect and influence the domestic and global competitiveness, effectiveness and responsiveness of the Philippine legal profession in meeting and addressing the complex needs and concerns of the local and foreign consumers of its services and of the stakeholders and beneficiaries of the Philippine justice system, which trends and issues include, but are not necessarily limited to:
a. lawyer advertising (law firm marketing)
b. multidisciplinary law practice
c. multijurisdictional law practice
d. lawyers= professional liability insurance
e. mandatory client protection trust fund
f. pre-paid legal insurance and pre-paid lawyer referral system
g. licensing of paralegals and legal assistants,
h. mandatory pro bono publico legal service
i. law practice specialty certification system
j. electronic courts and electronic filing of pleadings and motions
k. privatized alternative dispute resolution system
2. That a strong and well-funded system of international linkages, exchanges and partnerships be developed, maintained and institutionalized by the Supreme Court and the Integrated Bar of the Philippines in cooperation with their foreign counterparts worldwide and with the concerned public and private law- and justice-oriented international institutions and organizations to enable the Supreme Court and the Integrated Bar of the Philippines to speedily monitor and analyse the new and latest global developments, trends and issues that may directly or indirectly affect and shape the future directions of the justice system, the legal profession, and the modalities of the delivery of basic legal services to the consumers, the beneficiaries and the stakeholders of the justice system.
3. That an ad hoc Supreme Court committee be formed with members from the Bench, the Bar and the Civil Society to explore and study various ways and means of extending financial assistance, subsidy and the like to the middle-class consumers of legal services, who may not be qualified under the rules of the Public Attorneys Office, in respect of the litigation of their civil disputes, whether individual or class suits, in the light of the currently skyrocketing price of the professional fees of the legal profession, including, but not necessarily limited to, a study of the feasibility of the creation, by legislative fiat, of the Philippine National Legal Services Corporation, patterned after the American model (US Legal Services Corp., www.lsc.gov), that will privatize such subsidized legal service and provide such financial assistance, subsidy and other forms of aid to such litigants in civil disputes.
4. That the Integrated Bar of the Philippines, with the assistance of the moral clout of the Supreme Court, initiate steps toward the adoption of congressional and executive action that will adequately fund the creation, operation and maintenance of a massive pro bono or at the least a subsidized public Internet-based Philippine law- and justice-oriented world wide web portal with a full and comprehensive downloadable database of full-text Philippine and foreign laws, decisions, treaties, research materials, and other legal, executive, legislative, administrative, historical, economic, political and scientific digital data and issuances to improve the legal research capacity and advocacy of the Philippine legal profession, the law academe, the civil society and the general public and to elevate to the level of competitive international standards their ability to access, research, manage, and use such technology to promote the rule of law, enhance the administration of justice, and respond cost-effectively to the complex needs and demands of the consumers of legal services .
5. That the Supreme Court create a Standing Committee on the Effects and Implications of the General Agreement on Trade in Services (GATS) and the World Trade Organization (WTO) to study the consequences of the provisions of the GATS and the rules of the WTO to the Philippine legal profession and the Philippine justice system and to make policy recommendations on how the Philippines should effectively and appropriately respond to the WTO-led liberalization of the cross-border, multilateral and multijurisdictional exercise of the major professions of the world among the member nation-states.
6. That the 1988 Code of Professional Responsibility be amended to allow the Filipino lawyers to honestly engage in some limited form of ethical, dignified, truthful and factual law firm marketing or lawyer advertising through the mass media, as in the case of the United States since 1977, to empower and educate the general public and the consumers of legal services, especially those from the middle class of society, to choose the best and at the same time the most affordable and cost-effective specialized legal services available to them in the legal market, as well as to give flesh to the Filipino lawyers= constitutional freedom of commercial speech.
7. That the Supreme Court, with the participation of the Bar, create an Ad Hoc Committee on Multidisciplinary Practice that will study the appropriateness, applicability and wisdom allowing Filipino lawyers to put up multidisciplinary professional services corporations and partnerships, patterned after the multidisciplinary model of the USA, to better serve the complex and changing needs of the local and foreign consumers of legal services, subject to such ethical rules as the Supreme Court may deem necessary to impose after conducting broad consultations with the Bench, the Bar and the Civil Society, to preserve the dignity of the legal profession, prevent conflicts of interest, protect the confidentiality of the lawyer-client relation, and satisfy other issues and concerns on the matter.
8. That the Integrated Bar of the Philippines create an Ad Hoc Committee on the Licensing of Paralegals and Legal Assistants that will propose a bill for legislative and executive action in the matter of the licensing, education, accreditation, regulation, and supervision of paralegals and legal assistants to serve and fill the minor needs of the consumers of routine, pro forma, and non-litigation legal services which do not require the specialized intervention of legal professionals, and without necessarily engaging in the practice of law as the term is now strictly defined by the Rules of Court and existing jurisprudence.
9. That the Supreme Court create an Ad Hoc Committee on Client Protection Trust Fund and Professional Liability Insurance to study the feasibility of requiring lawyers, following the American model, to mandatorily contribute a fair portion of their professional fees or a fixed annual amount to a Client Protection Trust Fund, to be jointly managed by the Supreme Court and the Integrated Bar of the Philippines with the assistance of experts in the business of banking, trusts and finance, that will indemnify aggrieved clients victimized by lawyer malpractice, deceit, dishonesty, negligence and misconduct and to study various ways and means of encouraging the Philippine insurance industry to develop and offer private professional liability insurance coverage to Filipino lawyers as an alternative or as an additional support to and compliance with the aforementioned mandatory contribution to the Client Protection Trust Fund.
10. That the Integrated Bar of the Philippines create an Ad Hoc Committee on Pre-Paid Legal Services Insurance Plan and Lawyer Referral System to study various foreign models of pre-paid legal services insurance plans and lawyer referral systems, including those of the USA, with the end in view of assisting the consumers of legal services, especially the low-income and middle-income consumers and the small and medium business persons, by reducing the costs of legal services through the method of spreading the risks involved among all the insured and assuring the insured consumers of legal services of the availability of reliable lawyers accredited as legal service providers under such plans who shall be ready to serve the needs of the consumers for prompt and quality legal services, subject to the categories and the terms and conditions of the specific classes of pre-paid plans acquired by such consumers.
11. That the Supreme Court, with the participation of the Integrated Bar of the Philippines, create a Standing Committee on Mandatory Pro Bono Publico Legal Services to study the feasibility of requiring Filipino lawyers to allot a fair and reasonable number of hours per annum for free legal aid to the community, the law academe=s legal clinics, the indigent, the detention prisoners, victims of child abuse, and the oppressed poorest of the poor and to propose the implementing rules and regulations for the mandatory activity, after conducting broad consultations with the Bench, the Bar and the Civil Society.
12. That the Supreme Court, with the assistance of the Integrated Bar of the Philippines, create a Standing Committee on Law Practice Specialty Certification to initiate studies and consultations on a system of certification of the law practice specializations of Filipino lawyers to promote law practice specialization and to elevate the professional standards and quality service of private law practitioners in the Philippines.
13. That steps be taken to give flesh to the constitutional doctrine of fiscal independence of the judiciary as a prelude to, inter alia, (a) the sufficient funding, construction, and operation of electronic courts nationwide, complete with web sites from which the litigants and the general public may transact official and legal business and/or upload and download, as the case may be, transcripts of court hearings, court orders and decisions, and legal pleadings and motions; (b) the upgrading of the compensation package of judicial personnel; (c) the enhancement of the legal research capability of the judiciary and the Bar; (d) the strengthening of the free legal aid program and the mandatory continuing legal education program; (e) the promotion of the vision and mission of the Philippine Judicial Academy; and (f) the enhancement of the structural and institutional capability of the judiciary as the administrator of the justice system.
(End)
CONCLUSIONS AND RECOMMENDATIONS
SUMMARY
1. Lawyer Advertising.
Since 1977 the US Supreme Court has allowed US lawyers to advertise their services in recognition of their constitutional freedom of commercial speech and of the basic right of the American consumers of legal services to know, choose and have a fair access to the best and most cost-effective providers of legal services in the legal market.
The ABA Model Rules of Professional Conduct and the ethics rules of most states have been accordingly adjusted since 1977 to allow lawyers and law firms to advertise, subject to certain limitations intended to maintain the dignity of the legal profession.
Advertising by lawyers and law firms through the regular mass media and the Internet and targeted direct mail advertising are allowed in the US, subject to the rule that the same shall be truthful and non-deceptive. In the case of targeted direct mail solicitation, a 30-day cooling off period is imposed and the rules require that the words advertising material be stamped on the letter envelope. Advertising materials shall also contain a disclaimer. In-person solicitation and live telephone solicitation are still banned.
In the case of the Philippines, lawyer advertising, in whatever form or manner, is expressly banned by the 1988 Code of Professional Responsibility and existing jurisprudence, despite an equivalent verbatim provision on freedom of speech in the 1987 Constitution.
2. Multi-Disciplinary Law Practice.
The American Bar Association has adopted this year its final position paper allowing multi-disciplinary law practice, whereby lawyers may associate with experts from other professions or disciplines to form multi-disciplinary professional services corporations or partnerships to better meet the complex multi-disciplinary needs and demands of domestic and international clients.
The final position paper adopted by the ABA contained specific provisions intended to preserve the Bar traditions on confidentiality, conflict of interest and due diligence on the part of lawyers who shall participate or invest in such multi-disciplinary professional services corporations or partnerships. The 1988 Code of Professional Responsibility and existing jurisprudence of the Philippines prohibit a Filipino lawyer from splitting professional fees or associating with non-lawyers in the practice of law.
3. Professional Liability Insurance.
US lawyers are mandated to regularly contribute to a client protection trust fund of the state where he practices his profession. In addition, a great majority of US lawyers also procure private professional liability insurance or malpractice insurance to protect them from malpractice claims by clients and to assure clients that in case of misconduct by such lawyers their clients have a civil recourse to seek indemnification. The Philippines has no equivalent rule. An aggrieved Filipino client has to file an administrative case and/or a civil suit for damages against his erring lawyer.
4. Information Technology and the Legal Profession.
US lawyers and the US Government have a highly visible presence in the Internet as part of their public service to the American people. The US legal profession has learned to maximized the use of information and communication technology to reach its clients and potential market and to render pro bono public information services to the American people. Considering the advance economic stage of the US, the costs of maintaining a presence in the Internet in the US are affordable to most lawyers.
In the case of the Philippines, published data showed that there were only 200,000 Internet users in the Philippines in 1999 and that unlimited Internet access thru digital telephone lines cost between P3,000.00 to P10,000.00 a month in 1999, which, inter alia, explained the very low volume of Internet users in the country, not to mention the fact that the low purchasing power (per capita income) of the Filipino people has made it very difficult for them to acquire modern information and communication technology (ICT) hardware and software. (Yao-Endriga, The Philippine Star, August 6, 1999).
The International Telecommunications Union (ITU), an agency of the United Nations, has recently reported that the digital divide is growing. With only a fraction of people having access to telephones in the developing world, the U.N. telecommunications agency warned that the gap between the information "haves" and "have nots" will continue to grow without concerted global action. Yoshio Utsumi, secretary-general of the ITU, reported in June 2002 that 83 countries in Africa, Asia and the former Soviet Union still have less than 10 telephone lines for every 100 people. He reported that 25 countries have less than one phone line for every 100 people, and 61 countries have less than one percent Internet use, primarily in Africa. UN Secretary General Kofi Annan has expressed the dismal fact that while the globe is becoming more and more wired, "the digital divide still yawns as widely as ever, with billions of people still unconnected to a global society." (Editha M. Lederer, AU.N. Says Digital Divide Is Growing@, Associated Press [AP], Http://news.findlaw.com/ap/ht/1700/6-19-2002/20020619031500_20.html).
5. Pre-Paid Legal Insurance and Legal Referral Networks.
With more than 80 million Americans now covered by pre-paid legal services insurance policies, the US pre-paid legal services insurance industry has become fully developed.
Many private and public companies, as well employees unions and law-related non-governmental organizations, in the US have integrated the pre-paid legal services insurance plan as part of the benefits package of workers.
The pre-paid legal services insurance industry has contributed to the marketing exposure of lawyers and law firms, especially the solo practitioners and small to medium law firms, who are part of the pool of accredited legal service providers of the pre-paid legal services insurance companies.
The industry has likewise contributed to the consumer education of the American public vis-a-vis the availability of the most cost-effective providers of legal services in the US legal market. The Philippines has no equivalent rule or industry.
6.. Boards of Specialty.
Lawyers who specialize in particular fields of law practice may be certified by the state boards of specialty after fulfilling the requirements for specialty certification.
Specialty certification increases a US lawyer’s professional prestige and image and assures the American consumers of the quality and specialized legal services. The Philippines has no equivalent rule.
6. Legal Education.
US Legal education requires a future US lawyer to complete a 4-year college degree (in any field or discipline) and a 3-year law degree (Doctor of Jurisprudence) before taking the state bar examinations.
A US law student has the option to choose his future specialization by enrolling in electives during the second and third years in law school. Multi-disciplinary legal education is encouraged.
Law professors are mostly hired on a full-time basis and are adequately compensated and supported with sabbaticals and research grants.
Most US law schools augment their income from tuition fees by competitive marketing methods and by soliciting donations from external sources.
The case method and legal clinics are the most preferred methods of teaching, although many law schools now include the seminar method as an additional teaching method.
Scholarships and loans are given to law students by the federal and state governments, banks, and law schools.
Most law students in the US are full-time students. About 70 percent of the US bar examinees pass the state bar examinations yearly. Summer law clerks (senior law students who worked during summers in law firms) are adequately compensated. Most law firms compete in the recruitment of graduating law students.
Philippines legal education requires a 4-year college degree and a 4-year law degree. Most law students are working.
Many law schools have adopted a 5-year curriculum for working students and are encouraging the entry of full-time students. In 1989 the law curriculum was revised. In 1993 R.A. 7662 (Legal Education Act of 1993) was passed. It created a Board of Legal Education, where the Bar and the private sector are represented, to improve the state of legal education in the Philippines.
Most Philippine law professors are part-time professors and have no formal training in teaching methods. They are mostly underpaid and treat law teaching as a mere sideline. Most law schools compete for the admission of new students, and tuition alone is not enough to sustain the operations of law schools. Due to the weak financial condition of many law schools and the fiscal deficit of government, scholarships and research grants for law students and law professors are insignificant.
Only between 20 to 30 percent pass the Philippine bar exams annually, and the performance of many private law schools need drastic improvement.
The Legal Education Reform Act of 1993 has somehow begun to set the correct trends in law education reform by introducing the ideas of mandatory legal aid clinic, mandatory continuing legal education, mandatory pro bono services, and re-focusing legal education to the basics of legal ethics, legal counseling, and legal problem-solving and decision-making.
The full realization of all of these goals remain to be seen. No concrete movements to actually implement them are visible at the moment, except perhaps for the pro-forma compliance with the rules on legal aid clinic in law schools and promulgation of the new rules on mandatory continuing legal education (MCLE) applicable to the Bar (see Bar Matter No. 850, c. 2000).
The Integrated Bar of the Philippines, which is the mandatory bar association of Filipino lawyers, is not involved in any manner in the accreditation of law schools and is reactive, not pro-active, in the major task of self-policing and self-educating their own ranks. Moreover, there appears to be no official policy on the part of the State to encourage and promote the development and the federalization of voluntary local bar associations. Existing voluntary local bar associations are not represented in the Board of Legal Education, the Judicial and Bar Council, the national board of the Integrated Bar of the Philippines, and the special committees of the Supreme Court.
Legal education, as a human activity, is a matter of "philosophy", not of money, ambition, greed, or popularity. Money and power are not the ultimate goals of legal education. Legal education is a "mission", not an economic enterprise. Legal education is a "service", not a shopping center where one picks up and buys a skill.
A legal curriculum that inordinately orients and focuses law students to the sole aim of passing the annual bar exams is a "trade school", not a law school. A law school is not a commercialized "recruitment agency" of the Bar. This is a shameful capitalist concept.
The practice of law is not a trade or business. It is an "ethics and justice center" whose main objective is the administration of distributive justice. Thus, the law school system must be de-commercialized. With de-commercialization, one may expect a radical change in the orientation of lawyers and a marked improvement in the administration of justice. Sadly, though, this is not the current trend worldwide.
To many people in many countries the prevailing view is that economic greed and mankind’s insatiable hunger for fame and power have dominated the legal profession globally. The best way to start to become a good lawyer is first to become a good human being.
7. Mandatory Continuing Legal Education.
Both the US and the Philippines have adopted rules for a mandatory continuing legal education. The Philippine MCLE version started only in late 2000. It requires 36 MCLE credit units for every three years (compared with 25 credit units per 3 years in California). Both countries allow the accreditation of private MCLE service providers and the exemption of certain government officials from the program. Non-compliance with the MCLE requirements may result in the suspension or disbarment of a lawyer.
8. Mandatory Pro Bono Legal Services.
There is no rule for a mandatory pro bono publico legal services which require both the US and the Filipino lawyer to allot a certain number of hours per year for free legal aid to the indigent.
However, it is encouraged by both countries. In the case of the Philippines, the Integrated Bar of the Philippines and the voluntary bar associations maintain regular free legal aid programs, although funding is a usual problem. For instance, a free legal aid lawyer of the IBP receives only P4,500.00 monthly as an allowance (although he is allowed free practice by the IBP). The IBP and the voluntary bar associations find it difficult to recruit private lawyers to join their free legal aid programs.
9. Privatization of Legal Services for the Indigent Clients.
In the US, persons accused of criminal cases who cannot afford the services of private defense counsel may avail themselves of the free services of the Office of the Public Defender. In addition, the courts may appoint any private lawyer as pro bono defense counsel.
For civil suits, low- and middle-income US citizens who cannot afford the services of private lawyers may seek the assistance of the US Legal Services Corporation (LSC).
It reimburses the fees of accredited private lawyers or legal aid center who represent indigent litigants in civil suits.
As defined by the Legal Services Corporation Act, the LSC’s mission is to promote equal access to the system of justice and improve opportunities for low-income people throughout the United States by making grants for the provision of high-quality civil legal assistance to those who would be otherwise unable to afford legal counsel. (www.lsc.gov).
LSC does not provide legal services directly. Rather, it provides grants to independent local programs selected through a system of competition.
In 2002, LSC funds 179 local programs. Together they serve every county and congressional district in the nation, as well as the U.S. territories.
Special service areas also address the distinctive needs of Native Americans and migrant farm workers. (id.).
In the case of the Philippines, we have no such equivalent corporation.
The Public Attorneys Office (PAO) serves the needs of indigent Filipinos facing both criminal and civil cases or initiating civil suits as indigent plaintiffs, subject to its threshold income requirement (which is about P15,000.00 per month if the indigent client lives in Metro Manila).
PAO lawyers are generally overworked, resulting in poor delivery of legal services to clients.
10. Attorneys Fees and Billing Methods.
The regular fee billing method in the US is the hourly billing method. Some lawyers, though, apply the contingent fee method, especially in class tort suits where the clients are from the low- and middle-income classes.
Due to growing concerns about fraudulent hourly billings and the tendency of the hourly billing method to produce unnecessary record time or over-zealous litigation, some lawyers are now exploring alternative billing methods other than the hourly billing method and the contingent fee method, e.g. flat fee, modified hourly fee.
In the Philippines, except for the huge law firms which prefer the hourly billing method, most private lawyers use the flat fee billing method (i.e., acceptance fee plus appearance fee per hearing) or contingent fee billing method.
Attorneys’ fees have escalated both in the US and in the Philippines these past years, as result of inflation and other economic factors.
This has resulted in the inability of low- and middle-income consumers of legal services to hire the services of competent lawyers.
The situation in the Philippines is especially pronounced because of the absence of a pre-paid legal services insurance industry and the inability of the PAO to meet the growing demands of the indigent population for free legal aid.
Economic Survival
The legal profession is dedicated to the spirit of public service. Gaining a livelihood is incidental. A law professional must deliver quality services with diligence and zeal whether he is paid or not. His best advertising is his reputation as a lawyer.
This is the ideal. In reality, however, a lawyer, like any ordinary businessman, is subjected daily to the vagaries of economic survival, the pains of the economic natural-selection process, stiff domestic and global competition, and real business and financial risks in the operation and maintenance of his law office and in sustaining the costs of the continuing professional improvement of his legal career, not to mention the regular financial support for his own family.
It is admitted that litigation expenses and the costs of legal services have become prohibitive to the ordinary citizens. The ordinary Filipino citizen feels that the courts are available only in proportion to one=s ability to pay for their use and are accessible only to those able to bear the expense of litigation.
Negative comments have been given by some sectors of society to the effect that the legal profession exists for itself alone and for its own interests, that it is not answerable to anybody outside the profession, that it is as nearly independent of society as any functioning institution can be, and that it is, psychologically, at least, quite outside of the social system. (Ferdinand Lundberg, "The Legal Profession - A Social Phenomenon", Harper's Magazine, Dec. 1938, in Coquia, Jose R. The Legal Profession. Manila: Rex Book Store, 1993 ed., pp. 47-70).
Despite the reported wealth of the legal professionals, Lundberg argues: A very large section of the bar itself is unable to make both ends meet. Contrary to popular opinion, all lawyers are not affluent, as is shown by the American Bar Association in a recently completed study of the economic status of the lawyer. A great section of the bar, composed mainly of newcomers but comprising as well of some elder practitioners, is virtually without clients, because their potential clients are unable to pay them. The existence of so many lawyers who are unable to make a living accounts for the conclusion that the bar is over-crowded and must be made smaller. (Id.).
The Lawyer’s Oath
As an officer of the court, a lawyer is subject to a rigid discipline that demands that in his every exertion the only criterion be that truth and justice triumph. This discipline is what has given the law progression its nobility, its prestige, its exalted place. From a lawyer are expected those qualities of truth, a high sense of honour, full candor, intellectual honestly, and the strict observance of fiduciary responsibility B all of which have been compendiously described as Amoral character. (Justice J.B.L. Reyes, "Objectives of Legal Education in Present-Day Philippine Society", in Coquia, supra, pp. 113-123).
Unfortunately, according to Justice J.B.L. Reyes, many a law practitioner, forgetting his sacred mission as a sworn public servant and his exalted position as an officer of the court, has allowed himself to become an instigator of controversy and a predator of conflict instead of a mediator for concord and conciliator for compromise, a virtuoso of technicality in the conduct of litigation instead of a true exponent of the primacy of truth and moral justice, a mercenary purveying the benefits of his enlightened advocacy in direct proportion to a litigant=s financial posture instead of a faithful friend of the courts in the dispensation of equal justice to the rich and the poor alike. (Id., pp. 176).
Justice Ameurfina Melecio-Herrera, in an address to new lawyers, affirmed the special role of the lawyer in society, thus:
You have foresworn the doing of falsehood or consenting to its commission. Falsehood is professional apostasy. Evidence must not be manufactured to bolster the theory of the case. As advocates, yours is the responsibility to present the truth with candor and fairness. The courts cannot do justice unless they are in possession of the truth.
You have also pledged that your will no wittingly or willingly promote any groundless, false or unlawful suit nor give aid nor consent thereto. Be true to your pledge. Restore prudence in resorting to courts of law. Discourage overuse or misuse of courts. Help expedite the dispensation of justice.
You have solemnly proclaimed that you will not delay any man=s cause for money or malice. This precludes you from resorting to dilatory tactics, from biding your time in any litigation, and from allowing a case to meander through a weakness in the legal procedures. Always aspire for a just, speedy and inexpensive determination of any suit.
You have sworn that you will conduct yourself as a lawyer with all fidelity to the courts as to your clients. This means fidelity to the truth first and foremost. It signifies fidelity to private trust as well as to public duty. Serve your clients with complete fidelity at whatever cost to yourself. But remember that is limited by your duty to do justice. Practice your profession primarily for the common good, for the greater good, and only secondarily for profit. Handle a problem of a client with understanding regardless of ability to pay a handsome fee.
A good man is morally virtuous, and justice is one of the moral virtues. A just man sees not only his own good but that of society as a whole.
(Justice Ameurfina Melencio-Herrera. "Upgrading the Image of The Bar", in Coquia, supra, pp. 304-307).
The Law School
A law school is not a commercialized vocational or skills development centre where the sole objective is the training of students to learn the technical art of trial or advocacy. The development of the moral fiber and the social involvement of lawyers should be the top priority in any program of legal education. Without a sound moral and social foundation an advocate is more likely to be a liability, rather than an asset, to the community. And the more able he is in legal technique, the bigger the threat he will pose to his fellow men@. (Justice Roberto Concepcion, "The Lawyer's Role in Society', in Coquia, supra, pp. 183-189).
Justice Reyes had criticized Philippine law schools for producing generalists who believe that they know what is best for everything; for producing technicians who make no moral judgements; and for producing lawyers who think and work as hired guns and not as servants of the law. (Reyes, supra, at p. 124).
He further stated: “What those attacks amount to in substance is that the present-day law curricula fail to adequately provide for the moral training of the law student. Stress is laid on what is lawful rather than what is just; emphasis is placed on what is permissible instead of what is honourable. The rules of professional ethics and responsibility that place a distinctive import on the legal profession and mark it apart from all others careers are accorded but casual attention in the law course. The unfortunate result of such a distorted sense of values looms large in judicial annals -- Bar candidates denied admission for moral deficiencies; too many lawyers suspended, censured or disbarred for abandoning or neglecting their clients cases, for failing to file on time pleadings or briefs on their behalf, for continual use of delaying tactics, or for not complying with their duties as officers of the Court.” (Id.).
The ethics of law practice cannot be those of the open markets. Law touches too wide a range of human values, and is beset by too many temptations, to admit of any but the highest standards of conduct. From the ranks of lawyers will be drawn judges and prosecutors, legislators and presidents, who will decide the destiny of the nation and of the citizens. No one can escape shivering at the thought that some time in the future his own life or liberty may hinge upon an individual unable to discriminate between what is profitable and what is right, what is expedient and what is just, or whose main interest in life is survival or preferment. (Id., p. 117).
Justice Reyes stressed: “Equally important in the law school training, but hitherto sadly neglected, is the cultivation and consolidation of moral character, civic courage, and ethical principles. The present law curricula, devote only a minuscule portion to professional ethics B those moral rules without which the practitioners would become just license freebooters. Hitherto the law schools appear to have failed to kindle in the hearts of their wards a resolute dedication to the rule of law and fair play, as well as the conviction that every lawyer is and must remain an integral part of the administration of justice. That failure is written large in the court records -- that convert litigations into wars attrition; groundless suits and appeals; abandonment of clients without the courtesy of notice to them or to the court. And outside the courthouse, how many lawyers seek to palliate their failures by charging prejudice or base motives on the part of the judges? How many of them, placed in the positions of power, have practised self-restraint, respect and tolerance for others, and the subordination of self-interest?. (id.).
Image of the Lawyer
In a harsh commentary on the issue of law and morality in our society, the late Dean Jeremias Montemayor of the Ateneo School of Law had stated: “One of the most basic causes of the failure of law in our country is the separation and isolation of law from morality. This has the same effect as that of separating the body from the soul, with the result that the body becomes a dislocated, lifeless, mechanical and ineffective contraption. This find of “unmoral” concept of the background of law tends to make many Filipinos hypocrites. Hence, may of us go to Mass in the morning and through a legal technicality swindle our neighbour in the afternoon; many of as believe in God=s justice but hire the most clever lawyers against our tenants and labourers who demand their share under the tenancy and wage laws; we win an election by undetected cheating and vote-buying and unveil a religious statute immediately after our inauguration; we extra-legally collect >tong= from businessmen whose papers we have to approve and part of that >tong= we contribute to the building of a church”. (Dean Jeremias Montemayor, "New Problems Of An Old Profession", in Coquia, supra, pp. 246-255).
Speaking of the public image of the Filipino lawyer, Dean Montemayor further stated: “Likewise, people have had a superficial and, therefore, negative concept of the lawyer and his profession. The lawyer stays in his law office and people came to him only after they foresee, or are actually involved in, some legal controversy. They never go to him when things go well. He is very nice to have on one=s side in case of trouble but rather unnecessary in a normal situation. Unfortunately, many lawyers have the same superficial and negative concept of their own profession. They think their function is mostly remedial, not constructive and promotional. Consequently, they have not been able to keep pace with the ever-increasing problems and aspirations of the people. As a matter of fact, their capacity to respond to the people=s needs has remained practically constant even as those needs have increased a hundred fold. So much so that not only has the lawyer lost much of his prestige but many people have even developed a positive distaste for him. Some people even consider lawyers as a necessary evil that should be avoided as much as possible”. (Id.).
He added: “The reason why so may lawyers today are without jobs and find it hard to get employment is because they have failed to help society become more productive. In fact, in may cases, lawyers by their opportunistic manipulation, promoting feuds and multiplying and prolonging suits, have destroyed the productive capacity of their fellow men and deprived them of the means to hire legal help”. According to him, the role of the lawyer in society and in the economy is to assist in the settlement of controversies and to promote harmony and greater production, for the richer the society is, the more capacity it will have to use and pay for legal services...and as long as society exists, lawyers will always be needed. (Id.).
Asian Values
There are dangers in completely mimicking US law practice management and law firm marketing techniques, as well as other aspects of the US legal profession, without considering the unique Asian and Filipino culture within which the Philippine legal profession exists and operates.
A premature copying of foreign rules and practices, without taking into account the current cultural consciousness of the Filipino legal profession and the value system of the society within which it works, is likewise risky.
However, it is useful to take into account and study the feasibility of applying in the Philippines setting certain areas of growth and development of the US legal profession which have been empirically proven to be cost-effective, globally competitive, conducive to the protection of the rights of the consumers of legal services, and contributory to the initiation of appropriate reforms in the Philippine legal profession to enable it to face the challenges of the new millennium, i.e. ethical lawyer advertising, multi-disciplinary legal education, multi-disciplinary law practice, multi-jurisdictional or cross-border law practice, pre-paid legal services insurance, clients protection trust fund, professional liability insurance, active presence in the Internet as a mode of delivery of legal services, mandatory pro bono publico legal services, privatized legal services for civil suits, mandatory continuing legal education, licensing of paralegal personnel or legal assistants, law practice specialty certification program, and the promotion of electronic courts and electronic filing of legal pleadings.
RECOMMENDATIONS
PREMISES CONSIDERED, the author respectfully makes the following recommendations:
1. That the Supreme Court create a Standing Committee on Philippine Law Practice Management and Law Firm Marketing, with representatives from the Bench, the Bar, the Law Academe, the Law Studentry, the Civil Society, the Business and Industry Sector, the Mass Media, the Executive, and the Legislature as committee members and/or consultants, as the case may be, to assist the Supreme Court in conducting further and periodic in-depth, scientific and comprehensive studies, surveys, and consultations, in reviewing the existing Code of Professional Responsibility, in forming policy recommendations, in proposing draft congressional bills and/or executive orders for legislative and executive action, where so required by the Constitution, and in proposing appropriate constitutional amendments in the matter of pleadings, practice and admission to the practice of law, if necessary, in relation to the various controversial modern trends and issues discussed in this study that directly or indirectly affect and influence the domestic and global competitiveness, effectiveness and responsiveness of the Philippine legal profession in meeting and addressing the complex needs and concerns of the local and foreign consumers of its services and of the stakeholders and beneficiaries of the Philippine justice system, which trends and issues include, but are not necessarily limited to:
a. lawyer advertising (law firm marketing)
b. multidisciplinary law practice
c. multijurisdictional law practice
d. lawyers= professional liability insurance
e. mandatory client protection trust fund
f. pre-paid legal insurance and pre-paid lawyer referral system
g. licensing of paralegals and legal assistants,
h. mandatory pro bono publico legal service
i. law practice specialty certification system
j. electronic courts and electronic filing of pleadings and motions
k. privatized alternative dispute resolution system
2. That a strong and well-funded system of international linkages, exchanges and partnerships be developed, maintained and institutionalized by the Supreme Court and the Integrated Bar of the Philippines in cooperation with their foreign counterparts worldwide and with the concerned public and private law- and justice-oriented international institutions and organizations to enable the Supreme Court and the Integrated Bar of the Philippines to speedily monitor and analyse the new and latest global developments, trends and issues that may directly or indirectly affect and shape the future directions of the justice system, the legal profession, and the modalities of the delivery of basic legal services to the consumers, the beneficiaries and the stakeholders of the justice system.
3. That an ad hoc Supreme Court committee be formed with members from the Bench, the Bar and the Civil Society to explore and study various ways and means of extending financial assistance, subsidy and the like to the middle-class consumers of legal services, who may not be qualified under the rules of the Public Attorneys Office, in respect of the litigation of their civil disputes, whether individual or class suits, in the light of the currently skyrocketing price of the professional fees of the legal profession, including, but not necessarily limited to, a study of the feasibility of the creation, by legislative fiat, of the Philippine National Legal Services Corporation, patterned after the American model (US Legal Services Corp., www.lsc.gov), that will privatize such subsidized legal service and provide such financial assistance, subsidy and other forms of aid to such litigants in civil disputes.
4. That the Integrated Bar of the Philippines, with the assistance of the moral clout of the Supreme Court, initiate steps toward the adoption of congressional and executive action that will adequately fund the creation, operation and maintenance of a massive pro bono or at the least a subsidized public Internet-based Philippine law- and justice-oriented world wide web portal with a full and comprehensive downloadable database of full-text Philippine and foreign laws, decisions, treaties, research materials, and other legal, executive, legislative, administrative, historical, economic, political and scientific digital data and issuances to improve the legal research capacity and advocacy of the Philippine legal profession, the law academe, the civil society and the general public and to elevate to the level of competitive international standards their ability to access, research, manage, and use such technology to promote the rule of law, enhance the administration of justice, and respond cost-effectively to the complex needs and demands of the consumers of legal services .
5. That the Supreme Court create a Standing Committee on the Effects and Implications of the General Agreement on Trade in Services (GATS) and the World Trade Organization (WTO) to study the consequences of the provisions of the GATS and the rules of the WTO to the Philippine legal profession and the Philippine justice system and to make policy recommendations on how the Philippines should effectively and appropriately respond to the WTO-led liberalization of the cross-border, multilateral and multijurisdictional exercise of the major professions of the world among the member nation-states.
6. That the 1988 Code of Professional Responsibility be amended to allow the Filipino lawyers to honestly engage in some limited form of ethical, dignified, truthful and factual law firm marketing or lawyer advertising through the mass media, as in the case of the United States since 1977, to empower and educate the general public and the consumers of legal services, especially those from the middle class of society, to choose the best and at the same time the most affordable and cost-effective specialized legal services available to them in the legal market, as well as to give flesh to the Filipino lawyers= constitutional freedom of commercial speech.
7. That the Supreme Court, with the participation of the Bar, create an Ad Hoc Committee on Multidisciplinary Practice that will study the appropriateness, applicability and wisdom allowing Filipino lawyers to put up multidisciplinary professional services corporations and partnerships, patterned after the multidisciplinary model of the USA, to better serve the complex and changing needs of the local and foreign consumers of legal services, subject to such ethical rules as the Supreme Court may deem necessary to impose after conducting broad consultations with the Bench, the Bar and the Civil Society, to preserve the dignity of the legal profession, prevent conflicts of interest, protect the confidentiality of the lawyer-client relation, and satisfy other issues and concerns on the matter.
8. That the Integrated Bar of the Philippines create an Ad Hoc Committee on the Licensing of Paralegals and Legal Assistants that will propose a bill for legislative and executive action in the matter of the licensing, education, accreditation, regulation, and supervision of paralegals and legal assistants to serve and fill the minor needs of the consumers of routine, pro forma, and non-litigation legal services which do not require the specialized intervention of legal professionals, and without necessarily engaging in the practice of law as the term is now strictly defined by the Rules of Court and existing jurisprudence.
9. That the Supreme Court create an Ad Hoc Committee on Client Protection Trust Fund and Professional Liability Insurance to study the feasibility of requiring lawyers, following the American model, to mandatorily contribute a fair portion of their professional fees or a fixed annual amount to a Client Protection Trust Fund, to be jointly managed by the Supreme Court and the Integrated Bar of the Philippines with the assistance of experts in the business of banking, trusts and finance, that will indemnify aggrieved clients victimized by lawyer malpractice, deceit, dishonesty, negligence and misconduct and to study various ways and means of encouraging the Philippine insurance industry to develop and offer private professional liability insurance coverage to Filipino lawyers as an alternative or as an additional support to and compliance with the aforementioned mandatory contribution to the Client Protection Trust Fund.
10. That the Integrated Bar of the Philippines create an Ad Hoc Committee on Pre-Paid Legal Services Insurance Plan and Lawyer Referral System to study various foreign models of pre-paid legal services insurance plans and lawyer referral systems, including those of the USA, with the end in view of assisting the consumers of legal services, especially the low-income and middle-income consumers and the small and medium business persons, by reducing the costs of legal services through the method of spreading the risks involved among all the insured and assuring the insured consumers of legal services of the availability of reliable lawyers accredited as legal service providers under such plans who shall be ready to serve the needs of the consumers for prompt and quality legal services, subject to the categories and the terms and conditions of the specific classes of pre-paid plans acquired by such consumers.
11. That the Supreme Court, with the participation of the Integrated Bar of the Philippines, create a Standing Committee on Mandatory Pro Bono Publico Legal Services to study the feasibility of requiring Filipino lawyers to allot a fair and reasonable number of hours per annum for free legal aid to the community, the law academe=s legal clinics, the indigent, the detention prisoners, victims of child abuse, and the oppressed poorest of the poor and to propose the implementing rules and regulations for the mandatory activity, after conducting broad consultations with the Bench, the Bar and the Civil Society.
12. That the Supreme Court, with the assistance of the Integrated Bar of the Philippines, create a Standing Committee on Law Practice Specialty Certification to initiate studies and consultations on a system of certification of the law practice specializations of Filipino lawyers to promote law practice specialization and to elevate the professional standards and quality service of private law practitioners in the Philippines.
13. That steps be taken to give flesh to the constitutional doctrine of fiscal independence of the judiciary as a prelude to, inter alia, (a) the sufficient funding, construction, and operation of electronic courts nationwide, complete with web sites from which the litigants and the general public may transact official and legal business and/or upload and download, as the case may be, transcripts of court hearings, court orders and decisions, and legal pleadings and motions; (b) the upgrading of the compensation package of judicial personnel; (c) the enhancement of the legal research capability of the judiciary and the Bar; (d) the strengthening of the free legal aid program and the mandatory continuing legal education program; (e) the promotion of the vision and mission of the Philippine Judicial Academy; and (f) the enhancement of the structural and institutional capability of the judiciary as the administrator of the justice system.
(End)
