jurisdictions | Philippine Law Bytes: TheCyberLawyer Issues by Dr. Attorney Noel Guivani Ramiscal

For his other lecture on handling electronic data for the IBP Bulacan lawyers last August 8, 2015, Dr. Ramiscal introduced several concepts of e-data, and how some of the types of these e-data were erroneously classified under the Philippine Rules of Electronic Evidence which has not been amended since 2002. He apprised the audience of international developments concerning the discovery of electronically stored information (ESI), and the fact that the Philippines has not participated in the relevant events. He also discussed several types of ESI and how their discovery, preservation and spoliation can have tremendous impact on the outcome of cases that are driven by, or reliant on electronic evidence.

Dr. Atty. Noel G. Ramiscal MCLE Lecture IBP Bulacan August 8, 2015 Handling EData

One major matter that he emphasized is the tremendous costs of discovery of electronic data. Dr. Ramiscal was probably the first Philippine lawyer that discussed the vast commercial and legal ramifications of e-discovery way back in 2007 for the Financial Executives Institute of the Philippines, when “e-discovery” was not even a “buzz phrase” in the Philippine legal milieu.

Dr. Atty. Noel G. Ramiscal with some of the FINEX officers, March 2007

Then, as now, no adequate mechanism is provided in any of the Philippine laws, rules and jurisprudence concerning the handling of costs associated with the discovery and preservation of e-data in its myriad forms, which could include back-up tapes, audio and video data, metadata, and e-data in legacy technologies.

Dr. Ramiscal talked about several pilot court initiatives in the U.S.A. concerning the reduction of the types of e-data that could be the subject of e-discovery. But Dr. Ramiscal stated that the game changers in this instance would be the predictive coding and legal analytics technologies that are now being harnessed by technologically progressive law firms and law project initiatives. The most prevalent form of e-data that lawyers are familiar with would be Word documents and emails. A gigabyte can contain over 64,000 pages of Microsoft Word Files. Employees send and receive about 50 e-mail messages per day, and that could exceed 1,500,000 messages a year for an organization of over 100 employees.

IBP Bulacan Lawyers who attended Dr. Ramiscal’s MCLE Lecture, August 8, 2015

Other IBP Bulacan lawyers who attended Dr. Ramiscal’s August 8, 2015 MCLE lecture

Looking for the relevant e-data in a suit involving, for example, the intellectual property of a company from these troves of e-data that could go back five to ten years is a financial and logistical nightmare. If done by traditional law firms and legal process outsourcers, using human lawyers/reviewers, this would take months and even years and millions and millions of (U.S.) dollars in legal fees. In just one law firm in the U.S. for example, the junior associate was paid $35 per hour in reviewing documents for e-discovery, while the law firm billed the client $250 per hour for the associate’s work. This is a cash cow for these firms. Replacing junior associates and paralegals with computer assisted reviews utilizing predictive coding software and a few senior lawyers that can “train” the computers, with a sample or “seed set” of documents, to search for relevance and screen for privilege had already been proven to save clients tremendous legal costs. And this is precisely the reason why these technologies are disruptive because they pose a real threat to the livelihoods of law firms and legal process outsourcers (LPOs) that depend on manual reviews of lawyers for their financial existence. Once computer assisted reviews become the norm, the law firms’ and LPOs’ current business models that rely on manual reviews by humans will be obsolete.

Computer research tools have certainly come a long way. Dr. Ramiscal reminisced about the time he served as an Executive Assistant in the Court of Appeals in the 1990s and as such was required to attend the “Philippine Jurisprudence Development Program” which was all about searching for pertinent cases using Boolean operators on a court database. Not much has changed in the legal research processes in the Philippines. But in other jurisdictions like Brazil, Australia and the U.S.A., the predictive computational power of computers are utilized as guides in making judicial and administrative decisions. It is therefore high time, that Philippine lawyers should start re-tooling their legal skills to include technical skills that would be relevant in the changing and global legal landscape.

Since Dr. Atty. Noel G. Ramiscal came back to the Philippines the second time in 2007, he has been advocating for the review and revision of several rules contained in the Rules of Court and the Code of Professional Responsibility for Lawyers concerning the practice of law as it pertains to cyberspace. In his June 23, 2015 Mandatory Continuing Legal Education (MCLE) lecture for the University of the Philippines Institute of Administration of Justice in Jorge Bocobo Hall, UP Law Center, Dr. Ramiscal apprised the lawyers of recent developments in other jurisdictions that involve the utilization of internet tools and innovations of lawyers as they impact on their online practice.

DR. ATTY. NOEL G. RAMISCAL MCLEJUNE232015 Lecture at UP Law Center

The thrust of the lecture were concerns that solo practitioners have to be aware of so that they can have some form of guideline as they navigate the uncertain virtual world, especially because the Philippine Supreme Court had not issued rules concerning the various aspects of virtual law practice.

Dr. Ramiscal discussed several models of practising law on a virtual scale that Philippine lawyers can consider as well as technological solutions they can employ for the benefit of their clients and themselves. He will blog about these solutions in his upcoming blogs.

One important issue that virtual practitioners must consider, especially in the Philippines are the current restrictions on legal advertising and the rule on malpractice.

In Ulep v. The Legal Clinic, Inc., Bar Matter No. 553 June 17, 1993, the Supreme Court held that news/paper advertisements of “The Legal Clinic” that included these:

SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE. ABSENCE.
ANNULMENT. VISA.

and

GUAM DIVORCE.

DON PARKINSON
an Attorney in Guam, is giving FREE BOOKS on Guam Divorce through The Legal Clinic beginning Monday to Friday during office hours.
Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext. Quota/Non-quota Res. & Special Retiree’s Visa. Declaration of Absence. Remarriage to Filipina Fiancees. Adoption. Investment in the Phil. US/Foreign Visa for Filipina Spouse/Children.

were held to be violative of the Code of Professional Responsibility which provides that “a lawyer in making known his legal services shall use only true, honest, fair, dignified and objective information or statement of facts….A lawyer shall not pay or give something of value to representatives of the mass media in anticipation of, or in return for, publicity to attract legal business.”

In the case of Director of Religious Affairs. vs. Estanislao R. Bayot, the Supreme Court held that “It is highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares. Law is a profession and not a trade. The lawyer degrades himself and his profession who stoops to and adopts the practices of mercantilism by advertising his services or offering them to the public.”

Much of the rules on legal advertising that had been in place in the Philippines were adopted from several earlier Anglo-American rules on advertising and they had not been revised by the Philippine Supreme Court since the Code of Professional Responsibility had been promulgated in June 21, 1988.

The Philippine Supreme Court stance on legal advertising does not give Philippine lawyers much room to express themselves. In the Bates v. State Bar of Arizona [433 U.S. 350 (1977)], the U.S. Supreme Court observed that “the ban on advertising originated as a rule of etiquette and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on “trade” as unseemly. Eventually, the attitude toward advertising fostered by this view evolved into an aspect of the ethics of the profession”. The irony is, as this became an ethical rule, members of the general public, (not the well-heeled gentry and elite who know and have contacts with lawyers), whom lawyers sought to serve generally had no access to information about lawyers and their services. The Bates case brought to the attention of the U.S. Supreme Court the unnecessary restrictions placed on lawyer advertisements and the consequent ignorance of the general populace about lawyer’s services and its deleterious effects on the access to, and knowledge of, legal rights and dispensation of justice. Mindful of these, the U.S. Supreme Court struck down as unconstitutional a blanket ban on price advertising of legal services as an invalid restriction on the lawyers’ freedom of expression, and reasoning that such advertisement does not constitute an erosion of the dignity and quality of the profession but contributes to the general elucidation of the public, and ease whatever fear the members may have of the legal process and the costs of the services. Almost three decades after such decision, the ruling has essentially been observed.

With the advent of the Internet and social media, the limitations on the right to advertise one’s legal services continue to be explored, tried and tested, particularly in the U.S., where most of the social media companies are headquartered.
Dr. Ramiscal presented several issues concerning the mechanisms for the approval of legal ads in Twitter, Facebook, LinkedIn, and even in “deals of the day” services like Group-on.

DR. ATTY. NOEL G. RAMISCAL June232015 UP IAJ Lecture with some of the lawyers who attended

He delved on the ethical placement of lawyer profiles in Martindale-Hubbell, the oldest lawyer-listing service in the U.S. which has existed for over a hundred years, and which has expanded to the Internet. Dr. Ramiscal discussed the case involving the legality of an online referral service which sells blocks of zip codes to lawyers, and in return they are given all the queries and potential legal business submitted to such service, which correspond to the zip codes they purchased. He also discussed the different treatments of several states concerning online rating services like the “Super Lawyers” and the “Best Lawyers” of America. Only one U.S. jurisdiction, New Jersey, outrightly bans the purported “self-aggrandizing” import of these titles. But other jurisdictions allow the advertisement of lawyers with the designation “Super Lawyer” or “Best Lawyer” if done with disclaimers. And in some states, such designations are allowed when they were not arbitrarily given or bought by the lawyer, and instead are backed up by legitimate peer review processes that are transparent and made known to the public by the evaluators. There is no question that online rating services like “Super Lawyers” and “Best Lawyers” have peer review processes that would qualify under these standards, giving their ratings credibility.

DR. ATTY. NOEL G. RAMISCAL MCLEJUNE232015 UP IAJ lecture with some of the lawyers present

These, as well as other ethical and legal issues involving the practice of law in cyberspace were tackled by Dr. Ramiscal, which unfortunately, the Philippine Supreme Court has yet to address. Dr. Ramiscal trusts that his lecture provided some useful guidelines and principles lawyers can incorporate in their professional practice. Thank you to the animated, gorgeous and warm group lawyers that attended, and in particular to Attys. Percival Cortez, Isabel Florin, Fe Arche Mandez, Omar Papandayan, and Pete Maniego. Thanks and congratulations to Atty. Tess Granados for passing the bar examinations in California, for her daughter passing the Philippine 2014 bar examinations, and for her partner husband being honoured (and deservedly so) as a “Super Lawyer” in California!