Village justice system

I am writing this material for the benefit of foreign lawyers visiting this blog who might be interested to study how the Philippine village justice system (more specifically, village conciliation and mediation system) works.

A village is called “Barangay”. The village justice system is called the Katarungang Pambarangay”.

The governing law thereof is Republic Act No. 7160, or The Local Government Code of 1991.

Section 399 of R.A. 7160 created in each Barangay a Lupong Tagapamayapa, composed of the Punong Barangay (Barangay Chairman) as chairman and ten (10) to twenty (20) members. The lupon shall be constituted every three (3) years.

Section 402 provides that the lupon shall exercise administrative supervision over the conciliation panels; meet regularly once a month to provide a forum for exchange of ideas among its members and the public on matters relevant to the amicable settlement of disputes, and to enable various conciliation panel members to share with one another their observations and experiences in effecting speedy resolution of disputes; and exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance.

Section 403 provides that the Barangay secretary concurrently serves as the secretary of the lupon. He shall record the results of mediation proceedings before the Punong Barangay and shall submit a report thereon to the proper city or municipal courts. He shall also receive and keep the records of proceedings submitted to him by the various conciliation panels.

Section 404 constituted for each dispute brought before the lupon a conciliation panel to be known as the “pangkat ng tagapagkasundo”, consisting of three (3) members who shall be chosen by the parties to the dispute from the list of members of the lupon.

Should the parties fail to agree on the pangkat membership, the same shall be determined by lots drawn by the lupon chairman.

The three (3) members constituting the pangkat shall elect from among themselves the chairman and the secretary.

The secretary shall prepare the minutes of the pangkat proceedings and submit a copy duly attested to by the chairman to the lupon secretary and to the proper city or municipal court. He shall issue and cause to be served notices to the parties concerned.

The lupon secretary issues certified true copies of any public record in his custody that is not by law otherwise declared confidential.

Section 406 provides that the lupon members, while in the performance of their official duties or on the occasion thereof, are deemed as persons in authority, as defined in the Revised Penal Code.

The lupon or pangkat members serve without compensation, except as provided for in Section 393 and without prejudice to incentives as provided for in this Section and in Book IV of this Code.

Section 407 provides that provincial, city legal officer or prosecutor or the municipal legal officer shall render legal advice on matters involving questions of law to the Punong Barangay or any lupon or pangkat member whenever necessary in the exercise of his functions in the administration of the katarungang pamBarangay.

Section 408 provides for the jurisdiction of the lupon of each Barangay. Unde the said section the lupon shall have authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes except:

(a) Where one party is the government, or any subdivision or instrumentality thereof;

(b) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions;

(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five thousand pesos (Php5,000.00);

(d) Offenses where there is no private offended party;

(e) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

(f) Disputes involving parties who actually reside in Barangays of different cities or municipalities, except where such Barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon;

(c) Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the secretary of Justice.

The court in which non-criminal cases not falling within the authority of the lupon under the Code are filed may, at any time before trial, motu proprio refer the case to the lupon concerned for amicable settlement.

Section 409 provides for the rule on venue.

Disputes between persons actually residing in the same Barangay shall be brought for amicable settlement before the lupon of said Barangay.

Those involving actual residents of different Barangays within the same city or municipality shall be brought in the Barangay where the respondent or any of the respondents actually resides, at the election of the complainant.

All disputes involving real property or any interest therein shall be brought in the Barangay where the real property or the larger portion thereof is situated.

Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the Barangay where such workplace or institution is located.

Objections to venue shall be raised in the mediation proceedings before the Punong Barangay; otherwise, the same shall be deemed waived.

Section 410 provides for the conciliation/mediation proceedings.

Upon payment of the appropriate filing fee, any individual who has a cause of action against another individual involving any matter within the authority of the lupon may complain, orally or in writing, to the lupon chairman of the Barangay.

Upon receipt of the complaint, the lupon chairman shall within the next working day summon the respondent(s), with notice to the complainant(s) for them and their witnesses to appear before him for a mediation of their conflicting interests.

If he fails in his mediation effort within fifteen (15) days from the first meeting of the parties before him, he shall forthwith set a date for the constitution of the pangkat in accordance with the provisions of the Code.

While the dispute is under mediation, conciliation, or arbitration, the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing of the complaint with the Punong Barangay.

The prescriptive periods shall resume upon receipt by the complainant of the certificate of repudiation or of the certification to file action issued by the lupon or pangkat secretary: Provided, however, That such interruption shall not exceed sixty (60) days from the filing of the complaint with the Punong Barangay.

The pangkat shall convene not later than three (3) days from its constitution, on the day and hour set by the lupon chairman, to hear both parties and their witnesses, simplify issues, and explore all possibilities for amicable settlement.

For this purpose, the pangkat may issue summons for the personal appearance of parties and witnesses before it. In the event that a party moves to disqualify any member of the pangkat by reason of relationship, bias, interest, or any other similar grounds discovered after the constitution of the pangkat, the matter shall be resolved by the affirmative vote of the majority of the pangkat whose decision shall be final.

The pangkat shall arrive at a settlement or resolution of the dispute within fifteen (15) days from the day it convenes in accordance with this section. This period shall, at the discretion of the pangkat, be extendible for another period which shall not exceed fifteen (15) days, except in clearly meritorious cases.

Section 411 provides that all amicable settlements shall be in writing, in a language or dialect known to the parties, signed by them, and attested to by the lupon chairman or the pangkat chairman, as the case may be.

Section 412 imposes a pre-condition in filing a complaint in court.

No complaint, petition, action, or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon or pangkat chairman or unless the settlement has been repudiated by the parties thereto.

The parties may go directly to court in the following instances:

(1) Where the accused is under detention;

(2) Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings;

(3) Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and

(4) Where the action may otherwise be barred by the statute of imitations.

The customs and traditions of indigenous cultural communities shall be applied in settling disputes between members of the cultural communities.

Section 413 provides that the parties may, at any stage of the proceedings, agree in writing that they shall abide by the arbitration award of the lupon chairman or the pangkat.

Such agreement to arbitrate may be repudiated within five (5) days from the date thereof for the same grounds and in accordance with the procedure prescribed in the Code.

The arbitration award shall be made after the lapse of the period for repudiation and within ten (10) days thereafter.

The arbitration award shall be in writing in a language or dialect known to the parties.

Section 414 provides that all proceedings for settlement shall be public and informal: Provided, however, That the lupon chairman or the pangkat chairman, as the case may be, may motu proprio or upon request of a party, exclude the public from the proceedings in the interest of privacy, decency, or public morals.

Section 415 provides that in all katarungang pambarangay proceedings, the parties must appear in person without the assistance of counsel or representative, except for minors and incompetents who may be assisted by their next-of-kin who are not lawyers.

Section 416 provides for the legal effect of amicable settlement or arbitration award.

The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of ten (10) days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court.

For non-criminal cases referred by the a local court to the barangay for mediation which has been successful settled in the Barangay, under the last paragraph of section 408 of the Code, supra, the compromise settlement agreed upon by the parties before the lupon chairman or the pangkat chairman shall be submitted to the court and upon approval thereof, have the force and effect of a judgment of said court.

Section 417 provides for the execution of the amicable settlement or arbitration award.

The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months from the date of the settlement.

After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court.

Section 418 provides that any party to the dispute may, within ten (10) days from the date of the settlement, repudiate the same by filing with the lupon chairman a statement to that effect sworn to before him, where the consent is vitiated by fraud, violence, or intimidation.

Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint as hereinabove provided.

Section 419 provides that the secretary of the lupon shall transmit the settlement or the arbitration award to the appropriate city or municipal court within five (5) days from the date of the arbitration award or from the lapse of the ten-day period to repudiate the settlement and shall furnish copies thereof to each of the parties to the settlement and the lupon chairman.

Section 420 provides that the Punong Barangay, as chairman of the Lupong Tagapamayapa, and the members of the pangkat are hereby authorized to administer oaths in connection with any matter relating to all proceedings in the implementation of the katarungang pamBarangay.

Prepared by:

Atty. Manuel J. Laserna Jr.

Las Pinas City, Philippines

May 31, 2008

Writ of amparo: Philippine version

In A.M. No. 07-9-12-SC, 25 September 2007, the Supreme Court adopted the new Rule on Writ of Amparo. The following month, October 16, 2007, Section 9 and 11 of the Rule were amended by the Court.

The petition for a writ of amparo is a remedy available to “any person whose right to life, liberty and security” is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ covers extralegal killings and enforced disappearances or threats thereof. (Sec. 1).

The petition may be filed by the aggrieved party or by any qualified person or entity in the following order:

1. Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;
2. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or
3. Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. (Sec.2).

The filing of the petition “suspends the right of all other authorized parties to file similar petitions”. Likewise, the filing of the petition “by an authorized party on behalf of the aggrieved party” suspends the right of all others, observing the order established herein. (Id.).

The petition may be filed “on any day and at any time” with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ is “enforceable anywhere” in the Philippines. (Sec. 3).

When issued by a Regional Trial Court, the writ shall be returnable before such court or judge. When issued by the Sandiganbayan or the Court of Appeals, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. When issued by the Supreme Court, it may be returnable before such Court, or before the Sandiganbayan or the Court of Appeals, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. (Id.).

The petitioner is “exempted from the payment of the docket and other lawful fees” when filing the petition. (Sec. 4).

The petition shall be signed and verified and shall allege the following:

1. The personal circumstances of the petitioner;
2. The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;
3. The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances “detailed in supporting affidavits”;
4. The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, “together with any report”;
5. The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and
6. The relief prayed for. (Sec. 5).

Upon the filing of the petition, the court “shall immediately order the issuance of the writ if on its face it ought to issue”. The clerk of court shall issue the writ “under the seal of the court”; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and “may deputize any officer or person to serve it”. (Sec. 6).

The writ shall also “set the date and time for summary hearing” of the petition which shall not be later than seven (7) days from the date of its issuance. (Id.).

A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge “for contempt without prejudice to other disciplinary actions”. (Sec. 7).

The writ shall be served upon the respondent “by a judicial officer or by a person deputized by the court” who shall retain a copy on which “to make a return of service”. In case the writ cannot be served personally on the respondent, the “rules on substituted service shall apply”. (Sec. 8).

The amended version of Sec. 9 (contents of return) of the Rule now provides that within FIVE (5) WORKING DAYS after service of the writ, “the respondent shall file a verified written return together with supporting affidavits” which shall, among other things, contain the following:

(a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission;

(b) The steps or actions taken by the possession to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission;

(c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and

(d) If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken:

(i) to verify the identity of the aggrieved party;

(ii) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible;

(iii) to identify witnesses and obtain statements from them concerning the death or disappearance;

(iv) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance;

(v) to identify and apprehend the person or persons involved in the death or disappearance; and

(vi) to bring the suspected offenders before a competent court.

The amended Sec. 9 provides that THE PERIOD TO FILE A RETURN CANNOT BE EXTENDED EXCEPT ON HIGHLY MERITORIOUS GROUND.

The return shall also state “other matters relevant to the investigation, its resolution and the prosecution of the case”. A general denial of the allegations in the petition shall not be allowed. (Id.).

All defenses shall be raised in the return, otherwise, they shall be “deemed waived”. (Sec. 10).

The amended version of Sec. 11 (prohibited pleadings) provides that the following pleadings and motion are prohibited:

(a) Motion to dismiss;

(b) Motion for extension of time to file opposition, affidavit, position paper and other pleadings;

(c) Dilatory motion for postponement;

(d) Motion for a bill of particulars;

(e) Counterclaim or cross-claim;

(f) Third-party complaint;

(g) Reply;

(h) Motion to declare respondent in default;

(i) Intervention;

(j) Memorandum;

(k) Motion for reconsideration of interlocutory orders or interim relief orders; and

(l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

In case the respondent fails to file a return, the court shall proceed “to hear the petition ex parte”. (Sec. 12).

The hearing on the petition is summary. However, the court “may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties”. (Sec. 13). The hearing shall be “from day to day until completed” and given the “same priority as petitions for habeas corpus”. (Id.).

Under Sec. 14 (interim reliefs) of the Rule, upon filing of the petition or at anytime before final judgment, the court may grant any of the following reliefs:

(a) Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family “be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety”.

If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, “the protection may be extended to the officers involved”.

Note:

The Supreme Court shall “accredit the persons and private institutions” that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue.

(b) Inspection Order. — The court, “upon verified motion and after due hearing”, may order “any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon”.

The motion shall “state in detail” the place or places to be inspected. It shall be “supported by affidavits or testimonies of witnesses” having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. (Sec. 14).

If the motion is opposed on the ground of “national security or of the privileged nature of the information”, the court may conduct a “hearing in chambers” to determine the merit of the opposition. (Id.).

The inspection order shall specify “the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection”. It may prescribe “other conditions to protect the constitutional rights of all parties”. The order shall “expire five (5) days after the date of its issuance”, unless extended for justifiable reasons. (Id.).

( c ) Production Order. – The court, upon “verified motion and after due hearing”, may order “any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant”.

The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.

(c) Witness Protection Order. – The court, “upon motion or motu proprio”, may “refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981”.

The court may refer the witnesses to “other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety”.

Upon verified motion “of the respondent” and after due hearing, the court may issue an “inspection order or production order under paragraphs (b) and (c) of Section 14”. (Sec. 15).

A “motion for inspection order” under this section shall be “supported by affidavits or testimonies of witnesses” having personal knowledge of the defenses of the respondent. (Id.).

Sec. 16 of the Rule provides that the court may order the respondent who “refuses to make a return”, or who makes “a false return”, or “any person who otherwise disobeys or resists a lawful process or order” of the court to be punished for contempt. The contemnor may be “imprisoned or imposed a fine”.

The quantum of evidence required under the Sec. 17 of the Rule is “substantial evidence”. (Sec. 17).

The respondent who is a “private individual or entity” must prove “ordinary diligence” in the performance of duty. (Id.).

The respondent who is a “public official or employee” must prove that “extraordinary diligence” in the performance of duty. (Id.).

A crucial provision of Sec. 17 of the Rule provides that the respondent “public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability”. (Id.).

The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the petition is proven by substantial evidence, the court shall grant the “privilege of the writ and such reliefs” as may be proper and appropriate; otherwise, the privilege shall be denied. (Sec. 18).

Under Sec. 19 (appeal) of the Rule a party may appeal from the final judgment or order “to the Supreme Court under Rule 45”. The appeal “may raise questions of fact or law or both”. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the “same priority as in habeas corpus cases”. (Sec. 19).

The court shall “not dismiss” the petition, but shall “archive” it if it cannot proceed for “a valid cause”, such as the “failure of petitioner or witnesses to appear due to threats on their lives”. (Sec. 20). A periodic review of the archived cases shall be made by the amparo court. It may “order their revival when ready for further proceedings”. (Id.). The petition shall be “dismissed with prejudice” upon “failure to prosecute” the case “after two (2) years from notice” to the petitioner of the order archiving the case. (Id.).

“Separate criminal, civil or administrative actions” may be filed by the aggrieved party. (Sec. 21).

What is the effect of filing of a criminal action? Under Sec. 22 of the Rule, “when a criminal action has been commenced, no separate petition for the writ shall be filed”. The reliefs under the writ shall be “available by motion in the criminal case”. (Sec. 22). The procedure under the Rule governs the disposition of the reliefs available under the writ of amparo in criminal cases. (Id.).

As to consolidation of cases, the Rule provides that “when a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action”. (Sec. 23).

When “a criminal action and a separate civil action” are filed “subsequent” to a petition for a writ of amparo, the latter (petition for writ of amparo) shall be “consolidated with the criminal action” (not the separate civil action). (Sec. 23).

After consolidation, the procedure under the Rule applies to the “disposition of the reliefs in the petition (for writ of amparo)”. (Id.).

The Rule provides that its provisions shall “not diminish, increase or modify substantive rights recognized and protected by the Constitution”. (Sec. 24).

The Rules of Court shall apply suppletorily to petitioners for writ of amparo. (Sec. 25).

The Rule shall govern cases involving “extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts” as of the time of its promulgation. (Sec. 26).

The Rule took effect on October 24, 2007.

(end)

Atty. Manuel J. Laserna Jr.

Laserna Cueva Mercader Law Offices

(Lcm Law)

Abolish the bar exams?

Three years ago Sen. Miriam Defensor Santiago urged the Supreme Court to abolish the Bar examinations as a prerequisite for practicing law in the Philippines because "passing the Bar examinations is a matter of chance and luck" and "is just one index of legal competence."

Under Article VIII of the 1987 Constitution, the Supreme Court conducts the Bar examinations every year. The Constitution grants it the power to promulgate rules governing admission to the practice of law.

Sen. Santiago proposed the taking of a National Law School Aptitude Test (NLSAT) and a one-year legal internship as pre-requisites for admission in the study and practice of law. She stated that the NLSAT will better evaluate the verbal, writing, analytical proficiency, and reading comprehension skills of prospective law students. The NLSAT will be similar to the National Medical Admission Test (NMAT) for aspiring medicine students.

She claimed that the Bar exams is not the best gauge of one’s aptitude to practice law because it fails to test the skills needed in the legal profession and that it does not focus on the full spectrum of legal knowledge.

She cited a study entitled "Survey of the Legal Profession" by former UP College of Law Dean Merlin Magallona and lawyer Manuel Flores Bonifacio which showed that a sizable number of lawyers think the Bar examinations is not a good index of legal competence for the following reasons:

1. Passing the Bar is not an absolute guarantee of successful practice of law.

2. The Bar examinations is a test of memory and not of competence.

3. Examinees are expected to know everything at one time.

4. Passing the Bar is a matter of chance and luck.

5. The Bar examination is just one index of legal competence, and other factors should be considered.

6. Actual practice of law is the best index of legal competence.

She cited Bar examination statistics which showed that of the more than 5,000 law graduates who take the Bar each year, only 20 percent to 30 percent examinees actually pass the Bar.

She added that it any testing should be done for admission to the practice of law, aspiring students should take it before they enter law school and not after graduation.

The one-year legal internship program, on the other hand, will enable aspiring lawyers to have the practical education, skills, and knowledge necessary to represent clients, she said.

In 2005, US Prof. D. J. Solove wrote (www.concurringopinions.com) that the US Bar Exam should be abolished because it "prevented mobility among lawyers, making it cumbersome and time consuming to move to different states". He added that it did not test actual law used in legal practice, but esoteric legal rules, many of which were obsolete, and most of which were of absolutely no value to a practicing attorney. In short, he claimed that the Bar Exam was an "unproductive waste of time".

According to Prof. Solove, the Bar Exam is as a way for states to restrain competition among lawyers.

He suggested that in lieu of the Bar Exam, states should permit all students who graduate from an accredited law school to become members of the Bar after working a certain number of supervised pro bono hours. All the time spent studying for testing could be used for pro bono work, which would provide a benefit to the community and practical training for future lawyers, he said.

He addred the following arguments against the Bar Exam:

“1. It doesn't test on the kinds of skills a good lawyer should have.

2. It often tests on obsolete legal rules.

3. The Bar Exam is largely a memory test, and memorizing legal rules is not something that most lawyers really need to do.

4. The Bar Exam often serves to inhibit practicing lawyers from moving readily from state to state. The investment in time to retake the Bar Exam can be too much for many if they are going to a state without reciprocity.

5. The Bar often weeds out people who don't have the money to take an expensive legal education.

6. There is no need for lawyers to know much about a lot of Bar Exam subjects. Does a criminal lawyer need to know the rule against perpetuities?

7. The Bar consumes hours upon hours of time. This time could be used much more productively in ways that help out the community. Right now, time studying for the Bar is time that could be spent helping others or doing something more productive. The time taken to study for the Bar is wasted time, with little value to the person studying or to society.

8. Nobody really uses the rules as formulated on the Bar Exam.

9. As far as barriers to entry, the Bar Exam is not really necessary. Law school is a significant barrier to entry. It requires three long years of time, study, and money. In the end, it’s much easier to make it past one Bar Exam than through three years of law school.”

In 2004, American blogger Scheherazade Fowler, wrote with passion and desperation, thus:

“1) Abolish the bar exam. It’s nothing more than ridiculous hazing. We all know that nobody remembers anything they learn for the bar exam, that the things everyone learns for the bar exam aren’t the law anywhere except for some fictitious “Multistate” jurisdiction that doesn’t conform to any actual place, and that the bar exam tests only one’s ability to outwit a particularly devious multiple choice testing service and/or a temperamental and unpredictable group of bitter essay graders. It has nothing whatsoever to do with functional mastery of subject areas, with compassion, judgment, or preparation to help clients. It instead serves the following functions:

A) it enriches Bar/Bri, and perhaps a few lesser-known bar prep services, as well as the authors and graders of the exam.

B) It empowers the bullies at the Board of Bar Overseers, who hassle and sneer at any nontraditional applicants, or people have life experience or pasts that might have given them wisdom or direction prior to entering the career of law.

C) It keeps bright, qualified, ambitious, energetic young applicants off the market and in misery from May through August, without letting their energy, enthusiasm, brains, or knowledge benefit the profession, and without letting them learn any practical skills at all. Instead, they get sick to their stomachs and devote their days to memorizing the difference, according to the strict Multistate Bar Examiner Rules, between a springing executory interest in land and a shifting executory interest in land.

D) It keeps bright, qualified, ambitious, energetic applicants in limbo from July through late October, wondering whether they’ll get the nod or whether they’ll instead have to repeat the misery. This benefits nobody, not the students, not the legal profession, and not the clients or the existing pool of lawyers.

There might be some good reasons that something like the bar exam was conceived. Maybe it was meant to be a means of testing basic competency in certain subject areas. That’s a sensible function. It seems to me that if a degree from an accredited law school doesn’t serve that function we as a profession might think about looking at the core curriculum of these accredited law schools instead of inventing a ridiculous test. Or we might test core competencies in subject areas and let people take those tests following a semester or year of study of the subject matter—when it’s likely that such knowledge has been learned in a way it might actually be retained. Demanding that people shovel huge amounts of obscure knowledge covering twenty or thirty subjects into their heads for a one-time test is almost a sure-fire way to minimize retention. This seems to undercut the stated goal of minimum mastery of a subject area. Or maybe the unstated goal of the bar exam is less noble: maybe the bar wants to keep these new lawyers off the market a little longer. There are still better ways we could do that. We could at least require them to apprentice to us for slave wages, like the medical profession requires of its residents. That would be more intellectually honest than pretending we are asking them to prove themselves when we’re just stalling. Or we could require them to do pro bono work, so that their talents and energy would perhaps be of service to human beings in the world and could provide them with useful skills, and would still keep them out of our hair for six months or so before we’d have to compete with them on the merits. But instead we ask them to learn obscure nuances that aren’t even the law in any jurisdiction, and that we all expect them to forget the day after they have taken the exam. This, to me, is the cruelest and most senseless act of hazing that the legal profession engages in. There are many alternatives to the bar exam, all better than the current system. The fact that we don’t change it is an indictment of the profession—our blind conservatism, our fear of change, our fear of young minds, I don’t know what. If the purpose of the bar exam is to keep the young graduates out of the profession, shame on us. If it is to require them to attain useful practical knowledge, let’s get real. Do you remember anything you learned for the bar? I don’t. Why do we make people do it?

2) If I had some money, and I were in charge of a big law firm, I would absolutely do the following two things. I would immediately abolish my summer associate program, and with the seven or eight hundred thousand dollars or more that I would save on salaries and lunch tabs, etc. over the course of a summer, I would set up a shop in India, or Romania, or perhaps even Ireland if the exchange rates were decent. And there I would set up a nice document review, research, and writing shop. Why on earth would I pay inexperienced people $2500 a week to do work that I could have done for a fraction of the cost, by well-educated, intelligent, English-speaking talent—talent that can work all night long and get me an answer in the morning because of the wonders of time zone differences. There’s not any kind of imperative that research, writing, and document review take place on site; a .pdf and a Westlaw password are pretty transportable. As head honcho at BIGLAW, I am aware that only a tiny fragment of my associates are going to last more than three or four years—neither they nor I have any illusions that this charming courtship will really lead to a long-term commitment. Why on earth should I take on that overhead? Why would I wine and dine these people who are, essentially, extremely expensive resources that are hardly irreplaceable. No, I’d eliminate the summer associateship and instead invest in smart folks overseas who can do more work, year round, at a fraction of the price. Like these guys are doing. Expect it.

To be honest, if I ran BIGLAW I’d have some grave doubts about whether I was meeting my fiduciary duties to my clients if part of the overhead of my firm were these lavish summers. And if you’re a client, why on EARTH are you paying fees that let your law firm take law students out to $100 lunches? Why are you paying for fountains and town cars and tickets to baseball games? How does this help your shareholders? If your law firm is profligate with its money, that means you are paying that firm too much. Invest in the firm that is thinking about how to bring value to you. I expect in the future that value is going to be offshore. Legal research, writing, and document review can and will move to smart folks who can do it for less money. If I ran a law firm, I’d be leading that trend. Those who will resist will couch their resistance in terms of “prestige” and “reputation” and wave their hands around saying “you don’t know what you’re getting if you farm out this kind of work.” These appeals to an ill-defined notion of “quality” will work perhaps for a little while, but ultimately are doomed, because the truth is that a lot of the work young lawyers do isn’t rocket science, and even if it were, talent is not the exclusive province of three or four New York law firms. It just isn’t. Knowing this, I would want to be the first “prestigious” law firm brand to exploit a worldwide talent pool and an extraordinary wage differential. That firm will be positioned to make great profits in the near term, and to be nimble enough to compete when savvy clients demand truly competitive rates.

3) I don’t think I fully understand the connotations of the word “profession” when people say that “Law is a Profession.” It appears to be used to imply something noble, exclusive, honorable, and dignified. That’s cool. I agree that law is a profession in that way. We’re all working to help sort out the consequences of human decision making, and the social consequences and procedures around decisions that are challenged. That’s a noble goal, and all (or most) of us doing it are doing something highly worthwhile. It is service in the best sense. But sometimes I hear the term “professional” used as a means of bullying someone into conformity, a way of expressing discomfort with informality or stylistic or aesthetic differences. Like the article on law blogs that suggested that it might be okay for a lawyer to blog about the hobby of sailing, but that it might not be professional to blog about an interest in NASCAR. I think that is a hijacking of the term “professional.” All of us, if we’re pursuing the highest good of the law, in a way that is courteous and thoughtful and earnest, are “professionals” paving a noble road. The style a person brings to that endeavour, the way he or she dresses or speaks while doing it, that’s not appropriate fodder for attack. To the extent some people in our profession use the idea of a “profession” as an excuse for conformity or a silencer of innovation or honest expression, I think that is wrong.

4) We should be more ashamed of ourselves. I am a capitalist at heart, and I don’t believe in government-induced salary caps, but I do think that social mores are powerful and that greed is ugly and shameful. I think there should be a real sense of social shame if you are earning more than 10 times more than the lowest-paid person in your office. Maybe that multiple isn’t right—maybe it should be 8 times, or maybe it should be 15 times, I haven’t thought through the multiple. But there should be a point at which people are just ashamed to look their assistants in the eyes, or the guy driving their cab or painting their house. Ashamed to look the court clerk in the eyes. I think many people in the legal profession are past that trigger point, whatever it is. Do we lawyers really think 10 minutes of our time is six, eight, twelve, forty times more valuable than 10 minutes of a fellow human being’s time? If we do, we should be ashamed of ourselves. And if we don’t we shouldn’t bill people as though it were.

5) Along with the other statistics that law firms give out to NALP (e.g. starting salaries, number of lawyers, billable hour requirements, percentage of minorities, pro bono opportunities, etc.), every law firm should publish the divorce rate among the attorneys at the firm. That’s a clear, measurable, statistic that I argue is relevant to the measure of the success of a firm and the attorneys within it. What if having lawyers with intact families were part of the measure of the prestige of a law firm?”

(see: http://thenonbillablehour.typepad.com/nonbillable_hour/2004/06/five_by_five_sh.html).

What is your view?

By:

Atty. Manuel J. Laserna Jr.