The Philippine IT Law Journal

The Legal Profession in the Digital Age
by Justice Jose C. Vitug
Senior Professor
Philippine Judicial Academy

The Legal Profession is 22 Centuries Old

The law profession had its probable conception about 22 centuries ago when a group of influential persons who called themselves experts in the law were said to have first appeared in ancient Rome and then Greece well about 200 B.C. Not much later, that conception saw birth, then infancy towards adulthood - thenceforth – to what ultimately would become a great and noble calling.

The perception of nobility in the profession though could have some unhappy distortions at times. One might take the case of a judge who, according to an e-mail passed on to us by the Public Information Office of the Supreme Court, called the contending lawyers to his chambers. Once all were seated, the judge confronted the two lawyers. “So”, he blurted out, “ I have been presented, by each of you, with a bribe.” The lawyers were stunned, and they squirmed uncomfortably in their seats. “You, Attorney Cruz,” the judge continued, “give me a check for P25, 000.00; and you, Attorney Santos, gave me P20,000.00.” Forthwith, the judge reached into his pocket and pulled out a check. Handing it over to Attorney Cruz, he remarked, “ Now, then, here is a check for P5, 000.00, and we are going to decide this case solely on its merits.” I would have wished that the story were only for a good laugh. Unfortunately, the two most publicized scandals in the world, the Watergate and Enron, involved lawyers.

The New Challenge

The lawyer of today and tomorrow must now also meet the challenges of cutting edge science and technology and a borderless society.

Relatively recent events would tell us that it is no longer possible for the lawyer to content himself with just the bare ways that he has heretofore know. The lawyer of today and tomorrow must now also meet the challenges of cutting edge science and technology and a borderless society.

The law is expected to evolve well beyond traditional lines. Senior Associate Justice Reynato S. Puno aptly observes that technology interfaces with science, and law inevitable enters the equation. Mr. Justice Artemio V. Panganiban, in his speech at the Manila Overseas Press Club in March of 2000, has acknowledged the inevitable interplay between technology and the various aspects of the law. The new era, however it might be called, will impact in unprecedented levels and in yet undefined proportions. The onslaught by irresistible forces on the legal profession is now indeed here with us.

The Transition has Begun

Advances in science and technology and the idea of globalization usher a new era in the legal system.

The new age that has started towards the end of the last century promises a system of law that, by sheer magnitude, would be global and dominant in its character.

Palakrishnan, the President at one time of the Law Society of Singapore, advises: “Ignoring technology will be at our peril.”

Programs for legal education must consider a curriculum that is based on a notion of comprehensive, rather than an autonomous, legal system that connects to linkage arrangements.

On the academic front, Professor Chin Tet Yung opines: Increasingly, the bottom line would require law graduates with the ability not only to practise ‘transitionally’ or across jurisdictions, but also to have a broad understanding of world issues that may be cultivated, if not taught, through an interest in, and a familiarity with, all social sciences along with modern technology.

During the second quarter of last year, the Philippines was among the countries invited to attend the New Orleans conference on legal education, and an item which caught the attention of most of us in that meeting was a report on the virtual disappearance of dedicated legal mentors. Prof. John W. Reed, a senior professor of the University of Michigan has taken to task lawyers for their lack of persevering loyalty to the academe, likening them to a husband, when asked if he has been faithful to his wife, replied “ Frequently.”

Prof. W. Michael Reisman of Yate Law School stresses that planning and designing programs for legal education that are, at once, professionally relevant and intellectually enriching must consider a curriculum that is based on a notion of a comprehensive, rather than an autonomous, legal system that connects to linkage arrangements

The Bench and the Bar

The response by the Bench and the Bar must be prompt, appropriate and revolutionary.

The Supreme Court has responded well within its capability and fiscal constraints. It has established, pursuant to its Administrative Order No. 35-96, on 16 March 1996, the Philippine Judicial academy, to be at the core of continuing judicial education. It is fortunate that the educational arm of the court has been able to count on many friends to help it, financially and in many other ways, carry out a good number of its projects. The Academy has received on 26 February 1998, statutory recognition in Republic Act No. 8557. Two years later, on the recommendation of the court’s Committee on Legal Education in collaboration with the Integrated Bar of the Philippines, the Association of Law Schools (and law deans), the association of Law Professors, and the Commission on Higher Education, the Supreme Court has approved at a special session, called for the purpose on 21 August 2000, the Mandatory Continuing Legal Education for all lawyers. It is, since then, being vigorously implemented.

The Supreme Court has had its e-mail facilities since 1991. It has put up its own website, one of the most visited websites in the country, since 1996. Chief Justice Hilario G. Davide, Jr. undoubtedly the most reformed-minded Chief Justice perhaps anywhere else in the world, has launched several technology-driven projects for the judiciary, including a pilot E-court, an E-Library and E-Learning, and has lately directed the Philippine Judicial Academy to put up the initial foundations for an “On-Line Academy”.

The adoption by the Supreme Court of the Rules on Electronic Evidence has re-written in good perspective its ruling in the 1999 case of IBM vs. NLRC (G.R. 117221, 13 April 1999) and its 2001 decision in Asuncion vs. NLRC (G.R. 129329, 31 July 2001).

The response by the legal profession must be equally bold. Local law firms might seriously undertake, add to a few already there, to examine the feasibility of developing arrangements with off-shore law firms towards becoming global legal service providers. Different strategies might be looked into and developed in order to commensurate with and meet the increasing needs of a world that knows of no boundaries.

In an article, entitled “ The Legal Profession in Twenty Years’ “ John Tredennick, made a compilation of feedbacks received via a forum organized in the Internet. The participants included such names as Wells Anderson, the President of Active Practice LLC and an ABA Tech show Board Member; Robert Denny, founder of the law firm specializing in management and strategic planning services; Ron Friedman, President of PRISM Consulting; and a number of others with similar credentials. Two areas of concern were highlighted: First, only law firms, with more than 1000 lawyers could have the scale to be competitive and have the capability to deliver systematized legal services that clients would demand; and second, computers would play a much larger, but complementary, role for legal service providers that would diminish personal contacts with clients.

Law firms, like business enterprises, would see themselves as leading to a “one stop shop” model with offices in countries around the world capable of handling a wide variety of legal services concomitant with the demands of clients for a “seamless” universal service. The legal profession would have the globalized village as its venue and an unconfined society as its workplace.

Under the terms of the World Trade Organization (WTO), trade and services, including legal and other professional services, my not much longer be restricted by state borders.

I am not saying, at least momentarily, that there would be no problems to deal with. There are. The exercise of profession is still confined to Philippine citizens and subject to locally-obtained academic qualifications. It is something that we may have to address. Even now, one might ask, should we treat foreign law firms giving their legal advice to transnational corporations operating in this country, using the Internet, as being an illegitimate law practice in the Philippines?

In a paper presented at the 14th Annual Meeting and Conference of the Inter-Pacific Bar Association, in Seoul, Korea, in May 2004, Steven C. Nelson has observed that there two principal barriers in this respect- (1) the “qualification barrier” which relates to the obstacle on cross-border legal services due to the education and other requirements generally imposed as a condition to admission to the practice of law, even by persons who have already qualified in another country, and (2) the “association barrier, ‘ referring to the prohibition found in many countries against the entry thereat by lawyers into partnership or other forms of common enterprise with anyone other than another lawyer of those countries premised on an unduly strict application of the rule of professional conduct against legal fee sharing.

Significantly, WTO members have obligated themselves towards the road for progressive liberalization of trade in services. The International Bar Association has identified two main approaches to start the process: (a) full licensing; and (b) limited licensing. In the “full licensing” approach, the foreign lawyers thus licensed are fully assimilated into the domestic legal profession. In “limited licensing,” the scope of a foreign lawyer’s practice is restricted to certain areas or under certain specified conditions or constraints.

Keith Clark, the chairman of London’s Clifford Chance which merged with New York’s Rogers and Well and Germany’s Pinder, Volhard, Weber and Axsters “to create the world’s largest law firm, ‘ explaining the inevitable, has ratiocinated: The world is becoming smaller and yet bigger at the same time. Factors making the world smaller include, reduced barriers to entry, as well as convergence of economies and technological advances, which enable business to view the world increasingly as a single market. Indeed, time zones and geographical differences are no longer the obstacles they have once been. The Internet is accelerating this trend and rewriting the rules in a manner that reflects the current move from an industrial to a knowledge-based society. The changes, as and when or even before they occur, make new demands on lawyers who will be expected to help navigate legal shoals.

A decade ago or so, I have expressed to say that I am seeing an emerging new legal system that would have both common law and civil law features working hand-in-hand towards a universal system. I have failed to realize that the idea would begin to become a reality even now. It should be realistic to expect that the enactment of specific laws by various jurisdictions will not always be timely or in cadence with the fast-moving environment.

In the Philippines, the only significant e-law that has been legislated is the Electronic Commerce Act of 2000, which means that the country is seen to fall behind the times. Placing a reliance on judicial precedents could thus increasingly become frequent. The dearth of enacted law will not excuse a judge from resolving a case before it; effectively, he, rather than Congress, may bound to first confront and tackle an issue in the same way that common law would normally work.

Allow me to momentarily break the monotony by zeroing down to a few familiar topics in the academe’s drawing board.

The Family code allows a marriage contact to be entered into by a man and a woman, and not by persons of the same sex. Would a marriage be legally feasible if the “marriage” takes place between a man and a woman, who used to be a man, whose sexual transformation according to medical science, confirmed by medical experts, has been so successful as to even allow him, now her, to be impregnated by a man.

The law requires in the celebration of marriage, the man and the woman to personally declare before the solemnizing officer that they take each other as husband and wife. The statutory provision particularly the term “ personally” has been so construed as to disallow “proxy” marriages. The thesis for the construction is not at all hard to find. In the graduate school discussion we have had just a few weeks ago, here in San Beda, Dean Doming Navarro has said that the reason is clearly due to an obvious danger that the proxy might, wittingly or unwittingly, exceed his authority.

If a marriage has already been set, all invitations have gone out all the hundreds or so wedding sponsors have been notified but the man would have to suddenly leave for Hongkong on medical advice to immediately undergo an emergency knee operation, it could be unthinkable for the prospective couple to re-schedule the marriage, and to wait even just a week more. Would the contract be valid if it were celebrated via and with the help of the latest technology? A video is set-up in Park Hotel in Hongkong to link up in Manila that would permit the “groom” to personally say, “ I do, “ and the “ bride” in Manila to say likewise in the full view of each other, including the witnesses, and of the solemnizing officer.

The age of cloning is also here. How should the rules on filiation, parental authority, support and successional rights be re-structured; if not how would the courts themselves initially take on the matter? The statutory rule of interpretation and construction that makes legislative intent to be a primary factor can here be obsolete not only in theory, but likewise in actuality, for when Emperor Napoleon ordered the codification of both civil law and commercial law neither he nor his legal experts could have been aware that one day cloning could become a reality.

The Electronic Commerce Act of 2000 may have done much to recognize the universal use of electronic transactions, both commercial and non-commercial, but it also has spawned and will spawn new issues. It should be expected that questions, whether prescinding form, or the result of obscure, contractual stipulations or statutes, will be asked and will have to be resolved, such as those referring to fundamental personal and property rights, the jurisdiction and venue of courts, rules of procedure, situs of transactions, applicability of tax and regulatory laws, situs of crimes, enforcement of judgments, and the like, each of which would require serious and special attention.

Electronic contracts, transcends territorial boundaries that can affect, observes Attorney Esmeraldo C. Amistad in his article, “Charting the E-Course of Philippine E-Laws” (published in the Lawyer’s Review issue of November 2002), even the basic concept of consent and the theory of cognition in the perfection of a contract. He exemplifies: For instance, there are issues relating to the so-called shrinkwrap and clickwrap licenses common to software and certain websites. “Shrinkwrap” agreements “are unsigned license agreements which state that acceptance on the part of the user of the terms of the agreement is indicated by opening the shrinkwrap packaging or other packaging or other packaging of the software, by use of the software, or by some other specified mechanism. “Clickwrap agreements, on the other hand, work arise a user comes to a website to locate and download computer software and the user can be required to review the terms of any applicable license agreement and to affirmatively assent to those terms by clicking on a keyboard button at the end of the license before the software is downloaded.

The use of DNA in court proceedings has been gaining ground after getting an early jurisprudential foothold in the Philippines and in most countries of the world. Among the latest cases in the Philippines to recognize the use of DNA in proving or disproving the commission of a crime is the 2004 case of People vs. Yatar (G. R. No. 150224, 19 May 2004). Thus far, the application of DNA has caused a reversal of a number of final convictions in the United State; and elsewhere where postsentencing DNA testing is allowed. The decision of the Court in a petition for a writ of habeas corpus by convicted prisoner Reynaldo de Villa (G.R. 158802), decided last 17 November 2004, holding in sum that DNA results would not constitute newly discovered evidence, may require, if it is minded, a statute or a provision of the rules to adopt a post-sentencing DNA testing.

The accuracy of the DNA method depends much on the reliability of DNA samples that could mean a resurgence of an old issue of whether a person can be compelled to provide a DNA sample or to be taken from him. Judging from might be invoked as broad guideposts, an accused has been required to submit to a test to extract virus from his body (U.S. vs. Teng, 23 Phil. 145), to undergo a pregnancy test (Villaflor vs. Summers, 41 Phil. 62), to expectorate morphine from his mouth (U.S. vs. Ong Sin Hong, 36 p.735), to accede to foot printing test (U.S. vs. Salas, 25P. 337; U.S. vs. Zara 42 P. 305) and to take part in a police lineup (U.S. vs. Wade, 388 U.S. 218). These cases have been cited with apparent approval by the Supreme Court in People vs. Casinitto (213 SCRA 777).

Can it thus be said that the tone has already been set; i.e., that the ends of justice might justify the means or that, in the hierarchy of value, the cause of justice can prevail over individual rights? Or, should we invoke again the so-called “balancing of interest” rule or, using another term for it, the “pro hac vice” approach. The intensity yet increases, with the entry into the legal arena of biometrics, brain fingerprinting and other more recent scientific discoveries.

Beyond the Digital age

All that we have is hope and our humanity.

It may yet be early to tell how the law, as well as the bar and the bench, would lend themselves to the inevitable; if, today, we are still unsure, then there is even greater uncertainty to aptly grasp tomorrow’s complexity. The things we can discuss are obvious enough to see or to anticipate. The other ninety-nine percent are yet to be discovered, i.e., if we can. Marvin Minsky, said to be the father of artificial intelligence, has once bluntly remarked, “we should be lucky enough if the new machines would be willing to keep us, human beings, as household pets.”

I conclude by expressing the hope that the legal profession will not allow itself to become obsolete and a mere relic of a bygone age; that it will have the capability of recognizing, as well as have the resolute will to survive, the crossroad when it comes, all despite his insatiable quest for the ultimate.