‘First thing we do,’ let’s have better lawyers

Probably the invitation got lost in the mail. Or likely the dog ate it. Anyway, not having received an invitation to the Legal Education Summit held last Wednesday and Thursday, I’ve sadly no concrete idea regarding its outcome. Nevertheless, were I there, the following would have been — just some — of my suggestions.

The elephantine topic, as always when it comes to discussions on legal education, is the Bar exam and how our law schools are unduly oriented towards it. That the Bar exam need improvement is to state the blindingly obvious. The question really is to improve it for what purpose? Another is, how to improve it?

The thing is, the Bar exam cannot be the supreme gatekeeper of legal standards or quality control. Like any government creation, such should only be subsidiary to the people that comprise the society that created it.

Of what use, for example, is making the exam more analytical, more philosophical, when you already have a passing percentage that hovers around 15-20% year in and year out? And people still complain about the quality of that 15-20%.

Clearly, the Bar is a necessity. A nuisance. But still a necessity. If even something like joining a law journal would require testing its applicants, then the logic of the Bar becomes evident.

What is important, however, is that the Bar not be exclusively relied on to determine quality but that legal education ensure that only those with quality take the Bar exam.

Hence, the first three suggestions: emphasize a humanities-based legal education; retain the PhilSat (Philippine Law School Admission Test); and ban the Bar Ops (Bar Operations).

The need for more philosophical, humanities based education is counter-intuitive, coming at a time when most law schools are preferring the specialization route. Nevertheless, the experience of developed countries is that the more complicated issues are better addressed by people with highly refined analytical skills which a humanities or liberal education (“liberal” as in humanities not leftist) provides. Many tech companies (like Google or Amazon, for example) prefer hiring humanities graduates for that reason. Finally, a humanities education provides a better understanding of human nature, of which the legal profession is substantially all about.

Hence, lessen the academic load but make it deeper and more rigorous.

But to do so requires students of really higher bandwidth or intelligence, hence the logical companion suggestion: The need to continue the PhilSat. As may have been made clear, the Bar exam is simply not equipped to serve as a filter, it is too top heavy and the filtering should happen at the beginning: at the admission of freshmen law students.

In this regard, the Legal Education Board is best placed to pre-regulate law students admission considering its detachment from commercial concerns that is natural for law schools. Yes, this would undoubtedly lead to far fewer law students but it should result in better law graduates.

And then, really: Ban the Bar Ops. It’s nothing but a distraction, cheapens the profession, and creates huge costs for law schools which are ultimately passed on to parents or students. I wrote about this more extensively in my BusinessWorld article “Let’s get rid of the Bar Ops” (Nov. 15, 2018).

Then the suggestions pertaining to the legal practice itself. As we’ve continually declared: lawyers have outgrown the courtroom.

Top global corporations increasingly look to the legal profession to fill senior management roles. In a March 2015 BusinessWorld article (“The new lawyer for an integrated ASEAN”), I observed: “The number of companies headed (or recently headed) by lawyers is perhaps reflective of the increasingly responsible and ethical modern business environment. A mere cursory list will include: Goldman Sachs, Bank of America, Cisco, Toys ‘R Us, Nokia, Home Depot, Burger King, Pfizer, Fannie Mae, Delta Airlines, amongst others.”

Thus: Emphasize ASEAN. Many law schools focus on specializing in fields of international law that generally are of no direct value to Philippine society. Focus should be made on familiarizing ourselves with the municipal laws of ASEAN countries, as well as the Law of the Sea and maritime law (the Philippines being a maritime and archipelagic country).

Ban technology in the classroom. Considering the times, again counter-intuitive. It is also different from the issue of automation, which could profoundly affect the legal profession. But for now, the point is that students should learn the mental toughness that only memorization and deep analysis brings, of which technology such as laptops and tablets serve as mere distraction. Technology, of course, should be encouraged, for research and study: But in the home or the library, and not in the classroom.

Finally: Bifurcate the profession, either by competence or expertise. Britain’s solicitor/barrister model or medicine’s fellow/diplomate stratification are good models. The standards upon which to base the distinctions can be based on professional experience, educational attainment (e.g., JSD or Doctor of Juridical Science), MCLE (Mandatory Continuing Legal Education) compliance, publications made, and the like.

All that would at least be better than having lawyers of all trades but really masters of none.

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

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