[ANALYSIS] Making lawyers behave – online and offline
This week, the Supreme Court released a decision disbarring a lawyer because of his Facebook posts. A repeat offender, he was deemed as “having the propensity to divulge sensitive information in online platforms… to the detriment of the people involved in the said cases.”
Disbarment is the harshest penalty available. By opting for it, it seems the High Court is keen on sending a message, particularly those who divide their personalities as “spokesman-lawyer” or “journalist-blogger” (The High Court’s terms, not mine).
The same message seems to be found in the work of a committee chaired by Supreme Court Justice Amy Lazaro-Javier and co-chaired by Justice Maria Filomena Singh. They’re updating the “Code of Professional Responsibility.” Because like most things associated with the word “code,” this one’s quite old – 34 years to be exact.
The product is a new Code of Professional Responsibility and Accountability (CPRA). Those who worked on it, which includes Philippine Bar Association past president Fina Tantuico, claim its guideposts are practicality and reasonableness. “We didn’t want a code that is oblivious or shuts its eyes on reality,” says Justice Singh. Perhaps anticipating that members of the Bar might be concerned about certain innovations (ie a ban from dating clients) Justice Lazaro-Javier, reassures that “This is our view. What is yours? We will intently listen.”
A segment of the legal profession had the chance to partake of that invitation. This happened when the SC committee met with the Philippine Bar Association (PBA), the Integrated Bar of the Philippines’ (IBP) Makati Chapter and the managing partners of some law firms at the DLSU School of Law in BGC. It was a lively discussion where leading practitioners shared their insights with respected jurists.
My contribution to the forum focused on the CPRA’s provisions that regulate online behavior and disinformation. An example is Canon II. Sec. 3, which states that, “A lawyer shall not: create or promote an unsafe environment including the online space.” More significantly, Canon II, Sec. 40 expressly prohibits lawyers from engaging in acts of disinformation.
To a certain extent, these and other provisions in the CPRA limit the freedom of expression of lawyers. But as observed by the High Court in AC 13453, “the lawyer’s oath and his duties and responsibilities” have always been a limit on those. As someone who teaches Constitutional Law, I rarely agree with a blanket invocation of “every freedom has limits.” Yet, in the context of lawyers repeatedly engaging in troll-like behavior and other abuses online, the burden feels warranted. Online attacks have real-life impact. As lawyers wield considerable societal influence, we can’t have them publicly inflicting these harms with impunity.
The Court’s signal in AC 13453 seems in tandem with the CPRA’s online focus. There are factual nuances to Administrative Case No. 13453 (which at 10 pages is a good read). Still, its impact is clear. We’ve seen the High Court penalize lawyers, court staff, and even judges for various social media related offenses. AC No. 13453 cuts to the core by stripping a lawyer of his license.
Lopsided battle
It’s a shift that is necessary for the legal system’s continued relevance. I work with #FactsFirstPH – a network of researchers, scientists, media and communities fighting disinformation. We see how disinformation operations (troll farms) are evolving. Having diminished scientists, doctors, and historians, they now test their methods against judiciaries.
They attack by weaponizing legitimate critiques of the judicial system – grossly distorting them to enrage the public. They paint judiciaries as tools for the elite and powerful, emphasizing that those who are well-connected escape liability. A grain of truth becomes deadly in the hands of a troll farm operator.
It’s a lopsided battle. Social media instantly spreads rumor and falsity on a scale none of us ever imagined. On the other hand, judges are ethically and professionally prohibited from publicly defending themselves.
Legal systems become even easier targets by failing to account for outrageous online behavior by their lawyers. “How lawyers conduct themselves in the practice of law and even in their personal lives dictate society’s perception of the legal profession”, said Justice Singh. When the public feels that lawyers can get away with it, disinformation networks pounce and say, “I told you so.”
Building resilience against disinformation requires enhancing public credibility. As noted by Justice Lazaro-Javier, in the age of disinformation, we cannot afford to lose sight that the public is now privy to our every move. In this light, the CPRA reforms the Old Code’s structure, which divided a lawyer’s duty to 4 sectors: the client, the courts, the Legal profession and, society. Consequently, lawyers felt that each duty was equal.
The CPRA reworks this. Its “foundational theme” is that “each and every lawyer is first and foremost an officer of the court.” As such, the CPRA binds lawyers to administer (not delay or defeat) justice. It seems “to win at any cost” which may find succor under the Old Code, would now find little ethical support from the CPRA.
Grizzled veterans might scoff at this, but subtle paradigm shifts like these could prove instrumental in winning this war for public support against disinformation.
The draft CPRA is a hefty volume. And I encourage law students and lawyers to go through it. With the signal sent through AC 13453, it’s best to be prepared for what’s coming. Besides, as the CPRA is meant to govern an entire profession, it would benefit from the input of as many of us who will ultimately be its subjects. – Rappler.com
John Molo practices litigation and arbitration. He is chairperson of the political law cluster of the UP College of Law and has argued before the Philippine Supreme Court and International tribunals. He is the Coordinator (Accountability Layer) for #FactsFirstPh and speaks on disinformation across the region.