The Philippine Code of Professional Responsibility (CPR) had not been amended since it was promulgated in 1988. The Committee on the CPR, under the aegis of the Supreme Court circulated a Draft of the CPR since July 2022 to various law schools and relevant organizations for their feedback all over the country. The Supreme Court will hold a National Summit next March this year to presumably present the results of this endeavor.
To address this important development, the University of the Philippines Institute of Administration of Justice (UPIAJ) held a symposium in July 2022 concerning the future of lawyers vis a vis the CPR, with student and faculty presentations that contained suggestions on how to navigate the possible ethical morass in a globalized digitized world which the members of the legal profession have had to face during the pandemic.
UPIAJ commissioned me to write a Report that would incorporate the relevant inputs in the Symposium, with emphasis on the technological impact on the ethical practice of law, since that has been one of the greatest focal points in all my Mandatory Continuing Legal Education (MCLE) lectures for the UPIAJ. Moreover, it trusted me enough to include my own perspective, insights and recommendations culled from my own cyberlaw practice and experiences. This Report (which I entitled “A.I., Technology, Morality, Gender and the Code of Professional Responsibility”), the body of which contained over a hundred pages, was summarized, and submitted to the CPR Committee.
TECHNICAL COMPETENCE EQUATED WITH LEGAL ETHICAL RESPONSIBILITY
For the purpose of this blog, I desire to highlight some of the important suggestions I made for the CPR amendments and beyond that. Probably the most significant lack in the Committee’s CPR draft (which is 113 pages long), is that it has no provision which delves into the technical competence of lawyers, as part of their professional responsibility. While the Draft has copious sections on social media, it did not even mention the word “technology”. In all my seminars on “Cyber Ethics” since 2011, I have always propounded the view, with legal and technological bases, that the competency of lawyers in using technological products and internet innovations to serve their clients should be an important factor in determining, and inherently connected with, their professional ethical responsibility.
The global pandemic placed technology in front, back and center of a lawyer’s service to their clients. Zoom, Microsoft Teams, Skype and other types of conference technologies occupied a great part of how we communicated, legally transacted and appeared in court for the past three years. The Supreme Court allowed a limited form of electronic notarization, and MCLE lectures became synchronous or asynchronous.
But even before these transpired, A.I. technologies had already penetrated the legal profession in different jurisdictions including the Philippines. My report discussed the existence and success of these technologies deployed by Alternative Legal Service Providers (ALSPs), Legal Process Outsourcers (LPOs), Alternative Business Structures (ABS) and Multi-Disciplinary Structures (MDS), which I had discussed in my lectures was back in 2011. Concerns on the Metaverse, Fintech like cryptocurrencies, Non-fungible tokens (NFTs), etc., as they affect legal transactions, are rife.
In order to place importance on the technological competence of lawyers in ethically serving their clients, I came up with this provision that delineates the ethical obligations and courses of action a lawyer can take when technological matters or services are at stake, as a suggested amendment to the current Rule 5 of the 1988 CPR:
Rule 5.01 – TO MAINTAIN THEIR PROFESSIONAL COMPETENCE, A LAWYER SHALL KEEP ABREAST ABOUT THE TECHNOLOGICAL DEVELOPMENTS AND PROCESSES THAT IMPACT ON THEIR ABILITIES TO SERVE THEIR CLIENTS. THEY CAN TAKE THE NECESSARY STEPS TO ACQUIRE KNOWLEDGE AND UPDATE THEIR TECHNICAL SKILLS.
TECHNOLOGICAL INCOMPETENCE OR IGNORANCE IS NOT AN EXCUSE FOR ANY LAWYER TO AVOID PROFESSIONAL LIABILITY. AS SUCH, IF A LAWYER IS NOT COMPETENT IN THE AREA OF LAW THAT REQUIRES TECHNOLOGICAL SKILLS AND EXPERIENCE, THEY MUST DISCLOSE THESE TO THEIR CLIENT. THE LAWYER SHOULD NOT ACCEPT THE CASE AND INSTEAD REFER THE MATTER TO ANOTHER LAWYER WHO CAN COMPETENTLY REPRESENT THE CLIENT’S INTERESTS AND HANDLE THE TECHNOLOGICAL DEMANDS OF THE CASE.
DESPITE PRIOR DISCLOSURE AND NOTICE, IF THE CLIENT STILL DESIRES AND AGREES TO THEIR REPRESENTATION, THE LAWYER WITH THE CLIENT’S PRIOR CONSENT, MUST SECURE THE ASSISTANCE OF A COMPETENT COUNSEL AND/OR EXPERT TO HELP IN THE CASE.
This, of course was the result of many considerations, and developments in several jurisdictions, which are noted in my Report, but which I cannot get into, in this blog article.
THE ESTABLISHMENT OF A COMMITTEE ON LAW AND TECHNOLOGY (CLT)
The CPR has not been updated for 34 years and it is not certain when the current task of revising the CPR would end. During that span of time and now, technological innovations were, and are launched with tenacious regularity that impact on the legal profession and affect the way that lawyers deliver their services. I therefore proposed that a select collaborative body of information technologists, scientists, doctors, engineers, mathematicians, business people and lawyers be formed as a regular body, i.e., a Committee on Law and Technology, that can meet on a regular basis to thresh out technological issues that are relevant to the legal profession and to their industries.
The CLT can be hosted or supported by the Supreme Court or the Integrated Bar of the Philippines (IBP) or both. It can serve the functions done by the American Bar Association or state bar committees in the U.S., or those in Canada that come out with advisory ethics opinions and proposed professional standards on the usage of technology. It can collaborate with other Supreme Court Committees that are involved in projects that have major technological components.
SOME EXIGENT MATTERS THAT NEED SCRUTINY AND ETHICAL AND TECHNICAL GUIDANCE FROM THE SUPREME COURT, IBP, CLT AND OTHER RELEVANT ENTITIES
New and emerging technologies come around on a regular basis, and some of them, seemingly out of nowhere. So, these suggestions of mine are not exclusive or exhaustive.
PERMANENT E-NOTARIZATION SOLUTION/S
In my Report, I discussed the proposal on the establishment of some form of virtual notarization that will subsist as a regular and permanent, not an interim, form of notarization, with the important note that the validity of the notary public’s commission should not be tied to the exclusive territorial jurisdiction of the court that issued the notarization. An e-notary’s commission should cover the whole Philippine archipelago, so that the e-notarized document can be recognized in any Philippine court. This of course would require an in-depth study of possible e-notarization tools, including the use of blockchains, or distributed ledger technologies, which I reported, can render human notaries public irrelevant.
AMENDING THE ELECTRONIC EVIDENCE RULES
The Electronic Evidence Rules was amended last 2002. Due to the length of time, some of the concepts and rationale for some of its provisions have become passe. This can actually lead to errors in the appreciation of evidence submitted to court and in actual decisions. The CLT can take a long hard look at these rules and draft the amendments.
ASSESSING THE VALIDITY, EFFICACY AND FEASIBILITY OF THE ELECTRONIC DISCOVERY RULES FOR ELECTRONIC DATA OF THE NATIONAL PRIVACY COMMISSION (NPC)
The NPC in its NPC Circular 16-04 – Rules of Procedure (https://www.privacy.gov.ph/memorandum-circulars/npc-circular-16-04-rules-of-procedure/) which it promulgated last December 15, 2016 transplanted the governing principles that dictate the procedures of electronic discovery of civil cases in the U.S.
In 2007, I discussed the legal ramifications of the U.S. e-discovery rules for the Philippine Financial Executives Institute (FINEX) during their Information Technology Month. As I elucidated then, and it is true even now, the e-discovery principles and procedures have been, and are still being finetuned under American jurisprudence.
Prior to 2016, the Philippines had no existing rules or even jurisprudential understanding of many of these concepts. The NPC merely imported these rules without much understanding of what their consequences and implications for the stakeholders in litigation in the Philippines. The NPC had not come up with an extensive guidance as to the application of these Rules. E-discovery costs and the legal consequences in litigation in the U.S. are quite high! It would be best to have these rules of procedure scrutinized by those well verse in e-discovery techniques and tools, and determine their economic and legal feasibility.
THE STUDY AND REVISION OF THE 2018 RULES ON CYBERCRIME WARRANTS
This very important set of rules contain technological misconceptions that can be used to undermine or defeat the due process rights and data privacy rights of an accused or defendant. There are some procedures delineated that can impact on the proper preservation and destruction of electronic evidence, which can be legally deleterious for the accused. Also, awareness about the proper procedures for these warrants and what they are need to be done more, so defense counsels can competently prepare the defense of their clients.
THE RE-VISIONING OF LEGAL EDUCATION AND THE LEGAL PROFESSION WITH A SOLID TECHNOLOGICAL PERSPECTIVE AND FOUNDATION
In a separate part of my Report, I proposed a sketch plan or a blueprint for making the GEN Z and the next generation lawyers relevant and capable of surviving the A.I. crunch, including new tech courses for lawyers and new careers in law with scientific and technological components. When I did my Master of Laws (Advanced) degree at the University of Queensland over 20 years ago, the “Law and Internet” class I took was held in a computer laboratory and we were given computer exercises pertaining to relevant technologies that were featured in actual controversies. Thus in 2000, I was able for the first time to test and use the Pretty Good Privacy (PGP) encryption software of Phil Zimmerman and decrypted the first encrypted word ever sent to me: apple! I know of no other Philippine lawyer at that time who was using this type of technology. Since then I’m a firm believer in educating lawyers and law students on these types of technologies. But currently, there is no law school I know of, or any MCLE provider that provides full hands on technology training with a legal purpose.
The proposed CLT, can cooperate with the Legal Education Board, the Commission on Higher Education, the IBP, the Supreme Court, the Philippine Bar Association, and other pertinent government agencies and tech companies in fleshing these out, or in coming with other viable alternative paths for legal practitioners, in case A.I. systems start displacing lawyers from certain types of jobs that are really not making them better lawyers.
DEVELOP A LEGAL ETHICAL FRAMEWORK FOR A.I. + QUANTUM TECHNOLOGY
In a different part of my Report, I talked about the necessity of studying and exploring the legal and ethical framework that need to be in place when the effects of A.I. systems and machines impact all of our lives, which is actually happening now, as evidenced by ChatGPT 4, and the e-discovery A.I. tools employed by ALSPs in different jurisdictions. The CLT can spearhead studies or research on legal and ethical issues involving quantum computing, quantum cryptography, quantum cryptanalysis, quantum money, etc. and how they can transform our economic, security, safety, and data privacy spheres.
One of the most exigent issues I raised is setting the framework for attribution and liability in an A.I. + Quantum technology world. The Philippines does not have this type of framework or even standards as of now. There is so much to explore, analyze and understand, legally, in all of these technological innovations and developments, if only one is open, willing to look and learn, and forego of the big ego and vanity of lawyers reflected in several Supreme Court decisions that hark back to the 1920s-1950s (which are still echoed today), of the somehow “sacredness” and “supremacy” of the legal profession over “commercial” professions, and the anthropocentric view that any function done by a human lawyer (even if it’s just checking citations and footnotes) is an act of lawyering.
Philippine Law Bytes: TheCyberLawyer Issues by Dr. Attorney Noel Guivani Ramiscal 