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Practice of Law

Practice of law. Not limited

 to appearing in court, or
 advising and assisting in the conduct of litigation,

but embracing 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. State v. Chamberlain, 132 Wash. 520, 232 P. 337,

It embraces all advice to clients and all actions taken for them in matters connected with the
law. Rhode Island Bar Ass'n v. Lesser, 68 R.I. 14, 26 A.2d 6,

Renato L. Cayetano v. Christian Monsod, et al. (201 SCRA 210 [1991]):

“Practice of law means any activity, in or out of court, which requires the application of law,
legal procedure, knowledge, training and experience. ‘To engage in the practice of law is to
perform those acts which are characteristics of the profession. Generally, to practice law is to
give notice or render any kind of service, which device or service requires the use in any
degree of legal knowledge or skill.’

Modern: e-discovery

Predictive Coding is a process whereby a machine learns from watching human behavior and
then applies what it learns. The learning algorithms designed to gather data, analyze it, and
then make decisions about what is relevant.

Rocket Lawyer and LegalZoom:

b. Role of lawyers in modern business

Multi national, multimillion company contracts

c. Challenges facing Filipino lawyers from a globalization perspective; and

 Moore’s Law: Capacity doubles approximately every 2 years
 UK and Australian laws which allow Alternative Business Structure wherein non-lawyers
can own law-firms, public issuance of shares
 Alternative Litigation Financing (ALF)
 CLOUD computing the practice of using a network of remote servers hosted on the
Internet to store, manage, and process data, rather than a local server or a
personal computer.
 Virtual Law Offices
 Outsourcing
 These six challenges include the following: (1) Who should regulate the legal
profession? For example, should there be a self-regulatory system or a co-
regulatory system? Alternatively, are lawyers simply service providers, the
regulation of whom should be included in general societal regulations? (2) Who
or what should be regulated? Should regulators continue to focus on regulating
lawyers or should they be attempting to regulate those who provide “legal
services,” whoever they happen to be? (3) When should regulation occur: ex
ante or ex post? (4) Where should regulation occur? Our traditional system of
lawyer regulation and enforcement is geography-based, but this regulatory
system does not really match the reality in which legal practice is increasingly
virtual. (5) How should regulation occur? For example, should regulation differ
depending on the size or sophistication of the client? Should a regulator use a
rules-based approach or an outcomes-based approach? (6) Why should
regulation occur?
o the traditional formal regulators who admit lawyers to practice, discipline
lawyers, and adopt rules of conduct
o Additionally, lawyers are subject to less formal or official sources of
regulation by malpractice insurance carriers, clients, the news media,
judges, professional organizations, NGOs such as the American Law
Institute, custom, and peer pressure

d. Topic I
a. Transactional Lawyering
i. Transnational Law: Definitions and Concepts

Transnational Law all laws that applies to all persons, businesses and
governments that perform or have influence across stateliness.

Transactional law refers to the practice of private law relating to money,

business, and commerce. Areas of focus include providing legal aid to
entrepreneurs through contract drafting, real estate acquisition, and
intellectual property affairs

Lex mercatoria is the Latin expression for a body of trading principles

used by merchants throughout Europe in the medieval. Literally, it means
“merchant law". It evolved as a system of custom and practice, which was
enforced through a system of merchant courts along the main trade

ii. Clients, Ethics, and Regulations

1. Ethics

The most common ethical problems are: employement practices,

human rights, environmental regulations, corruption, moral obligation
of multinational companies

 Rana Plaza collapse in Bangladesh: garment factory collapsed
for being built on swampy grounds. A total of 41
defendants face charges over the collapse of the
complex, which housed five garment factories
supplying global brands. About 1100+ died
Philosophical Approach in Ethics

 Strawman Approaches
o The Friedman Doctrine: only social responsibility is to
increase profit, so long as they follow the law.
o Cultural Relativism: ethics are culturally determined.
o The righteous moralist approach: the home country
standard should be followed.
o The naïve immoralist: if others are not following we
should not either
 Utilitarian: best possible balance of good and bad consequences
 Kantian: Immanuel Kant people should be treated as ends and
never purely means to the end of others. People have dignity to
be respected.

b. Transactional Lawyering
i. Definitions and Concepts
Counsel to parties in business transaction (transaction-cost engineers and
reputational intermediaries)

ii. Transactional Practice

iii. Transactional Competencies

1. Of a Deal Lawyer
a. A Deal Lawyer Must Understand the Structure of Business
b. The ability to investigate facts and research the law (with
emphasis on due diligence).

Due diligence is investigation of facts; however, it is a special kind of

investigation understood as the “examination of a business or portion
thereof in connection with a proposed transaction.”

c. The ability to draft and negotiate contracts.

The writing that we are exposed to on a day-to-day basis (even in law

school) is almost entirely expository writing, the goal of which is to
persuade or provide information to the reader. A contract is different:
the goal of a contract is to describe with precision the substance of the
meeting of two minds, in language that will be interpreted by each
subsequent reader in exactly the same way.42

d. The ability to identify and address the ethical implications of

transactional practice.
2. Of a Transactional Lawyer

Thus, to be competent as a transactional lawyer, a general practitioner must

1. Achieve all of the competencies of the deal lawyer;

2. Know how to acquire, manage, and transfer property;
3. Understand basic tax;
4. Understand basic estate planning and probate; and
5. Understand the law governing marital dissolution.

The primary key to achieving transactional competencies is setting a

“curriculum.” A curriculum is something that one associates with educational
institutions, teachers, and the like. However, the secondary meaning is “a set of
courses constituting an area of specialization.” Some ways: self-education,
continuing legal education

iv. How do Transactional Lawyers add value to Business Transactions?

1. In his seminal 1984 article, Ronald Gilson dispelled some of the mystery
by identifying transactional lawyers as "transaction cost engineers." 24
He began from the premise that, in contrast to the standard perfect-
market assumptions, corporate transactions involve substantial
transaction costs.
a. For the sale of a company, for example, lawyers craft provisions
such as seller representations and warranties, perhaps backed
up by the seller's obligation to indemnify the buyer in the event
of a breach. Such provisions provide more information and
greater assurances to the buyer as to the value of the company
and therefore increase the likelihood that a deal will be reached
and correctly priced
2. The reputational-intermediary hypothesis, under this hypothesis, the
intermediary's reputation acts as a substitute for information about the
company. A law firm's good reputation thus creates value only to the
extent that a party to the transaction or third-party beneficiary thereof-
such as potential investors in an IPO-lacks reliable, material information
about the company at issue.
a. Hiring a reputable law firm to set up an IPO, however, signals to
investors that the company has undergone some amount of due
diligence and provides some assurance-though not an
enforceable one-against fraud or misrepresentation by the
company as to its value.
3. Taking instead a bottom-up approach to the question, Steven Schwarcz
derived a third paradigm for the value provided by transactional
lawyers.32 Based on a large-scale survey of both corporate clients and
their outside counsel, Schwarcz concluded that business lawyers
primarily add value (if at all) by acting as regulatory compliance experts.
a. More precisely, law firms assist clients with major corporate
transactions principally by navigating both client-specific and
transaction-specific regulatory concerns.
4. There are thus three broad paradigms for the role lawyers play in major
corporate transactions: transaction-cost engineer, reputational
intermediary, and regulatory expert. Each one resonates as being
clearly and intuitively correct

c. Private International Law