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Republic of the Philippines therein qualified, by operation of law, he

SUPREME COURT ceased to engage in private law practice."


Manila Counsel then argued that the JP Court in
entertaining the appearance of City
EN BANC Attorney Fule in the case is a violation of
the above ruling. On December 17, 1960
G.R. No. L-19450 May 27, 1965 the JP issued an order sustaining the
legality of the appearance of City Attorney
THE PEOPLE OF THE Fule.
PHILIPPINES, plaintiff-appellee,
vs. Under date of January 4, 1961, counsel for
SIMPLICIO VILLANUEVA, defendant- the accused presented a "Motion to Inhibit
appellant. Fiscal Fule from Acting as Private
Prosecutor in this Case," this time
Office of the Solicitor General for invoking Section 32, Rule 27, now Sec.
plaintiff-appellee. 35, Rule 138, Revised Rules of Court,
Magno T. Buese for defendant-appellant. which bars certain attorneys from
practicing. Counsel claims that City
PAREDES, J.: Attorney Fule falls under this limitation.
The JP Court ruled on the motion by
On September 4, 1959, the Chief of Police upholding the right of Fule to appear and
of Alaminos, Laguna, charged Simplicio further stating that he (Fule) was not
Villanueva with the Crime of Malicious actually enagaged in private law practice.
Mischief before the Justice of the Peace This Order was appealed to the CFI of
Court of said municipality. Said accused Laguna, presided by the Hon. Hilarion U.
was represented by counsel de officio but Jarencio, which rendered judgment on
later on replaced by counsel de parte. The December 20, 1961, the pertinent portions
complainant in the same case was of which read:
represented by City Attorney Ariston Fule
of San Pablo City, having entered his The present case is one for malicious
appearance as private prosecutor, after mischief. There being no reservation by
securing the permission of the Secretary the offended party of the civil liability, the
of Justice. The condition of his appearance civil action was deemed impliedly
as such, was that every time he would instituted with the criminal action. The
appear at the trial of the case, he would be offended party had, therefore, the right to
considered on official leave of absence, intervene in the case and be represented
and that he would not receive any by a legal counsel because of her interest
payment for his services. The appearance in the civil liability of the accused.
of City Attorney Fule as private
prosecutor was questioned by the counsel Sec. 31, Rule 127 of the Rules of Court
for the accused, invoking the case provides that in the court of a justice of
of Aquino, et al. vs. Blanco, et al., the peace a party may conduct his
L-1532, Nov. 28, 1947, wherein it was litigation in person, with the aid of an
ruled that "when an attorney had been agent or friend appointed by him for that
appointed to the position of Assistant purpose, or with the aid of an attorney.
Provincial Fiscal or City Fiscal and Assistant City Attorney Fule appeared in
the Justice of the Peace Court as an agent plausible, the fallacy of the theory of
or friend of the offended party. It does not defense counsel lies in his confused
appear that he was being paid for his interpretation of Section 32 of Rule 127
services or that his appearance was in a (now Sec. 35, Rule 138, Revised Rules),
professional capacity. As Assistant City which provides that "no judge or other
Attorney of San Pablo he had no control official or employee of the superior courts
or intervention whatsoever in the or of the office of the Solicitor General,
prosecution of crimes committed in the shall engage in private practice as a
municipality of Alaminos, Laguna, member of the bar or give professional
because the prosecution of criminal cases advice to clients." He claims that City
coming from Alaminos are handled by the Attorney Fule, in appearing as private
Office of the Provincial Fiscal and not by prosecutor in the case was engaging in
the City Attornev of San Pablo. There private practice. We believe that the
could be no possible conflict in the duties isolated appearance of City Attorney Fule
of Assistant City Attorney Fule as did not constitute private practice within
Assistant City Attorney of San Pablo and the meaning and contemplation of the
as private prosecutor in this criminal case. Rules. Practice is more than an isolated
On the other hand, as already pointed out, appearance, for it consists in frequent or
the offended party in this criminal case customary actions, a succession of acts of
had a right to be represented by an agent the same kind. In other words, it is
or a friend to protect her rights in the civil frequent habitual exercise (State vs.
action which was impliedly instituted Cotner, 127, p. 1, 87 Kan. 864, 42 LRA,
together with the criminal action. M.S. 768). Practice of law to fall within
the prohibition of statute has been
In view of the foregoing, this Court holds interpreted as customarily or habitually
that Asst. City Attorney Ariston D. Fule holding one's self out to the public, as
may appear before the Justice of the Peace customarily and demanding payment for
Court of Alaminos, Laguna as private such services (State vs. Bryan, 4 S.E. 522,
prosecutor in this criminal case as an 98 N.C. 644, 647). The appearance as
agent or a friend of the offended party. counsel on one occasion is not conclusive
as determinative of engagement in the
WHEREFORE, the appeal from the order private practice of law. The following
of the Justice of the Peace Court of observation of the Solicitor General is
Alaminos, Laguna, allowing the noteworthy:
apprearance of Ariston D. Fule as private
prosecutor is dismissed, without costs. Essentially, the word private practice of
law implies that one must have presented
The above decision is the subject of the himself to be in the active and continued
instant proceeding. practice of the legal profession and that
his professional services are available to
The appeal should be dismissed, for the public for a compensation, as a source
patently being without merits.1wph1.t of his livelihood or in consideration of his
said services.
Aside from the considerations advanced
by the learned trial judge, heretofore For one thing, it has never been refuted
reproduced, and which we consider that City Attorney Fule had been given
permission by his immediate superior, the Metropolitan Trial Court of Quezon City,
Secretary of Justice, to represent the Branch 40.[1] While respondents letter-
complainant in the case at bar, who is a request was pending action, Lisa Payoyo
relative. Andres, the private complainant in
Criminal Case No. 84885, sent a letter to
CONFORMABLY WITH ALL THE the Court Administrator, dated September
FOREGOING, the decision appealed from 2, 1998, requesting for a certification with
should be, as it is hereby affirmed, in all regard to respondents authority to appear
respects, with costs against appellant.. as counsel for the accused in the said
criminal case.[2] On September 7, 1998,
Bengzon, C.J., Concepcion, Reyes, J.B.L., the Office of the Court Administrator
Barrera, Dizon, Regala, Makalintal, referred the matter to respondent for
Bengzon, J.P., and Zaldivar, JJ., concur. comment.[3]
Bautista Angelo, J., took no part.
In his Comment,[4] dated September
14, 1998, respondent admitted that he had
appeared in Criminal Case No. 84885
FIRST DIVISION without prior authorization. He reasoned
out that the factual circumstances
surrounding the criminal case compelled
him to handle the defense of his cousin
[A.M. No. P-99-1287. January 26, 2001]
who did not have enough resources to hire
the services of a counsel de parte; while,
on the other hand, private complainant
OFFICE OF THE COURT was a member of a powerful family who
ADMINISTRATOR, complainan was out to get even with his
t, vs. ATTY. MISAEL M. cousin. Furthermore, he rationalized that
LADAGA, Branch Clerk of his appearance in the criminal case did not
Court, Regional Trial Court, prejudice his office nor the interest of the
Branch 133, Makati public since he did not take advantage of
City, respondent. his position. In any case, his appearances
in court were covered by leave application
RE S O LUTI ON approved by the presiding judge.
KAPUNAN, J.: On December 8, 1998, the Court
issued a resolution denying respondents
In a Letter, dated August 31, 1998, request for authorization to appear as
respondent Atty. Misael M. Ladaga, counsel and directing the Office of the
Branch Clerk of Court of the Regional Court Administrator to file formal charges
Trial Court of Makati, Branch 133, against him for appearing in court without
requested the Court Administrator, Justice the required authorization from the Court.
[5]
Alfredo L. Benipayo, for authority to On January 25, 1999, the Court
appear as pro bono counsel of his cousin, Administrator filed the instant
Narcisa Naldoza Ladaga, in Criminal Case administrative complaint against
No. 84885, entitled People vs. Narcisa respondent for violating Sec. 7(b)(2) of
Naldoza Ladaga for Falsification of Republic Act No. 6713, otherwise known
Public Document pending before the as the Code of Conduct and Ethical
Standards for Public Officials and in filing the said criminal case was to seek
Employees, which provides: vengeance on her cousin. He explained
that his cousins discord with Ms. Andres
Sec. 7. Prohibited Acts and Transactions. started when the latters husband, SPO4
In addition to acts and omissions of public Pedro Andres, left the conjugal home to
officials and employees now prescribed in cohabit with Ms. Ladaga. During the
the Constitution and existing laws, the course of their illicit affair, SPO4 Andres
following shall constitute prohibited acts and Ms. Ladaga begot three (3)
and transactions of any public official and children. The birth certificate of their
employee and are hereby declared to be eldest child is the subject of the
unlawful: falsification charge against Ms.
Ladaga. Respondent stated that since he is
xxx the only lawyer in their family, he felt it to
be his duty to accept Ms. Ladagas plea to
(b) Outside employment and
be her counsel since she did not have
other activities related
enough funds to pay for the services of a
thereto.- Public officials and
lawyer. Respondent also pointed out that
employees during their
in his seven (7) years of untainted
incumbency shall not:
government service, initially with the
xxx Commission on Human Rights and now
with the judiciary, he had performed his
(2) Engage in the private practice duties with honesty and integrity and that
of their profession unless it was only in this particular case that he
authorized by the Constitution had been administratively charged for
or law, Provided, that such extending a helping hand to a close
practice will not conflict or relative by giving a free legal assistance
tend to conflict with their for humanitarian purpose. He never took
official functions; advantage of his position as branch clerk
of court since the questioned appearances
In our Resolution, dated February 9, were made in the Metropolitan Trial Court
1999, we required respondent to comment of Quezon City and not in Makati where
on the administrative complaint. he is holding office. He stressed that
during the hearings of the criminal case,
In his Comment, respondent he was on leave as shown by his approved
explained that he and Ms. Ladaga are leave applications attached to his
close blood cousins who belong to a comment.
powerless family from the impoverished
town of Bacauag, Surigao del Norte. From In our Resolution, dated June 22,
childhood until he finished his law degree, 1999, we noted respondents comment and
Ms. Ladaga had always supported and referred the administrative matter to the
guided him while he looked up to her as a Executive Judge of the Regional Trial
mentor and an adviser. Because of their Court of Makati, Judge Josefina Guevarra-
close relationship, Ms. Ladaga sought Salonga, for investigation, report and
respondents help and advice when she was recommendation.
charged in Criminal Case No. 84885 for
falsification by the private complainant,
Lisa Payoyo Andres, whose only purpose
In her Report, dated September 29, In the light of the foregoing, it appearing
1999, Judge Salonga made the following that the respondent appeared as counsel
findings and recommendation: for his cousin without first securing
permission from the court, and
There is no question that Atty. Misael considering that this is his first time to do
Ladaga appeared as counsel for and in it coupled with the fact that said
behalf of his cousin, Narcisa Naldoza appearance was not for a fee and was with
Ladaga, an accused in Criminal Case No. the knowledge of his Presiding Judge, it is
84-885 for Falsification of Public hereby respectfully recommended that he
Documents before the METC of Quezon be REPRIMANDED with a stern warning
City. It is also denied that the appearance that any repetition of such act would be
of said respondent in said case was dealt with more severely.[6]
without the previous permission of the
Court. We agree with the recommendation of
the investigating judge.
An examination of the records shows that
Respondent is charged under Sec.
during the occasions that the respondent
7(b)(2) of the Code of Conduct and
appeared as such counsel before the
Ethical Standards for Public Officials and
METC of Quezon City, he was on official
Employees which prohibits civil servants
leave of absence. Moreover, his Presiding
from engaging in the private practice of
Judge, Judge Napoleon Inoturan was
their profession. A similar prohibition is
aware of the case he was handling. That
found under Sec. 35, Rule 138 of the
the respondent appeared as pro
Revised Rules of Court which disallows
bono counsel likewise cannot be
certain attorneys from engaging in the
denied. His cousin-client Narcisa Ladaga
private practice of their profession. The
herself positively declared that the
said section reads:
respondent did not receive a single
centavo from her. Helpless as she was and
SEC. 35. Certain attorneys not to
respondent being the only lawyer in the
practice.- No judge or other official or
family, he agreed to represent her out of
employee of the superior courts or of the
his compassion and high regard for her.
Office of the Solicitor General, shall
engage in private practice as a member of
It may not be amiss to point out, this is the
the bar or give professional advise to
first time that respondent ever handled a
clients.
case for a member of his family who is
like a big sister to him. He appeared for
However, it should be clarified that
free and for the purpose of settling the
private practice of a profession,
case amicably. Furthermore, his Presiding
specifically the law profession in this
Judge was aware of his appearance as
case, which is prohibited, does not pertain
counsel for his cousin. On top of this,
to an isolated court appearance; rather, it
during all the years that he has been in
contemplates a succession of acts of the
government service, he has maintained his
same nature habitually or customarily
integrity and independence.
holding ones self to the public as a lawyer.
RECOMMENDATION In the case of People vs. Villanueva,
[7]
we explained the meaning of the term
private practice prohibited by the said does not constitute the private practice of
section, to wit: the law profession contemplated by law.
Nonetheless, while respondents
We believe that the isolated appearance of
isolated court appearances did not amount
City Attorney Fule did not constitute
to a private practice of law, he failed to
private practice, within the meaning and
obtain a written permission therefor from
contemplation of the Rules. Practice is
the head of the Department, which is this
more than an isolated appearance, for it
Court as required by Section 12, Rule
consists in frequent or customary action, a
XVIII of the Revised Civil Service Rules,
succession of acts of the same kind. In
thus:
other words, it is frequent habitual
exercise (State vs. Cotner, 127, p. 1, 87
Sec. 12. No officer or employee shall
Kan. 864, 42 LRA, N.S. 768) Practice of
engage directly in any private business,
law to fall within the prohibition of statute
vocation, or profession or be connected
has been interpreted as customarily or
with any commercial, credit, agricultural,
habitually holding ones self out to the
or industrial undertaking without a
public, as a lawyer and demanding
written permission from the head of the
payment for such services (State vs.
Department: Provided, That this
Bryan, 4 S.E. 522, 98 N.C. 644, 647). The
prohibition will be absolute in the case of
appearance as counsel on one occasion, is
those officers and employees whose duties
not conclusive as determinative of
and responsibilities require that their
engagement in the private practice of
entire time be at the disposal of the
law. The following observation of the
Government; Provided, further, That if an
Solicitor General is noteworthy:
employee is granted permission to engage
in outside activities, time so devoted
Essentially, the word private practice
outside of office hours should be fixed by
of law implies that one must have
the agency to the end that it will not
presented himself to be in the active
impair in any way the efficiency of the
and continued practice of the legal
officer or employee: And provided, finally,
profession and that his professional
That no permission is necessary in the
services are available to the public for
case of investments, made by an officer or
a compensation, as a source of his
employee, which do not involve real or
livelihood or in consideration of his
apparent conflict between his private
said services.
interests and public duties, or in any way
influence him in the discharge of his
For one thing, it has never been refuted
duties, and he shall not take part in the
that City Attorney Fule had been given
management of the enterprise or become
permission by his immediate superior, the
an officer of the board of directors.[9]
Secretary of Justice, to represent the
complainant in the case at bar, who is a
Respondent entered his appearance
relative.[8]
and attended court proceedings on
numerous occasions, i.e., May 4-15, 1998,
Based on the foregoing, it is evident
June 18, 1998, July 13, 1998 and August
that the isolated instances when
5, 1998, as borne out by his own
respondent appeared as pro bono counsel
admission. It is true that he filed leave
of his cousin in Criminal Case No. 84885
applications corresponding to the dates he
appeared in court. However, he failed to We are faced here with a controversy of
obtain a prior permission from the head of far-reaching proportions. While ostensibly
the Department. The presiding judge of only legal issues are involved, the Court's
the court to which respondent is assigned decision in this case would indubitably
is not the head of the Department have a profound effect on the political
contemplated by law. aspect of our national existence.
WHEREFORE, in view of the
The 1987 Constitution provides in Section
foregoing, respondent Atty. Misael M.
1 (1), Article IX-C:
Ladaga is hereby REPRIMANDED with a
stern warning that any repetition of such
There shall be a Commission on Elections
act would be dealt with more severely.
composed of a Chairman and six
SO ORDERED. Commissioners who shall be natural-born
citizens of the Philippines and, at the time
Davide, Jr., C.J., (Chairman), Puno,
of their appointment, at least thirty-five
Pardo, and Ynares-Santiago, JJ., concur.
years of age, holders of a college degree,
and must not have been candidates for any
elective position in the immediately
preceding -elections. However, a majority
Republic of the Philippines thereof, including the Chairman, shall be
SUPREME COURT members of the Philippine Bar who have
Manila been engaged in the practice of law for at
least ten years. (Emphasis supplied)
SECOND DIVISION
The aforequoted provision is patterned
G.R. No. 100113 September 3, 1991 after Section l(l), Article XII-C of the
1973 Constitution which similarly
RENATO CAYETANO, petitioner, provides:
vs.
CHRISTIAN MONSOD, HON. There shall be an independent
JOVITO R. SALONGA, Commission on Elections composed of a
COMMISSION ON APPOINTMENT, Chairman and eight Commissioners who
and HON. GUILLERMO CARAGUE, shall be natural-born citizens of the
in his capacity as Secretary of Budget Philippines and, at the time of their
and Management, respondents. appointment, at least thirty-five years of
age and holders of a college degree.
Renato L. Cayetano for and in his own However, a majority thereof, including the
behalf. Chairman, shall be members of the
Philippine Bar who have been engaged in
Sabina E. Acut, Jr. and Mylene Garcia- the practice of law for at least ten years.'
Albano co-counsel for petitioner. (Emphasis supplied)

Regrettably, however, there seems to be


no jurisprudence as to what constitutes
PARAS, J.:p practice of law as a legal qualification to
an appointive office.
Black defines "practice of law" as: defending the rights of their clients under
the law. Otherwise stated, one who, in a
The rendition of services requiring the representative capacity, engages in the
knowledge and the application of legal business of advising clients as to their
principles and technique to serve the rights under the law, or while so engaged
interest of another with his consent. It is performs any act or acts either in court or
not limited to appearing in court, or outside of court for that purpose, is
advising and assisting in the conduct of engaged in the practice of law. (State ex.
litigation, but embraces the preparation of rel. Mckittrick v..C.S. Dudley and Co., 102
pleadings, and other papers incident to S.W. 2d 895, 340 Mo. 852)
actions and special proceedings,
conveyancing, the preparation of legal This Court in the case of Philippine
instruments of all kinds, and the giving of Lawyers Association v.Agrava, (105 Phil.
all legal advice to clients. It embraces all 173,176-177) stated:
advice to clients and all actions taken for
them in matters connected with the law. The practice of law is not limited to the
An attorney engages in the practice of law conduct of cases or litigation in court; it
by maintaining an office where he is held embraces the preparation of pleadings and
out to be-an attorney, using a letterhead other papers incident to actions and
describing himself as an attorney, special proceedings, the management of
counseling clients in legal matters, such actions and proceedings on behalf of
negotiating with opposing counsel about clients before judges and courts, and in
pending litigation, and fixing and addition, conveying. In general, all advice
collecting fees for services rendered by his to clients, and all action taken for them in
associate. (Black's Law Dictionary, 3rd mattersconnected with the
ed.) law incorporation services, assessment
and condemnation services contemplating
The practice of law is not limited to the an appearance before a judicial body, the
conduct of cases in court. (Land Title foreclosure of a mortgage, enforcement of
Abstract and Trust Co. v. Dworken,129 a creditor's claim in bankruptcy and
Ohio St. 23, 193 N.E. 650) A person is insolvency proceedings, and conducting
also considered to be in the practice of law proceedings in attachment, and in matters
when he: of estate and guardianship have been held
to constitute law practice, as do the
... for valuable consideration engages in preparation and drafting of legal
the business of advising person, firms, instruments, where the work done involves
associations or corporations as to their the determination by the trained legal
rights under the law, or appears in a mind of the legal effect of facts and
representative capacity as an advocate in conditions. (5 Am. Jr. p. 262, 263).
proceedings pending or prospective, (Emphasis supplied)
before any court, commissioner, referee,
board, body, committee, or commission Practice of law under modem conditions
constituted by law or authorized to settle consists in no small part of work
controversies and there, in such performed outside of any court and having
representative capacity performs any act no immediate relation to proceedings in
or acts for the purpose of obtaining or court. It embraces conveyancing, the
giving of legal advice on a large variety of knowledge of the law and is of a kind
subjects, and the preparation and usual for attorneys engaging in the active
execution of legal instruments covering an practice of their profession, and he
extensive field of business and trust follows some one or more lines of
relations and other affairs. Although these employment such as this he is a practicing
transactions may have no direct attorney at law within the meaning of the
connection with court proceedings, they statute. (Barr v. Cardell, 155 NW 312)
are always subject to become involved in
litigation. They require in many aspects a Practice of law means any activity, in or
high degree of legal skill, a wide out of court, which requires the
experience with men and affairs, and great application of law, legal procedure,
capacity for adaptation to difficult and knowledge, training and experience. "To
complex situations. These customary engage in the practice of law is to perform
functions of an attorney or counselor at those acts which are characteristics of the
law bear an intimate relation to the profession. Generally, to practice law is to
administration of justice by the courts. No give notice or render any kind of service,
valid distinction, so far as concerns the which device or service requires the use in
question set forth in the order, can be any degree of legal knowledge or skill."
drawn between that part of the work of the (111 ALR 23)
lawyer which involves appearance in court
and that part which involves advice and The following records of the 1986
drafting of instruments in his office. It is Constitutional Commission show that it
of importance to the welfare of the public has adopted a liberal interpretation of the
that these manifold customary functions term "practice of law."
be performed by persons possessed of
adequate learning and skill, of sound MR. FOZ. Before we suspend the session,
moral character, and acting at all times may I make a manifestation which I forgot
under the heavy trust obligations to clients to do during our review of the provisions
which rests upon all attorneys. on the Commission on Audit. May I be
(Moran, Comments on the Rules of Court, allowed to make a very brief statement?
Vol. 3 [1953 ed.] , p. 665-666, citing In re
Opinion of the Justices [Mass.], 194 N.E. THE PRESIDING OFFICER (Mr. Jamir).
313, quoted in Rhode Is. Bar Assoc. v.
Automobile Service Assoc. [R.I.] 179 A. The Commissioner will please proceed.
139,144). (Emphasis ours)
MR. FOZ. This has to do with the
The University of the Philippines Law qualifications of the members of the
Center in conducting orientation briefing Commission on Audit. Among others, the
for new lawyers (1974-1975) listed the qualifications provided for by Section I is
dimensions of the practice of law in even that "They must be Members of the
broader terms as advocacy, counselling Philippine Bar" I am quoting from the
and public service. provision "who have been engaged in
the practice of law for at least ten years".
One may be a practicing attorney in
following any line of employment in the To avoid any misunderstanding which
profession. If what he does exacts would result in excluding members of the
Bar who are now employed in the COA or MR. OPLE. Yes. So that the construction
Commission on Audit, we would like to given to this is that this is equivalent to
make the clarification that this provision the practice of law.
on qualifications regarding members of
the Bar does not necessarily refer or MR. FOZ. Yes, Mr. Presiding Officer.
involve actual practice of law outside the
COA We have to interpret this to mean MR. OPLE. Thank you.
that as long as the lawyers who are
employed in the COA are using their legal ... ( Emphasis supplied)
knowledge or legal talent in their
respective work within COA, then they are Section 1(1), Article IX-D of the 1987
qualified to be considered for appointment Constitution, provides, among others, that
as members or commissioners, even the Chairman and two Commissioners of
chairman, of the Commission on Audit. the Commission on Audit (COA) should
either be certified public accountants with
This has been discussed by the Committee not less than ten years of auditing practice,
on Constitutional Commissions and or members of the Philippine Bar who
Agencies and we deem it important to take have been engaged in the practice of
it up on the floor so that this interpretation law for at least ten years. (emphasis
may be made available whenever this supplied)
provision on the qualifications as regards
members of the Philippine Bar engaging Corollary to this is the term "private
in the practice of law for at least ten years practitioner" and which is in many ways
is taken up. synonymous with the word "lawyer."
Today, although many lawyers do not
MR. OPLE. Will Commissioner Foz yield engage in private practice, it is still a fact
to just one question. that the majority of lawyers are private
practitioners. (Gary
MR. FOZ. Yes, Mr. Presiding Officer. Munneke, Opportunities in Law
Careers [VGM Career Horizons: Illinois],
MR. OPLE. Is he, in effect, saying that [1986], p. 15).
service in the COA by a lawyer is
equivalent to the requirement of a law At this point, it might be helpful to
practice that is set forth in the Article on define private practice. The term, as
the Commission on Audit? commonly understood, means "an
individual or organization engaged in the
MR. FOZ. We must consider the fact that business of delivering legal services."
the work of COA, although it is auditing, (Ibid.). Lawyers who practice alone are
will necessarily involve legal work; it will often called "sole practitioners." Groups
involve legal work. And, therefore, of lawyers are called "firms." The firm is
lawyers who are employed in COA now usually a partnership and members of the
would have the necessary qualifications in firm are the partners. Some firms may be
accordance with the Provision on organized as professional corporations and
qualifications under our provisions on the the members called shareholders. In either
Commission on Audit. And, therefore, the case, the members of the firm are the
answer is yes. experienced attorneys. In most firms,
there are younger or more inexperienced principally tries cases before the courts.
salaried attorneyscalled "associates." The members of the bench and bar and the
(Ibid.). informed laymen such as businessmen,
know that in most developed societies
The test that defines law practice by today, substantially more legal work is
looking to traditional areas of law practice transacted in law offices than in the
is essentially tautologous, unhelpful courtrooms. General practitioners of law
defining the practice of law as that which who do both litigation and non-litigation
lawyers do. (Charles W. Wolfram, Modern work also know that in most cases they
Legal Ethics [West Publishing Co.: find themselves spending more time doing
Minnesota, 1986], p. 593). The practice of what [is] loosely desccribe[d] as business
law is defined as the performance of any counseling than in trying cases. The
acts . . . in or out of court, commonly business lawyer has been described as the
understood to be the practice of law. planner, the diagnostician and the trial
(State Bar Ass'n v. Connecticut Bank & lawyer, the surgeon. I[t] need not [be]
Trust Co., 145 Conn. 222, 140 A.2d 863, stress[ed] that in law, as in medicine,
870 [1958] [quoting Grievance Comm. v. surgery should be avoided where internal
Payne, 128 Conn. 325, 22 A.2d 623, 626 medicine can be effective." (Business
[1941]). Because lawyers perform almost Star, "Corporate Finance Law," Jan. 11,
every function known in the commercial 1989, p. 4).
and governmental realm, such a definition
would obviously be too global to be In the course of a working day the average
workable.(Wolfram, op. cit.). general practitioner wig engage in a
number of legal tasks, each involving
The appearance of a lawyer in litigation in different legal doctrines, legal skills, legal
behalf of a client is at once the most processes, legal institutions, clients, and
publicly familiar role for lawyers as well other interested parties. Even the
as an uncommon role for the average increasing numbers of lawyers in
lawyer. Most lawyers spend little time in specialized practice wig usually perform
courtrooms, and a large percentage spend at least some legal services outside their
their entire practice without litigating a specialty. And even within a narrow
case. (Ibid., p. 593). Nonetheless, many specialty such as tax practice, a lawyer
lawyers do continue to litigate and the will shift from one legal task or role such
litigating lawyer's role colors much of as advice-giving to an importantly
both the public image and the self different one such as representing a client
perception of the legal profession. (Ibid.). before an administrative agency.
(Wolfram, supra, p. 687).
In this regard thus, the dominance of
litigation in the public mind reflects By no means will most of this work
history, not reality. (Ibid.). Why is this so? involve litigation, unless the lawyer is one
Recall that the late Alexander SyCip, a of the relatively rare types a litigator
corporate lawyer, once articulated on the who specializes in this work to the
importance of a lawyer as a business exclusion of much else. Instead, the work
counselor in this wise: "Even today, there will require the lawyer to have mastered
are still uninformed laymen whose the full range of traditional lawyer skills
concept of an attorney is one who of client counselling, advice-giving,
document drafting, and negotiation. And "contingency planning," has impressed
increasingly lawyers find that the new upon us the inadequacy of traditional
skills of evaluation and mediation are both procedures in many decisional contexts.
effective for many clients and a source of
employment. (Ibid.). In a complex legal problem the mass of
information to be processed, the sorting
Most lawyers will engage in non-litigation and weighing of significant conditional
legal work or in litigation work that is factors, the appraisal of major trends, the
constrained in very important ways, at necessity of estimating the consequences
least theoretically, so as to remove from it of given courses of action, and the need
some of the salient features of adversarial for fast decision and response in situations
litigation. Of these special roles, the most of acute danger have prompted the use of
prominent is that of prosecutor. In some sophisticated concepts of information flow
lawyers' work the constraints are imposed theory, operational analysis, automatic
both by the nature of the client and by the data processing, and electronic computing
way in which the lawyer is organized into equipment. Understandably, an improved
a social unit to perform that work. The decisional structure must stress the
most common of these roles are those of predictive component of the policy-
corporate practice and government legal making process, wherein a "model", of the
service. (Ibid.). decisional context or a segment thereof is
developed to test projected alternative
In several issues of the Business Star, a courses of action in terms of futuristic
business daily, herein below quoted are effects flowing therefrom.
emerging trends in corporate law practice,
a departure from the traditional concept of Although members of the legal profession
practice of law. are regularly engaged in predicting and
projecting the trends of the law, the
We are experiencing today what truly may subject of corporate finance law has
be called a revolutionary transformation in received relatively little organized and
corporate law practice. Lawyers and other formalized attention in the philosophy of
professional groups, in particular those advancing corporate legal education.
members participating in various legal- Nonetheless, a cross-disciplinary approach
policy decisional contexts, are finding that to legal research has become a vital
understanding the major emerging trends necessity.
in corporation law is indispensable to
intelligent decision-making. Certainly, the general orientation for
productive contributions by those trained
Constructive adjustment to major primarily in the law can be improved
corporate problems of today requires an through an early introduction to multi-
accurate understanding of the nature and variable decisional context and the various
implications of the corporate law research approaches for handling such problems.
function accompanied by an accelerating Lawyers, particularly with either a
rate of information accumulation. The master's or doctorate degree in business
recognition of the need for such improved administration or management,
corporate legal policy formulation, functioning at the legal policy level of
particularly "model-making" and decision-making now have some
appreciation for the concepts and At any rate, a corporate lawyer may
analytical techniques of other professions assume responsibilities other than the
which are currently engaged in similar legal affairs of the business of the
types of complex decision-making. corporation he is representing. These
include such matters as determining
Truth to tell, many situations involving policy and becoming involved in
corporate finance problems would require management. ( Emphasis supplied.)
the services of an astute attorney because
of the complex legal implications that In a big company, for example, one may
arise from each and every necessary step have a feeling of being isolated from the
in securing and maintaining the business action, or not understanding how one's
issue raised. (Business Star, "Corporate work actually fits into the work of the
Finance Law," Jan. 11, 1989, p. 4). orgarnization. This can be frustrating to
someone who needs to see the results of
In our litigation-prone country, a corporate his work first hand. In short, a corporate
lawyer is assiduously referred to as the lawyer is sometimes offered this fortune
"abogado de campanilla." He is the "big- to be more closely involved in the running
time" lawyer, earning big money and with of the business.
a clientele composed of the tycoons and
magnates of business and industry. Moreover, a corporate lawyer's services
may sometimes be engaged by a
Despite the growing number of corporate multinational corporation (MNC). Some
lawyers, many people could not explain large MNCs provide one of the few
what it is that a corporate lawyer does. For opportunities available to corporate
one, the number of attorneys employed by lawyers to enter the international law
a single corporation will vary with the size field. After all, international law is
and type of the corporation. Many smaller practiced in a relatively small number of
and some large corporations farm out all companies and law firms. Because
their legal problems to private law firms. working in a foreign country is perceived
Many others have in-house counsel only by many as glamorous, tills is an area
for certain matters. Other corporation have coveted by corporate lawyers. In most
a staff large enough to handle most legal cases, however, the overseas jobs go to
problems in-house. experienced attorneys while the younger
attorneys do their "international practice"
A corporate lawyer, for all intents and in law libraries. (Business Star,
purposes, is a lawyer who handles the "Corporate Law Practice," May 25,1990,
legal affairs of a corporation. His areas of p. 4).
concern or jurisdiction may include, inter
alia: corporate legal research, tax laws This brings us to the inevitable, i.e., the
research, acting out as corporate secretary role of the lawyer in the realm of finance.
(in board meetings), appearances in both To borrow the lines of Harvard-educated
courts and other adjudicatory agencies lawyer Bruce Wassertein, to wit: "A bad
(including the Securities and Exchange lawyer is one who fails to spot problems,
Commission), and in other capacities a good lawyer is one who perceives the
which require an ability to deal with the difficulties, and the excellent lawyer is
law. one who surmounts them." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, with those who are competitors in other
p. 4). arenas.

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)

In a loan agreement, for instance, a Loan concessions and compromises,


negotiating panel acts as a team, and perhaps even more so than purely
which is adequately constituted to meet renegotiation policies, demand expertise
the various contingencies that arise during in the law of contracts, in legislation and
a negotiation. Besides top officials of the agreement drafting and in renegotiation.
Borrower concerned, there are the legal Necessarily, a sovereign lawyer may work
with an international business specialist or framers of the Constitution, Atty.
an economist in the formulation of a Monsod's past work experiences as a
model loan agreement. Debt restructuring lawyer-economist, a lawyer-manager, a
contract agreements contain such a lawyer-entrepreneur of industry, a lawyer-
mixture of technical language that they negotiator of contracts, and a lawyer-
should be carefully drafted and signed legislator of both the rich and the poor
only with the advise of competent counsel verily more than satisfy the constitutional
in conjunction with the guidance of requirement that he has been engaged
adequate technical support personnel. (See in the practice of law for at least ten
International Law Aspects of the years.
Philippine External Debts, an unpublished
dissertation, U.S.T. Graduate School of Besides in the leading case of Luego v.
Law, 1987, p. 321). ( Emphasis supplied) Civil Service Commission, 143 SCRA
327, the Court said:
A critical aspect of sovereign debt
restructuring/contract construction is the Appointment is an essentially
set of terms and conditions which discretionary power and must be
determines the contractual remedies for a performed by the officer in which it is
failure to perform one or more elements of vested according to his best lights, the
the contract. A good agreement must not only condition being that the appointee
only define the responsibilities of both should possess the qualifications required
parties, but must also state the recourse by law. If he does, then the appointment
open to either party when the other fails to cannot be faulted on the ground that there
discharge an obligation. For a compleat are others better qualified who should
debt restructuring represents a devotion to have been preferred. This is a political
that principle which in the ultimate question involving considerations of
analysis issine qua non for foreign loan wisdom which only the appointing
agreements-an adherence to the rule of authority can decide. (emphasis supplied)
law in domestic and international affairs
of whose kind U.S. Supreme Court Justice No less emphatic was the Court in the
Oliver Wendell Holmes, Jr. once said: case of (Central Bank v. Civil Service
"They carry no banners, they beat no Commission, 171 SCRA 744) where it
drums; but where they are, men learn that stated:
bustle and bush are not the equal of quiet
genius and serene mastery." (See Ricardo It is well-settled that when the appointee
J. Romulo, "The Role of Lawyers in is qualified, as in this case, and all the
Foreign Investments," Integrated Bar of other legal requirements are satisfied, the
the Philippine Journal, Vol. 15, Nos. 3 and Commission has no alternative but to
4, Third and Fourth Quarters, 1977, p. attest to the appointment in accordance
265). with the Civil Service Law. The
Commission has no authority to revoke an
Interpreted in the light of the various appointment on the ground that another
definitions of the term Practice of law". person is more qualified for a particular
particularly the modern concept of law position. It also has no authority to direct
practice, and taking into consideration the appointment of a substitute of its
the liberal construction intended by the choice. To do so would be an
encroachment on the discretion vested Anent Justice Teodoro Padilla's separate
upon the appointing authority. An opinion, suffice it to say that his definition
appointment is essentially within the of the practice of law is the traditional or
discretionary power of whomsoever it is stereotyped notion of law practice, as
vested, subject to the only condition that distinguished from the modern concept of
the appointee should possess the the practice of law, which modern
qualifications required by law. ( Emphasis connotation is exactly what was intended
supplied) by the eminent framers of the 1987
Constitution. Moreover, Justice Padilla's
The appointing process in a regular definition would require generally a
appointment as in the case at bar, consists habitual law practice, perhaps practised
of four (4) stages: (1) nomination; (2) two or three times a week and would
confirmation by the Commission on outlaw say, law practice once or twice a
Appointments; (3) issuance of a year for ten consecutive years. Clearly,
commission (in the Philippines, upon this is far from the constitutional intent.
submission by the Commission on
Appointments of its certificate of Upon the other hand, the separate opinion
confirmation, the President issues the of Justice Isagani Cruz states that in my
permanent appointment; and (4) written opinion, I made use of a definition
acceptance e.g., oath-taking, posting of of law practice which really means
bond, etc. . . . (Lacson v. Romero, No. L- nothing because the definition says that
3081, October 14, 1949; Gonzales, Law law practice " . . . is what people
on Public Officers, p. 200) ordinarily mean by the practice of law."
True I cited the definition but only by way
The power of the Commission on of sarcasm as evident from my statement
Appointments to give its consent to the that the definition of law practice by
nomination of Monsod as Chairman of the "traditional areas of law practice is
Commission on Elections is mandated by essentially tautologous" or defining a
Section 1(2) Sub-Article C, Article IX of phrase by means of the phrase itself that is
the Constitution which provides: being defined.

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

The above-enumerated factors would, I Essentially, the word private practice of


believe, be useful aids in determining law implies that one must have presented
whether or not respondent Monsod meets himself to be in theactive and continued
the constitutional qualification of practice practice of the legal profession and that
of law for at least ten (10) years at the his professional services are available to
time of his appointment as COMELEC the public for a compensation, as a source
Chairman.
of his livelihood or in consideration of his cannot disqualified an appointee simply
said services. because he has passed the Commission on
Appointments.
ACCORDINGLY, my vote is to GRANT
the petition and to declare respondent Even the President of the Philippines may
Monsod as not qualified for the position of be declared ineligible by this Court in an
COMELEC Chairman for not having appropriate proceeding notwithstanding
engaged in the practice of law for at least that he has been found acceptable by no
ten (10) years prior to his appointment to less than the enfranchised citizenry. The
such position. reason is that what we would be
examining is not the wisdom of his
CRUZ, J., dissenting: election but whether or not he was
qualified to be elected in the first place.
I am sincerely impressed by
the ponencia of my brother Paras but find Coming now to the qualifications of the
I must dissent just the same. There are private respondent, I fear that
certain points on which I must differ with the ponencia may have been too sweeping
him while of course respecting in its definition of the phrase "practice of
hisviewpoint. law" as to render the qualification
practically toothless. From the numerous
To begin with, I do not think we are activities accepted as embraced in the
inhibited from examining the term, I have the uncomfortable feeling
qualifications of the respondent simply that one does not even have to be a lawyer
because his nomination has been to be engaged in the practice of law as
confirmed by the Commission on long as his activities involve the
Appointments. In my view, this is not a application of some law, however
political question that we are barred from peripherally. The stock broker and the
resolving. Determination of the insurance adjuster and the realtor could
appointee's credentials is made on the come under the definition as they deal
basis of the established facts, not the with or give advice on matters that are
discretion of that body. Even if it were, the likely "to become involved in litigation."
exercise of that discretion would still be
subject to our review. The lawyer is considered engaged in the
practice of law even if his main
In Luego, which is cited in the ponencia, occupation is another business and he
what was involved was the discretion of interprets and applies some law only as an
the appointing authority tochoose between incident of such business. That covers
two claimants to the same office who both every company organized under the
possessed the required qualifications. It Corporation Code and regulated by the
was that kind of discretion that we said SEC under P.D. 902-A. Considering the
could not be reviewed. ramifications of the modern society, there
is hardly any activity that is not affected
If a person elected by no less than the by some law or government regulation the
sovereign people may be ousted by this businessman must know about and
Court for lack of the required observe. In fact, again going by the
qualifications, I see no reason why we definition, a lawyer does not even have to
be part of a business concern to be has distinguished himself, but as an
considered a practitioner. He can be so executive and economist and not as a
deemed when, on his own, he rents a practicing lawyer. The plain fact is that he
house or buys a car or consults a doctor as has occupied the various positions listed
these acts involve his knowledge and in his resume by virtue of his experience
application of the laws regulating such and prestige as a businessman and not as
transactions. If he operates a public utility an attorney-at-law whose principal
vehicle as his main source of livelihood, attention is focused on the law. Even if it
he would still be deemed engaged in the be argued that he was acting as a lawyer
practice of law because he must obey the when he lobbied in Congress for agrarian
Public Service Act and the rules and and urban reform, served in the
regulations of the Energy Regulatory NAMFREL and the Constitutional
Board. Commission (together with non-lawyers
like farmers and priests) and was a
The ponencia quotes an American member of the Davide Commission, he
decision defining the practice of law as the has not proved that his activities in these
"performance of any acts ... in or out of capacities extended over the prescribed
court, commonly understood to be the 10-year period of actual practice of the
practice of law," which tells us absolutely law. He is doubtless eminently qualified
nothing. The decision goes on to say that for many other positions worthy of his
"because lawyers perform almost every abundant talents but not as Chairman of
function known in the commercial and the Commission on Elections.
governmental realm, such a definition
would obviously be too global to be I have much admiration for respondent
workable." Monsod, no less than for Mr. Justice
Paras, but I must regretfully vote to grant
The effect of the definition given in the petition.
the ponencia is to consider virtually every
lawyer to be engaged in the practice of GUTIERREZ, JR., J., dissenting:
law even if he does not earn his living, or
at least part of it, as a lawyer. It is enough When this petition was filed, there was
that his activities are incidentally (even if hope that engaging in the practice of law
only remotely) connected with some law, as a qualification for public office would
ordinance, or regulation. The possible be settled one way or another in fairly
exception is the lawyer whose income is definitive terms. Unfortunately, this was
derived from teaching ballroom dancing not the result.
or escorting wrinkled ladies with
pubescent pretensions. Of the fourteen (14) member Court, 5 are
of the view that Mr. Christian Monsod
The respondent's credentials are engaged in the practice of law (with one
impressive, to be sure, but they do not of these 5 leaving his vote behind while
persuade me that he has been engaged in on official leave but not expressing his
the practice of law for ten years as clear stand on the matter); 4 categorically
required by the Constitution. It is stating that he did not practice law; 2
conceded that he has been engaged in voting in the result because there was no
business and finance, in which areas he error so gross as to amount to grave abuse
of discretion; one of official leave with no estate, managing a business corporation,
instructions left behind on how he viewed serving in fact-finding committee,
the issue; and 2 not taking part in the working in media, or operating a farm
deliberations and the decision. with no active involvement in the law,
whether in Government or private
There are two key factors that make our practice, except that in one joyful moment
task difficult. First is our reviewing the in the distant past, they happened to pass
work of a constitutional Commission on the bar examinations?
Appointments whose duty is precisely to
look into the qualifications of persons The Constitution uses the phrase "engaged
appointed to high office. Even if the in the practice of law for at least ten
Commission errs, we have no power to set years." The deliberate choice of words
aside error. We can look only into grave shows that the practice envisioned is
abuse of discretion or whimsically and active and regular, not isolated,
arbitrariness. Second is our belief that Mr. occasional, accidental, intermittent,
Monsod possesses superior qualifications incidental, seasonal, or extemporaneous.
in terms of executive ability, proficiency To be "engaged" in an activity for ten
in management, educational background, years requires committed participation in
experience in international banking and something which is the result of one's
finance, and instant recognition by the decisive choice. It means that one is
public. His integrity and competence are occupied and involved in the enterprise;
not questioned by the petitioner. What is one is obliged or pledged to carry it out
before us is compliance with a specific with intent and attention during the ten-
requirement written into the Constitution. year period.

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

1. 1961-1963: M.A. in Economics (Ph. D. Member of the Board of the Following:


candidate), University of Pennsylvania
a. Engineering Construction Corporation
2. 1963-1970: World Bank Group of the Philippines
Economist, Industry Department;
Operations, Latin American Department; b. First Philippine Energy Corporation
Division Chief, South Asia and Middle
East, International Finance Corporation c. First Philippine Holdings Corporation

3. 1970-1973: Meralco Group d. First Philippine Industrial Corporation


Executive of various companies, i.e.,
Meralco Securities Corporation, e. Graphic Atelier
Philippine Petroleum Corporation,
Philippine Electric Corporation f. Manila Electric Company

4. 1973-1976: Yujuico Group g. Philippine Commercial Capital, Inc.


President, Fil-Capital Development
Corporation and affiliated companies h. Philippine Electric Corporation

5. 1976-1978: Finaciera Manila Chief i. Tarlac Reforestation and Environment


Executive Officer Enterprises

6. 1978-1986: Guevent Group of j. Tolong Aquaculture Corporation


Companies Chief Executive Officer
k. Visayan Aquaculture Corporation
7. 1986-1987: Philippine Constitutional
Commission Member l. Guimaras Aquaculture Corporation
(Rollo, pp. 21-22)
8. 1989-1991: The Fact-Finding
Commission on the December 1989 Coup There is nothing in the above bio-data
Attempt Member which even remotely indicates that
respondent Monsod has given the
9. Presently: Chairman of the Board and lawenough attention or a certain degree of
Chief Executive Officer of the following commitment and participation as would
companies: support in all sincerity and candor the
claim of having engaged in its practice for
a. ACE Container Philippines, Inc. at least ten years. Instead of working as a
lawyer, he has lawyers working for him.
b. Dataprep, Philippines Instead of giving receiving that legal
advice of legal services, he was the
c. Philippine SUNsystems Products, Inc. oneadvice and those services as an
executive but not as a lawyer.
The deliberations before the Commission State Bar Ass'n v. People's Stock Yards
on Appointments show an effort to equate State Bank, 344 Ill. 462,176 N.E. 901, and
"engaged in the practice of law" with the cases cited.
use of legal knowledge in various fields of
endeavor such as commerce, industry, It would be difficult, if not impossible to
civic work, blue ribbon investigations, lay down a formula or definition of what
agrarian reform, etc. where such constitutes the practice of law. "Practicing
knowledge would be helpful. law" has been defined as "Practicing as an
attorney or counselor at law according to
I regret that I cannot join in playing fast the laws and customs of our courts, is the
and loose with a term, which even an giving of advice or rendition of any sort of
ordinary layman accepts as having a service by any person, firm or corporation
familiar and customary well-defined when the giving of such advice or
meaning. Every resident of this country rendition of such service requires the use
who has reached the age of discernment of any degree of legal knowledge or skill."
has to know, follow, or apply the law at Without adopting that definition, we
various times in his life. Legal knowledge referred to it as being substantially correct
is useful if not necessary for the business in People ex rel. Illinois State Bar Ass'n v.
executive, legislator, mayor, barangay People's Stock Yards State Bank, 344 Ill.
captain, teacher, policeman, farmer, 462,176 N.E. 901. (People v. Schafer, 87
fisherman, market vendor, and student to N.E. 2d 773, 776)
name only a few. And yet, can these
people honestly assert that as such, they For one's actions to come within the
are engaged in the practice of law? purview of practice of law they should not
only be activities peculiar to the work of a
The Constitution requires having been lawyer, they should also be performed,
"engaged in the practice of law for at least habitually, frequently or customarily, to
ten years." It is not satisfied with having wit:
been "a member of the Philippine bar for
at least ten years." xxx xxx xxx

Some American courts have defined the Respondent's answers to questions


practice of law, as follows: propounded to him were rather evasive.
He was asked whether or not he ever
The practice of law involves not only prepared contracts for the parties in real-
appearance in court in connection with estate transactions where he was not the
litigation but also services rendered out of procuring agent. He answered: "Very
court, and it includes the giving of advice seldom." In answer to the question as to
or the rendering of any services requiring how many times he had prepared contracts
the use of legal skill or knowledge, such for the parties during the twenty-one years
as preparing a will, contract or other of his business, he said: "I have no Idea."
instrument, the legal effect of which, When asked if it would be more than half
under the facts and conditions involved, a dozen times his answer was I suppose.
must be carefully determined.People ex Asked if he did not recall making the
rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. statement to several parties that he had
282, 77 N.E.2d 693; People ex rel. Illinois prepared contracts in a large number of
instances, he answered: "I don't recall and defend actions in such court on
exactly what was said." When asked if he the retainerof clients. "The principal
did not remember saying that he had made duties of an attorney are (1) to be true to
a practice of preparing deeds, mortgages the court and to his client; (2) to manage
and contracts and charging a fee to the the business of his client with care, skill,
parties therefor in instances where he was and integrity; (3) to keep his client
not the broker in the deal, he answered: informed as to the state of his business;
"Well, I don't believe so, that is not a (4) to keep his secrets confided to him as
practice." Pressed further for an answer as such. ... His rights are to be justly
to his practice in preparing contracts and compensated for his services." Bouv. Law
deeds for parties where he was not the Dict. tit. "Attorney." The transitive verb
broker, he finally answered: "I have done "practice," as defined by Webster, means
about everything that is on the books as 'to do or perform frequently, customarily,
far as real estate is concerned." or habitually; to perform by a succession
of acts, as, to practice gaming, ... to carry
xxx xxx xxx on in practice, or repeated action; to
apply, as a theory, to real life; to exercise,
Respondent takes the position that because as a profession, trade, art. etc.; as, to
he is a real-estate broker he has a lawful practice law or medicine,' etc...." (State v.
right to do any legal work in connection Bryan, S.E. 522, 523; Emphasis supplied)
with real-estate transactions, especially in
drawing of real-estate contracts, deeds, In this jurisdiction, we have ruled that the
mortgages, notes and the like. There is no practice of law denotes frequency or a
doubt but that he has engaged in these succession of acts. Thus, we stated in the
practices over the years and has charged case of People v. Villanueva (14 SCRA
for his services in that connection. ... 109 [1965]):
(People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
xxx xxx xxx
... Practice is more than an isolated
... An attorney, in the most general sense, appearance, for it consists in frequent or
is a person designated or employed by customary actions, a succession of acts of
another to act in his stead; an agent; more the same kind. In other words, it is
especially, one of a class of persons frequent habitual exercise (State v. Cotner,
authorized to appear and act for suitors or 127, p. 1, 87 Kan. 864, 42 LRA, M.S.
defendants in legal proceedings. Strictly, 768). Practice of law to fall within the
these professional persons are attorneys at prohibition of statute has been interpreted
law, and non-professional agents are as customarily or habitually holding one's
properly styled "attorney's in fact;" but the self out to the public, as a lawyer and
single word is much used as meaning an demanding payment for such services. ... .
attorney at law. A person may be an (at p. 112)
attorney in facto for another, without
being an attorney at law. Abb. Law Dict. It is to be noted that the Commission on
"Attorney." A public attorney, or attorney Appointment itself
at law, says Webster, is an officer of a recognizes habituality as a required
court of law, legally qualified to prosecute component of the meaning of practice of
law in a Memorandum prepared and the practice of law, doing business also
issued by it, to wit: should be active and continuous. Isolated
business transactions or occasional,
l. Habituality. The term 'practice of law' incidental and casual transactions are not
implies customarilyor habitually holding within the context of doing business. This
one's self out to the public as a lawyer was our ruling in the case of Antam
(People v. Villanueva, 14 SCRA 109 citing Consolidated, Inc. v. Court of
State v. Bryan, 4 S.E. 522, 98 N.C. 644) appeals, 143 SCRA 288 [1986]).
such as when one sends a circular
announcing the establishment of a law Respondent Monsod, corporate executive,
office for the general practice of law (U.S. civic leader, and member of the
v. Noy Bosque, 8 Phil. 146), or when one Constitutional Commission may possess
takes the oath of office as a lawyer before the background, competence, integrity,
a notary public, and files a manifestation and dedication, to qualify for such high
with the Supreme Court informing it of his offices as President, Vice-President,
intention to practice law in all courts in Senator, Congressman or Governor but
the country (People v. De Luna, 102 Phil. the Constitution in prescribing the specific
968). qualification of having engaged in the
practice of law for at least ten (10) years
Practice is more than an isolated for the position of COMELEC Chairman
appearance, for it consists in frequent or has ordered that he may not be confirmed
customary action, a succession of acts of for that office. The Constitution charges
the same kind. In other words, it is a the public respondents no less than this
habitual exercise (People v. Villanueva, 14 Court to obey its mandate.
SCRA 1 09 citing State v. Cotner, 1 27, p.
1, 87 Kan, 864)." (Rollo, p. 115) I, therefore, believe that the Commission
on Appointments committed grave abuse
xxx xxx xxx of discretion in confirming the nomination
of respondent Monsod as Chairman of the
While the career as a businessman of COMELEC.
respondent Monsod may have profited
from his legal knowledge, the use of such I vote to GRANT the petition.
legal knowledge is incidental and consists
of isolated activities which do not fall Bidin, J., dissent
under the denomination of practice of law.
Admission to the practice of law was not
required for membership in the
Constitutional Commission or in the Fact- Separate Opinions
Finding Commission on the 1989 Coup
Attempt. Any specific legal activities NARVASA, J., concurring:
which may have been assigned to Mr.
Monsod while a member may be likened I concur with the decision of the majority
to isolated transactions of foreign written by Mr. Justice Paras, albeit only in
corporations in the Philippines which do the result; it does not appear to me that
not categorize the foreign corporations as there has been an adequate showing that
doing business in the Philippines. As in the challenged determination by the
Commission on Appointments-that the The procedural barriers interposed by
appointment of respondent Monsod as respondents deserve scant consideration
Chairman of the Commission on Elections because, ultimately, the core issue to be
should, on the basis of his stated resolved in this petition is the proper
qualifications and after due assessment construal of the constitutional provision
thereof, be confirmed-was attended by requiring a majority of the membership of
error so gross as to amount to grave abuse COMELEC, including the Chairman
of discretion and consequently merits thereof to "have been engaged in the
nullification by this Court in accordance practice of law for at least ten (10) years."
with the second paragraph of Section 1, (Art. IX(C), Section 1(1), 1987
Article VIII of the Constitution. I Constitution). Questions involving the
therefore vote to DENY the petition. construction of constitutional provisions
are best left to judicial resolution. As
Melencio-Herrera, J., concur. declared in Angara v. Electoral
Commission, (63 Phil. 139) "upon the
PADILLA, J., dissenting: judicial department is thrown the solemn
and inescapable obligation of interpreting
The records of this case will show that the Constitution and defining
when the Court first deliberated on the constitutional boundaries."
Petition at bar, I voted not only to require
the respondents to comment on the The Constitution has imposed clear and
Petition, but I was the sole vote for the specific standards for a COMELEC
issuance of a temporary restraining order Chairman. Among these are that he must
to enjoin respondent Monsod from have been "engaged in the practice of law
assuming the position of COMELEC for at least ten (10) years." It is the
Chairman, while the Court deliberated on bounden duty of this Court to ensure that
his constitutional qualification for the such standard is met and complied with.
office. My purpose in voting for a TRO
was to prevent the inconvenience and What constitutes practice of law? As
even embarrassment to all parties commonly understood, "practice" refers to
concerned were the Court to finally decide the actual performance or application of
for respondent Monsod's disqualification. knowledge as distinguished from mere
Moreover, a reading of the Petition then in possession of knowledge; it connotes
relation to established jurisprudence an active, habitual,repeated or customary
already showed prima facie that action. 1 To "practice" law, or any
respondent Monsod did not possess the profession for that matter, means, to
needed qualification, that is, he had not exercise or pursue an employment or
engaged in the practice of law for at least profession actively, habitually,
ten (10) years prior to his appointment as repeatedly or customarily.
COMELEC Chairman.
Therefore, a doctor of medicine who is
After considering carefully respondent employed and is habitually performing the
Monsod's comment, I am even more tasks of a nursing aide, cannot be said to
convinced that the constitutional be in the "practice of medicine." A
requirement of "practice of law for at certified public accountant who works as a
least ten (10) years" has not been met. clerk, cannot be said to practice his
profession as an accountant. In the same the country (People v. De Luna, 102 Phil.
way, a lawyer who is employed as a 968).
business executive or a corporate
manager, other than as head or attorney of Practice is more than an isolated
a Legal Department of a corporation or a appearance for it consists in frequent or
governmental agency, cannot be said to be customary action, a succession of acts of
in the practice of law. the same kind. In other words, it is a
habitual exercise (People v. Villanueva, 14
As aptly held by this Court in the case SCRA 109 citing State v. Cotner, 127, p.
of People vs. Villanueva: 2 1, 87 Kan, 864).

Practice is more than an isolated 2. Compensation. Practice of law implies


appearance for it consists in frequent or that one must have presented himself to be
customary actions, a succession of acts of in the active and continued practice of the
the same kind. In other words, it is legal profession and that his professional
frequent habitual exercise (State vs- services are available to the public for
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, compensation, as a service of his
M.S. 768). Practice of law to fall within livelihood or in consideration of his said
the prohibition of statute has been services. (People v. Villanueva, supra).
interpreted as customarily or habitually Hence, charging for services such as
holding one's self out to the public as a preparation of documents involving the
lawyer and demanding payment for such use of legal knowledge and skill is within
services (State vs. Bryan, 4 S.E. 522, 98 the term "practice of law" (Ernani Pao,
N.C. 644,647.) ... (emphasis supplied). Bar Reviewer in Legal and Judicial
Ethics, 1988 ed., p. 8 citing People v.
It is worth mentioning that the respondent People's Stockyards State Bank, 176 N.B.
Commission on Appointments in a 901) and, one who renders an opinion as
Memorandum it prepared, enumerated to the proper interpretation of a statute,
several factors determinative of whether a and receives pay for it, is to that extent,
particular activity constitutes "practice of practicing law (Martin, supra, p. 806
law." It states: citing Mendelaun v. Gilbert and Barket
Mfg. Co., 290 N.Y.S. 462) If
1. Habituality. The term "practice of law" compensation is expected, all advice to
implies customarily or habitually holding clients and all action taken for them in
one's self out to the public as a lawyer matters connected with the law; are
(People vs. Villanueva, 14 SCRA 109 practicing law. (Elwood Fitchette et al., v.
citing State v. Boyen, 4 S.E. 522, 98 N.C. Arthur C. Taylor, 94A-L.R. 356-359)
644) such as when one sends a circular
announcing the establishment of a law 3. Application of law legal principle
office for the general practice of law (U.S. practice or procedure which calls for legal
v. Ney Bosque, 8 Phil. 146), or when one knowledge, training and experience is
takes the oath of office as a lawyer before within the term "practice of law".
a notary public, and files a manifestation (Martin supra)
with the Supreme Court informing it of his
intention to practice law in all courts in 4. Attorney-client relationship. Engaging
in the practice of law presupposes the
existence of lawyer-client relationship. peculiar to the practice of law, like the
Hence, where a lawyer undertakes an drafting of legal documents and the
activity which requires knowledge of law rendering of legal opinion or advice, such
but involves no attorney-client were isolated transactions or activities
relationship, such as teaching law or which do not qualify his past endeavors as
writing law books or articles, he cannot be "practice of law." To become engaged in
said to be engaged in the practice of his the practice of law, there must be
profession or a lawyer (Agpalo, Legal a continuity, or a succession of acts. As
Ethics, 1989 ed., p. 30). 3 observed by the Solicitor General
in People vs. Villanueva: 4
The above-enumerated factors would, I
believe, be useful aids in determining Essentially, the word private practice of
whether or not respondent Monsod meets law implies that one must have presented
the constitutional qualification of practice himself to be in theactive and continued
of law for at least ten (10) years at the practice of the legal profession and that
time of his appointment as COMELEC his professional services are available to
Chairman. the public for a compensation, as a source
of his livelihood or in consideration of his
The following relevant questions may be said services.
asked:
ACCORDINGLY, my vote is to GRANT
1. Did respondent Monsod perform any of the petition and to declare respondent
the tasks which are peculiar to the practice Monsod as not qualified for the position
of law? of COMELEC Chairman for not having
engaged in the practice of law for at least
2. Did respondent perform such tasks ten (10) years prior to his appointment to
customarily or habitually? such position.

3. Assuming that he performed any of CRUZ, J., dissenting:


such tasks habitually, did he do so
HABITUALLY FOR AT LEAST TEN I am sincerely impressed by
(10) YEARS prior to his appointment as the ponencia of my brother Paras but find
COMELEC Chairman? I must dissent just the same. There are
certain points on which I must differ with
Given the employment or job history of him while of course respecting
respondent Monsod as appears from the hisviewpoint.
records, I am persuaded that if ever he did
perform any of the tasks which constitute To begin with, I do not think we are
the practice of law, he did not do so inhibited from examining the
HABITUALLY for at least ten (10) qualifications of the respondent simply
years prior to his appointment as because his nomination has been
COMELEC Chairman. confirmed by the Commission on
Appointments. In my view, this is not a
While it may be granted that he performed political question that we are barred from
tasks and activities which could be resolving. Determination of the
latitudinarianly considered activities appointee's credentials is made on the
basis of the established facts, not the that are likely "to become involved in
discretion of that body. Even if it were, the litigation."
exercise of that discretion would still be
subject to our review. The lawyer is considered engaged in the
practice of law even if his main
In Luego, which is cited in the ponencia, occupation is another business and he
what was involved was the discretion of interprets and applies some law only as an
the appointing authority tochoose between incident of such business. That covers
two claimants to the same office who both every company organized under the
possessed the required qualifications. It Corporation Code and regulated by the
was that kind of discretion that we said SEC under P.D. 902-A. Considering the
could not be reviewed. ramifications of the modern society, there
is hardly any activity that is not affected
If a person elected by no less than the by some law or government regulation the
sovereign people may be ousted by this businessman must know about and
Court for lack of the required observe. In fact, again going by the
qualifications, I see no reason why we definition, a lawyer does not even have to
cannot disqualified an appointee simply be part of a business concern to be
because he has passed the Commission on considered a practitioner. He can be so
Appointments. deemed when, on his own, he rents a
house or buys a car or consults a doctor as
Even the President of the Philippines may these acts involve his knowledge and
be declared ineligible by this Court in an application of the laws regulating such
appropriate proceeding notwithstanding transactions. If he operates a public utility
that he has been found acceptable by no vehicle as his main source of livelihood,
less than the enfranchised citizenry. The he would still be deemed engaged in the
reason is that what we would be practice of law because he must obey the
examining is not the wisdom of his Public Service Act and the rules and
election but whether or not he was regulations of the Energy Regulatory
qualified to be elected in the first place. Board.

Coming now to the qualifications of the The ponencia quotes an American


private respondent, I fear that decision defining the practice of law as
the ponencia may have been too sweeping the "performance of any acts . . . in or out
in its definition of the phrase "practice of of court, commonly understood to be the
law" as to render the qualification practice of law," which tells us absolutely
practically toothless. From the numerous nothing. The decision goes on to say that
activities accepted as embraced in the "because lawyers perform almost every
term, I have the uncomfortable feeling that function known in the commercial and
one does not even have to be a lawyer to governmental realm, such a definition
be engaged in the practice of law as long would obviously be too global to be
as his activities involve the application of workable."
some law, however peripherally. The stock
broker and the insurance adjuster and the The effect of the definition given in
realtor could come under the definition as the ponencia is to consider virtually every
they deal with or give advice on matters lawyer to be engaged in the practice of
law even if he does not earn his living, or When this petition was filed, there was
at least part of it, as a lawyer. It is enough hope that engaging in the practice of law
that his activities are incidentally (even if as a qualification for public office would
only remotely) connected with some law, be settled one way or another in fairly
ordinance, or regulation. The possible definitive terms. Unfortunately, this was
exception is the lawyer whose income is not the result.
derived from teaching ballroom dancing
or escorting wrinkled ladies with Of the fourteen (14) member Court, 5 are
pubescent pretensions. of the view that Mr. Christian Monsod
engaged in the practice of law (with one
The respondent's credentials are of these 5 leaving his vote behind while
impressive, to be sure, but they do not on official leave but not expressing his
persuade me that he has been engaged in clear stand on the matter); 4 categorically
the practice of law for ten years as stating that he did not practice law; 2
required by the Constitution. It is voting in the result because there was no
conceded that he has been engaged in error so gross as to amount to grave abuse
business and finance, in which areas he of discretion; one of official leave with no
has distinguished himself, but as an instructions left behind on how he viewed
executive and economist and not as a the issue; and 2 not taking part in the
practicing lawyer. The plain fact is that he deliberations and the decision.
has occupied the various positions listed
in his resume by virtue of his experience There are two key factors that make our
and prestige as a businessman and not as task difficult. First is our reviewing the
an attorney-at-law whose principal work of a constitutional Commission on
attention is focused on the law. Even if it Appointments whose duty is precisely to
be argued that he was acting as a lawyer look into the qualifications of persons
when he lobbied in Congress for agrarian appointed to high office. Even if the
and urban reform, served in the Commission errs, we have no power to set
NAMFREL and the Constitutional aside error. We can look only into grave
Commission (together with non-lawyers abuse of discretion or whimsically and
like farmers and priests) and was a arbitrariness. Second is our belief that Mr.
member of the Davide Commission, he Monsod possesses superior qualifications
has not proved that his activities in these in terms of executive ability, proficiency
capacities extended over the prescribed in management, educational background,
10-year period of actual practice of the experience in international banking and
law. He is doubtless eminently qualified finance, and instant recognition by the
for many other positions worthy of his public. His integrity and competence are
abundant talents but not as Chairman of not questioned by the petitioner. What is
the Commission on Elections. before us is compliance with a specific
requirement written into the Constitution.
I have much admiration for respondent
Monsod, no less than for Mr. Justice Inspite of my high regard for Mr. Monsod,
Paras, but I must regretfully vote to grant I cannot shirk my constitutional duty. He
the petition. has never engaged in the practice of law
for even one year. He is a member of the
GUTIERREZ, JR., J., dissenting:
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
estate, managing a business corporation, 1.15.1. Respondent Monsod's activities
serving in fact-finding committee, since his passing the Bar examinations in
working in media, or operating a farm 1961 consist of the following:
with no active involvement in the law,
whether in Government or private 1. 1961-1963: M.A. in Economics (Ph. D.
practice, except that in one joyful moment candidate), University of Pennsylvania
in the distant past, they happened to pass
the bar examinations? 2. 1963-1970: World Bank Group
Economist, Industry Department;
The Constitution uses the phrase "engaged Operations, Latin American Department;
in the practice of law for at least ten Division Chief, South Asia and Middle
years." The deliberate choice of words East, International Finance Corporation
shows that the practice envisioned is
active and regular, not isolated, 3. 1970-1973: Meralco Group
occasional, accidental, intermittent, Executive of various companies, i.e.,
incidental, seasonal, or extemporaneous. Meralco Securities Corporation,
To be "engaged" in an activity for ten Philippine Petroleum Corporation,
years requires committed participation in Philippine Electric Corporation
something which is the result of one's
decisive choice. It means that one is 4. 1973-1976: Yujuico Group
occupied and involved in the enterprise; President, Fil-Capital Development
one is obliged or pledged to carry it out Corporation and affiliated companies
with intent and attention during the ten-
year period. 5. 1976-1978: Finaciera Manila Chief
Executive Officer
I agree with the petitioner that based on
the bio-data submitted by respondent 6. 1978-1986: Guevent Group of
Monsod to the Commission on Companies Chief Executive Officer
Appointments, the latter has not been
7. 1986-1987: Philippine Constitutional l. Guimaras Aquaculture Corporation
Commission Member (Rollo, pp. 21-22)

8. 1989-1991: The Fact-Finding There is nothing in the above bio-data


Commission on the December 1989 Coup which even remotely indicates that
Attempt Member respondent Monsod has given the
lawenough attention or a certain degree of
9. Presently: Chairman of the Board and commitment and participation as would
Chief Executive Officer of the following support in all sincerity and candor the
companies: claim of having engaged in its practice for
at least ten years. Instead of working as a
a. ACE Container Philippines, Inc. lawyer, he has lawyers working for him.
Instead of giving receiving that legal
b. Dataprep, Philippines advice of legal services, he was the
oneadvice and those services as an
c. Philippine SUNsystems Products, Inc. executive but not as a lawyer.

d. Semirara Coal Corporation The deliberations before the Commission


on Appointments show an effort to equate
e. CBL Timber Corporation "engaged in the practice of law" with the
use of legal knowledge in various fields of
Member of the Board of the Following: endeavor such as commerce, industry,
civic work, blue ribbon investigations,
a. Engineering Construction Corporation agrarian reform, etc. where such
of the Philippines knowledge would be helpful.

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.

Served with the corresponding summons (Sgd.) JOSE F. PEREZ


and copies of the complaint, the
petitioners, as defendants therein, on June COPY FURNISHED:
10, 1973 filed a motion to dismiss the (By registered Mail)
complaint on two grounds: namely (1) Atty. Jaime B. Lumasag, Counsel for the
Plaintiff, June 10, 1973, the hearing of which had
5-C Banawe, Quezon City been set to June 16, 1973 but the notice of
said hearing was addressed to the Clerk of
Attached to the motion is Registry Receipt Court, not to Atty. Jaime B. Lumasag,
No. 45297 issued by Manila Central Post counsel for plaintiff; that the Revised
Office on June 9, 1973. 2 Rules of Court provides that petitions and
motions should be sent to opposing parties
On June 16, 1973, the date set for the who should be notified of the date of the
hearing of the motion to dismiss, neither hearing thereof; that the notice of hearing
the parties nor their respective counsels in defendants' motion to dismiss is fatally
appeared in court. But the court, noting defective, it being addressed to the Clerk
that there was no clear showing in the of Court; and that because of that defect,
record that notice of hearing of said defendants' motion to dismiss is a "useless
motion had been served upon counsel for piece of paper", citing Philippine
the plaintiff, issued on June 18, 1973 an Advertising Counselors, Inc. v. Hon.
Order postponing consideration of the Pedro A. Revilla, G.R. No. L-31869,
motion "until counsel for the defendants promulgated on August 8, 1973. 5 By
shall have shown to the satisfaction of the Order of January 15, 1974, the court
Court that a copy of his motion to dismiss granted the petition 6 and, consequently, it
has been furnished counsel for the received ex parte the evidence of the
plaintiff." The Order adds that "in said plaintiff and rendered judgment thereon
event, the Clerk of Court shall calendar on January 29, 1974, the dispositive
anew the hearing of the motion to dismiss portion of which reads: t.hqw
furnishing a copy of the date of the
bearing to counsels for the plaintiff and WHEREFORE, judgment is hereby
for the defendants." 3 Copies of said Order rendered in favor of the plaintiff and
were sent to the respective counsels of the against the defendants directing the latter:
parties on June 10, 1973 by registered
mail. 4 1. To return to the plaintiff ten (10)
certificates of stock corresponding to
While the motion to dismiss was pending 100,000 shares of the Omico Mining and
resolution by the court because defendants Industrial Corporation in the name of
had not yet presented to the court the Vicente Resonda bearing Nos. 13437 up
required proof of service, plaintiff, on to and including 13446 or in lieu thereof,
January 11, 1974, filed a petition to to deliver to said plaintiff new certificates
declare the defendants in default and to of the above-named corporation of
allow him to present his evidence ex equivalent value;
parte. In said petition, plaintiff alleged, in
substance, that defendants had been 2. To pay to the plaintiff the total amount
served with summons and copies of the of One Million One Hundred Eighty-six
complaint on June 8, 1973; that as of Thousand Four Hundred Thirty-five Pesos
January 11, 1974, or after a lapse of seven and Eleven centavos (P1,186,435.11) at
(7) months from the service of summons, the legal rate of interest until said amount
defendants had not filed their answer to is fully paid;
the complaint; that the defendants had
filed a motion to dismiss the complaint on
3. To pay to the plaintiff by way of the claims of the plaintiff as shown by the
attorney's fees the amount of Ten affidavits of Jose F. Perez and Hilarion P.
Thousand Pesos (P10,000.00); Dugenio, legal counsel and corporate
secretary, respectively, of Omico Mining
4. To pay the costs." 7 and Industrial Corporation. The motion
contains a notice to counsel for plaintiff
On March 5, 1974, defendants filed a that the hearing thereof has been set for
motion for reconsideration, advancing the March 15, 1974. 8
arguments (1) that the judgment is
contrary to law and the liberal On March 15,1974, plaintiff Catolico, on
interpretation of the Revised Rules of his own behalf, filed a motion to postpone
Court, in that they have complied with the hearing of the motion for reconsideration
provisions of Section 10 of Rule 13, to April 29, 1974, to enable him to prepare
Revised Rules of Court, by stating in the an intelligible opposition thereto.
motion to dismiss that a copy thereof was The motion does not contain a notice of
furnished by registered mail to Atty. Jaime hearing. It merely states at the foot thereof
B. Lumasag, counsel for the plaintiff, and that a copy of said motion was furnished
attaching thereto the registry receipt Pio R. Marcos and Guillermo Bandonil,
therefor issued by the Manila Central Post counsel for defendants, without stating
Office; that the purpose of the notice has how delivery was effected. 9 But
been served because as per certification of notwithstanding absence of notice of
the post office of Quezon City, said Atty. hearing, the court, considering the
Jaime B. Lumasag received the copy of absence, of objection thereto on the part of
the Motion to Dismiss before June 16, the defendants, granted the motion for
1973, the date set for the hearing of the postponement, with the condition that the
motion; and that, with respect to the return defendants be furnished with a copy of the
card, they have not received the same, opposition; that defendants may file their
hence, they could not comply with the reply to the opposition within fifteen (15)
submission thereof; (2) that the days from receipt of a copy thereof; and
circumstances obtaining in the case do not that thereafter the matter be deemed
warrant the default order which finally submitted for resolution. 10
paved the way for the rendering of
judgment in favor of the plaintiff, because On May 31, 1974, while defendants'
counsel for the plaintiff had received a motion for reconsideration was still
copy of the motion to dismiss one day pending before the court because the
before the hearing thereof; that said defendants had not filed yet their reply to
motion should have been acted upon, the opposition as they had not received a
considering that it contains contentious copy thereof, 11 plaintiff Catolico filed a
issues which when resolved would show motion for immediate execution of
the complaint to be "nothing but empty judgment, alleging, among other things,
claims"; and that the ruling in Philippine that said judgment had already become
Advertising Counselors, Inc. cannot apply, final and executory because the
because the facts therein are at variance defendants failed to have the order of
with those of the present case; and (3) that default lifted; that the motion for
the defendants have a valid defense and reconsideration was filed out of time; that
strong evidence to rebut and/or controvert there was a "manifest attempt on the part
of the defendants to delay the proceedings through his Senior Legal Assistant and
to afford them an opportunity to have all Acting Executive Sheriff Dominador Q.
their assets and shares dissipated by Cacpal served a notice of garnishment to
continuous sale of the same to the the defendants, together with a writ of
prejudice" not only of respondent Catolico execution issued by the respondent Judge.
but also of "some forty to fifty creditors On July 22, Pio R. Marcos, as President
who filed complaints against the and Chairman of the Board of Directors of
defendants for estafa and civil suits for defendant Omico Mining and Industrial
collection amounting to hundreds of Corporation, wrote a letter to respondent
thousands of pesos"; that some 80% of Sheriff asking that the defendants be given
defendants' assets and properties had a little chance to exhaust the legal
already been sold at fantastically low remedies available to hold in abeyance the
prices to defraud creditors who had been execution and garnishment. Among the
deceitfully assured by the management reasons presented by Marcos are that
that they are well protected; that the defendants were not given a chance to
judgment might become ineffective "due have their day in court in the motion for
to the notoriously deceptive movements" immediate execution of judgment and that
(sic) to which the defendants "daily and they have already appealed from the lower
continuously expose themselves"; and that court's decision and order of immediate
immediate execution of the judgment is execution. 16
the only protection that can be rendered to
plaintiff under the premises. 12 Because of the impending execution of the
judgment by default which they believe to
On June 18, 1974, the Court issued be illegal, defendants, on July 25, 1974,
simultaneously two (2) Orders, one filed with this Court the instant petition
denying defendants' motion for praying, among other things, that
reconsideration, 13 and the other directing respondent Judge be restrained from
the issuance of a writ of execution of its commanding the City Sheriff of Manila,
decision of January 29, 1974. In the latter or his duly authorized representative, to
Order, the court appointed the City Sheriff execute the decision of January 29, 1974.
of Manila, herein respondent Leonardo The petition assails mainly the Order of
Alcid, to execute said writ of execution. 14 respondent Judge, declaring the
defendants in default, the consequent
On June 19, 1974, defendants filed their reception of the evidence of the
notice of appeal to this Court, an appeal plaintiff ex parte and the judgment by
bond and a record on appeal. The record default rendered thereon, as having been
on appeal was approved on August 27, made without or in excess of jurisdiction,
1974 only because of the absence of the or with grave abuse of discretion because
respondent Judge from his station, he said respondent Judge failed to resolve
being then a participant in the seminar of first the defendants' motion to dismiss. In
Judges of Court of First Instance in the a resolution dated July 24, 1974, We
Development Academy of the Philippines required, without giving due course to the
at Tagaytay City. 15 petition, respondents to comment on said
petition within ten (10) days from notice
On the same date, June 19, 1974, in the thereof, and, as prayed for, issued a
afternoon, respondent Sheriff of Manila, temporary restraining order. Respondent
Judge and private respondent Catolico standards required in the decision above
filed separate comments. Per resolution quoted for it was addressed to the Clerk of
dated August 20, 1974, We resolved to Court and not to the party concerned. As
consider their comments as their Answer such, said motion to dismiss was but 'a
to the petition. useless piece of paper' without any legal
standing, and, therefore, could neither be
In his answer, respondent Judge justifies granted nor denied, by this respondent ....
his failure to act on the aforesaid motion
to dismiss the complaint in this wise: t. Subsequently, or on September 6, 1974,
hqw private respondent filed a motion to
dismiss said petition on the ground that
In insisting in their petition that it was the remedy of certiorari and prohibition is
obligatory for this respondent to grant or no longer available to the herein
deny said motion to dismiss, counsels who petitioners, inasmuch as they had already
filed this petition seem to be feigning perfected their appeal. 17 Petitioners
ignorance as to reasons why this opposed the motion to dismiss on the
respondent chose to ignore their motion to ground that their appeal is inadequate to
dismiss and considered it a mere scrap of protect their rights for, without the
paper. It is humbly submitted that said restraining order issued by this Court, the
reasons have been amply set forth and respondents could have executed the
discussed in the Decision rendered in decision and orders in question. 18
Civil Case No. N-1963 (Annex F to the
petition) in accordance with the decision II.
of this Honorable Tribunal in the case of ISSUES
Philippine Advertising Counselors, Inc.,
versus Hon. Pedro Revilla, et al., G.R. No. The first issue to be resolved here is
L-31869), to this effect: t.hqw whether the respondent Judge acted
without or in excess of jurisdiction or with
'Finally, Section 4, Rule 15 of the Rules of grave abuse of discretion in declaring the
Court provides that notice of a motion defendants in default, in receiving
shall be served by the applicant to all plaintiff's evidence ex parte and in
parties concerned, at least three days rendering judgment thereon.
before the hearing thereof, together with a
copy of the motion, and of any affidavits The second is whether ordinary appeal,
and other papers accompanying it, and not certiorari and prohibition, is the proper
Section 5 of the same rule requires the remedy available to petitioners.
motion to be directed to the parties
concerned and to state the time and place III
for the hearing of the motion. A motion
which fails to comply with these 1. With regard to the first issue,
requirements is nothing but a useless respondents contend that the motion to
piece of paper ...' (Emphasis supplied). dismiss the complaint is a "useless piece
of paper" because the notice of hearing
Counsels who filed the instant petition incorporated therein is addressed to the
know more than anybody else that their Clerk of Court, not to the party concerned,
motion to dismiss did not comply with the that is, the plaintiff or his counsel, as
required by the rules. We do not agree. As with grave abuse of discretion when he
copied verbatim above, the notice of declared the petitioners in default. The
hearing states the time and place of motion to dismiss was pending before the
hearing, and a copy thereof was sent court when such declaration was made,
through registered mail seven (7) days and it is generally irregular to enter an
before the date set for the hearing of the order of default while a motion to dismiss
motion but actually received by plaintiff's remains pending and undisposed of. 22 The
counsel one (1) day before said date, as irregularity of the order of default is
per certification of the Quezon City Post evident from the fact that when the
Office. petitioners were declared in default, their
time for filing an answer had not yet
To Our mind, what is decisive here is that commenced to run anew because on said
plaintiff had sufficient notice of the time date, their counsel had not yet received
and place of the hearing of the motion to any notice of the action taken by the court
dismiss. We have said in Manila Surety on their motion to dismiss. Under Section
and Fidelity Co., Inc. v. Bath Construction 4 of Rule 16 of the Revised Rules of
and Company, 19"unless the movant sets Court, if the motion to dismiss is denied
the time and place of hearing the court or if the determination thereof is deferred,
would have no way to determine whether the movant shall file his answer within the
that party agrees to or objects to the period prescribed by Rule 11, computed
motion, and if he objects, to hear him on from the time he received notice of the
his objection, since the Rules themselves denial or deferment, unless the court
do not fix any period within which he may provides a different period. In other
file his reply or opposition." In words, the period for filing responsive
the Matusa case, We said that granting pleading commences to run all over again
that the notice is defective for failure to from the time the defendant receives
specify the exact date when the motion to notice of the denial or deferment of his
dismiss should be heard, the Court, in motion to dismiss. Inasmuch as petitioners
taking cognizance of the motion on the were declared in default while their
date set for the hearing thereof, cured motion to dismiss was still pending
whatever iota of defect such a pleading resolution, they were, therefore,
may have had, especially if it is taken into incorrectly declared in default, and the
account that upon receipt of the motion to holding of the trial of the case on the
dismiss, plaintiff was properly notified of merits, in their absence, without due
the existence of said pleading. 20Indeed, notice to them of the date of hearing, was
We declared that there may be cases a denial of due process. 23 Consequently,
where the attendance of certain the order of default, the judgment and the
circumstances "may be considered order of execution are patent nullities.
substantive enough to truncate the adverse
literal application of the pertinent rules In connection with the foregoing, We
violated." 21 The case at bar is such an notice the ambivalence with which the
instance, because private respondent had respondent Judge applied the rules. Thus,
sufficient notice of the place, time and while he was unduly strict regarding the
date when the motion to dismiss was to be requirements of notice of hearing to the
heard. It is, therefore, evident from the defendants, he was, at the same time,
foregoing that the respondent Judge acted unduly liberal with respect to the plaintiff.
For instance, plaintiff's Motion for functions, duties, powers, discretions and
Reconsideration did not contain any notice privileges of a judge of the Court of First
of hearing, or proof of service thereof, or Instance. 24 This inhibitory rule makes it
even the address of the plaintiff who obligatory upon the judicial officers
signed personally said motion. concerned to give their full time and
Notwithstanding the absence of these data, attention to their judicial duties, prevent
respondent Judge readily granted the them from extending special favors to
motion. Then there is plaintiff's motion for their own private interests and assure the
immediate execution of judgment pending public of their impartiality in the
appeal. Although it was apparent that a performance of their functions. These
copy of said motion could not have been objectives are dictated by a sense of moral
received by the counsel for the defendants decency and the desire to promote the
at their office in Baguio City prior to the public interest.
date of the hearing on June 3, 1974,
considering that it was only on May 29, Private respondent should have known or
1974 when a copy of said motion was ought to know, that when he was elevated
allegedly posted by registered mail at the to the Bench of the Court of First Instance
Manila Post Office, respondent Judge did as a judge thereof, his right to practice law
not require, as he did with respect to as an attorney was suspended and
defendants' motion to dismiss, proof of continued to be suspended as long as he
service of the notice thereof. Such conduct occupied the judicial position. 25
falls short of the requirement that the
official conduct of a judge should not only It is evident, therefore, that the aforesaid
be free from impropriety, but also from contract is void because a contract, whose
the appearance of impropriety.. cause, object or purpose is contrary to law,
morals, good customs, public order or
2. There is, moreover, the consideration public policy, is considered inexistent and
that the challenged judgment seeks to void from the beginning. 26
enforce a contract which is patently void
because it is contrary to law and public 3. On the question of the remedy availed
policy. The contract of professional of by petitioners, respondents maintain
services entered into between private that where appeal is available, as it has
respondent and the petitioners, while the been shown to be available to the
former was still a judge of the Court of petitioners when they perfected their
First Instance, constituted private practice appeal in Civil Case No. N-1963, the
of law and in contravention of the express remedy of certiorari and/or prohibition
provision of Section 35 of Rule 138 of the cannot be resorted to. In resolving this
Revised Rules of Court. The aforecited question, We advert to Our ruling
Rule was promulgated by this Court, in Matute v. Court of Appeals, supra,
pursuant to its constitutional power to where We stated: t.hqw
regulate the practice of law. It is based on
sound reasons of public policy, for there is In opposing the instant petition, the
no question that the rights, duties, plaintiff-respondent contends that the
privileges and functions of the office of an remedy of the defendant petitioner is not a
attorney-at-law are so inherently petition for certiorari but an ordinary
incompatible with the high official
appeal pursuant to Rule 41, Section 2, by default declared void. The
paragraph 3 which reads: t.hqw defendant-petitioner's choice of the latter
course of action is correct for he
'A party who has been declared in default controverts the judgment by default not on
may likewise appeal from the judgment the ground that it is not supported by
rendered against him as contrary to the evidence or it is contrary to law, but on the
evidence or to the law, even if no petition ground that it is intrinsically void for
for relief to set aside the order of default having been rendered pursuant to a
has been presented by him in accordance patently invalid order of default..
with Rule 38.' .
Granting, however, that an appeal is open
We do not agree. The remedy provided for to the defendant-petitioner, the same is no
in the above-quoted rule is properly, longer an adequate and speedy remedy
though not exclusively, available to a considering that the court a quo had
defendant who has been validly declared already ordered the issuance of a writ of
in default. It does not preclude a defendant execution and the carrying out of such
who has been illegally declared in default writ loomed as a great probability. This is
from pursuing a more speedy and in consonance with the doctrine
efficacious remedy, like a petition for enunciated in Vda. de Saludes v. Pajarillo
certiorari to have the judgment by default and Bautista (78 Phil. 754) wherein this
set aside as a nullity. Court held that an 'appeal under the
circumstances was not an adequate
It should be emphasized that a defendant remedy there being an order or execution
who is properly declared in default is issued by the municipal court.' Hence, the
differently situated from one who is rule that certiorari does not lie when there
improvidently declared in default. The is an appeal is relaxed where, as in the
former irreparably loses his right to instant case, the trial court had already
participate in the trial, while the latter ordered the issuance of a writ of
retains such a right and may exercise the execution.
same after having the order of default and
the subsequent judgment by default The above ruling applies with cogent
annulled and the case remanded to the force in the present case..
court of origin. Moreover the former is
limited to the remedy set forth in section WHEREFORE, certiorari is granted and
2, paragraph 3 of Rule 41 by virtue of the default order, judgment and writ of
which he can contest only the judgment by execution rendered by the respondent
default on the designated ground that it is Judge in Civil Case No. N-1963 are
contrary to the evidence or the law; the hereby set aside, and the respondent Judge
latter, however, has the option to avail of is ordered to hear and decide the motion to
the same remedy or to forthwith interpose dismiss the complaint, taking into account
a petition for certiorari seeking the Our foregoing opinion. The temporary
nullification of the order of default even restraining order is made permanent, with
before the promulgation of a judgment by costs against private respondent.
default, or in the event that the latter has
been rendered, to have both court decrees
the order of default and the judgment
Makalintal, C.J., Fernando, Teekankee, SECRET MARRIAGE?
Barredo, Makasiar, Esguerra, Fernandez P560.00 for a valid marriage.
and Aquino, JJ., concur.1wph1.t Info on DIVORCE. ABSENCE.
ANNULMENT. VISA.
Castro, J., concurs in the result.
THE Please call: 521-0767 LEGAL
Munoz Palma, J., is on leave. 5217232, 5222041 CLINIC, INC. 8:30 am
6:00 pm 7-Flr. Victoria Bldg., UN
Ave., Mla.

Republic of the Philippines Annex B


SUPREME COURT
Manila GUAM DIVORCE.

EN BANC DON PARKINSON

an Attorney in Guam, is giving FREE


BOOKS on Guam Divorce through The
Bar Matter No. 553 June 17, 1993 Legal Clinic beginning Monday to Friday
during office hours.
MAURICIO C. ULEP, petitioner,
vs. Guam divorce. Annulment of Marriage.
THE LEGAL CLINIC, Immigration Problems, Visa Ext.
INC., respondent. Quota/Non-quota Res. & Special Retiree's
Visa. Declaration of Absence. Remarriage
R E SO L U T I O N to Filipina Fiancees. Adoption. Investment
in the Phil. US/Foreign Visa for Filipina
Spouse/Children. Call Marivic.

REGALADO, J.: THE 7F Victoria Bldg. 429 UN Ave.,


LEGAL Ermita, Manila nr. US Embassy
Petitioner prays this Court "to order the CLINIC, INC. 1 Tel. 521-7232; 521-7251;
respondent to cease and desist from 522-2041; 521-0767
issuing advertisements similar to or of the
same tenor as that of annexes "A" and "B" It is the submission of petitioner that the
(of said petition) and to perpetually advertisements above reproduced are
prohibit persons or entities from making champterous, unethical, demeaning of the
advertisements pertaining to the exercise law profession, and destructive of the
of the law profession other than those confidence of the community in the
allowed by law." integrity of the members of the bar and
that, as a member of the legal profession,
The advertisements complained of by he is ashamed and offended by the said
herein petitioner are as follows: advertisements, hence the reliefs sought in
his petition as hereinbefore quoted.
Annex A
In its answer to the petition, respondent hereunder excerpts from the respective
admits the fact of publication of said position papers adopted by the
advertisement at its instance, but claims aforementioned bar associations and the
that it is not engaged in the practice of law memoranda submitted by them on the
but in the rendering of "legal support issues involved in this bar matter.
services" through paralegals with the use
of modern computers and electronic 1. Integrated Bar of the Philippines:
machines. Respondent further argues that
assuming that the services advertised are xxx xxx xxx
legal services, the act of advertising these
services should be allowed supposedly Notwithstanding the subtle manner by
in the light of the case of John R. Bates which respondent endeavored to
and Van O'Steen vs. State Bar of distinguish the two terms,i.e., "legal
Arizona, 2 reportedly decided by the support services" vis-a-vis "legal
United States Supreme Court on June 7, services", common sense would readily
1977. dictate that the same are essentially
without substantial distinction. For who
Considering the critical implications on could deny that document search,
the legal profession of the issues raised evidence gathering, assistance to layman
herein, we required the (1) Integrated Bar in need of basic institutional services from
of the Philippines (IBP), (2) Philippine government or non-government agencies
Bar Association (PBA), (3) Philippine like birth, marriage, property, or business
Lawyers' Association (PLA), (4) U.P. registration, obtaining documents like
Womens Lawyers' Circle (WILOCI), (5) clearance, passports, local or foreign
Women Lawyers Association of the visas, constitutes practice of law?
Philippines (WLAP), and (6) Federacion
International de Abogadas (FIDA) to xxx xxx xxx
submit their respective position papers on
the controversy and, thereafter, their The Integrated Bar of the Philippines
memoranda. 3 The said bar associations (IBP) does not wish to make issue with
readily responded and extended their respondent's foreign citations. Suffice it to
valuable services and cooperation of state that the IBP has made its position
which this Court takes note with manifest, to wit, that it strongly opposes
appreciation and gratitude. the view espoused by respondent (to the
effect that today it is alright to advertise
The main issues posed for resolution one's legal services).
before the Court are whether or not the
services offered by respondent, The Legal The IBP accordingly declares in no
Clinic, Inc., as advertised by it constitutes uncertain terms its opposition to
practice of law and, in either case, whether respondent's act of establishing a "legal
the same can properly be the subject of the clinic" and of concomitantly advertising
advertisements herein complained of. the same through newspaper publications.

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.

Respondent's allegations are further belied We submit further that these


by the very admissions of its President and advertisements that seem to project that
majority stockholder, Atty. Nogales, who secret marriages and divorce are possible
gave an insight on the structure and main in this country for a fee, when in fact it is
purpose of Respondent corporation in the not so, are highly reprehensible.
aforementioned "Starweek" article." 9
It would encourage people to consult this
5. Women Lawyer's Association of the clinic about how they could go about
Philippines: having a secret marriage here, when it
cannot nor should ever be attempted, and
Annexes "A" and "B" of the petition are seek advice on divorce, where in this
clearly advertisements to solicit cases for country there is none, except under the
the purpose of gain which, as provided for Code of Muslim Personal Laws in the
under the above cited law, (are) illegal and Philippines. It is also against good morals
against the Code of Professional and is deceitful because it falsely
Responsibility of lawyers in this country. represents to the public to be able to do
that which by our laws cannot be done
Annex "A" of the petition is not only (and) by our Code of Morals should not be
illegal in that it is an advertisement to done.
solicit cases, but it is illegal in that in bold
letters it announces that the Legal Clinic, In the case (of) In re Taguda, 53 Phil. 37,
Inc., could work out/cause the celebration the Supreme Court held that solicitation
of a secret marriage which is not only for clients by an attorney by circulars of
illegal but immoral in this country. While advertisements, is unprofessional, and
offenses of this character justify statutes, and who draws plans and
permanent elimination from the Bar. 10 specification in harmony with the law.
This is not practicing law.
6. Federacion Internacional de Abogados:
But suppose the architect, asked by his
xxx xxx xxx client to omit a fire tower, replies that it is
required by the statute. Or the industrial
1.7 That entities admittedly not engaged in relations expert cites, in support of some
the practice of law, such as management measure that he recommends, a decision
consultancy firms or travel agencies, of the National Labor Relations Board.
whether run by lawyers or not, perform Are they practicing law? In my opinion,
the services rendered by Respondent does they are not, provided no separate fee is
not necessarily lead to the conclusion that charged for the legal advice or
Respondent is not unlawfully practicing information, and the legal question is
law. In the same vein, however, the fact subordinate and incidental to a major non-
that the business of respondent (assuming legal problem.
it can be engaged in independently of the
practice of law) involves knowledge of the It is largely a matter of degree and of
law does not necessarily make respondent custom.
guilty of unlawful practice of law.
If it were usual for one intending to erect a
. . . . Of necessity, no one . . . . acting as a building on his land to engage a lawyer to
consultant can render effective service advise him and the architect in respect to
unless he is familiar with such statutes and the building code and the like, then an
regulations. He must be careful not to architect who performed this function
suggest a course of conduct which the law would probably be considered to be
forbids. It seems . . . .clear that (the trespassing on territory reserved for
consultant's) knowledge of the law, and licensed attorneys. Likewise, if the
his use of that knowledge as a factor in industrial relations field had been pre-
determining what measures he shall empted by lawyers, or custom placed a
recommend, do not constitute the practice lawyer always at the elbow of the lay
of law . . . . It is not only presumed that all personnel man. But this is not the case.
men know the law, but it is a fact that The most important body of the industrial
most men have considerable acquaintance relations experts are the officers and
with broad features of the law . . . . Our business agents of the labor unions and
knowledge of the law accurate or few of them are lawyers. Among the
inaccurate moulds our conduct not only larger corporate employers, it has been the
when we are acting for ourselves, but practice for some years to delegate special
when we are serving others. Bankers, responsibility in employee matters to a
liquor dealers and laymen generally management group chosen for their
possess rather precise knowledge of the practical knowledge and skill in such
laws touching their particular business or matter, and without regard to legal
profession. A good example is the thinking or lack of it. More recently,
architect, who must be familiar with consultants like the defendants have the
zoning, building and fire prevention same service that the larger employers get
codes, factory and tenement house from their own specialized staff.
The handling of industrial relations is Anyone may use an agent for negotiations
growing into a recognized profession for and may select an agent particularly
which appropriate courses are offered by skilled in the subject under discussion,
our leading universities. The court should and the person appointed is free to accept
be very cautious about declaring [that] a the employment whether or not he is a
widespread, well-established method of member of the bar. Here, however, there
conducting business is unlawful, or that may be an exception where the business
the considerable class of men who turns on a question of law. Most real
customarily perform a certain function estate sales are negotiated by brokers who
have no right to do so, or that the technical are not lawyers. But if the value of the
education given by our schools cannot be land depends on a disputed right-of-way
used by the graduates in their business. and the principal role of the negotiator is
to assess the probable outcome of the
In determining whether a man is dispute and persuade the opposite party to
practicing law, we should consider his the same opinion, then it may be that only
work for any particular client or a lawyer can accept the assignment. Or if
customer, as a whole. I can imagine a controversy between an employer and
defendant being engaged primarily to his men grows from differing
advise as to the law defining his client's interpretations of a contract, or of a
obligations to his employees, to guide his statute, it is quite likely that defendant
client's obligations to his employees, to should not handle it. But I need not reach
guide his client along the path charted by a definite conclusion here, since the
law. This, of course, would be the practice situation is not presented by the proofs.
of the law. But such is not the fact in the
case before me. Defendant's primarily Defendant also appears to represent the
efforts are along economic and employer before administrative agencies
psychological lines. The law only of the federal government, especially
provides the frame within which he must before trial examiners of the National
work, just as the zoning code limits the Labor Relations Board. An agency of the
kind of building the limits the kind of federal government, acting by virtue of an
building the architect may plan. The authority granted by the Congress, may
incidental legal advice or information regulate the representation of parties
defendant may give, does not transform before such agency. The State of New
his activities into the practice of law. Let Jersey is without power to interfere with
me add that if, even as a minor feature of such determination or to forbid
his work, he performed services which are representation before the agency by one
customarily reserved to members of the whom the agency admits. The rules of the
bar, he would be practicing law. For National Labor Relations Board give to a
instance, if as part of a welfare program, party the right to appear in person, or by
he drew employees' wills. counsel, or by other representative. Rules
and Regulations, September 11th, 1946, S.
Another branch of defendant's work is the 203.31. 'Counsel' here means a licensed
representations of the employer in the attorney, and ther representative' one not a
adjustment of grievances and in collective lawyer. In this phase of his work,
bargaining, with or without a mediator. defendant may lawfully do whatever the
This is not per se the practice of law. Labor Board allows, even arguing
questions purely legal. (Auerbacher v. Richard Gomez case, then what may be
Wood, 53 A. 2d 800, cited in Statsky, involved is actually the practice of law. If
Introduction to Paralegalism [1974], at pp. a non-lawyer, such as the Legal Clinic,
154-156.). renders such services then it is engaged in
the unauthorized practice of law.
1.8 From the foregoing, it can be said that
a person engaged in a lawful calling 1.11. The Legal Clinic also appears to
(which may involve knowledge of the give information on divorce, absence,
law) is not engaged in the practice of law annulment of marriage and visas (See
provided that: Annexes "A" and "B" Petition). Purely
giving informational materials may not
(a) The legal question is subordinate and constitute of law. The business is similar
incidental to a major non-legal problem;. to that of a bookstore where the customer
buys materials on the subject and
(b) The services performed are not determines on the subject and determines
customarily reserved to members of the by himself what courses of action to take.
bar; .
It is not entirely improbable, however, that
(c) No separate fee is charged for the legal aside from purely giving information, the
advice or information. Legal Clinic's paralegals may apply the
law to the particular problem of the client,
All these must be considered in relation to and give legal advice. Such would
the work for any particular client as a constitute unauthorized practice of law.
whole.
It cannot be claimed that the publication
1.9. If the person involved is both lawyer of a legal text which publication of a legal
and non-lawyer, the Code of Professional text which purports to say what the law is
Responsibility succintly states the rule of amount to legal practice. And the mere
conduct: fact that the principles or rules stated in
the text may be accepted by a particular
Rule 15.08 A lawyer who is engaged in reader as a solution to his problem does
another profession or occupation not affect this. . . . . Apparently it is urged
concurrently with the practice of law shall that the conjoining of these two, that is,
make clear to his client whether he is the text and the forms, with advice as to
acting as a lawyer or in another capacity. how the forms should be filled out,
constitutes the unlawful practice of law.
1.10. In the present case. the Legal Clinic But that is the situation with many
appears to render wedding services (See approved and accepted texts. Dacey's
Annex "A" Petition). Services on routine, book is sold to the public at large. There is
straightforward marriages, like securing a no personal contact or relationship with a
marriage license, and making particular individual. Nor does there exist
arrangements with a priest or a judge, may that relation of confidence and trust so
not constitute practice of law. However, if necessary to the status of attorney and
the problem is as complicated as that client. THIS IS THE ESSENTIAL OF
described in "Rx for Legal Problems" on LEGAL PRACTICE THE
the Sharon Cuneta-Gabby Concepcion- REPRESENTATION AND ADVISING OF
A PARTICULAR PERSON IN A agreement sought and should be affirmed.
PARTICULAR SITUATION. At most the (State v. Winder, 348, NYS 2D 270
book assumes to offer general advice on [1973], cited in Statsky, supra at p. 101.).
common problems, and does not purport
to give personal advice on a specific 1.12. Respondent, of course, states that its
problem peculiar to a designated or services are "strictly non-diagnostic, non-
readily identified person. Similarly the advisory. "It is not controverted, however,
defendant's publication does not purport to that if the services "involve giving legal
give personal advice on a specific problem advice or counselling," such would
peculiar to a designated or readily constitute practice of law (Comment, par.
identified person in a particular situation 6.2). It is in this light that FIDA submits
in their publication and sale of the kits, that a factual inquiry may be necessary for
such publication and sale did not the judicious disposition of this case.
constitutes the unlawful practice of
law . . . . There being no legal impediment xxx xxx xxx
under the statute to the sale of the kit,
there was no proper basis for the 2.10. Annex "A" may be ethically
injunction against defendant maintaining objectionable in that it can give the
an office for the purpose of selling to impression (or perpetuate the wrong
persons seeking a divorce, separation, notion) that there is a secret marriage.
annulment or separation agreement any With all the solemnities, formalities and
printed material or writings relating to other requisites of marriages (See Articles
matrimonial law or the prohibition in the 2, et seq., Family Code), no Philippine
memorandum of modification of the marriage can be secret.
judgment against defendant having an
interest in any publishing house 2.11. Annex "B" may likewise be ethically
publishing his manuscript on divorce and objectionable. The second paragraph
against his having any personal contact thereof (which is not necessarily related to
with any prospective purchaser. The the first paragraph) fails to state the
record does fully support, however, the limitation that only "paralegal services?"
finding that for the change of $75 or $100 or "legal support services", and not legal
for the kit, the defendant gave legal advice services, are available." 11
in the course of personal contacts
concerning particular problems which A prefatory discussion on the meaning of
might arise in the preparation and the phrase "practice of law" becomes
presentation of the purchaser's asserted exigent for the proper determination of the
matrimonial cause of action or pursuit of issues raised by the petition at bar. On this
other legal remedies and assistance in the score, we note that the clause "practice of
preparation of necessary documents (The law" has long been the subject of judicial
injunction therefore sought to) enjoin construction and interpretation. The courts
conduct constituting the practice of law, have laid down general principles and
particularly with reference to the giving of doctrines explaining the meaning and
advice and counsel by the defendant scope of the term, some of which we now
relating to specific problems of particular take into account.
individuals in connection with a divorce,
separation, annulment of separation
Practice of law means any activity, in or pay for it, is, to that extent, practicing
out of court, which requires the law. 18
application of law, legal procedures,
knowledge, training and experience. To In the recent case of Cayetano vs.
engage in the practice of law is to perform Monsod, 19 after citing the doctrines in
those acts which are characteristic of the several cases, we laid down the test to
profession. Generally, to practice law is to determine whether certain acts constitute
give advice or render any kind of service "practice of law," thus:
that involves legal knowledge or skill. 12
Black defines "practice of law" as:
The practice of law is not limited to the
conduct of cases in court. It includes legal The rendition of services requiring the
advice and counsel, and the preparation of knowledge and the application of legal
legal instruments and contract by which principles and technique to serve the
legal rights are secured, although such interest of another with his consent. It is
matter may or may not be pending in a not limited to appearing in court, or
court. 13 advising and assisting in the conduct of
litigation, but embraces the preparation of
In the practice of his profession, a licensed pleadings, and other papers incident to
attorney at law generally engages in three actions and special proceedings,
principal types of professional activity: conveyancing, the preparation of legal
legal advice and instructions to clients to instruments of all kinds, and the giving of
inform them of their rights and all legal advice to clients. It embraces all
obligations, preparation for clients of advice to clients and all actions taken for
documents requiring knowledge of legal them in matters connected with the law.
principles not possessed by ordinary
layman, and appearance for clients before The practice of law is not limited to the
public tribunals which possess power and conduct of cases on court.(Land Title
authority to determine rights of life, Abstract and Trust Co. v. Dworken , 129
liberty, and property according to law, in Ohio St. 23, 193N. E. 650). A person is
order to assist in proper interpretation and also considered to be in the practice of law
enforcement of law. 14 when he:

When a person participates in the a trial . . . . for valuable consideration engages in


and advertises himself as a lawyer, he is in the business of advising person, firms,
the practice of law. 15 One who confers associations or corporations as to their
with clients, advises them as to their legal right under the law, or appears in a
rights and then takes the business to an representative capacity as an advocate in
attorney and asks the latter to look after proceedings, pending or prospective,
the case in court, is also practicing before any court, commissioner, referee,
law. 16 Giving advice for compensation board, body, committee, or commission
regarding the legal status and rights of constituted by law or authorized to settle
another and the conduct with respect controversies and there, in such
thereto constitutes a practice of law. 17 One representative capacity, performs any act
who renders an opinion as to the proper or acts for the purpose of obtaining or
interpretation of a statute, and receives defending the rights of their clients under
the law. Otherwise stated, one who, in a of legal instruments covering an extensive
representative capacity, engages in the field of business and trust relations and
business of advising clients as to their other affairs. Although these transactions
rights under the law, or while so engaged may have no direct connection with court
performs any act or acts either in court or proceedings, they are always subject to
outside of court for that purpose, is become involved in litigation. They
engaged in the practice of law. (State ex. require in many aspects a high degree of
rel. Mckittrick v. C.S. Dudley and Co., legal skill, a wide experience with men
102 S. W. 2d 895, 340 Mo. 852). and affairs, and great capacity for
adaptation to difficult and complex
This Court, in the case of Philippines situations. These customary functions of
Lawyers Association v. Agrava (105 Phil. an attorney or counselor at law bear an
173, 176-177),stated: intimate relation to the administration of
justice by the courts. No valid distinction,
The practice of law is not limited to the so far as concerns the question set forth in
conduct of cases or litigation in court; it the order, can be drawn between that part
embraces the preparation of pleadings and of the work of the lawyer which involves
other papers incident to actions and appearance in court and that part which
special proceedings, the management of involves advice and drafting of
such actions and proceedings on behalf of instruments in his office. It is of
clients before judges and courts, and in importance to the welfare of the public
addition, conveying. In general, all advice that these manifold customary functions
to clients, and all action taken for them in be performed by persons possessed of
matters connected with the law adequate learning and skill, of sound
incorporation services, assessment and moral character, and acting at all times
condemnation services contemplating an under the heavy trust obligations to clients
appearance before a judicial body, the which rests upon all attorneys. (Moran,
foreclosure of a mortgage, enforcement of Comments on the Rules o Court, Vol. 3
a creditor's claim in bankruptcy and [1973 ed.], pp. 665-666, citing In Re
insolvency proceedings, and conducting Opinion of the Justices [Mass], 194 N. E.
proceedings in attachment, and in matters 313, quoted in Rhode Is. Bar Assoc. v.
or estate and guardianship have been held Automobile Service Assoc. [R.I.] 197 A.
to constitute law practice, as do the 139, 144).
preparation and drafting of legal
instruments, where the work done The practice of law, therefore, covers a
involves the determination by the trained wide range of activities in and out of
legal mind of the legal effect of facts and court. Applying the aforementioned
conditions. (5 Am. Jr. p. 262, 263). criteria to the case at bar, we agree with
the perceptive findings and observations
Practice of law under modern conditions of the aforestated bar associations that the
consists in no small part of work activities of respondent, as advertised,
performed outside of any court and having constitute "practice of law."
no immediate relation to proceedings in
court. It embraces conveyancing, the The contention of respondent that it
giving of legal advice on a large variety of merely offers legal support services can
subjects and the preparation and execution neither be seriously considered nor
sustained. Said proposition is belied by materials, these will not suffice to justify
respondent's own description of the an exception to the general rule.
services it has been offering, to wit:
What is palpably clear is that respondent
Legal support services basically consists corporation gives out legal information to
of giving ready information by trained laymen and lawyers. Its contention that
paralegals to laymen and lawyers, which such function is non-advisory and non-
are strictly non-diagnostic, non-advisory, diagnostic is more apparent than real. In
through the extensive use of computers providing information, for example, about
and modern information technology in the foreign laws on marriage, divorce and
gathering, processing, storage, adoption, it strains the credulity of this
transmission and reproduction of Court that all the respondent corporation
information and communication, such as will simply do is look for the law, furnish
computerized legal research; encoding and a copy thereof to the client, and stop there
reproduction of documents and pleadings as if it were merely a bookstore. With its
prepared by laymen or lawyers; document attorneys and so called paralegals, it will
search; evidence gathering; locating necessarily have to explain to the client
parties or witnesses to a case; fact finding the intricacies of the law and advise him
investigations; and assistance to laymen in or her on the proper course of action to be
need of basic institutional services from taken as may be provided for by said law.
government or non-government agencies, That is what its advertisements represent
like birth, marriage, property, or business and for the which services it will
registrations; educational or employment consequently charge and be paid. That
records or certifications, obtaining activity falls squarely within the
documentation like clearances, passports, jurisprudential definition of "practice of
local or foreign visas; giving information law." Such a conclusion will not be altered
about laws of other countries that they by the fact that respondent corporation
may find useful, like foreign divorce, does not represent clients in court since
marriage or adoption laws that they can law practice, as the weight of authority
avail of preparatory to emigration to the holds, is not limited merely giving legal
foreign country, and other matters that do advice, contract drafting and so forth.
not involve representation of clients in
court; designing and installing computer The aforesaid conclusion is further
systems, programs, or software for the strengthened by an article published in the
efficient management of law offices, January 13, 1991 issue of the
corporate legal departments, courts and Starweek/The Sunday Magazine of the
other entities engaged in dispensing or Philippines Star, entitled "Rx for Legal
administering legal services. 20 Problems," where an insight into the
structure, main purpose and operations of
While some of the services being offered respondent corporation was given by its
by respondent corporation merely involve own "proprietor," Atty. Rogelio P.
mechanical and technical knowhow, such Nogales:
as the installation of computer systems
and programs for the efficient This is the kind of business that is
management of law offices, or the transacted everyday at The Legal Clinic,
computerization of research aids and with offices on the seventh floor of the
Victoria Building along U. N. Avenue in accordingly. "If you had a rich relative
Manila. No matter what the client's who died and named you her sole heir,
problem, and even if it is as complicated and you stand to inherit millions of pesos
as the Cuneta-Concepcion domestic of property, we would refer you to a
situation, Atty. Nogales and his staff of specialist in taxation. There would be real
lawyers, who, like doctors are estate taxes and arrears which would need
"specialists" in various fields can take care to be put in order, and your relative is
of it. The Legal Clinic, Inc. has specialists even taxed by the state for the right to
in taxation and criminal law, medico-legal transfer her property, and only a specialist
problems, labor, litigation, and family law. in taxation would be properly trained to
These specialist are backed up by a battery deal with the problem. Now, if there were
of paralegals, counsellors and attorneys. other heirs contesting your rich relatives
will, then you would need a litigator, who
Atty. Nogales set up The Legal Clinic in knows how to arrange the problem for
1984. Inspired by the trend in the medical presentation in court, and gather evidence
field toward specialization, it caters to to support the case. 21
clients who cannot afford the services of
the big law firms. That fact that the corporation employs
paralegals to carry out its services is not
The Legal Clinic has regular and walk-in controlling. What is important is that it is
clients. "when they come, we start by engaged in the practice of law by virtue of
analyzing the problem. That's what the nature of the services it renders which
doctors do also. They ask you how you thereby brings it within the ambit of the
contracted what's bothering you, they take statutory prohibitions against the
your temperature, they observe you for the advertisements which it has caused to be
symptoms and so on. That's how we published and are now assailed in this
operate, too. And once the problem has proceeding.
been categorized, then it's referred to one
of our specialists. Further, as correctly and appropriately
pointed out by the U.P. WILOCI, said
There are cases which do not, in medical reported facts sufficiently establish that
terms, require surgery or follow-up the main purpose of respondent is to serve
treatment. These The Legal Clinic as a one-stop-shop of sorts for various
disposes of in a matter of minutes. legal problems wherein a client may avail
"Things like preparing a simple deed of of legal services from simple
sale or an affidavit of loss can be taken documentation to complex litigation and
care of by our staff or, if this were a corporate undertakings. Most of these
hospital the residents or the interns. We services are undoubtedly beyond the
can take care of these matters on a while domain of paralegals, but rather, are
you wait basis. Again, kung baga sa exclusive functions of lawyers engaged in
hospital, out-patient, hindi kailangang ma- the practice of law. 22
confine. It's just like a common cold or
diarrhea," explains Atty. Nogales. It should be noted that in our jurisdiction
the services being offered by private
Those cases which requires more respondent which constitute practice of
extensive "treatment" are dealt with law cannot be performed by paralegals.
Only a person duly admitted as a member in the protection of the public from being
of the bar, or hereafter admitted as such in advised and represented in legal matters
accordance with the provisions of the by incompetent and unreliable persons
Rules of Court, and who is in good and over whom the judicial department can
regular standing, is entitled to practice exercise little control. 27
law. 23
We have to necessarily and definitely
Public policy requires that the practice of reject respondent's position that the
law be limited to those individuals found concept in the United States of paralegals
duly qualified in education and character. as an occupation separate from the law
The permissive right conferred on the profession be adopted in this jurisdiction.
lawyers is an individual and limited Whatever may be its merits, respondent
privilege subject to withdrawal if he fails cannot but be aware that this should first
to maintain proper standards of moral and be a matter for judicial rules or legislative
professional conduct. The purpose is to action, and not of unilateral adoption as it
protect the public, the court, the client and has done.
the bar from the incompetence or
dishonesty of those unlicensed to practice Paralegals in the United States are trained
law and not subject to the disciplinary professionals. As admitted by respondent,
control of the court. 24 there are schools and universities there
which offer studies and degrees in
The same rule is observed in the american paralegal education, while there are none
jurisdiction wherefrom respondent would in the Philippines.28 As the concept of the
wish to draw support for his thesis. The "paralegals" or "legal assistant" evolved in
doctrines there also stress that the practice the United States, standards and
of law is limited to those who meet the guidelines also evolved to protect the
requirements for, and have been admitted general public. One of the major standards
to, the bar, and various statutes or rules or guidelines was developed by the
specifically so provide. 25 The practice of American Bar Association which set up
law is not a lawful business except for Guidelines for the Approval of Legal
members of the bar who have complied Assistant Education Programs (1973).
with all the conditions required by statute Legislation has even been proposed to
and the rules of court. Only those persons certify legal assistants. There are also
are allowed to practice law who, by reason associations of paralegals in the United
of attainments previously acquired States with their own code of professional
through education and study, have been ethics, such as the National Association of
recognized by the courts as possessing Legal Assistants, Inc. and the American
profound knowledge of legal science Paralegal Association.29
entitling them to advise, counsel with,
protect, or defend the rights claims, or In the Philippines, we still have a
liabilities of their clients, with respect to restricted concept and limited acceptance
the construction, interpretation, operation of what may be considered as paralegal
and effect of law. 26 The justification for service. As pointed out by FIDA, some
excluding from the practice of law those persons not duly licensed to practice law
not admitted to the bar is found, not in the are or have been allowed limited
protection of the bar from competition, but representation in behalf of another or to
render legal services, but such allowable the magnitude of the interest involved, the
services are limited in scope and extent by importance of the lawyer's position, and
the law, rules or regulations granting all other like self-laudation. 36
permission therefor. 30
The standards of the legal profession
Accordingly, we have adopted the condemn the lawyer's advertisement of his
American judicial policy that, in the talents. A lawyer cannot, without violating
absence of constitutional or statutory the ethics of his profession. advertise his
authority, a person who has not been talents or skill as in a manner similar to a
admitted as an attorney cannot practice merchant advertising his goods. 37 The
law for the proper administration of prescription against advertising of legal
justice cannot be hindered by the services or solicitation of legal business
unwarranted intrusion of an unauthorized rests on the fundamental postulate that the
and unskilled person into the practice of that the practice of law is a profession.
law. 31 That policy should continue to be Thus, in the case of The Director of
one of encouraging persons who are Religious Affairs. vs. Estanislao R.
unsure of their legal rights and remedies to Bayot 38 an advertisement, similar to those
seek legal assistance only from persons of respondent which are involved in the
licensed to practice law in the state. 32 present proceeding,39 was held to
constitute improper advertising or
Anent the issue on the validity of the solicitation.
questioned advertisements, the Code of
Professional Responsibility provides that a The pertinent part of the decision therein
lawyer in making known his legal services reads:
shall use only true, honest, fair, dignified
and objective information or statement of It is undeniable that the advertisement in
facts. 33 He is not supposed to use or question was a flagrant violation by the
permit the use of any false, fraudulent, respondent of the ethics of his profession,
misleading, deceptive, undignified, self- it being a brazen solicitation of business
laudatory or unfair statement or claim from the public. Section 25 of Rule 127
regarding his qualifications or legal expressly provides among other things
services. 34 Nor shall he pay or give that "the practice of soliciting cases at law
something of value to representatives of for the purpose of gain, either personally
the mass media in anticipation of, or in or thru paid agents or brokers, constitutes
return for, publicity to attract legal malpractice." It is highly unethical for an
business. 35 Prior to the adoption of the attorney to advertise his talents or skill as
code of Professional Responsibility, the a merchant advertises his wares. Law is a
Canons of Professional Ethics had also profession and not a trade. The lawyer
warned that lawyers should not resort to degrades himself and his profession who
indirect advertisements for professional stoops to and adopts the practices of
employment, such as furnishing or mercantilism by advertising his services
inspiring newspaper comments, or or offering them to the public. As a
procuring his photograph to be published member of the bar, he defiles the temple
in connection with causes in which the of justice with mercenary activities as the
lawyer has been or is engaged or money-changers of old defiled the temple
concerning the manner of their conduct, of Jehovah. "The most worthy and
effective advertisement possible, even for cable addresses; branches of law
a young lawyer, . . . . is the establishment practiced; date and place of birth and
of a well-merited reputation for admission to the bar; schools attended
professional capacity and fidelity to trust. with dates of graduation, degrees and
This cannot be forced but must be the other educational distinction; public or
outcome of character and conduct." quasi-public offices; posts of honor; legal
(Canon 27, Code of Ethics.). authorships; legal teaching positions;
membership and offices in bar
We repeat, the canon of the profession tell associations and committees thereof, in
us that the best advertising possible for a legal and scientific societies and legal
lawyer is a well-merited reputation for fraternities; the fact of listings in other
professional capacity and fidelity to trust, reputable law lists; the names and
which must be earned as the outcome of addresses of references; and, with their
character and conduct. Good and efficient written consent, the names of clients
service to a client as well as to the regularly represented." 42
community has a way of publicizing itself
and catching public attention. That The law list must be a reputable law list
publicity is a normal by-product of published primarily for that purpose; it
effective service which is right and proper. cannot be a mere supplemental feature of
A good and reputable lawyer needs no a paper, magazine, trade journal or
artificial stimulus to generate it and to periodical which is published principally
magnify his success. He easily sees the for other purposes. For that reason, a
difference between a normal by-product of lawyer may not properly publish his brief
able service and the unwholesome result biographical and informative data in a
of propaganda. 40 daily paper, magazine, trade journal or
society program. Nor may a lawyer permit
Of course, not all types of advertising or his name to be published in a law list the
solicitation are prohibited. The canons of conduct, management or contents of
the profession enumerate exceptions to the which are calculated or likely to deceive
rule against advertising or solicitation and or injure the public or the bar, or to lower
define the extent to which they may be the dignity or standing of the profession. 43
undertaken. The exceptions are of two
broad categories, namely, those which are The use of an ordinary simple professional
expressly allowed and those which are card is also permitted. The card may
necessarily implied from the contain only a statement of his name, the
restrictions. 41 name of the law firm which he is
connected with, address, telephone
The first of such exceptions is the number and special branch of law
publication in reputable law lists, in a practiced. The publication of a simple
manner consistent with the standards of announcement of the opening of a law
conduct imposed by the canons, of brief firm or of changes in the partnership,
biographical and informative data. "Such associates, firm name or office address,
data must not be misleading and may being for the convenience of the
include only a statement of the lawyer's profession, is not objectionable. He may
name and the names of his professional likewise have his name listed in a
associates; addresses, telephone numbers,
telephone directory but not under a Association after the decision in Bates, on
designation of special branch of law. 44 the attitude of the public about lawyers
after viewing television commercials, it
Verily, taking into consideration the nature was found that public opinion dropped
and contents of the advertisements for significantly 47 with respect to these
which respondent is being taken to task, characteristics of lawyers:
which even includes a quotation of the
fees charged by said respondent Trustworthy from 71% to 14%
corporation for services rendered, we find Professional from 71% to 14%
and so hold that the same definitely do not Honest from 65% to 14%
and conclusively cannot fall under any of Dignified from 45% to 14%
the above-mentioned exceptions.
Secondly, it is our firm belief that with the
The ruling in the case of Bates, et al. vs. present situation of our legal and judicial
State Bar of Arizona, 45 which is systems, to allow the publication of
repeatedly invoked and constitutes the advertisements of the kind used by
justification relied upon by respondent, is respondent would only serve to aggravate
obviously not applicable to the case at bar. what is already a deteriorating public
Foremost is the fact that the disciplinary opinion of the legal profession whose
rule involved in said case explicitly allows integrity has consistently been under
a lawyer, as an exception to the attack lately by media and the community
prohibition against advertisements by in general. At this point in time, it is of
lawyers, to publish a statement of legal utmost importance in the face of such
fees for an initial consultation or the negative, even if unfair, criticisms at
availability upon request of a written times, to adopt and maintain that level of
schedule of fees or an estimate of the fee professional conduct which is beyond
to be charged for the specific services. No reproach, and to exert all efforts to regain
such exception is provided for, expressly the high esteem formerly accorded to the
or impliedly, whether in our former legal profession.
Canons of Professional Ethics or the
present Code of Professional In sum, it is undoubtedly a misbehavior on
Responsibility. Besides, even the the part of the lawyer, subject to
disciplinary rule in the Bates case contains disciplinary action, to advertise his
a proviso that the exceptions stated therein services except in allowable instances 48 or
are "not applicable in any state unless and to aid a layman in the unauthorized
until it is implemented by such authority practice of law. 49 Considering that Atty.
in that state." 46 This goes to show that an Rogelio P. Nogales, who is the prime
exception to the general rule, such as that incorporator, major stockholder and
being invoked by herein respondent, can proprietor of The Legal Clinic, Inc. is a
be made only if and when the canons member of the Philippine Bar, he is
expressly provide for such an exception. hereby reprimanded, with a warning that a
Otherwise, the prohibition stands, as in the repetition of the same or similar acts
case at bar. which are involved in this proceeding will
be dealt with more severely.
It bears mention that in a survey
conducted by the American Bar
While we deem it necessary that the the Integrated Bar of the Philippines, the
question as to the legality or illegality of Office of the Bar Confidant and the Office
the purpose/s for which the Legal Clinic, of the Solicitor General for appropriate
Inc. was created should be passed upon action in accordance herewith.
and determined, we are constrained to
refrain from lapsing into an obiter on that Narvasa, C.J., Cruz, Feliciano, Padilla,
aspect since it is clearly not within the Bidin, Grio-Aquino, Davide, Jr., Romero,
adjudicative parameters of the present Nocon, Bellosillo, Melo and Quiason, JJ.,
proceeding which is merely administrative concur
in nature. It is, of course, imperative that
this matter be promptly determined, albeit
in a different proceeding and forum, since,
under the present state of our law and
jurisprudence, a corporation cannot be Republic of the Philippines
organized for or engage in the practice of SUPREME COURT
law in this country. This interdiction, just Manila
like the rule against unethical advertising,
cannot be subverted by employing some EN BANC
so-called paralegals supposedly rendering
the alleged support services. G.R. No. L-12426 February 16,
1959
The remedy for the apparent breach of this
prohibition by respondent is the concern PHILIPPINE LAWYER'S
and province of the Solicitor General who ASSOCIATION, petitioner,
can institute the corresponding quo vs.
warranto action, 50 after due ascertainment CELEDONIO AGRAVA, in his capacity
of the factual background and basis for the as Director of the Philippines Patent
grant of respondent's corporate charter, in Office, respondent.
light of the putative misuse thereof. That
spin-off from the instant bar matter is Arturo A. Alafriz for petitioner.
referred to the Solicitor General for such Office of the Solicitor General Ambrosio
action as may be necessary under the Padilla and Solicitor Pacifico P. de
circumstances. Castro for respondent.

ACCORDINGLY, the Court Resolved to MONTEMAYOR, J.:


RESTRAIN and ENJOIN herein
respondent, The Legal Clinic, Inc., from This is the petition filed by the Philippine
issuing or causing the publication or Lawyer's Association for prohibition and
dissemination of any advertisement in any injunction against Celedonio Agrava, in
form which is of the same or similar tenor his capacity as Director of the Philippines
and purpose as Annexes "A" and "B" of Patent Office.
this petition, and from conducting, directly
or indirectly, any activity, operation or On may 27, 1957, respondent Director
transaction proscribed by law or the Code issued a circular announcing that he had
of Professional Ethics as indicated herein. scheduled for June 27, 1957 an
Let copies of this resolution be furnished examination for the purpose of
determining who are qualified to practice Office, or any other quasi-judicial body
as patent attorneys before the Philippines from requiring further condition or
Patent Office, the said examination to qualification from those who would wish
cover patent law and jurisprudence and to handle cases before the Patent Office
the rules of practice before said office. which, as stated in the preceding
According to the circular, members of the paragraph, requires more of an application
Philippine Bar, engineers and other of scientific and technical knowledge than
persons with sufficient scientific and the mere application of provisions of
technical training are qualified to take the law; . . . that the action taken by the
said examination. It would appear that respondent is in accordance with Republic
heretofore, respondent Director has been Act No. 165, otherwise known as the
holding similar examinations. Patent Law of the Philippines, which
similar to the United States Patent Law, in
It is the contention of the petitioner accordance with which the United States
Philippine Lawyer's Association that one Patent Office has also prescribed a similar
who has passed the bar examinations and examination as that prescribed by
is licensed by the Supreme Court to respondent. . . .
practice law in the Philippines and who is
in good standing, is duly qualified to Respondent further contends that just as
practice before the Philippines Patent the Patent law of the United States of
Office, and that consequently, the cat of America authorizes the Commissioner of
the respondent Director requiring Patents to prescribe examinations to
members of the Philippine Bar in good determine as to who practice before the
standing to take and pass an examination United States Patent Office, the
given by the Patent Office as a condition respondent, is similarly authorized to do
precedent to their being allowed to so by our Patent Law, Republic Act No.
practice before said office, such as 165.
representing applicants in the preparation
and prosecution of applications for patent, Although as already stated, the Director of
is in excess of his jurisdiction and is in Patents, in the past, would appear to have
violation of the law. been holding tests or examinations the
passing of which was imposed as a
In his answer, respondent Director, required qualification to practice before
through the Solicitor General, maintains the Patent Office, to our knowledge, this is
that the prosecution of patent cases "does the first time that the right of the Director
not involve entirely or purely the practice of Patents to do so, specially as regards
of law but includes the application of members of the bar, has been questioned
scientific and technical knowledge and formally, or otherwise put in issue. And
training, so much so that, as a matter of we have given it careful thought and
actual practice, the prosecution of patent consideration.
cases may be handled not only by lawyers,
but also engineers and other persons with The Supreme Court has the exclusive and
sufficient scientific and technical training constitutional power with respect to
who pass the prescribed examinations as admission to the practice of law in the
given by the Patent Office; . . . that the Philippines1 and to any member of the
Rules of Court do not prohibit the Patent Philippine Bar in good standing may
practice law anywhere and before any transactions may have no direct
entity, whether judicial or quasi-judicial or connection with court proceedings, they
administrative, in the Philippines. are always subject to become involved in
Naturally, the question arises as to litigation. They require in many aspects a
whether or not appearance before the high degree of legal skill, a wide
patent Office and the preparation and the experience with men and affairs, and great
prosecution of patent applications, etc., capacity for adaptation to difficult and
constitutes or is included in the practice of complex situations. These customary
law. functions of an attorney or counselor at
law bear an intimate relation to the
The practice of law is not limited to the administration of justice by the courts. No
conduct of cases or litigation in court; it valid distinction, so far as concerns the
embraces the preparation of pleadings and question set forth in the order, can be
other papers incident to actions and social drawn between that part which involves
proceedings, the management of such advice and drafting of instruments in his
actions and proceedings on behalf of office. It is of importance to the welfare of
clients before judges and courts, and in the public that these manifold customary
addition, conveying. In general, alladvice functions be performed by persons
to clients, and all action taken for them in possessed of adequate learning and skill,
matters connected with the of sound moral character, and acting at all
law corporation services, assessment and times under the heavy trust obligations to
condemnation services contemplating an clients which rests upon all attorneys.
appearance before a judicial body, the (Moran, Comments on the Rules of Court,
foreclosure of a mortgage, enforcement of Vol. 3 (1953 ed.), p. 665-666, citing In re
a creditor's claim in bankruptcy and Opinion of the Justices (Mass.), 194 N.E.
insolvency proceedings, and conducting 313, quoted in Rhode Is. Bar Assoc. vs.
proceedings in attachment, and in matters Automobile Service Assoc. (R. I. ) 179 A.
of estate and guardianship have been held 139, 144). (Emphasis ours).
to constitute law practice as do the
preparation and drafting of legal In our opinion, the practice of law
instruments, where the work done involves includes such appearance before the
the determination by the trained legal Patent Office, the representation of
mind of the legal effect of facts and applicants, oppositors, and other persons,
conditions. (5 Am. Jur. p. 262, 263). and the prosecution of their applications
(Emphasis supplied). for patent, their oppositions thereto, or the
enforcement of their rights in patent cases.
Practice of law under modern conditions In the first place, although the transaction
consists in no small part of work of business in the Patent Office involves
performed outside of any court and having the use and application of technical and
no immediate relation to proceedings in scientific knowledge and training, still, all
court. It embraces conveyancing, the such business has to be rendered in
giving of legal advice on a large variety of accordance with the Patent Law, as well as
subjects, and the preparation and other laws, including the Rules and
execution of legal instruments covering an Regulations promulgated by the Patent
extensive field of business and trust Office in accordance with law. Not only
relations and other affairs. Although these this, but practice before the Patent Office
involves the interpretation and application by reason of the patentee's refusal to grant
of other laws and legal principles, as well a license on reasonable terms or by reason
as the existence of facts to be established of the condition attached by him to the
in accordance with the law of evidence license, purchase or use of the patented
and procedure. For instance: Section 8 of article or working of the patented process
our Patent Law provides that an invention or machine of production, the
shall not be patentable if it is contrary to establishment of a new trade or industry in
public order or morals, or to public health the Philippines is prevented; or if the
or welfare. Section 9 says that an patent or invention relates to food or
invention shall not be considered new or medicine or is necessary to public health
patentable if it was known or used by or public safety. All these things involve
others in the Philippines before the the applications of laws, legal principles,
invention thereof by the inventor named in practice and procedure. They call for legal
any printed publication in the Philippines knowledge, training and experience for
or any foreign country more than one year which a member of the bar has been
before the application for a patent prepared.
therefor, or if it had been in public use or
on sale in the Philippines for more than In support of the proposition that much of
one year before the application for the the business and many of the act, orders
patent therefor. Section 10 provides that and decisions of the Patent Director
the right to patent belongs to the true and involve questions of law or a reasonable
actual inventor, his heirs, legal and correct evaluation of facts, the very
representatives or assigns. Section 25 and Patent Law, Republic Act No. 165,
26 refer to connection of any mistake in a Section 61, provides that:
patent. Section 28 enumerates the grounds
for cancellation of a patent; that although . . . . The applicant for a patent or for the
any person may apply for such registration of a design, any party to a
cancellation, under Section 29, the proceeding to cancel a patent or to obtain
Solicitor General is authorized to petition a compulsory license, and any party to any
for the cancellation of a patent. Section 30 other proceeding in the Office may appeal
mentions the requirements of a petition for to the Supreme Court from any final order
cancellation. Section 31 and 32 provide or decision of the director.
for a notice of hearing of the petition for
cancellation of the patent by the Director In other words, the appeal is taken to this
of Patents in case the said cancellation is Tribunal. If the transaction of business in
warranted. Under Section 34, at any time the Patent Office and the acts, orders and
after the expiration of three years from the decisions of the Patent Director involved
day the patent was granted, any person exclusively or mostly technical and
patent on several grounds, such as, if the scientific knowledge and training, then
patented invention is not being worked in logically, the appeal should be taken not to
the Philippines on a commercial scale, or a court or judicial body, but rather to a
if the demand for the patented article in board of scientists, engineers or technical
the Philippines on a commercial scale, or men, which is not the case.
if the demand for the patented article in
the Philippines is not being met to an Another aspect of the question involves
adequate extent and reasonable terms, or if the consideration of the nature of the
functions and acts of the Head of the required to submit a plan and technical
Patent Office. description of said land, prepared by a
licensed surveyor.
. . . . The Commissioner, in issuing or
withholding patents, in reissues, But respondent Director claims that he is
interferences, and extensions, exercises expressly authorized by the law to require
quasi-judicial functions. Patents are public persons desiring to practice or to do
records, and it is the duty of the business before him to submit an
Commissioner to give authenticated examination, even if they are already
copies to any person, on payment of the members of the bar. He contends that our
legal fees. (40 Am. Jur. 537). (Emphasis Patent Law, Republic Act No. 165, is
supplied). patterned after the United States Patent
Law; and of the United States Patent
. . . . The Commissioner has the only Office in Patent Cases prescribes an
original initiatory jurisdiction that exists examination similar to that which he
up to the granting and delivering of a (respondent) has prescribed and
patent, and it is his duty to decide whether scheduled. He invites our attention to the
the patent is new and whether it is the following provisions of said Rules of
proper subject of a patent; and his action Practice:
in awarding or refusing a patent is
a judicial function. In passing on an Registration of attorneys and agents. A
application the commissioner should register of an attorneys and a register
decide not only questions of law, but agents are kept in the Patent Office on
also questions of fact, as whether there has which are entered the names of all persons
been a prior public use or sale of the recognized as entitled to represent
article invented. . . . (60 C.J.S. 460). applicants before the Patent Office in the
(Emphasis supplied). preparation and prosecution of applicants
for patent. Registration in the Patent
The Director of Patents, exercising as he Office under the provisions of these rules
does judicial or quasi-judicial functions, it shall only entitle the person registered to
is reasonable to hold that a member of the practice before the Patent Office.
bar, because of his legal knowledge and
training, should be allowed to practice (a) Attorney at law. Any attorney at
before the Patent Office, without further law in good standing admitted to practice
examination or other qualification. Of before any United States Court or the
course, the Director of Patents, if he highest court of any State or Territory of
deems it advisable or necessary, may the United States who fulfills the
require that members of the bar practising requirements and complied with the
before him enlist the assistance of provisions of these rules may be admitted
technical men and scientist in the to practice before the Patent Office and
preparation of papers and documents, such have his name entered on the register of
as, the drawing or technical description of attorneys.
an invention or machine sought to be
patented, in the same way that a lawyer xxx xxx xxx
filing an application for the registration of
a parcel of land on behalf of his clients, is
(c) Requirement for registration. No representatives of applicants or other
person will be admitted to practice and persons, that they shall show they are of
register unless he shall apply to the good moral character and in good repute,
Commissioner of Patents in writing on a are possessed of the necessary
prescribed form supplied by the qualifications to enable them to render to
Commissioner and furnish all requested applicants or other persons valuable
information and material; and shall service, and are likewise to competent to
establish to the satisfaction of the advise and assist applicants or other
Commissioner that he is of good moral persons in the presentation or
character and of good repute and prosecution of their applications or other
possessed of the legal and scientific and business before the Office. The
technical qualifications necessary to Commissioner of Patents may, after notice
enable him to render applicants for patent and opportunity for a hearing, suspend or
valuable service, and is otherwise exclude, either generally or in any
competent to advise and assist him in the particular case from further practice
presentation and prosecution of their before his office any person, agent or
application before the Patent Office. In attorney shown to be incompetent or
order that the Commissioner may disreputable, or guilty of gross
determine whether a person seeking to misconduct, or who refuses to comply
have his name placed upon either of the with the said rules and regulations, or who
registers has the qualifications specified, shall, with intent to defraud in any matter,
satisfactory proof of good moral character deceive, mislead, or threaten any applicant
and repute, and of sufficient basic training or prospective applicant, or other person
in scientific and technical matters must be having immediate or prospective
submitted and an examination which is applicant, or other person having
held from time to time must be taken and immediate or prospective business before
passed. The taking of an examination may the office, by word, circular, letter, or by
be waived in the case of any person who advertising. The reasons for any such
has served for three years in the suspension or exclusion shall be duly
examining corps of the Patent Office. recorded. The action of the Commissioner
may be reviewed upon the petition of the
Respondent states that the promulgation of person so refused recognition or so
the Rules of Practice of the United States suspended by the district court of the
Patent Office in Patent Cases is authorized United States for the District of Columbia
by the United States Patent Law itself, under such conditions and upon such
which reads as follows: proceedings as the said court may by its
rules determine. (Emphasis supplied)
The Commissioner of Patents, subject to
the approval of the Secretary of Respondent Director concludes that
Commerce may prescribe rules and Section 78 of Republic Act No. 165 being
regulations governing the recognition of similar to the provisions of law just
agents, attorneys, or other persons reproduced, then he is authorized to
representing applicants or other prescribe the rules and regulations
parties before his office, and may requiring that persons desiring to practice
require of such persons, agents, before him should submit to and pass an
or attorneys, before being recognized as examination. We reproduce said Section
78, Republic Act No. 165, for purposes of to enforce the provisions of said code.
comparison: Section 338 of the National Internal
Revenue Code, Commonwealth Act No.
SEC. 78. Rules and regulations. The 466 as amended, states that the Secretary
Director subject to the approval of the of Finance, upon recommendation of the
Secretary of Justice, shall promulgate the Collector of Internal Revenue, shall
necessary rules and regulations, not promulgate all needful rules and
inconsistent with law, for the conduct of regulations for the effective enforcement
all business in the Patent Office. of the provisions of the code. We
understand that rules and regulations have
The above provisions of Section 78 been promulgated not only for the Bureau
certainly and by far, are different from the of Customs and Internal Revenue, but also
provisions of the United States Patent Law for other bureaus of the Government, to
as regards authority to hold examinations govern the transaction of business in and
to determine the qualifications of those to enforce the law for said bureaus.
allowed to practice before the Patent
Office. While the U.S. Patent Law Were we to allow the Patent Office, in the
authorizes the Commissioner of Patents to absence of an express and clear provision
require attorneys to show that they possess of law giving the necessary sanction, to
the necessary qualifications and require lawyers to submit to and pass on
competence to render valuable service to examination prescribed by it before they
and advise and assist their clients in patent are allowed to practice before said Patent
cases, which showing may take the form Office, then there would be no reason why
of a test or examination to be held by the other bureaus specially the Bureau of
Commissioner, our Patent Law, Section Internal Revenue and Customs, where the
78, is silent on this important point. Our business in the same area are more or less
attention has not been called to any complicated, such as the presentation of
express provision of our Patent Law, books of accounts, balance sheets, etc.,
giving such authority to determine the assessments exemptions, depreciation,
qualifications of persons allowed to these as regards the Bureau of Internal
practice before the Patent Office. Revenue, and the classification of goods,
imposition of customs duties, seizures,
Section 551 of the Revised Administrative confiscation, etc., as regards the Bureau of
Code authorizes every chief of bureau to Customs, may not also require that any
prescribe forms and make regulations or lawyer practising before them or
general orders not inconsistent with law, otherwise transacting business with them
to secure the harmonious and efficient on behalf of clients, shall first pass an
administration of his branch of the service examination to qualify.
and to carry into full effect the laws
relating to matters within the jurisdiction In conclusion, we hold that under the
of his bureau. Section 608 of Republic Act present law, members of the Philippine
1937, known as the Tariff and Customs Bar authorized by this Tribunal to practice
Code of the Philippines, provides that the law, and in good standing, may practice
Commissioner of Customs shall, subject their profession before the Patent Office,
to the approval of the Department Head, for the reason that much of the business in
makes all rules and regulations necessary said office involves the interpretation and
determination of the scope and application
of the Patent Law and other laws
applicable, as well as the presentation of
evidence to establish facts involved; that
part of the functions of the Patent director
are judicial or quasi-judicial, so much so
that appeals from his orders and decisions
are, under the law, taken to the Supreme
Court.

For the foregoing reasons, the petition for


prohibition is granted and the respondent
Director is hereby prohibited from
requiring members of the Philippine Bar
to submit to an examination or tests and
pass the same before being permitted to
appear and practice before the Patent
Office. No costs.

Paras, C.J., Bengzon, Padilla, Reyes, A.,


Bautista Angelo, Labrador, Concepcion,
Reyes, J.B.L. and Endencia, JJ., concur.

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