ETHICAL ISSUES ON LAWYERING ARISING FROM THE COVID-

19 GLOBAL PANDEMIC

by: Christzabelle L. Villa

INTRODUCTION

Who would have thought that the year 2020 would bring about
probably the worst plot twist of our lives and most of us, if not all,
were caught off guard. It all started at the end of 2019 when an
outbreak of respiratory illness cases hit Wuhan City of Hubei
Province in China. It was initially reported to the World Health
Organization (WHO) on December 31, 2019. On January 30, 2020,
the WHO declared the COVID-19 outbreak a global health
emergency.1 On March 11, 2020, the WHO declared COVID-19 a
global pandemic.2 In view thereof, the President of the Philippines
Rodrigo R. Duterte in a recorded message aired in the evening of
March 16, 2020 placed the entire mainland of Luzon under enhanced
community quarantine (ECQ) in a bid to contain the spread of the
coronavirus.3 It was implemented throughout Luzon from March 17,
2020 until April 30, 2020, and remained in areas with a high risk of
infection until May 31, 2020. From then on, our lives changed forever.
Covid-19 changed life as we know it.

When some parts of Luzon were put under modified enhanced

community quarantine (MECQ) and general community quarantine
(GCQ) several restrictions such as going outside and opening up
restaurants were lifted. Businesses started to open up in a limited
capacity. Government agencies such as local government units and
the judicial courts continued their operations as usual. The normal
however never came back. Strict protocols are still implemented such
as social distancing, wearing of face masks and shield. Restaurants
put up protective barriers in between tables. Washing off of hands
and other hygienic measures thankfully became normal. Online
system of registrations were used. Contactless transactions are
preferred and encouraged. For some reason, some of us, myself
included, were somewhat hopeful and at the same time ridiculous to
think that 2021 might actually be better as what could be worse than
2020, right? And yet here we are, in the year 2021, having it actually
worse than last year. Several Covid-19 variants appearing here and
there. The Philippines has now extremely high number of cases being
recorded on a daily basis. Although vaccines may be arriving from
time to time, it is said that herd immunity may most likely be totally
achieved only by 2023. If true, then we are going to have to stick to
1
https://www.nytimes.com/2020/01/30/health/coronavirus-world-health-organization.html
2
https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-
covid-19---11-march-2020
3
https://www.rappler.com/nation/luzon-total-lockdown-battle-coronavirus-outbreak
the new normal trend that we practice ever since the start of the
pandemic for a longer while.

For the corporate world, the global pandemic has forced employers to
employ means to continue business operations remotely. According
to Steve Ranger on “Working from home: Cybersecurity tips for
remote workers”, one of the key measures to reduce the spread of
Coronavirus COVID-19 is social distancing, which for many
organizations means encouraging, or instructing, staff to work from
home. Thus, the work from home scheme has been employed by
most business establishment, government agencies or private
entities, and this also includes law firms or offices. For this reason,
difficulties in terms of accessing different services, including legal
services have surfaced.

As for the legal profession, the new normal has indeed brought
challenges to this profession as well. In his editorial note in the
Integrated Bar of the Philippines (IBP) Journal Volume 45, Issue No.
1, August 2020 re Special Issue on the Covid-19 Pandemic, The
Editor in Chief, Atty. Roan I. Libarios, said:

“With the upheaval also comes the birth of the so-called New
Normal. Amid the gripping pandemic, various sectors of
society, including the legal profession, soon learned to deal
with new safety restrictions and reinvent work and lifestyle.

Thus, online court hearings, online classes, Zoom meetings

and conferences, and work from home suddenly emerged as
the new norms. The digital media has surfaced as the safest
mode of communication in this COVID-19 era, upending over a
century of reliance on physical documents and face-to-face
encounters.

The solutions, however, also raise new problems. Lack of

access to stable internet connection and available digital
devices poses serious impediments to communication. Remote
working further slows court operations and government
transactions. Law schools struggle to hold online classes as a
lot of students and faculty find difficulties in adapting to online
learning. Lawyers who are new to the digital world fumble over
the use of software applications.

Indeed, the New Normal has brought new challenges. As the

number of infections and death toll continue to climb worldwide,
a definite end to the pandemic escapes the prediction of
scientists and health experts. The dark cloud of uncertainty
hovers over the horizon. And the New Normal may be here to
stay.
 To survive and stay relevant in a world gripped by a pandemic,
every lawyer, just like the rest of society, must retool and adapt,
and every legal institution must reinvent and reengineer. After
all, amid all the public health uncertainties, the government
must govern, the wheels of justice must turn, commerce must
grind, private conflicts must be managed, legal learning and
solutions must forge ahead.”4

As what’s been said, the legal profession have to adapt to the new
normal brought about by the Covid-19 health pandemic, and
continue to find ways and adopt new means to serve the public.
However, since nobody was prepared for this unexpected changes,
the legal profession, like most other professions, is still in the stage of
doing test runs on its new adopted measures. And because we are
now in a different era where face to face encounters and reliance on
physical documents are becoming uncommon, there might be some
ethical issues that could be arising from this arrangement and there is
a chance that it might get overlooked. Thus, there is a need to revisit
the Code of Professional Responsibility to make sure that lawyers are
not violating the same while adapting to the new normal.

PROBLEM DISCUSSION

Since last year, our lawyers have started to change its methods of
providing its services such as giving legal advise or legal counseling
because this process involves a close-contact, face-to-face
discussion between the lawyer and the client, which is not
encouraged during this time, taking into consideration the health risk
one might bring or pass to another. Luckily for us, we live in a
technological era. Thus, thru the use of different technology, law
organizations from around the country were able to open up and
provide online legal consultations.

In the legal office where I work, we have adapted a contactless

measure where we could still provide free legal consultations thru
technological means. This way, clients don’t have to risk themselves
from having to commute from their homes to our offices, and talk
face-to-face with the staff and the lawyers, and likewise, the lawyers
won’t have to risk talking face-to-face with the clients, plus it can be
done from their homes as well. Our offices opened up its first e-legal
advice facebook page where the public could send us their legal
related concerns, problems, and situations, to which, our lawyers are
tasked to respond within a reasonable period of time. This doesn’t
only promote contactless transactions, but it also provided our office
with an organized system where all the questions asked and answers
4
Editor’s Note, Integrated Bar of the Philippines (IBP) Journal Volume 45, Issue No. 1, August 2020 re Special Issue on
the Covid-19 Pandemic, pp vii-viii
given are being kept in record, and all the names of persons seeking
advise are recorded. This way, the tracking and archiving became
easier.

Through this new means being employed by the legal profession to

adapt to the new normal brought about by the covid-19 health
pandemic, there is a chance that ethical violations are also being
committed, knowingly or unknowingly. That while these technological
methods sounds very systematic and efficient, privacy and security
issues are still and more likely to arise. Take for instance the use of
the internet. Due to the nature of the transactions done through the
internet, privacy concerns is almost always likely to arise. The
internet is a whole lot different world, while it could be very effective, it
also carries with it dangers in terms of privacy and security.
According to Chris Johnson in his article entitled Leveraging
Technology to Deliver Legal Services, even the most robust privacy
policy, is likely to fall short of the privacy offered by a traditional
lawyer-client relationship. The attorney-client privilege prevents the
compelled disclosure of confidential attorney-client communications
as a legal rule, not as a practical convenience. By contrast,
communications made through these websites are almost certainly
discoverable material. Privacy policies would not prevent a third party
from compelling the online legal service company to disclose the user
information it collects — the attorney-client privilege does not apply,
as communications are not made to an attorney or made in relation to
a retained attorney’s services. Regardless, the growth of the online
legal services industry suggests that clients are willing to sacrifice
some degree of privacy in order to reduce the costs of legal services. 5
This, however, should not be used as an excuse or as a defense
against violations of the attorney-client privilege.

Aside from internet data security issues, other ethical issues might
likewise arise such as unauthorized practice of law, conflict of
interest, and the confidentiality clause. Canon 9 of the Code of
Professional Responsibility provides that a lawyer shall not, directly or
indirectly, assist in the unauthorized practice of law. Unauthorized
practice of law is committed when a person not a lawyer, perform
acts which are exclusive to members of the bar. (Pineda, 2009) 6

Because some lawyers now prefer, or are forced to work from home,
it cannot be denied that some work loads are being assigned to their
secretaries or their under bar associates. The difficulty of traveling
from one place to another have caused some lawyers to seek help
from their lawyer friends, and sometimes from non-lawyer associates.
Thus, there is the danger of assigning tasks to non-lawyers which
5
Leveraging Technology to Deliver Legal Services by Chris Johnson
http://jolt.law.harvard.edu/articles/pdf/v23/23HarvJLTech259.pdf
6
UST Golden Notes, Legal and Judicial Ethics, 2018, pp. 49
legally should be done by a practicing lawyer. While a lawyer may
delegate tasks to clerks, secretaries, and other lay persons, the same
is proper only if the lawyer maintains a direct relationship with the
client, supervises the delegated work, and has complete professional
responsibility for the work product. This delegation enables a lawyer
to render legal service more economically and efficiently. 7

Addressing this issue, the New York City Bar Association cautions
that lawyers who retain outsourced providers must remain at the helm
of the representation. To avoid aiding the unauthorized practice of
law, the lawyer must at every step shoulder complete responsibility
for the non-lawyer’s work. In short, the lawyer must, by applying
professional skill and judgment, first set the appropriate scope for the
non-lawyer’s work and then vet the non-lawyer’s work and ensure its
quality.8

Another issue is the issue on conflicting interests. Rule 15.03 of

Canon 15 of the Code of Professional Responsibility provides that a
lawyer shall not represent conflicting interests except by written
consent of all concerned given after a full disclosure of the facts. This
issue could also arise when lawyers outsource non-lawyers or assign
tasks to their non-lawyers staff because the aforementioned provision
against conflict of interest applies to the lawyers and not their staff.
Thus, while lawyers must strictly adhere to this rule, they should
likewise make sure that the personnel working for them should
likewise adhere to the same and avoid working or transacting with the
adversaries of the lawyers’ client. Maintaining a system where
records of clients are being kept safe and secured.

And lastly, the issue on confidentiality or the so-called attorney-client

privilege. This rule is specifically provided under Canon 21 of the
Code of Professional Responsibility which provides that a lawyer
shall preserve the confidence and secrets of his client even after the
attorney-client relation is terminated. The attorney-client privilege
prohibits a lawyer from disclosing, without the consent of his client,
information learned in confidence from the latter. 9

As mentioned earlier, the internet is a whole lot different world, while

it could be very effective, it also carries with it dangers in terms of
privacy and security. Now that most of our transactions are being
done with the help of the internet, the scope of information and data
of a client subject to protection covered by the attorney-client
privilege now also includes those which are received virtually. Data
security is a serious ethical concern when working remotely during
7
Formal Opinion 2006-3: Outsourcing Legal Support Services Overseas, Avoiding Aiding a Non-Lawyer in the
Unauthorized Practice of Law, Supervision of Non-Lawyers, Competent Representation, Preserving Client Confidences
and Secrets, Conflicts Checking, Appropriate Billing, Client Consent, August 01, 2006
8
Ibid.
9
http://ateneolawjournal.com/Media/uploads/bd2e656094c1f9da74e5993ee77a3747.pdf
the covid-19 pandemic. During this time it is imperative that law firms
and companies institute cybersecurity measures to protect
confidential and sensitive client and business information.

CONCLUSION

Whether we like it or not, the Covid-19 Health Pandemic brought

about changes to most professions, including the legal profession.
Thus, it is about time for law firms and organizations of this country to
adapt to the fast changing methods of providing legal services.
However, as a matter of public policy and in the interest of the client,
this new methods that the legal profession will adopt should still be in
touch with the legal orders, especially the Canon of Professional
Responsibility, and other ethical standards set forth by the law. The
trust and confidence reposed by the public to the legal profession
should as much as practicable be considered with the highest regard.

While finding other means of efficiently providing legal services, legal

practitioners should not forget to also loop in and take into the
consideration the provisions provided by our laws specifically
regarding the ethical issues which may arise because although the
new normal is not quite normal yet, this cannot be used as an excuse
to violate the ethical provisions of the law.

RECOMMENDATIONS

The legal profession should continue to provide more accessible

means of providing legal services to the public, especially to those
who are from remote areas. The legal profession is so imbued with
public interest that it should always be easily accessible to
everybody. Now that the pandemic has shifted our ways of living, we
should improve the methods used in providing legal services.
However, while doing so, the legal profession should keep in touch
with the limitations and restrictions provided under our laws,
specifically the Code of Professional Responsibility to still protect,
under whatever circumstances, the interests of the public, and to
deliver justice to our constituents.

It is therefore recommended that all legal practitioners should

rigorously supervise the operations in their offices so as to avoid
aiding the non-lawyer in the unauthorized practice of law and to
preserve the client’s confidences and secrets at all cost. Reasonable
steps must be taken to always maintain client confidentiality
especially while working from home. The changes brought abought
by the pandemic are really challenging and it is up to us how to
properly cope with it without putting the interests of the clients at
stake.