On the Necessity and General Direction of Reforming the Attorney System: Regarding Attorney Education, Training, and Examination

Introduction

Since ancient times, every specialized profession has had its own unique existence, meaning, and value. Physicians care for the human body, clerics care for the human soul, and attorneys are entrusted with upholding justice and fairness in the human world. Taiwan's attorney system is not a product of our indigenous thought and culture, but rather an imported system transplanted from the West in the first year of the Republic (1912). For decades, due to a lack of clear understanding, the general public simply equated attorneys with the litigation masters (litigation tricksters) of the late Qing dynasty and harbored exclusionary feelings against them. Furthermore, the ruling authorities, enforcing authoritarian rule, were unwilling to let attorneys overly highlight their roles and functions outside the establishment, and thus deliberately suppressed them. Consequently, the legal profession was long relegated to a state of ambiguous positioning and ineffectual functioning. It was not until the lifting of martial law in July 1987 and the termination of the Period of National Mobilization for the Suppression of Communist Rebellion in 1991 that the national system returned to the normal track of democratic constitutionalism, and the public's rights consciousness and concept of fairness and justice were substantially elevated. Against this gradually more enlightened and progressive historical backdrop, the Attorney Regulation Act was finally substantially revised in 1981, incorporating for the first time indicative provisions concerning the mission, duties, self-governance, and pre-practice training of attorneys. On one hand, it recognized the self-governance and self-discipline of attorneys; on the other hand, it explicitly stated the mission and duties of attorneys. Although the establishment of Taiwan's attorney system has spanned over eighty years, in reality, it was only from this point that attorneys were truly restored to their original identity. Over the past six years, operating under a completely different political and social environment and bearing high public expectations, the attorney system has been groping its way forward. Although the time elapsed is not yet long, it is already sufficient to observe what deficiencies or unresolved problems exist in the current Attorney Regulation Act, the attorney system, and their actual operations. As we are about to stride into the 21st century and all parties are exerting efforts toward judicial reform in the hope of deepening the foundations of the nation's modernization and democratization, it is truly necessary to seek further reform of the attorney system, which constitutes a vital link in the judicial system.

The profession of an attorney itself is fraught with numerous conflicts. For example, on one hand, attorneys must accept mandates from clients to conduct litigation or non-litigation procedures in specific cases and protect the lawful rights and interests of clients; on the other hand, they must also engage in public service responsibilities, including human rights protection, democratic reform, rule of law construction, improvement of legal systems, legal services for ordinary people, and other public interest activities (see Articles 1 and 2 of the Attorney Regulation Act, and Articles 7 and 9 of the Code of Ethics for Attorneys). On one hand, attorneys may collect fees from clients to sustain the expenses of themselves and their offices, and may even need to solicit sources of cases, cut costs, and increase income for financial support; on the other hand, based on legal ethics, they should profoundly recognize that the performance of an attorney's duties is not a commercial activity and must not take the pursuit of profit as its sole purpose. They must neither instigate litigation nor solicit business through exaggerated or false advertisements, payment of referral fees, hiring of business personnel, or other improper methods (see Article 35 of the Attorney Regulation Act and Article 12 of the Code of Ethics for Attorneys). In recent years, Taiwan's political, economic, and social spheres have undergone structural changes. As we witness the nation trending toward political democracy, economic freedom, and social openness, the public's reliance on attorneys deepens, and their expectations regarding attorneys' professional competence and moral character also grow increasingly fervent. Although many outstanding attorneys are accomplished in both professional skill and moral integrity, enthusiastic about public interest, and capable of maintaining an appropriate balance amidst the aforementioned ethical conflicts, earning widespread recognition and respect, it must be frankly admitted that society still harbors much criticism regarding the performance of attorneys in general. This includes:

1. Constitutional awareness remains somewhat weak
2. Fields of knowledge are overly narrow
3. Professional capacities are uneven
4. Dedication to the profession urgently needs enhancement
5. Concern for public affairs is insufficient
6. Social service is not proactive
7. Attorney discipline and conduct need to be strengthened
8. Attorney remuneration is not reasonably close
9. Bar association performance has not met expectations

Some of these issues pertain to systemic or even cultural problems, while others are purely individual problems. How to remedy these deficiencies and correct errors is truly worthy of deep reflection. In the following, the author wishes to cast a brick to attract jade and briefly express reform opinions on the attorney system and its peripheral measures from several perspectives.

Attorney Education and Training: University Legal Education, Pre-practice Training and Education for Attorneys, and Continuing Professional Education for Attorneys

Attorney education in a broad sense includes three stages: university legal education, pre-practice training and education for attorneys, and continuing professional education for attorneys. In the past in our country, each of these stages was managed by separate authorities, acting independently without mutual connection or coordination. In fact, a sound education system requires overall horizontal and vertical planning, completed in phased steps. Therefore, the organs and organizations responsible for or participating in the aforementioned three-stage education process should establish a regular consultation mechanism to first deliberate and study what minimum conditions an ideal attorney should possess—especially meeting the standards required to face the new world of the 21st century characterized by globalization, liberalization, value pluralism, and professional division of labor. Furthermore, they should consider what series of courses or internships must be provided to achieve these standards, and then determine in which stage the arrangement of such courses or internships is most appropriate to complete. Countries such as Germany and Japan believe that the purpose of university legal education is to cultivate qualified legal talents rather than to forge future attorneys, judges, or prosecutors. Therefore, during the university stage, they concentrate on cultivating the knowledge, ability, and character that a legal professional ought to have, laying a deep foundation for future engagement in the judiciary, administration, or other legal work, while shifting the professional training of jurists to take place after passing the national examinations (two and a half years in Germany, two years in Japan, and one year in France plus an additional two years as a candidate attorney). In the United States, students must first obtain a Bachelor of Arts or Bachelor of Science degree from a university's college of arts and sciences or education, and then enter a Law School. Law school curricula give equal weight to theory and practice; upon graduation, students obtain a Juris Doctor (J.D.) degree, and after passing the bar examination in various states, they practice law.

Regarding attorney education, our country lacks clear objectives. The legal education received at the university stage is insufficient in both quality and quantity. After all, a qualified legal professional, even if not aspiring to judicial work in the future, should still possess a character of public justice and idealistic coloring, fundamental knowledge in fields adjacent to legal science, and adequate comprehension, reasoning, comprehensive judgment, and expression capabilities. However, in recent years, although the curriculum arrangements of law departments in various universities have gained considerable autonomous space and have strived for improvement, important subjects such as legal ethics, logic, psychology, sociology of law, and public speaking are largely omitted—this is the first point. Secondly, although courses in political science, sociology, economics, jurisprudence, and special subjects such as intellectual property law, welfare law, labor law, economic and financial law, and environmental law are offered, due to students' study time being limited to only four years, most are listed as elective or required-elective, and actual contact is limited. Thirdly, under the traditional practice of hyper-specialized subjects, departmentalized teaching, and departmentalized examinations, the knowledge acquired by students tends to become isolated and fragmented, affecting the cultivation of comprehensive judgment abilities for pluralistic values.

Regarding pre-practice training and continuing professional education for attorneys, there are even more numerous deficiencies. First, regarding continuing professional education: aside from certain bar associations holding various seminars for their members on an irregular basis when laws are enacted or amended, or when major political, economic, and social issues arise, continuing education for attorneys in our country has become virtually a blank slate. Second, regarding pre-practice training: since the end of 1992, Paragraphs 2 and 3 of Article 7 of the new Attorney Regulation Act explicitly stipulated that "Attorneys shall complete pre-practice training before they may register; however, this shall not apply to those who have formerly served as judges, prosecutors, public defenders, or military judges," and "Regulations on attorney pre-practice training shall be prescribed by the Ministry of Justice." Exercising this legislative authorization, the Ministry of Justice promulgated the "Regulations on Attorney Pre-Practice Training" consisting of 18 articles, stipulating that the duration of this training shall be six months, implemented sequentially in two stages. In the first stage, trainee attorneys receive one month of basic training at the Judges and Prosecutors Training Institute of the Ministry of Justice or at a commissioned bar association. In the second stage, trainee attorneys receive five months of practical training at a law firm. This training has been held annually across several cohorts for the past six years. The deficiencies that have manifested so far roughly include:

1. Compared to advanced countries such as Germany, Japan, and France, university legal education in our country can hardly be called substantive, yet while those countries' pre-practice training for attorneys lasts for two to three years or more, our country's training is a mere half-year, which is overly brief and evidently makes it difficult to provide necessary and sufficient training.
2. While the curriculum arrangement for basic training correctly balances the introduction of attorney ethics and the enhancement of professional practice knowledge and skills, due to time constraints, most topics are only touched upon lightly. As for the practical training portion, it borders even more on being unmethodical. Because senior attorneys expend mental energy to be responsible for guiding trainee attorneys, yet are even required to pay salaries or living expenses to trainee attorneys, their willingness is universally very low. Recently, phenomena have already occurred where some trainee attorneys find no senior attorneys willing to guide them, or where senior attorneys merely lend their names nominally to supervise, rendering pre-practice training a mere formality.
3. Practical training adopts a single-attorney mentorship method rather than the foreign practice of multiple mentors or joint/sequential group mentoring. Moreover, the internship locations are limited only to law firms, rather than rotating to courts, prosecuting agencies, law firms, and even the parliament as seen abroad. Consequently, the experience gained inevitably remains biased toward one corner, making it extremely difficult to cultivate a macro-perspective and an overall understanding of the operation of the judicial system.

The process and content of attorney education bear upon the quality level of attorneys and whether the attorney system can give full play to its functions. Therefore, it is hereby suggested that:

1. University law departments and graduate institutes should establish a regular consultation mechanism with the organs and organizations responsible for attorney pre-practice training and continuing professional education to deliberate on the goals and policies of attorney education and seek mutual human resource support.
2. The curricular structure of university law departments should be further adjusted and reinforced. When necessary, consideration should be given to extending the students' study period or reforming in alignment with the U.S. system, enabling students to study more important knowledge and skills in fields adjacent to law and having the opportunity to cultivate interests and specialties in special branches of legal science at an earlier stage.
3. The more progressive the era and the more fervent the demand for specialized expertise, the more attorneys may be divided into general attorneys and specialized attorneys in the future. The Taiwan Bar Association (hereinafter referred to as the TBA) shall, in conjunction with relevant organs and university law departments, formulate a rigorous evaluation procedure and standards. Attorneys who have completed a certain threshold of credits or hours during university education, pre-practice training, or continuing professional education shall be awarded a specialized attorney certificate by the TBA.
4. Attorney pre-practice training and education should be appropriately extended with reference to foreign practices. Practical training should be jointly or sequentially guided by multiple attorneys with different characteristics or specialties. Internship locations should also be diversified, meaning interns should be rotated to intern at courts, prosecuting agencies, law firms, the parliament, and other locations. During the internship period, the government should allocate budgets to pay living allowances for trainee attorneys, as well as reasonable guidance fees for guiding judges, guiding prosecutors, guiding attorneys, or other guiding personnel. This constitutes a part of the nation's legal infrastructure and is a worthwhile and necessary investment for the modernization of the country.
5. Continuing education for attorneys should be institutionalized, explicitly mandating in the Attorney Regulation Act that during their active tenure, attorneys must complete a certain number of hours of courses vetted by the TBA. Courses can be designed separately for those suitable for all attorneys and those suitable for specific specialized attorneys. The TBA may hold them itself or commission universities or other academic institutions to hold them. General attorneys who fail to participate in the training shall be subject to disciplinary action; specialized attorneys who fail to participate shall have their specialized attorney certificates revoked.

Attorney Examination and Training

Regarding attorney examination and training: Our country's current system for examining and training legal professionals adopts a dual-track system, meaning judges and prosecutors are examined and trained jointly, while attorneys are examined and trained separately—a rather distinctive system. In 1993, the Judicial Yuan conducted a questionnaire survey targeting law departments, examination and training agencies, bar associations, legal affairs agencies, and judicial organs regarding what kind of examination and training system our country should adopt. The options included: 1. Maintain the current system? 2. Model after the systems of Japan, South Korea, and Germany, combining the examination and training of judges, prosecutors, and attorneys? 3. Carry out the spirit of judicial independence to examine and train judges, prosecutors, and attorneys separately? The statistical results showed: 50.4% favored Option 2, namely joint examination and training (unified examination and training); 28.12% favored Option 3, namely separate examination and training for judges, prosecutors, and attorneys; and 17.78% favored Option 1, namely maintaining the current system. Analyzing by survey respondent demographics, law departments and bar associations overwhelmingly favored unified examination and training; examination and training agencies were split roughly four-to-four between favoring unified examination and separate training; legal affairs agencies mostly favored maintaining the current status; while more than half of judicial organs favored separate training. The inclination of their preferences was closely correlated with the attributes of the survey respondents, which is truly interesting. From a traditional conservative viewpoint, officials are noble while commoners are humble, and officials and commoners should not associate closely; joint examination and training invites suspicion and avoids the appearance of impropriety, raising concerns about affecting the independent exercise of adjudicatory or investigative powers. However, fundamentally speaking, whether prosecutors or judges can independently and impartially exercise investigation and trial powers depends on their moral cultivation, and has nothing to do with whether they are acquainted with or interact with attorneys. In the past, our country implemented a dualistic examination and training system, and judicial discipline was deeply criticized; Germany and Japan previously implemented a unified examination and training system, and their judicial discipline was spotless, which provides clear proof. Especially since the era has changed, based on the concept of popular sovereignty, the judiciary exists for all the people. Judges, prosecutors, and attorneys all belong to a single link of the judicial system; although they have respective functions due to division of roles, their goals are aligned, and they jointly bear the mission of protecting human rights and realizing social justice, sharing success, failure, honor, and disgrace. Maintaining the status quo, or even shifting to a tripartite examination and training system, not only hinders the formation of a judicial community consciousness, but also because future judges and prosecutors will still lack the opportunity to intern at law firms, the parliament, and other places to personally experience the calls for human rights and democracy, how could they possibly dissolve their self-contained, closed mindset and bureaucratic character? Viewed accordingly, the unified examination that previously won 50.4% approval is truly a reform direction that can be adopted in the future.

Examinations leading teaching is a part of our campus culture. This custom is deeply rooted and difficult to change overnight. Therefore, wishing to effectively implement the aforementioned attorney education still requires resorting to the reform of the examination system. In the future, regardless of whether a unified examination system is adopted, under the currently implemented framework of a two-stage examination, examinees should submit proof upon registering for the first test that they have studied political science, sociology, economics, psychology, logic, legal professional ethics, jurisprudence, or parts thereof, with a certain number of credits in each subject at a public or accredited private university or higher institution. Furthermore, the second test should include Constitutional Law and Administrative Law, Civil Law, Criminal Law, and Commercial Law (all encompassing substantive and procedural law) as mandatory examination subjects, adopting a comprehensive questioning method. In addition, to meet the needs of specialized division of labor and practicing abilities in special fields, elective subjects should be established, planning several special subject groups, such as intellectual property law, welfare law, labor law, economic and financial law, environmental law, international law, science and technology law, and aerospace law, to provide examinees with options to choose from. Consequently, attorneys who take and pass the examination in the future will not only be well-versed in the law, but because they possess richer knowledge, broader-angled thinking, and more specialized expertise, they will be better capable of serving clients and the general public.

Conclusion

Reforming the attorney system involves a broad range of dimensions, but primary attention must be paid to whether the education, training, and examination systems for attorneys are sound. If these systems are flawed, resulting in attorneys deficient in knowledge, ability, and moral character, and lacking a holistic perspective, a sense of responsibility, and a sense of mission, how can we expect attorneys to fulfill their duties and give full play to the functions of the attorney system in the judicial arena and in society? As outlined above, Taiwan's attorney education, training, and examination system indeed suffers from numerous problems and has left behind many undesirable consequences. The past is gone, but the future can still be shaped. Facing the severe challenges of the new era, all sectors of the ruling and opposition parties should meticulously study and improve upon these matters. Due to space limitations, reform proposals regarding the attorney system concerning public service, attorney ethics and discipline, and the organization of bar associations will be elaborated in a separate article. All criticisms and corrections are welcome.