The Philippine Internet-Based Advertising for Lawyers
by Tarcila B. Nepomuceno
Introduction
This paper on the Philippine Internet-based Advertising for Lawyers is studied on the premise that the use of internet technology has since become a very important tool in the improvements of business activities in general. The internet has developed dramatically enough over the past recent years and, outstandingly, it can do so much ranging from e-mail interactive, World Wide Web, to even advertising of various business services.
In the Philippines, the use of internet technology is likewise powerful that every single business establishment has its own internet connection to run dayto-day operations and, admittedly, it can make work much easier. While its significance is undoubtedly recognized all over the world, the internet, like any other technology, could also be a tool for violating some established sets of rules and standards that each state may have. For one, internet has given lawyers the opportunity to market their legal service on a previously unheard of scale.1 That is, the possibility of advertising the legal services over the internet.
Thus, this paper looked into the regulations and ethical concerns regarding lawyer advertising over the internet and the extent of such regulation vis a viz cases decided by the Philippine Supreme Court; then, it examined the legality of lawyer advertisement over the internet and the protection afforded such advertisement; and finally, it looked at the possible gray areas that legal advertising on the internet could cause considering the present situation of the Philippine system of professional ethics.
I. The Regulations and ethical concerns regarding lawyer advertising over the internet and the extent of such regulation vis a viz cases decided by the Philippine Supreme Court
A lawyer has been constantly regarded as a person called upon to aid in the performance of the administration of justice. He has obligation to the bar, the courts and his clients in order to uphold the time-honored traditions of the legal profession which is to cater public service and that gaining of a livelihood would only be an incidental result of such practice.
The practice of law as a profession stems from the fact that membership in the bar is a privilege burdened with conditions,2 and goes along with it the duty to live up to its standards and honored traditions. Necessary to maintain public trust, confidence and integrity of the legal profession, professional standards have been set to guide attorney’s conduct.
The first recorded attempts to formulate ethical standards for attorneys’ guidance were the requirement of the lawyer’s oath and the statement of his duties, which trace back to the thirteenth and fourteenth centuries and which have been the basis of all disciplinary proceedings.3
In the year 1917, the Philippine Bar Association adopted the American Bar Association’s 1 to 32 Canons of Professional Ethics;4 followed by the adoption of Canons 33 to 47 of the Professional Ethics of the American Bar Association in 1946. Subsequently, the Integrated Bar of the Philippines adopted a proposed Code of Professional Responsibility, which was later approved and promulgated by the Supreme Court on 21 June 1988.5
The Code of Professional Responsibility is the law governing the conduct of the lawyers and any misbehavior on the part of the lawyer, such as to advertise his services except in allowable instances, is subject to disciplinary action.6 Among those provisions of the Code that treat of lawyers’ conduct is enunciated under the Rule 2.03 which provides that “A lawyer shall not do or permit to be done any act designed primarily to solicit legal business.” Likewise pertinent are the Rules 3.01 and 3.04 of the same Code, to wit:
“Rule 3.01 - A lawyer shall not use or permit the use of any false, fraudulent, misleading, deceptive, undignified, selflaudatory or unfair statement or claim regarding his qualifications or legal services.”
“Rule 3.04 - 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 addition, it may also be relevant to note Section 27, Rule 138 of the Rules of Court which states that “A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willful appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.” [Emphasis supplied]
The general rule therefore forbids a lawyer from advertising his legal services as a businessman does to his businesses or products. It bears reiterating that the proscription against advertising of legal services aims to preserve the dignity imbued upon the legal profession. “To allow a lawyer to advertise his talent or skill is to commercialize the practice of law, lower the profession in public confidence and lessen its ability to render efficiently that high character of service to which every member of the bar is called.”7
In the case of Ulep vs. The Legal Clinic, lnc.,8 the Supreme Court upheld the aforesaid rule which declares that the standards of the legal profession condemn the lawyer’s advertisement of his talents. A lawyer cannot, without violating the ethics of his profession, advertise his talents or skill as in a manner similar to a merchant advertising his goods. The prescription against advertising of legal services or solicitation of legal business rests on the fundamental postulate that the practice of law is a profession. In the similar case of The Director of Religious Affairs. vs. Estanislao R. Bayot9 decided earlier by the Supreme Court, the advertisement of which reads: “Marriage license promptly secured thru our assistance and the annoyance of delay or publicity avoided if desired, and marriage arranged to wishes of parties. Consultation on any matter free for the poor. Everything confidential,” it was held that such advertisement constitute improper advertising.
The same judgment was found in the recent case of Khan, Jr. vs. Simbillo.10 The questioned advertisement in this case was published on the 05 July 2000 issue of Philippine Daily Inquirer and discovered to have also been published in the 02 and 06 August issues of the Manila Bulletin and 05 August 2000 issue of the Philippine Star. The advertisement reads: “ANNULMENT OF MARRIAGE Specialist 532-4333/521-2667.” It is Atty. Simbillo’s (respondent) argument that advertising and solicitation per se are not prohibited acts; that the time has come to change our views about the prohibition on advertising and solicitation; that the interest of the public is not served by the absolute prohibition on lawyer advertising; that the Court can lift the ban on lawyer advertising; and that the rationale behind the decades-old prohibition should be abandoned. Thus, he prayed that he be exonerated from all the charges against him and that the Court promulgate a ruling that advertisement of legal services offered by a lawyer is not contrary to law, public policy and public order as long as it is dignified.11 After investigation of the case, the Integrated Bar of the Philippines Commission on bar Discipline issued resolutions finding Atty. Simbillo guilty of violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court, to which the Supreme Court affirmed the same in toto. According to the High Court, Atty. Simbillo’s way of advertising himself with a tag line: “Annulment of Marriage Specialist,” wittingly and unwittingly eroded and undermined not only the stability but also the sanctity of an institution which is still considered sacrosanct despite the contemporary climate of permissiveness in our society.12 By such act, “he in fact encourages people, who might have otherwise been disinclined and would have refrained from dissolving their marriage bond,” the Supreme Court added.
Nevertheless, Atty. Simbillo is not at all mistaken when he said that advertising and solicitation per se are not prohibited acts because the prohibition is not absolute. Settled at the present time is the use of advertisement so long as its employments are compatible with the traditional dignity of a lawyer and the professional standards. Nowadays, the use of professional calling cards stating the name of the lawyer, the name of the law firm which he is connected with, office address, telephone number, residence address and field of practice, is known to be permissible advertisement. Advertisement in legal periodicals, and publication in reputable law lists bearing the same brief biographical data and information is also permissible. Reliably, the case of Ulep vs. Legal Clinic, Inc. maintained guidelines for the conduct of such allowed advertisement, thus:
“Such data must not be misleading and may include only a statement of the lawyer’s name and the names of his professional associates; addresses, telephone numbers, cable addresses; branches of law practiced; date and place of birth and admission to the bar; schools attended with dates of graduation, degrees and other educational distinction; public or quasi-public offices; posts of honor; legal authorships; legal teaching positions; membership and offices in bar associations and committees thereof, in legal and scientific societies and legal fraternities; the fact of listings in other reputable law lists; the names and addresses of references; and, with their written consent, the names of clients regularly represented.
The law list must be a reputable law list published primarily for that purpose; it cannot be a mere supplemental feature of a paper, magazine, trade journal or periodical which is published principally for other purposes. For that reason, a lawyer may not properly publish his brief biographical and informative data in a daily paper, magazine, trade journal or society program. Nor may a lawyer permit his name to be published in a law list the conduct, management or contents of which are calculated or likely to deceive or injure the public or the bar, or to lower the dignity or standing of the profession.”
All of these that pertain to the customary means of advertising have been settled in the Philippine jurisdiction through the help of the Legal and Professional Ethics, as well as the present case laws. But the next matter which needs attention is the reality that advertising can be successfully had in a modern way via electronic media, like the use of the internet, as can be shown in the next discussion.
II. The legality of lawyer advertisement over the internet and the protection afforded such advertisement
With the advent of Internet Technology, many things are possible to accomplish by just a link to the Internet as compared to old times’ habit of doing and effecting things. It has developed so fast over the past years and has become a tool for the success of businesses and companies. This may be one of the reasons why even lawyers may be readily seen and/or searched thru the Internet nowadays.
In fact, in an article written by Jordan Rappaport on Attorney Advertising on the Internet,13 It was reported that more than eighty five percent (85%) of the two hundred (200) largest US law firms had Web pages or that they would have them in place by mid-1996. In late 1994, only five (5) law firms were present on the Web and by March 1995, there were five hundred four (504). In the Philippines, although no data can be presented at this time as to the exact percentage of legal advertisers on the Internet, it is a reality that as in the US’s, the use of internet has become popular to lawyers. Very visible are considerable numbers of law firms maintaining their respective websites or web pages, and that this may be the modern way by which lawyers thought of changing their advertising scheme.
Thus, with these statistics on the growing use of internet media, it becomes an issue whether such internet advertisements would violate some rules of the Code of Professional ethics and other similar rules of the legal ethics.
Admittedly, unlike in the United States where the American Bar Association has since been regularly meeting up to discuss matters concerning the regulation of lawyer advertising on the internet, the Philippine legal regulations on the internet advertising is apparently still in much infancy stage whereby its present case laws basically deal only with the traditional advertising means, such as newspapers, billboards, television, radio, flyers and the like. But it may be useful to note that these precedents built over time could possibly address and govern advertising on the internet. The state bar associations are considering the established regulations in order to build applicable laws and regulations which could properly be applied to internet advertising. In an attempt to update regulations of lawyer advertising thru the internet media, the Florida Bar Association has released its Ethics Update. Nevertheless, nothing new has been introduced rather than stressing the old regulations. The lifted Chapters 4-7 of the Florida Rules of Professional Conduct which were found to be applicable to the internet are quoted hereunder:
- “Ads may not be false or misleading, may not create unjustified expectations about results the lawyer can achieve, and may not contain testimonials;
- Ads may not contain dramatization;
- Ads may not contain self-laudatory illustrations or statements that are merely self-laudatory;
- Ads may not compare the lawyer’s services with the services of other lawyers unless the comparison can be factually substantiated;
- Ads must include the name of at least one lawyer responsible for the ad;
- Ad must disclose the geographic location, by city or town, of the office in which the advertising lawyer principally practices law;
- In the case of ads using audio, the information in the ad must be articulated by a single voice, with no background sound other than instrumental music. The voice may be that of a fulltime employee of the firm but shall not be that of a celebrity whose voice is recognizable;
- Importantly, an electronic-media ad NEED NOT INCLUDE the “hiring disclosure” language set forth in Rule 4-7.2(d),
- Electronic-media ads, including computer ads, must be filed for review with the Standing Committee on Advertising as provided in Rule 4-7.5. A computer ad is exempt from this filing requirement only if it contains no illustrations and nothing more that the limited, basic information specified in Rule 4-7.2(n) (e.g. name, address, telephone number, areas of practice, fee schedule, etc.).
The Philippines may not have reported update rules yet about the internet advertisement, however it could still opt to uphold pertinent existing old and new ethical rules and present case laws within the jurisdiction, just like what other foreign states bar had done in their hopes to redefine the regulations over internet advertising. After all. the country, through the Philippine Bar Association, adopted as its own the Canons of Professional Ethics of the American Bar Association.
The traditional rules on lawyer advertising were so stringent in the past until the US Supreme Court opened the door to lawyer advertising in the case of Bates vs. State of Arizona14 which was in turn the basis for the First Amendment protection of attorney advertising. But the prohibition against lawyer advertising stands in the Philippine case of Ulep vs. Legal Clinic, Inc. The Supreme Court found the former US case to be different from the latter Philippine case of Ulep, thus:
“The ruling in the case of Bates, et al. vs. State Bar of Arizona, which is repeatedly invoked and constitutes the justification relied upon by respondent, is obviously not applicable to the case at bar. Foremost is the fact that the disciplinary rule involved in said case explicitly allows a lawyer, as an exception to the prohibition against advertisements by lawyers, to publish a statement of legal fees for an initial consultation or the availability upon request of a written schedule of fees or an estimate of the fee to be charged for the specific services. No such exception is provided for, expressly or impliedly, whether in our former Canons of Professional Ethics or the present Code of Professional Responsibility. Besides, even the disciplinary rule in the Bates case contains a proviso that the exceptions stated therein are “not applicable in any state unless and until it is implemented by such authority in that state.” This goes to show that an exception to the general rule, such as that being invoked by herein respondent, can be made only if and when the canons expressly provide for such an exception. Otherwise, the prohibition stands, as in the case at bar. ”15 [Emphasis supplied]
Thus, protection afforded to lawyers in advertising is still flimsy to consider. The changing and even contradictory state regulations governing lawyer advertisement, tracing back from the old prohibition against advertising to the Bates vs. State Bar of Arizona ruling which upheld that the content of lawyer advertising cannot be constitutionally restricted except to prevent false, deceptive or misleading communication, has seen to be a long and continuing battle to settle lawyer advertising. Perhaps, the rules are not that comprehensive enough to settle once and for all the protection of lawyers from advertising If such is the case, protection of legal advertising in cyberspace is all the more complicated issue to be resolved, especially since the internet is a new technology and all advertising on it, including attorney advertising, is still in its infancy.16
III. Possible gray areas that legal advertising on the internet could cause considering the present situation of the Philippine system of professional ethics
As complicated as the internet technology could get, so too is the lawyer advertising on the internet that every State Bar has to overcome. Internet has been defined as a global network of networks enabling computers of all kinds to directly and transparently communicate and share services throughout much of the world.17 One of its widely used services is the Web site. A Web site is a term used to describe an advertisers’ Home page as well as all the links included in it. This is accessible to everyone connected to the iinternet, which means that it can be viewed anywhere in the world. xxx The Web is run by HTML (Hyper-Text Mark-up Language), which allows a viewer of a home page to click on a particular information located on the homepage and instantaneously view such information.18 Because of the features of the internet and the way it behaves, one problem that may arise would be that print-out of the advertisement posted on the Web since “hard-copies of Web sites that the advertiser is linked to would be impractical because an attorney advertising many different services could be linked to thousands of pages of information. It also seems useless to require submitting a home page that is but a “door” to large amounts of information elsewhere on the Web Submitting a print-out of an entire Web site is unfeasible and unworkable. “19 Another problem being reported is the impossibility of “when” the advertisement will appear, including that of “where” will it appear. A Web site doesn’t really exist until someone pulls it up on their computer. It exists only on its “server” and appears only when accessed. Anyone in the world can access a Web page. This may present jurisdictional problems, as most states, in prohibiting attorneys from advertising in jurisdictions where they are not licensed to practice. Similarly, “when” an advertisement appears is also subject to when and until someone views it. It doesn’t actually appear, although one way to view it is that it is always appearing upon the server’s computer and that it can only be viewed upon accessing the server.20
These problems of regulating lawyer advertising on the internet could be alarming since it may allow rooms for attorneys to possibly abuse the act of advertising legal profession (business) thru the internet technology. Perhaps the Philippine Bar could start formulating feasible rules and regulations concerning such attorney advertising over internet.
Endnotes
- www.abanet.org/cpr/clt-devethicswhitepaper.html [↩]
- Ledesma vs. Climaco, 57 SCRA 473 [1974] [↩]
- Agpalo, Comments on the Code of Professional Responsibility and the Code of Judicial Conduct (p. 2, 2001 ed.), citing Phillips & McCoy, Conduct of Judges and Lawyers, (at 204, 1952 ed.) [↩]
- Ibid, p. 2, citing In re Tagorda, 53 Phil. 37 (1927) [↩]
- Agpalo, op. cit., p. 2 [↩]
- In re Tagorda, 53 Phil. 37 (1929) [↩]
- Supra, at p. 28. [↩]
- 223 SCRA 378 [1993] [↩]
- 74 Phil. 579 [1944] [↩]
- 409 SCRA 299 [2003] [↩]
- Supra, at p. 301. [↩]
- Supra, at p. 304 [↩]
- Citing 25 March 1996 issue of the National Law Journal [↩]
- Bates vs. State Bar of Arizona, 433 US 350 [1977] [↩]
- Ulep vs. The Legal Clinic, Inc., 223 SCRA 378 [1993] [↩]
- Rappaport, Jordan, “Attorney Advertising on the Internet”. http://osaka.faw.miami.edu/-froomkinJseminar/papers/rappaport.htm [↩]
- http://info.isoc.org/internet/ [↩]
- Rappaport, Jordan. “Attorney Advertising on the Internet, “op cit. [↩]
- Supra. http:/losaka.law. miami edu/-froomkin/seminar/papers/rappaport. htm [↩]
- Supra. [↩]
