Thursday, December 10, 2015

The practice of Law - By Atty. Romulo P. Atencia - news

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By Atty. Romulo P. Atencia

The practice of Law

Black’s Law Dictionary defines "practice of law" as: "The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law. An attorney engages in the practice of law by maintaining an office where he is held out to be an attorney, using a letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate." (Black's Law Dictionary, 3rd ed.)


"Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys." (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.], p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N. E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139, 144]). 


In the judicial system from which ours has been evolved, the admission, suspension, disbarment and reinstatement of attorneys at law in the practice of the profession and their supervision have been indisputably a judicial function and responsibility. Because of this attribute, its continuous and zealous possession and exercise by the judicial power have been demonstrated during more than six centuries, which certainly "constitutes the most solid of titles." An attorney-at-law is a practitioner in a court of law who is legally qualified to prosecute and defend actions in such court on the retainer of clients. In the Philippines, the Legum Baccalaureus (LLB) is a bachelor degree which students can take as a second bachelor’s degree after which graduates are eligible to take the bar exam and become licensed lawyers. This was how I, and almost all other lawyers in the Philippines at present, became lawyers. The LLB originated in the UK and is offered in most countries with a legal system derived from English common law, including the UK, Australia, Hong Kong, India, Pakistan, Malaysia, Singapore and Canada. The United States no longer offers the LLB, but the degree of Juris Doctor (J.D.). The JD originated in the United States and is a prerequisite for anyone wanting to practice law there. It has also almost completely replaced the LLB in Canada and is increasingly available in other countries, including Australia, Hong Kong and Singapore.


Proponents say that the J.D. signals to American employers that a Filipino law graduate is not just a “snot-nosed kid barely five years removed from high school”. The J.D. is now seen as more prestigious than the LL.B. because of the concern that the LL.B. understated the level of education students of law had, considering that it really is a 4-year post graduate course – really already a doctorate degree.


My alma mater, the Ateneo Law School now offers a complete 4-year program leading to the degree of Juris Doctor. The J.D. degree was first conferred on the School Year 1990-1991 graduates. The Ateneo was the first law school in the Philippines to offer the J.D. in lieu of the Bachelor of Laws degree, which is still what most law schools in the Philippines offer today. The Ateneo JD program covers the different aspects of legal study required for admission to the practice of law. Among the key subjects are constitutional and political law, civil law, criminal law, remedial law, commercial law, international law, tax law, and legal ethics. There is a particular emphasis on legal and judicial ethics, with subjects on legal philosophy and history, legal profession, theology and Church social teachings, and ethics being part of the core Ateneo law program.


CONCLUDING THOUGHTS: To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4)

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