Mooting Position Paper

8/11/2019 Mooting Position Paper

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May it please the Court

My name is ATTY. ____________, I am with my co-counsel ATTY. _________ and we are here

today representing Mr. Christian Monsod , respondent in this case.

Before anything else, may I say that it is shame, nay, disgrace ,if before me today are set of

individuals who, despite the fast advancements and the rapid changing and improvements of the time,

would still submit to the resolution that PRACTICE OF LAW is confined to only that of an attorney in a

litigation in behalf of a client.

Our world today is constantly evolving in such a way that no endeavor is without the

need of one who is an agent of the law every aspect of today revolves around the law for lawyers are

first and foremost COUNSELS, albeit they are considered the learned ones who should give the better

advice.

In this regard, here are our submissions:

Central to this defense and the core of our submission, your honor, is to prove that Mr. Monsod

satisfies one of the essential qualifications I and my co-counsel bank on is the accepted definition of the

phrase practice of law through gathering various sources of international journals, cases and

publications (because this case is obvious to be tackling the abovementioned definition for the first time

in Philippine jurisprudence) this thus would substantiate and qualify in a manner congruent and parallelto international standards, our contention that the defendant has indeed passed the requirements to

be eligible to the appointment as Chairman of the Commission on elections; second, we will walk you

through to the intent of the legislature in depositing such a qualification in the questioned governmental

post thereby giving spirit to my argument as to why the liberal construction of the phrase must be

admitted.

YOUR HONORS, THIS CASE IS ABOUT

The defendant Christian Monsod, nominated by then President Corazon C. Aquino as chairman

of the COMELEC. Petitioner Cayetano questions the appointment for Monsod which petitioner alleges

that it has lacked the necessary qualification of having been engaged in the practice of law for at least 10

years.

So as not to confuse you to the direction of my arguments, let me enumerate the outline andpoints of this defense, to wit:

1.

Define PRACTICE OF LAW in congruence with the internationally accepted and

recommended definitions and mention related case laws of the same.

2.

Enumerate and discuss EACH of the Respondents work experiencediscuss the nature of

each activity the Respondent held after passing the bar.

3.

After such enumeration and consolidation, we will try to find substantial connection to the

definition of such jobs to our definition of the practice of law established in item number 1.

NOW TO THE FIRST POINT: Define PRACTICE OF LAW in congruence with the internationally

accepted and recommended definitions.

Under the CODE OF ALABAMA TITLE 34. PROFESSIONS AND BUSINESSES. CHAPTER 3.

ATTORNEY-AT-LAW.

34-3-6. Who may practice as attorneys.

(b) For the purposes of this chapter, the practice of law is defined as follows:

Whoever,

(1) In a representative capacity appears as an advocate or draws papers, pleadings or

documents, or performs any act in connection with proceedings pending or prospective before


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a court or a body, board, committee, commission or officer constituted by law or having

authority to take evidence in or settle or determine controversies in the exercise of the judicial

power of the state or any subdivision thereof; or

(2) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect,

advises or counsels another

(3) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect,

does any act in a representative capacity in behalf of another tending to obtain or secure for

such other the prevention or the redress of a wrong or the enforcement or establishment of a

right; or

(4) As a vocation, enforces, secures, settles, adjusts or compromises defaulted, controverted

or disputed accounts, claims or demands between persons with neither of whom he is in

privity or in the relation of employer and employee in the ordinary sense;

This definition was reaffirmed in 1970 by the California Supreme Court in Baron v. Los Angeles.

Practice of law is a broad concept. Case laws and other international journals have established

that such is made up of different facets. One of which is business law.

We have a statute, RSMo 1949, Sec. 484.010, V.A.M.S., which makes a comprehensive definition of the

practice of law and law business (which is a part of the practice of law) including "the advising or

counseling for a valuable consideration of any person, firm, association, or corporation as to any secular

law ". Similar definition is found in Clark v. Austin, supra, 101 S.W.2d, loc. cit. 982, although it does not

so specifically cover the situation here: "Perhaps the major portion of the actual practice of law under

modern conditions consists of the work of attorneys outside of any court and has nothing to do with

court proceedings."

HULSE et al.v. CRIGER. Supreme Court of Missouri, en Banc. April 14, 1952.

NOW THAT WE HAVE ESTABLISHED A COMPREHENSIVE AND ENCOMPASSING CONCEPT OF THE

PRACTICE OF LAW, WE PROCEED TO THE SECOND STEP:

ENUMERATE AND DISCUSS EACH of the Respondents work experiencediscuss the nature of each

activity the Respondent held after passing the bar.

Adduced from the list found, the following were the positions held by Monsod:

1.

LEGAL ECONOMIC CONSULTANT

2.

CHIEF EXECUTIVE OFFICER

3.

MEMBER OF CONSTITUTIONAL COMMISSION

4.

SECRETARY GENERAL OF NAMFREL

5.

MEMBER OF THE DAVIDE COMMISSION (a quasi judicial body, which conducted numerous

hearings AND lobbying for and engaging in affirmative action for the agrarian reform law and

the urban land reform)


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NOW, THERE IS NO QUESTION AS TO THE NATURE OF ITEMS 1, 3, 4, AND 5. All these are in the nature of

an obvious practice of law. We tackle item No. 2, his being Corporate Chief Executive Office, which

comprised more than half of the 10 years required by the law.

Aside from the general concept that CEOs are no less than the leaders, the ship captain, the

stirrer of the corporation towards achieving its set goals. There are specific duties of a CEO that theprofessional knowledge of a lawyer is required.

OPAP Group of Companies defined the duties of a CEO, few of these are:

1.

To draft contracts of a financial nature up to the value defined by a board decision.

2.

The CEO drafts a contract of employment with the Company. The duration of the contract, the

remuneration, as well as the general employment terms of the CEO are determined upon the

decision of the Company's Board of Directors

Under the Meralco Revised Manual for Corporate Governance, to which our Respondent served as

CEO, provided duties of a CEO, to wit:

Paragraph H: Ensure the company has appropriate policies and procedures in accordance with the

revised manual of and applicable laws and regulations, including but not limited to, conflict of

interest and related party transactions.

Paragraph J: Consider the creation of an ALTERNATIVE DISPUTE RESOLUTION SYSTEM in the

company that can amicably settle differences between the Company and its stockholders.

Notice your honor that the scope engendered by the Meralco Manual is parallel to that of the

provided universal scope of the duties of a CEO mentioned earlier. This, if consolidated leads us to

the common phrases --- drafting of contracts for the corporation, drafting of policies and proceduresin accordance with the law, and creation of an alternative dispute resolution system.

NOW, to the last step, Procedure No. 3: We will find substantial connection to the definition of such

jobs to our definition of the practice of law established in item number 1.

Now, I am more than confident that the 5 positions, employment or work occupied and served

by our Respondent as defined earlier, especially that of the scope of the duties of a CEO falls under the

definition of the practice of law stated earlier.

First the drafting of contract and the drafting og policies and procedures in accordance

with the law entered into by the Corporationas settled earlier in the Code of Alabama forProfession and Business of an Attorney-at-Law, I reiterate that practice of law too covers In a

representative capacity appears as an advocate or draws papers, pleadings or documents, or

performs any act in connection with proceedings pending or prospective before a court or a

body, board, committee, commission or officer constituted by law or having authority to take

evidence in or settle or determine controversies in the exercise of the judicial power of the state

or any subdivision thereof;


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Second, and the last, the creation of an alternative dispute resolution systemas

discussed earlier in the same Code which was adopted from the recommended definition of the

practice of law of the United States Supreme Court, it too covers As a vocation, enforces,

secures, settles, adjusts or compromises defaulted, controverted

or disputed accounts, claims or demands between persons with neither of whom he is in

privity or in the relation of employer and employee in the ordinary sense;

TO WRAP, when people think of lawyers, many will picture those portrayed in movies or on television.

The image is of an actor or actress speaking eloquently in front of a jury in a mahogany-paneled

courtroom and producing a last-minute rabbit from the hat to save a client. In reality, most lawyers

spend much of their time outside the courtroom setting. They talk to clients and to others on behalf of

clients; they research legal issues; they draft contracts, deeds, wills, corporate by-laws, ordinances, and

legislation; they counsel, mediate, and negotiate settlement; they draft depositions, interrogatories,

pleadings, trial and appellate briefs, proposed jury instructions, and court findings, and they present

matters to administrative boards and agencies. Lawyers' careers are extremely varied.

The moment you restrict such encompassing scope of the definition of practice of law, or should

I say the duty of a man learned in law to his society, would offend the wide and extensive knowledge of

a lawyer in many matters which requires his acquired skill. I as counsel of the defendant stand firm to

my submission that a lawyer will always be a lawyer whenever wherever, as long as he applies such

particular and distinct knowledge and skillhe is practicing the legal profession.

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Mooting Position Paper