Professional Documents
Culture Documents
Today, the study of corporate law practice Also, the nature of the lawyer's
direly needs a "shot in the arm," so to participation in decision-making within
speak. No longer are we talking of the the corporation is rapidly changing. The
traditional law teaching method of modem corporate lawyer has gained a
confining the subject study to the new role as a stakeholder in some
Corporation Code and the Securities Code cases participating in the organization
but an incursion as well into the and operations of governance through
intertwining modern management issues. participation on boards and other
decision-making roles. Often these new
Such corporate legal management issues patterns develop alongside existing legal
deal primarily with three (3) types of institutions and laws are perceived as
learning: (1) acquisition of insights into barriers. These trends are complicated as
current advances which are of particular corporations organize for global
significance to the corporate counsel; (2) operations. ( Emphasis supplied)
an introduction to usable disciplinary
skins applicable to a corporate counsel's The practising lawyer of today is familiar
management responsibilities; and (3) a as well with governmental policies toward
devotion to the organization and the promotion and management of
management of the legal function itself. technology. New collaborative
arrangements for promoting specific
These three subject areas may be thought technologies or competitiveness more
of as intersecting circles, with a shared generally require approaches from
area linking them. Otherwise known as industry that differ from older, more
"intersecting managerial jurisprudence," it adversarial relationships and traditional
forms a unifying theme for the corporate forms of seeking to influence
counsel's total learning. governmental policies. And there are
lessons to be learned from other countries.
Some current advances in behavior and In Europe, Esprit, Eureka and Race are
policy sciences affect the counsel's role. examples of collaborative efforts between
For that matter, the corporate lawyer governmental and business
reviews the globalization process, Japan's MITI is world famous. (Emphasis
including the resulting strategic supplied)
repositioning that the firms he provides
counsel for are required to make, and the Following the concept of boundary
need to think about a corporation's; spanning, the office of the Corporate
strategy at multiple levels. The salience of Counsel comprises a distinct group within
the nation-state is being reduced as firms the managerial structure of all kinds of
deal both with global multinational organizations. Effectiveness of both long-
entities and simultaneously with sub- term and temporary groups within
national governmental units. Firms organizations has been found to be related
increasingly collaborate not only with to indentifiable factors in the group-
public entities but with each other often context interaction such as the groups
actively revising their knowledge of the
environment coordinating work with Third Modeling for Negotiation
outsiders, promoting team achievements Management. Computer-based models can
within the organization. In general, such be used directly by parties and mediators
external activities are better predictors of in all lands of negotiations. All integrated
team performance than internal group set of such tools provide coherent and
processes. effective negotiation support, including
hands-on on instruction in these
In a crisis situation, the legal managerial techniques. A simulation case of an
capabilities of the corporate lawyer vis-a- international joint venture may be used to
vis the managerial mettle of corporations illustrate the point.
are challenged. Current research is
seeking ways both to anticipate effective [Be this as it may,] the organization and
managerial procedures and to understand management of the legal function, concern
relationships of financial liability and three pointed areas of consideration, thus:
insurance considerations. (Emphasis
supplied) Preventive Lawyering. Planning by
lawyers requires special skills that
Regarding the skills to apply by the comprise a major part of the general
corporate counsel, three factors counsel's responsibilities. They differ from
are apropos: those of remedial law. Preventive
lawyering is concerned with minimizing
First System Dynamics. The field of the risks of legal trouble and maximizing
systems dynamics has been found an legal rights for such legal entities at that
effective tool for new managerial thinking time when transactional or similar facts
regarding both planning and pressing are being considered and made.
immediate problems. An understanding of
the role of feedback loops, inventory Managerial Jurisprudence. This is the
levels, and rates of flow, enable users to framework within which are undertaken
simulate all sorts of systematic problems those activities of the firm to which legal
physical, economic, managerial, social, consequences attach. It needs to be
and psychological. New programming directly supportive of this nation's
techniques now make the system dynamics evolving economic and organizational
principles more accessible to managers fabric as firms change to stay competitive
including corporate counsels. (Emphasis in a global, interdependent environment.
supplied) The practice and theory of "law" is not
adequate today to facilitate the
Second Decision Analysis. This enables relationships needed in trying to make a
users to make better decisions involving global economy work.
complexity and uncertainty. In the context
of a law department, it can be used to Organization and Functioning of the
appraise the settlement value of litigation, Corporate Counsel's Office. The general
aid in negotiation settlement, and counsel has emerged in the last decade as
minimize the cost and risk involved in one of the most vibrant subsets of the
managing a portfolio of cases. (Emphasis legal profession. The corporate counsel
supplied) hear responsibility for key aspects of the
firm's strategic issues, including
structuring its global operations, managing possess the required qualification of
improved relationships with an having been engaged in the practice of
increasingly diversified body of law for at least ten years.
employees, managing expanded liability
exposure, creating new and varied On June 5, 1991, the Commission on
interactions with public decision-makers, Appointments confirmed the nomination
coping internally with more complex of Monsod as Chairman of the
make or by decisions. COMELEC. On June 18, 1991, he took
his oath of office. On the same day, he
This whole exercise drives home the assumed office as Chairman of the
thesis that knowing corporate law is not COMELEC.
enough to make one a good general
corporate counsel nor to give him a full Challenging the validity of the
sense of how the legal system shapes confirmation by the Commission on
corporate activities. And even if the Appointments of Monsod's nomination,
corporate lawyer's aim is not the petitioner as a citizen and taxpayer, filed
understand all of the law's effects on the instant petition for certiorari and
corporate activities, he must, at the very Prohibition praying that said confirmation
least, also gain a working knowledge of and the consequent appointment of
the management issues if only to be able Monsod as Chairman of the Commission
to grasp not only the basic legal on Elections be declared null and void.
"constitution' or makeup of the modem
corporation. "Business Star", "The Atty. Christian Monsod is a member of the
Corporate Counsel," April 10, 1991, p. 4). Philippine Bar, having passed the bar
examinations of 1960 with a grade of 86-
The challenge for lawyers (both of the bar 55%. He has been a dues paying member
and the bench) is to have more than a of the Integrated Bar of the Philippines
passing knowledge of financial law since its inception in 1972-73. He has also
affecting each aspect of their work. Yet, been paying his professional license fees
many would admit to ignorance of vast as lawyer for more than ten years. (p. 124,
tracts of the financial law territory. What Rollo)
transpires next is a dilemma of
professional security: Will the lawyer After graduating from the College of Law
admit ignorance and risk opprobrium?; or (U.P.) and having hurdled the bar, Atty.
will he feign understanding and risk Monsod worked in the law office of his
exposure? (Business Star, "Corporate father. During his stint in the World Bank
Finance law," Jan. 11, 1989, p. 4). Group (1963-1970), Monsod worked as
an operations officer for about two years
Respondent Christian Monsod was in Costa Rica and Panama, which
nominated by President Corazon C. involved getting acquainted with the laws
Aquino to the position of Chairman of the of member-countries negotiating loans
COMELEC in a letter received by the and coordinating legal, economic, and
Secretariat of the Commission on project work of the Bank. Upon returning
Appointments on April 25, 1991. to the Philippines in 1970, he worked with
Petitioner opposed the nomination the Meralco Group, served as chief
because allegedly Monsod does not executive officer of an investment bank
and subsequently of a business officer (such as the legal counsel), the
conglomerate, and since 1986, has finance manager, and an operations
rendered services to various companies as officer (such as an official involved in
a legal and economic consultant or chief negotiating the contracts) who comprise
executive officer. As former Secretary- the members of the team. (Guillermo V.
General (1986) and National Chairman Soliven, "Loan Negotiating Strategies for
(1987) of NAMFREL. Monsod's work Developing Country Borrowers," Staff
involved being knowledgeable in election Paper No. 2, Central Bank of the
law. He appeared for NAMFREL in its Philippines, Manila, 1982, p. 11).
accreditation hearings before the (Emphasis supplied)
Comelec. In the field of advocacy,
Monsod, in his personal capacity and as After a fashion, the loan agreement is like
former Co-Chairman of the Bishops a country's Constitution; it lays down the
Businessmen's Conference for Human law as far as the loan transaction is
Development, has worked with the under concerned. Thus, the meat of any Loan
privileged sectors, such as the farmer and Agreement can be compartmentalized into
urban poor groups, in initiating, lobbying five (5) fundamental parts: (1) business
for and engaging in affirmative action for terms; (2) borrower's representation; (3)
the agrarian reform law and lately the conditions of closing; (4) covenants; and
urban land reform bill. Monsod also made (5) events of default. (Ibid., p. 13).
use of his legal knowledge as a member of
the Davide Commission, a quast judicial In the same vein, lawyers play an
body, which conducted numerous hearings important role in any debt restructuring
(1990) and as a member of the program. For aside from performing the
Constitutional Commission (1986-1987), tasks of legislative drafting and legal
and Chairman of its Committee on advising, they score national development
Accountability of Public Officers, for policies as key factors in maintaining their
which he was cited by the President of the countries' sovereignty. (Condensed from
Commission, Justice Cecilia Muoz- the work paper, entitled "Wanted:
Palma for "innumerable amendments to Development Lawyers for Developing
reconcile government functions with Nations," submitted by L. Michael Hager,
individual freedoms and public regional legal adviser of the United States
accountability and the party-list system Agency for International Development,
for the House of Representative. (pp. 128- during the Session on Law for the
129 Rollo) ( Emphasis supplied) Development of Nations at the Abidjan
World Conference in Ivory Coast,
Just a word about the work of a sponsored by the World Peace Through
negotiating team of which Atty. Monsod Law Center on August 26-31, 1973).
used to be a member. ( Emphasis supplied)
The Chairman and the Commisioners shall Justice Cruz goes on to say in substance
be appointed by the President with the that since the law covers almost all
consent of the Commission on situations, most individuals, in making use
Appointments for a term of seven years of the law, or in advising others on what
without reappointment. Of those first the law means, are actually practicing law.
appointed, three Members shall hold In that sense, perhaps, but we should not
office for seven years, two Members for lose sight of the fact that Mr. Monsod is a
five years, and the last Members for three lawyer, a member of the Philippine Bar,
years, without reappointment. who has been practising law for over ten
Appointment to any vacancy shall be only years. This is different from the acts of
for the unexpired term of the predecessor. persons practising law, without first
In no case shall any Member be appointed becoming lawyers.
or designated in a temporary or acting
capacity. Justice Cruz also says that the Supreme
Court can even disqualify an elected
President of the Philippines, say, on the (2) In the same vein, may the
ground that he lacks one or more Court reject the nominee, whom the
qualifications. This matter, I greatly doubt. Commission has confirmed? The answer
For one thing, how can an action or is likewise clear.
petition be brought against the President?
And even assuming that he is indeed (3) If the United States Senate (which is
disqualified, how can the action be the confirming body in the U.S. Congress)
entertained since he is the incumbent decides to confirma Presidential nominee,
President? it would be incredible that the U.S.
Supreme Court would still reverse the
We now proceed: U.S. Senate.
The Commission on the basis of evidence Finally, one significant legal maxim is:
submitted doling the public hearings on
Monsod's confirmation, implicitly We must interpret not by the letter that
determined that he possessed the killeth, but by the spirit that giveth life.
necessary qualifications as required by
law. The judgment rendered by the Take this hypothetical case of Samson and
Commission in the exercise of such an Delilah. Once, the procurator of Judea
acknowledged power is beyond judicial asked Delilah (who was Samson's
interference except only upon a clear beloved) for help in capturing Samson.
showing of a grave abuse of discretion Delilah agreed on condition that
amounting to lack or excess of
jurisdiction. (Art. VIII, Sec. 1 No blade shall touch his skin;
Constitution). Thus, only where such
grave abuse of discretion is clearly shown No blood shall flow from his veins.
shall the Court interfere with the
Commission's judgment. In the instant When Samson (his long hair cut by
case, there is no occasion for the exercise Delilah) was captured, the procurator
of the Court's corrective power, since no placed an iron rod burning white-hot two
abuse, much less a grave abuse of or three inches away from in front of
discretion, that would amount to lack or Samson's eyes. This blinded the man.
excess of jurisdiction and would warrant Upon hearing of what had happened to her
the issuance of the writs prayed, for has beloved, Delilah was beside herself with
been clearly shown. anger, and fuming with righteous fury,
accused the procurator of reneging on his
Additionally, consider the following: word. The procurator calmly replied: "Did
any blade touch his skin? Did any blood
(1) If the Commission on flow from his veins?" The procurator was
Appointments rejects a nominee by the clearly relying on the letter, not the spirit
President, may the Supreme Court reverse of the agreement.
the Commission, and thus in
effect confirm the appointment? Clearly, In view of the foregoing, this petition is
the answer is in the negative. hereby DISMISSED.
SO ORDERED.
Fernan, C.J., Grio-Aquino and The records of this case will show that
Medialdea, JJ., concur. when the Court first deliberated on the
Petition at bar, I voted not only to require
Feliciano, J., I certify that he voted to the respondents to comment on the
dismiss the petition. (Fernan, C.J.) Petition, but I was the sole vote for the
issuance of a temporary restraining order
Sarmiento, J., is on leave. to enjoin respondent Monsod from
assuming the position of COMELEC
Regalado, and Davide, Jr., J., took no Chairman, while the Court deliberated on
part. his constitutional qualification for the
office. My purpose in voting for a TRO
was to prevent the inconvenience and
even embarrassment to all parties
concerned were the Court to finally decide
for respondent Monsod's disqualification.
Moreover, a reading of the Petition then in
relation to established jurisprudence
Separate Opinions already showed prima facie that
respondent Monsod did not possess the
needed qualification, that is, he had not
engaged in the practice of law for at least
NARVASA, J., concurring: ten (10) years prior to his appointment as
COMELEC Chairman.
I concur with the decision of the majority
written by Mr. Justice Paras, albeit only in After considering carefully respondent
the result; it does not appear to me that Monsod's comment, I am even more
there has been an adequate showing that convinced that the constitutional
the challenged determination by the requirement of "practice of law for at
Commission on Appointments-that the least ten (10) years" has not been met.
appointment of respondent Monsod as
Chairman of the Commission on Elections The procedural barriers interposed by
should, on the basis of his stated respondents deserve scant consideration
qualifications and after due assessment because, ultimately, the core issue to be
thereof, be confirmed-was attended by resolved in this petition is the proper
error so gross as to amount to grave abuse construal of the constitutional provision
of discretion and consequently merits requiring a majority of the membership of
nullification by this Court in accordance COMELEC, including the Chairman
with the second paragraph of Section 1, thereof to "have been engaged in the
Article VIII of the Constitution. I practice of law for at least ten (10) years."
therefore vote to DENY the petition. (Art. IX(C), Section 1(1), 1987
Constitution). Questions involving the
construction of constitutional provisions
are best left to judicial resolution. As
PADILLA, J., dissenting: declared in Angara v. Electoral
Commission, (63 Phil. 139) "upon the
judicial department is thrown the solemn
and inescapable obligation of interpreting Cotner, 127, p. 1, 87 Kan. 864, 42 LRA,
the Constitution and defining M.S. 768). Practice of law to fall within
constitutional boundaries." the prohibition of statute has been
interpreted as customarily or habitually
The Constitution has imposed clear and holding one's self out to the public as a
specific standards for a COMELEC lawyer and demanding payment for such
Chairman. Among these are that he must services (State vs. Bryan, 4 S.E. 522, 98
have been "engaged in the practice of law N.C. 644,647.) ... (emphasis supplied).
for at least ten (10) years." It is the
bounden duty of this Court to ensure that It is worth mentioning that the respondent
such standard is met and complied with. Commission on Appointments in a
Memorandum it prepared, enumerated
What constitutes practice of law? As several factors determinative of whether a
commonly understood, "practice" refers to particular activity constitutes "practice of
the actual performance or application of law." It states:
knowledge as distinguished from mere
possession of knowledge; it connotes 1. Habituality. The term "practice of law"
an active, habitual,repeated or customary implies customarily or habitually holding
action. 1 To "practice" law, or any one's self out to the public as a lawyer
profession for that matter, means, to (People vs. Villanueva, 14 SCRA 109
exercise or pursue an employment or citing State v. Boyen, 4 S.E. 522, 98 N.C.
profession actively, habitually, 644) such as when one sends a circular
repeatedly or customarily. announcing the establishment of a law
office for the general practice of law (U.S.
Therefore, a doctor of medicine who is v. Ney Bosque, 8 Phil. 146), or when one
employed and is habitually performing the takes the oath of office as a lawyer before
tasks of a nursing aide, cannot be said to a notary public, and files a manifestation
be in the "practice of medicine." A with the Supreme Court informing it of
certified public accountant who works as a his intention to practice law in all courts in
clerk, cannot be said to practice his the country (People v. De Luna, 102 Phil.
profession as an accountant. In the same 968).
way, a lawyer who is employed as a
business executive or a corporate Practice is more than an isolated
manager, other than as head or attorney of appearance for it consists in frequent or
a Legal Department of a corporation or a customary action, a succession of acts of
governmental agency, cannot be said to be the same kind. In other words, it is a
in the practice of law. habitual exercise (People v. Villanueva, 14
SCRA 109 citing State v. Cotner, 127, p.
As aptly held by this Court in the case 1, 87 Kan, 864).
of People vs. Villanueva: 2
2. Compensation. Practice of law implies
Practice is more than an isolated that one must have presented himself to be
appearance for it consists in frequent or in the active and continued practice of the
customary actions, a succession of acts of legal profession and that his professional
the same kind. In other words, it is services are available to the public for
frequent habitual exercise (State vs- compensation, as a service of his
livelihood or in consideration of his said The following relevant questions may be
services. (People v. Villanueva, supra). asked:
Hence, charging for services such as
preparation of documents involving the 1. Did respondent Monsod perform any of
use of legal knowledge and skill is within the tasks which are peculiar to the practice
the term "practice of law" (Ernani Pao, of law?
Bar Reviewer in Legal and Judicial Ethics,
1988 ed., p. 8 citing People v. People's 2. Did respondent perform such tasks
Stockyards State Bank, 176 N.B. 901) customarily or habitually?
and, one who renders an opinion as to the
proper interpretation of a statute, and 3. Assuming that he performed any of
receives pay for it, is to that extent, such tasks habitually, did he do so
practicing law (Martin, supra, p. 806 HABITUALLY FOR AT LEAST TEN
citing Mendelaun v. Gilbert and Barket (10) YEARS prior to his appointment as
Mfg. Co., 290 N.Y.S. 462) If COMELEC Chairman?
compensation is expected, all advice to
clients and all action taken for them in Given the employment or job history of
matters connected with the law; are respondent Monsod as appears from the
practicing law. (Elwood Fitchette et al., v. records, I am persuaded that if ever he did
Arthur C. Taylor, 94A-L.R. 356-359) perform any of the tasks which constitute
the practice of law, he did not do so
3. Application of law legal principle HABITUALLY for at least ten (10)
practice or procedure which calls for legal years prior to his appointment as
knowledge, training and experience is COMELEC Chairman.
within the term "practice of law".
(Martin supra) While it may be granted that he performed
tasks and activities which could be
4. Attorney-client relationship. Engaging latitudinarianly considered activities
in the practice of law presupposes the peculiar to the practice of law, like the
existence of lawyer-client relationship. drafting of legal documents and the
Hence, where a lawyer undertakes an rendering of legal opinion or advice, such
activity which requires knowledge of law were isolated transactions or activities
but involves no attorney-client which do not qualify his past endeavors as
relationship, such as teaching law or "practice of law." To become engaged in
writing law books or articles, he cannot be the practice of law, there must be
said to be engaged in the practice of his a continuity, or a succession of acts. As
profession or a lawyer (Agpalo, Legal observed by the Solicitor General
Ethics, 1989 ed., p. 30). 3 in People vs. Villanueva: 4
Inspite of my high regard for Mr. Monsod, I agree with the petitioner that based on
I cannot shirk my constitutional duty. He the bio-data submitted by respondent
has never engaged in the practice of law Monsod to the Commission on
for even one year. He is a member of the Appointments, the latter has not been
bar but to say that he has practiced law is engaged in the practice of law for at least
stretching the term beyond rational limits. ten years. In fact, if appears that Mr.
Monsod has never practiced law except
A person may have passed the bar for an alleged one year period after
examinations. But if he has not dedicated passing the bar examinations when he
his life to the law, if he has not engaged in worked in his father's law firm. Even then
an activity where membership in the bar is his law practice must have been extremely
a requirement I fail to see how he can limited because he was also working for
claim to have been engaged in the practice M.A. and Ph. D. degrees in Economics at
of law. the University of Pennsylvania during that
period. How could he practice law in the
Engaging in the practice of law is a United States while not a member of the
qualification not only for COMELEC Bar there?
chairman but also for appointment to the
Supreme Court and all lower courts. What The professional life of the respondent
kind of Judges or Justices will we have if follows:
there main occupation is selling real
1.15.1. Respondent Monsod's activities d. Semirara Coal Corporation
since his passing the Bar examinations in
1961 consist of the following: e. CBL Timber Corporation
b. First Philippine Energy Corporation I regret that I cannot join in playing fast
and loose with a term, which even an
c. First Philippine Holdings Corporation ordinary layman accepts as having a
familiar and customary well-defined
d. First Philippine Industrial Corporation meaning. Every resident of this country
who has reached the age of discernment
e. Graphic Atelier has to know, follow, or apply the law at
various times in his life. Legal knowledge
f. Manila Electric Company is useful if not necessary for the business
executive, legislator, mayor, barangay
g. Philippine Commercial Capital, Inc. captain, teacher, policeman, farmer,
fisherman, market vendor, and student to
h. Philippine Electric Corporation name only a few. And yet, can these
people honestly assert that as such, they
i. Tarlac Reforestation and Environment are engaged in the practice of law?
Enterprises
The Constitution requires having been
j. Tolong Aquaculture Corporation "engaged in the practice of law for at least
ten years." It is not satisfied with having
k. Visayan Aquaculture Corporation
been "a member of the Philippine bar for xxx xxx xxx
at least ten years."
Respondent's answers to questions
Some American courts have defined the propounded to him were rather evasive.
practice of law, as follows: He was asked whether or not he ever
prepared contracts for the parties in real-
The practice of law involves not only estate transactions where he was not the
appearance in court in connection with procuring agent. He answered: "Very
litigation but also services rendered out of seldom." In answer to the question as to
court, and it includes the giving of advice how many times he had prepared contracts
or the rendering of any services requiring for the parties during the twenty-one years
the use of legal skill or knowledge, such of his business, he said: "I have no Idea."
as preparing a will, contract or other When asked if it would be more than half
instrument, the legal effect of which, a dozen times his answer was I suppose.
under the facts and conditions involved, Asked if he did not recall making the
must be carefully determined.People ex statement to several parties that he had
rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. prepared contracts in a large number of
282, 77 N.E.2d 693; People ex rel. Illinois instances, he answered: "I don't recall
State Bar Ass'n v. People's Stock Yards exactly what was said." When asked if he
State Bank, 344 Ill. 462,176 N.E. 901, and did not remember saying that he had made
cases cited. a practice of preparing deeds, mortgages
and contracts and charging a fee to the
It would be difficult, if not impossible to parties therefor in instances where he was
lay down a formula or definition of what not the broker in the deal, he answered:
constitutes the practice of law. "Practicing "Well, I don't believe so, that is not a
law" has been defined as "Practicing as an practice." Pressed further for an answer as
attorney or counselor at law according to to his practice in preparing contracts and
the laws and customs of our courts, is the deeds for parties where he was not the
giving of advice or rendition of any sort of broker, he finally answered: "I have done
service by any person, firm or corporation about everything that is on the books as
when the giving of such advice or far as real estate is concerned."
rendition of such service requires the use
of any degree of legal knowledge or skill." xxx xxx xxx
Without adopting that definition, we
referred to it as being substantially correct Respondent takes the position that
in People ex rel. Illinois State Bar Ass'n v. because he is a real-estate broker he has a
People's Stock Yards State Bank, 344 Ill. lawful right to do any legal work in
462,176 N.E. 901. (People v. Schafer, 87 connection with real-estate transactions,
N.E. 2d 773, 776) especially in drawing of real-estate
contracts, deeds, mortgages, notes and the
For one's actions to come within the like. There is no doubt but that he has
purview of practice of law they should not engaged in these practices over the years
only be activities peculiar to the work of a and has charged for his services in that
lawyer, they should also be performed, connection. ... (People v. Schafer, 87 N.E.
habitually, frequently or customarily, to 2d 773)
wit:
xxx xxx xxx ... Practice is more than an isolated
appearance, for it consists in frequent or
... An attorney, in the most general sense, customary actions, a succession of acts of
is a person designated or employed by the same kind. In other words, it is
another to act in his stead; an agent; more frequent habitual exercise (State v. Cotner,
especially, one of a class of persons 127, p. 1, 87 Kan. 864, 42 LRA, M.S.
authorized to appear and act for suitors or 768). Practice of law to fall within the
defendants in legal proceedings. Strictly, prohibition of statute has been interpreted
these professional persons are attorneys at as customarily or habitually holding one's
law, and non-professional agents are self out to the public, as a lawyer and
properly styled "attorney's in fact;" but the demanding payment for such services. ... .
single word is much used as meaning an (at p. 112)
attorney at law. A person may be an
attorney in facto for another, without It is to be noted that the Commission on
being an attorney at law. Abb. Law Dict. Appointment itself
"Attorney." A public attorney, or attorney recognizes habituality as a required
at law, says Webster, is an officer of a component of the meaning of practice of
court of law, legally qualified to prosecute law in a Memorandum prepared and
and defend actions in such court on issued by it, to wit:
the retainerof clients. "The principal
duties of an attorney are (1) to be true to l. Habituality. The term 'practice of law'
the court and to his client; (2) to manage implies customarilyor habitually holding
the business of his client with care, skill, one's self out to the public as a lawyer
and integrity; (3) to keep his client (People v. Villanueva, 14 SCRA 109
informed as to the state of his business; citing State v. Bryan, 4 S.E. 522, 98 N.C.
(4) to keep his secrets confided to him as 644) such as when one sends a circular
such. ... His rights are to be justly announcing the establishment of a law
compensated for his services." Bouv. Law office for the general practice of law (U.S.
Dict. tit. "Attorney." The transitive verb v. Noy Bosque, 8 Phil. 146), or when one
"practice," as defined by Webster, means takes the oath of office as a lawyer before
'to do or perform frequently, customarily, a notary public, and files a manifestation
or habitually; to perform by a succession with the Supreme Court informing it of
of acts, as, to practice gaming, ... to carry his intention to practice law in all courts in
on in practice, or repeated action; to the country (People v. De Luna, 102 Phil.
apply, as a theory, to real life; to exercise, 968).
as a profession, trade, art. etc.; as, to
practice law or medicine,' etc...." (State v. Practice is more than an isolated
Bryan, S.E. 522, 523; Emphasis supplied) appearance, for it consists in frequent or
customary action, a succession of acts of
In this jurisdiction, we have ruled that the the same kind. In other words, it is a
practice of law denotes frequency or a habitual exercise (People v. Villanueva, 14
succession of acts. Thus, we stated in the SCRA 1 09 citing State v. Cotner, 1 27, p.
case of People v. Villanueva (14 SCRA 1, 87 Kan, 864)." (Rollo, p. 115)
109 [1965]):
xxx xxx xxx
xxx xxx xxx
While the career as a businessman of of respondent Monsod as Chairman of the
respondent Monsod may have profited COMELEC.
from his legal knowledge, the use of such
legal knowledge is incidental and consists I vote to GRANT the petition.
of isolated activities which do not fall
under the denomination of practice of law. Bidin, J., dissent
Admission to the practice of law was not
required for membership in the
Constitutional Commission or in the Fact-
Finding Commission on the 1989 Coup Republic of the Philippines
Attempt. Any specific legal activities SUPREME COURT
which may have been assigned to Mr. Manila
Monsod while a member may be likened
to isolated transactions of foreign EN BANC
corporations in the Philippines which do
not categorize the foreign corporations as
doing business in the Philippines. As in
the practice of law, doing business also G.R. No. L-38974 March 25, 1975
should be active and continuous. Isolated
business transactions or occasional, OMICO MINING AND INDUSTRIAL
incidental and casual transactions are not CORPORATION and FREDERICK G.
within the context of doing business. This WEBBER, petitioners,
was our ruling in the case of Antam vs.
Consolidated, Inc. v. Court of JUDGE AMADOR T. VALLEJOS, in
appeals, 143 SCRA 288 [1986]). his capacity as Judge of the Court of
First Instance of Cavite, ALFREDO
Respondent Monsod, corporate executive, CATOLICO, and LEONARDO
civic leader, and member of the ALCID, in his capacity as City Sheriff
Constitutional Commission may possess of Manila, respondents.
the background, competence, integrity,
and dedication, to qualify for such high Pio R. Marcos, Guillermo B. Bangonill &
offices as President, Vice-President, Jose P. Perez for petitioners.
Senator, Congressman or Governor but the
Constitution in prescribing the specific Jose S. Lu for respondent Alfredo
qualification of having engaged in the Catolico.
practice of law for at least ten (10) years
for the position of COMELEC Chairman
has ordered that he may not be confirmed
for that office. The Constitution charges ANTONIO, J.:+.wph!1
the public respondents no less than this
Court to obey its mandate. Original petition for certiorari and
prohibition with writ of preliminary
I, therefore, believe that the Commission injunction to set aside the orders and
on Appointments committed grave abuse judgment rendered by respondent Judge in
of discretion in confirming the nomination Civil Case No. N-1963 (Alfredo Catolico
v. Omico Mining and Industrial
Corporation, et al.) as having been made jointly and severally, promised to return
without or in excess of jurisdiction, or said certificates of stock upon the
with grave abuse of discretion. approval or disapproval of the loan
application; that when disapproval of said
I loan application appeared imminent, the
defendants again pleaded with him for the
FACTS retention of the same ten (10) certificates
of stock because they were negotiating for
On June 1, 1973, Alfredo Catolico (herein the purchase of the Bunning and Company
private respondent), then a judge of the of Tuguegarao for P2,000,000,00, and that
Court of First Instance of Cavite, filed they needed said certificates as part
with said court a complaint, docketed as collateral for the transaction; that when
Civil Case No. N-1963 and assigned to those two transactions failed, he
Branch II presided by respondent Judge demanded several times of the defendants
Amador T. Vallejos, against Omico for the return to him of the ten (10)
Mining and Industrial Corporation and certificates aforementioned so that he
Frederick G. Webber, the latter in his could use them, but said demands were of
personal capacity and as President and no avail; that in view of the failure of the
Chairman of the Board of Directors of defendants to comply with his demands,
said corporation, alleging two (2) causes he is forced to file the complaint seeking
of action. The first, for the return of ten the return to him of said ten (10)
(10) certificates of stock of the certificates of stock. Under the second
corporation borrowed from him by the cause of action, plaintiff after reproducing
defendants, and the second, for the the pertinent averments in the first cause
payment of his services as legal counsel of action, among which is the averment
for the corporation. Under the first cause that he is a judge of the Court of First
of action, plaintiff Catolico alleged among Instance of Cavite, further alleged that on
others that he is a resident of Cavite City October 13, 1968, both defendants entered
where he is a judge of the Court of First into a contract of personal and
Instance and stockholder of the defendant professional services with him under the
Omico Mining and Industrial Corporation terms of which he was to head defendant
holding thirty (30) certificates of stock corporation's legal department with the
duly paid up bearing Nos. 13437 to 13466, condition that he should render such
the same having been issued to him way services only after his office hours, "even
back in August, 1969; that defendant into the dead wee hours of the night and
corporation, through its co-defendant wherever such services would not run in
Frederick G. Webber, pleaded with him conflict with his duties as Judge"; that in
that ten (10) certificates of stock, Nos. consideration of such services, the
13437 to 13446, be allowed to remain defendants undertook to pay him a yearly
with them under their responsibility, salary of P35,000.00 from the date of the
jointly and severally, for the specific contract, but where a case shall have been
purpose of using said certificates as part settled in and out of court, and defendants
collateral for a loan in the amount of shall have won or saved money because of
P10,000,000.00, the defendants were then such settlement, he shall be paid by way
negotiating with the Development Bank of of commission ten percent (10%) of the
the Philippines, and that both defendants, amount involved in the litigation and/or
settlement; that, pursuant to said contract, improper venue, in that the case was filed
he has rendered legal services as head of in Cavite where plaintiff is not a resident,
the legal department of defendant Omico the truth being that he is a resident of
and has attended to the personal Quezon City where he has his permanent
consultation of defendant Frederick G. family home; and, as to the second cause
Webber until the filing of the complaint, of action, the contract of personal and
when, by reason thereof, their official professional services between plaintiff and
relations were severed; that the defendants defendants was entered into in the City of
should render the corresponding Manila, and, therefore, the case should
accounting of his unpaid commission and have been filed in Manila in accordance
salaries, taking into consideration the with Section I of Rule 4 of the Revised
partial payments and advances given to Rules of Court; and (2) lack of cause of
him as salary; that a more detailed action, in that with regard to the stock
specification of the services rendered by certificates the same are in the name of
him in favor of the defendants were made Vicente Resonda; and, with respect to the
in a letter to the defendants, mailed on contract of personal and professional
May 28, 1973 from his official residence services wherein it was agreed that the
in Cavite City; that the defendants refused plaintiff shall head the legal department of
and failed to render such accounting and defendant Omico Mining & Industrial
to pay his emoluments, in spite of his Corporation, the same is illegal, void and
repeated demands to that effect. Plaintiff, unenforceable, plaintiff being a judge of
therefore, prayed that, on the first cause of the Court of First Instance who is
action, defendants be ordered to return to prohibited by Section 35 of Rule 138 of
him the ten (10) certificates of stock, or, in the Revised Rules of Court from engaging
case the return thereof cannot be done, to in private practice as a member of the Bar.
issue in his favor the same number and The motion to dismiss contains the
amount of certificates of stock as following notice of hearing: t.hqw
replacement or to pay him the par value
thereof; and, on the second cause of The Clerk of Court
action, defendants be ordered to render the Court of First Instance of Cavite City
corresponding accounting of the amounts Branch II
due him in accordance with the averments
in the complaint, and to pay him the Greetings:
balance as reflected in the accounting as
approved by the court; to pay him moral, Please include the foregoing motion in the
exemplary, punitive and afflictive calendar of the Honorable Court on
damages, in such amounts as assessed by Saturday, June 16, 1973, and have the
the court; to pay him attorney's fees and same submitted for resolution without
costs; and to grant him such other reliefs further arguments on the part of the
available in the premises. 1 defendants.
Before proceeding with an in-depth The IBP would therefore invoke the
analysis of the merits of this case, we administrative supervision of this
deem it proper and enlightening to present Honorable Court to perpetually restrain
respondent from undertaking highly It thus becomes irrelevant whether
unethical activities in the field of law respondent is merely offering "legal
practice as aforedescribed. 4 support services" as claimed by it, or
whether it offers legal services as any
xxx xxx xxx lawyer actively engaged in law practice
does. And it becomes unnecessary to
A. The use of the name "The Legal Clinic, make a distinction between "legal
Inc." gives the impression that respondent services" and "legal support services," as
corporation is being operated by lawyers the respondent would have it. The
and that it renders legal services. advertisements in question leave no room
for doubt in the minds of the reading
While the respondent repeatedly denies public that legal services are being offered
that it offers legal services to the public, by lawyers, whether true or not.
the advertisements in question give the
impression that respondent is offering B. The advertisements in question are
legal services. The Petition in fact simply meant to induce the performance of acts
assumes this to be so, as earlier contrary to law, morals, public order and
mentioned, apparently because this (is) the public policy.
effect that the advertisements have on the
reading public. It may be conceded that, as the respondent
claims, the advertisements in question are
The impression created by the only meant to inform the general public of
advertisements in question can be traced, the services being offered by it. Said
first of all, to the very name being used by advertisements, however, emphasize to
respondent "The Legal Clinic, Inc." Guam divorce, and any law student ought
Such a name, it is respectfully submitted to know that under the Family Code, there
connotes the rendering of legal services is only one instance when a foreign
for legal problems, just like a medical divorce is recognized, and that is:
clinic connotes medical services for
medical problems. More importantly, the Article 26. . . .
term "Legal Clinic" connotes lawyers, as
the term medical clinic connotes doctors. Where a marriage between a Filipino
citizen and a foreigner is validly
Furthermore, the respondent's name, as celebrated and a divorce is thereafter
published in the advertisements subject of validly obtained abroad by the alien
the present case, appears with (the) spouse capacitating him or her to
scale(s) of justice, which all the more remarry, the Filipino spouse shall have
reinforces the impression that it is being capacity to remarry under Philippine Law.
operated by members of the bar and that it
offers legal services. In addition, the It must not be forgotten, too, that the
advertisements in question appear with a Family Code (defines) a marriage as
picture and name of a person being follows:
represented as a lawyer from Guam, and
this practically removes whatever doubt Article 1. Marriage is special contract of
may still remain as to the nature of the permanent union between a man and
service or services being offered. woman entered into accordance with law
for the establishment of conjugal and publication of applications for a marriage
family life. It is the foundation of the license.
family and an inviolable social
institution whose nature, consequences, If the article "Rx for Legal Problems" is to
and incidents are governed by law and not be reviewed, it can readily be concluded
subject to stipulation, except that marriage that the above impressions one may gather
settlements may fix the property relation from the advertisements in question are
during the marriage within the limits accurate. The Sharon Cuneta-Gabby
provided by this Code. Concepcion example alone confirms what
the advertisements suggest. Here it can be
By simply reading the questioned seen that criminal acts are being
advertisements, it is obvious that the encouraged or committed
message being conveyed is that Filipinos (a bigamous marriage in Hong Kong or
can avoid the legal consequences of a Las Vegas) with impunity simply because
marriage celebrated in accordance with the jurisdiction of Philippine courts does
our law, by simply going to Guam for a not extend to the place where the crime is
divorce. This is not only misleading, but committed.
encourages, or serves to induce, violation
of Philippine law. At the very least, this Even if it be assumed, arguendo, (that) the
can be considered "the dark side" of legal "legal support services" respondent offers
practice, where certain defects in do not constitute legal services as
Philippine laws are exploited for the sake commonly understood, the advertisements
of profit. At worst, this is outright in question give the impression that
malpractice. respondent corporation is being operated
by lawyers and that it offers legal services,
Rule 1.02. A lawyer shall not counsel as earlier discussed. Thus, the only logical
or abet activities aimed at defiance of the consequence is that, in the eyes of an
law or at lessening confidence in the legal ordinary newspaper reader, members of
system. the bar themselves are encouraging or
inducing the performance of acts which
In addition, it may also be relevant to are contrary to law, morals, good customs
point out that advertisements such as that and the public good, thereby destroying
shown in Annex "A" of the Petition, and demeaning the integrity of the Bar.
which contains a cartoon of a motor
vehicle with the words "Just Married" on xxx xxx xxx
its bumper and seems to address those
planning a "secret marriage," if not It is respectfully submitted that respondent
suggesting a "secret marriage," makes should be enjoined from causing the
light of the "special contract of permanent publication of the advertisements in
union," the inviolable social institution," question, or any other advertisements
which is how the Family Code describes similar thereto. It is also submitted that
marriage, obviously to emphasize its respondent should be prohibited from
sanctity and inviolability. Worse, this further performing or offering some of the
particular advertisement appears to services it presently offers, or, at the very
encourage marriages celebrated in secrecy, least, from offering such services to the
which is suggestive of immoral public in general.
The IBP is aware of the fact that providing between which service may be offered to
computerized legal research, electronic the public in general and which should be
data gathering, storage and retrieval, made available exclusively to members of
standardized legal forms, investigators for the Bar may be undertaken. This,
gathering of evidence, and like services however, may require further proceedings
will greatly benefit the legal profession because of the factual considerations
and should not be stifled but instead involved.
encouraged. However, when the conduct
of such business by non-members of the It must be emphasized, however, that
Bar encroaches upon the practice of law, some of respondent's services ought to be
there can be no choice but to prohibit such prohibited outright, such as acts which
business. tend to suggest or induce celebration
abroad of marriages which are bigamous
Admittedly, many of the services involved or otherwise illegal and void under
in the case at bar can be better performed Philippine law. While respondent may not
by specialists in other fields, such as be prohibited from simply disseminating
computer experts, who by reason of their information regarding such matters, it
having devoted time and effort exclusively must be required to include, in the
to such field cannot fulfill the exacting information given, a disclaimer that it is
requirements for admission to the Bar. To not authorized to practice law, that certain
prohibit them from "encroaching" upon course of action may be illegal under
the legal profession will deny the Philippine law, that it is not authorized or
profession of the great benefits and capable of rendering a legal opinion, that a
advantages of modern technology. Indeed, lawyer should be consulted before
a lawyer using a computer will be doing deciding on which course of action to
better than a lawyer using a typewriter, take, and that it cannot recommend any
even if both are (equal) in skill. particular lawyer without subjecting itself
to possible sanctions for illegal practice of
Both the Bench and the Bar, however, law.
should be careful not to allow or tolerate
the illegal practice of law in any form, not If respondent is allowed to advertise,
only for the protection of members of the advertising should be directed exclusively
Bar but also, and more importantly, for the at members of the Bar, with a clear and
protection of the public. Technological unmistakable disclaimer that it is not
development in the profession may be authorized to practice law or perform legal
encouraged without tolerating, but instead services.
ensuring prevention of illegal practice.
The benefits of being assisted by
There might be nothing objectionable if paralegals cannot be ignored. But nobody
respondent is allowed to perform all of its should be allowed to represent himself as
services, but only if such services are a "paralegal" for profit, without such term
made available exclusively to members of being clearly defined by rule or
the Bench and Bar. Respondent would regulation, and without any adequate and
then be offering technical assistance, not effective means of regulating his
legal services. Alternatively, the more activities. Also, law practice in a corporate
difficult task of carefully distinguishing form may prove to be advantageous to the
legal profession, but before allowance of and such limitation cannot be evaded by
such practice may be considered, the a corporation employing competent
corporation's Article of Incorporation and lawyers to practice for it. Obviously, this
By-laws must conform to each and every is the scheme or device by which
provision of the Code of Professional respondent "The Legal Clinic, Inc." holds
Responsibility and the Rules of Court. 5 out itself to the public and solicits
employment of its legal services. It is
2. Philippine Bar Association: an odious vehicle for deception, especially
so when the public cannot ventilate any
xxx xxx xxx. grievance for malpractice against the
business conduit. Precisely, the limitation
Respondent asserts that it "is not engaged of practice of law to persons who have
in the practice of law but engaged in been duly admitted as members of the Bar
giving legal support services to lawyers (Sec. 1, Rule 138, Revised Rules of Court)
and laymen, through experienced is to subject the members to
paralegals, with the use of modern the discipline of the Supreme Court.
computers and electronic machines" (pars. Although respondent uses its business
2 and 3, Comment). This is absurd. name, the persons and the lawyers who act
Unquestionably, respondent's acts of for it are subject to court discipline. The
holding out itself to the public under the practice of law is not a profession open to
trade name "The Legal Clinic, Inc.," and all who wish to engage in it nor can it be
soliciting employment for its enumerated assigned to another (See 5 Am. Jur. 270).
services fall within the realm of a practice It is a personal right limited to persons
which thus yields itself to the regulatory who have qualified themselves under the
powers of the Supreme Court. For law. It follows that not only respondent
respondent to say that it is merely engaged but also all the persons who are acting for
in paralegal work is to stretch credulity. respondent are the persons engaged in
Respondent's own commercial unethical law practice. 6
advertisement which announces a
certain Atty. Don Parkinson to be handling 3. Philippine Lawyers' Association:
the fields of law belies its pretense. From
all indications, respondent "The Legal The Philippine Lawyers' Association's
Clinic, Inc." is offering and position, in answer to the issues stated
rendering legal services through its herein, are wit:
reserve of lawyers. It has been held that
the practice of law is not limited to the 1. The Legal Clinic is engaged in the
conduct of cases in court, but includes practice of law;
drawing of deeds, incorporation, rendering
opinions, and advising clients as to their 2. Such practice is unauthorized;
legal right and then take them to an
attorney and ask the latter to look after 3. The advertisements complained of are
their case in court See Martin, Legal and not only unethical, but also misleading
Judicial Ethics, 1984 ed., p. 39). and patently immoral; and
It is apt to recall that only natural 4. The Honorable Supreme Court has the
persons can engage in the practice of law, power to supress and punish the Legal
Clinic and its corporate officers for its consideration should be given to the
unauthorized practice of law and for its protection of the general public from the
unethical, misleading and immoral danger of being exploited by unqualified
advertising. persons or entities who may be engaged in
the practice of law.
xxx xxx xxx
At present, becoming a lawyer requires
Respondent posits that is it not engaged in one to take a rigorous four-year course of
the practice of law. It claims that it merely study on top of a four-year bachelor of
renders "legal support services" to arts or sciences course and then to take
answers, litigants and the general public as and pass the bar examinations. Only then,
enunciated in the Primary Purpose Clause is a lawyer qualified to practice law.
of its Article(s) of Incorporation. (See
pages 2 to 5 of Respondent's Comment). While the use of a paralegal is sanctioned
But its advertised services, as enumerated in many jurisdiction as an aid to the
above, clearly and convincingly show that administration of justice, there are in those
it is indeed engaged in law practice, albeit jurisdictions, courses of study and/or
outside of court. standards which would qualify these
paralegals to deal with the general public
As advertised, it offers the general public as such. While it may now be the
its advisory services on Persons and opportune time to establish these courses
Family Relations Law, particularly of study and/or standards, the fact remains
regarding foreign divorces, annulment of that at present, these do not exist in the
marriages, secret marriages, absence and Philippines. In the meantime, this
adoption; Immigration Laws, particularly Honorable Court may decide to make
on visa related problems, immigration measures to protect the general public
problems; the Investments Law of the from being exploited by those who may
Philippines and such other related laws. be dealing with the general public in the
guise of being "paralegals" without being
Its advertised services unmistakably qualified to do so.
require the application of the aforesaid
law, the legal principles and procedures In the same manner, the general public
related thereto, the legal advices based should also be protected from the dangers
thereon and which activities call for legal which may be brought about by
training, knowledge and experience. advertising of legal services. While it
appears that lawyers are prohibited under
Applying the test laid down by the Court the present Code of Professional
in the aforecited Agrava Case, the Responsibility from advertising, it appears
activities of respondent fall squarely and in the instant case that legal services are
are embraced in what lawyers and laymen being advertised not by lawyers but by an
equally term as "the practice of law." 7 entity staffed by "paralegals." Clearly,
measures should be taken to protect the
4. U.P. Women Lawyers' Circle: general public from falling prey to those
who advertise legal services without being
In resolving, the issues before this qualified to offer such services. 8
Honorable Court, paramount
A perusal of the questioned it is advertised that one has to go to said
advertisements of Respondent, however, agency and pay P560 for a valid marriage
seems to give the impression that it is certainly fooling the public for valid
information regarding validity of marriages in the Philippines are
marriages, divorce, annulment of solemnized only by officers authorized to
marriage, immigration, visa extensions, do so under the law. And to employ an
declaration of absence, adoption and agency for said purpose of contracting
foreign investment, which are in essence, marriage is not necessary.
legal matters , will be given to them if
they avail of its services. The No amount of reasoning that in the USA,
Respondent's name The Legal Clinic, Canada and other countries the trend is
Inc. does not help matters. It gives the towards allowing lawyers to advertise
impression again that Respondent will or their special skills to enable people to
can cure the legal problems brought to obtain from qualified practitioners legal
them. Assuming that Respondent is, as services for their particular needs can
claimed, staffed purely by paralegals, it justify the use of advertisements such as
also gives the misleading impression that are the subject matter of the petition, for
there are lawyers involved in The Legal one (cannot) justify an illegal act even by
Clinic, Inc., as there are doctors in any whatever merit the illegal act may serve.
medical clinic, when only "paralegals" are The law has yet to be amended so that
involved in The Legal Clinic, Inc. such act could become justifiable.