pale practice of law

8/9/2019 Pale Practice of Law

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I. Introduction

Practice of Law in general involves giving legal advice to clients, draftinglegal documents for clients, and representing clients in legal negotiations and court

proceedings such as lawsuits, and is applied to the professional services of a

lawyer or attorney at law, barrister, solicitor, or civil law notary. 1It has different

definitions in several Jurisdictions or States. Most of them were forged from their

historical bacground and culture. Strictly speaing the way the law is defined and

practiced is dependent on the place and timeline.

In the Philippines, the practice of law is defined in the celebrated case of !ayetano

vs Monsod ....any activity, in or out of court, which re"uires the application of law,

legal procedure, nowledge, training and e#perience. $%o engage in the practice of

law is to perform those acts which are characteristics of the profession. &enerally,

to practice law is to give notice or render any ind of service, which device or

service re"uires the use in any degree of legal nowledge or sill.' (

1 http://en.wikipedia.org/wiki/Practice_of_law#History_and_future

2 http://www.lawphil.net/judjuris/juri1991/sep1991/gr_111!_1991.ht"l


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II. Practice of Law in Different Jurisdictions

A. Asia

1. Japanese Law

%he early law of Japan is believed to be heavily influenced by !hinese law.

Little is nown about Japanese law prior to the seventh century, when the )itsuryo

was developed and codified. %his was due to the willingness of the Japanese to

borrow aspects of the culture of continental civili*ations, which was achieved

mainly via ad+acent countries such as the orean ingdoms rather than directly

from the !hinese mainland empires. %he early moderni*ation of the Japanese law

was primarily based on continental -uropean legal systems and lesser nglo/

merican elements. t the beginning of the Mei+i -ra, -uropean legal systems

especially the civil law of &ermany and 0rance were the primary models for the

Japanese +udicial and legal systems. fter the Second orld ar, the Japanese

legal system underwent ma+or reform under the guidance and direction of

2ccupation authorities. merican law was the strongest influence, at times

replacing and at times overlaid onto e#isting rules and structures. %he !onstitution,

criminal procedure law, and labor law, all crucial for the protection of human

rights, and corporate law were substantially revised. %herefore, the Japanese legal

system today is essentially a hybrid of continental and nglo/merican legal

structures, with strong underlying 3flavors3 from indigenous Japanese and !hinese

characteristics. hile historical aspects remain active in the present, Japanese law

also represents a dynamic system that has undergone ma+or reforms and changes in

the past two decades as well. 4

! http://en.wikipedia.org/wiki/aw_of_$apan#Historical_%e&elop"ents


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a. Japanese Practice of Law

In Japan there are several laws governing the practice of law, asprovided in the %he ttorney ct defines the mission of attorneys as 3protecting

fundamental human rights and ensuring social +ustice3 5rticle 16. In other words,

attorneys have a mission to protect the fundamental human rights of the people and

to wor for social +ustice regardless of whether they are in the courtroom, and as

such are re"uired to provide "uality legal services. s part of the +udicial reforms,

there has been a substantial broadening of the scope of activities open to attorneys.

Japan is moving from 3small/scale +ustice3 to 3large/scale +ustice3, and the

activities of attorneys, the chief players in the +udicial system, are broadening.

ttorneys have an obligation to e#tend the rule of law to all facets of society.

%o help mae this possible, institutional reforms have removed the re"uirement for

prior permits when attorneys engage in for/profit activities7 they now need only file

notifications. Liewise, the assumption of public services by attorneys has been

liberali*ed. %here are now provisions by which attorneys can retain their bar

"ualifications while becoming involved in government administration and

legislation as public servants with limited terms, which opens up new avenues for

their activities. %here is also a system to appoint attorneys both as full/time +udges

and as 3part/time +udges3, where they retain their status as attorneys but also serve

on the bench part of the time.

In addition, the venues for attorney services are no longer limited to the traditional

courtroom. More attorneys are offering alternative dispute resolution 58)6


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services, preventative legal services, and also corporate legal services as in/house

counsel.9

2. Chinese Law

!hina:s current legal system began around 1;>/1;6. %wo primary goals of the new

system were to ensure that the turmoil of the !ultural )evolution would not repeat

itself, and to attract foreign investment so !hina could advance economically.

Since 1;?? law schools and ((?,???

lawyers. @efore the 1;;?:s lawyers were considered state worers7 since then, they

have been allowed to form private firms. It is estimated today that there are (?,???

law firms7 and around (?? foreign law firms in

!hina.A

a. Chinese Practice of Law

%he mission of lawyers is to achieve the ob+ective specified in state laws

through the practice of law. rticle 1 of the Lawyers Law states that the mission of

lawyers is to maintain the lawful rights and interests of the parties to a suit and

maintain proper implementation of law. %hese two ob+ectives are mutually

complementary because the maintenance of lawful rights and interests is consistent

' http://www.nichi(enren.or.jp/en/a(out/judicial_syste"/attorney_syste".ht"l

) http://digitalco""ons.tourolaw.edu/cgi/&iewcontent.cgi*

article+2!,1-contet+lawre&iew


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with the maintenance of the right implementation of law. !hinese lawyers play an

independent role in lawsuits. %hey do not belong to courts or procuratorates, nor do

they belong to their clients. %hey participate in lawsuits in order to maintain the

legal rights and interests of their clients. %hey are independent. %hey en+oy not

only rights of an ordinary participant in a lawsuit, but also rights compatible with

the e#ercise of the duties of a lawyer. >

%he contemporary practice of law in !hina is full of daily ritual. Bo doubt

this is the case in other countries as well. hat distinguishes !hina:s rituals are

their bases in ancestor veneration, traditional !hinese medicine, !onfucian,

@uddhist, and 8aoist thought. 0ive prime rituals are tea drining, ban"ueting,

drining alcohol, napping, and singing araoe. %ea drining reflects 8aoist

alignment with nature and purity and @uddhist reflection. It highlights !onfucian

genteelness and hospitality. %he teahouse was a traditional !hinese venue for

dispute resolution. !ommunal ban"ueting and drining have their origins in

ancestral worship. @y first offering food and alcohol to ancestors and other spirits,

shared food and drin became the means for sharing blessing and prosperity.Carmoni*ing the five flavors, or hewei, was a traditional !hinese metaphor for

governance. %oday, eating and drining are still venues for fostering harmony,

guan#i, and negotia ing contracts. %he afternoon nap shows 8aoist influence,

which honors nonaction 5wuwei6. %his is especially important for balancing hard

mental wor with rest in order to achieve ma#imal "i. araoe after wor, where

both soloists and the group sings, emphasi*es further the primacy of harmony. @y

singing songs together that evoe different eras, different geographies, including

foreign countries, the singers are empowered to be unified in purpose, but also in

defining the past, present and future. %he ancient @oo of )ites records the sages:

http://www.china.org.cn/english/$udiciary/!12,).ht"


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efforts to achieve +ustice and virtue through music. %hese five rituals should not be

taen for granted or ignored. Cowever, especially eating and drining alcohol

should be practiced without e#cess. Practiced properly these rituals do invoe

virtue, harmony, communion, balance, and wholeness. %hese are essential for

pursuing +ustice. %hose of us outside of !hina can consider these and other rituals

as well in the practice of law.

pale practice of law

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