Limitations/restrictions

of government lawyers in the practice of law

Problem Areas in Legal Ethics
Arellano University School of Law – Arellano Law Foundation
2019-2020

Canon 6 – These canons shall apply to lawyers in government services in the discharge of their tasks.

Rule 6.01 - The primary duty of a lawyer engaged in public prosecution is not to convict but to see that
justice is done. The suppression of facts or the concealment of witnesses capable of establishing the
innocence of the accused is highly reprehensible and is cause for disciplinary action.
Rule 6.02 - A lawyer in the government service shall not use his public position to promote or advance
his private interests, nor allow the latter to interfere with his public duties.
Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement or employment in
connection with any matter in which he had intervened while in said service.

Rule 15.06. - A lawyer shall not state or imply that he is able to influence any public official, tribunal or
legislative body.

Rule 3.03 - Where a partner accepts public office, he shall withdraw from the firm and his name shall be
dropped from the firm name unless the law allows him to practice law currently.

RRC Rule 138 Sec. 35. Certain attorneys not to practice. - No judge or other official or employee of the
superior courts or of the Office of the Solicitor General, shall engage in private practice as a member of
the bar or give professional advice to clients.

Correct Interpretation
The term "intervene" which we previously interpreted to include an act of a person who has the power
to influence the proceedings.

Otherwise stated, to fall within the ambit of Rule 6.03 of the Code of Professional Responsibility, the
respondent must have accepted engagement or employment in a matter which, by virtue of his public
office, he had previously exercised power to influence the outcome of the proceedings. - Olazo v.
Justice Tinga, A.M. No. 10-5-7-SC [2010]

General Rule
Thus, lawyers in government service cannot handle private cases for they are expected to devote
themselves full-time to the work of their respective offices. - Ramos v. Atty. Jose R. Imbang, A.C. no.
6788 [2007]

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Admonition to government lawyers
A lawyer in the government service shall not use his public position to promote or advance his private
interests, nor allow the latter to interfere with his public duties.

The above provision prohibits a lawyer from using his or her public position to: (1) promote private
interests; (2) advance private interests; or (3) allow private interest to interfere with his or her public
duties.
We previously held that the restriction extends to all government lawyers who use their public offices to
promote their private interests. - Olazo v. Justice Tinga, A.M. No. 10-5-7-SC [2010]

“Revolving door” law practice

“[T]he process by which lawyers and others temporarily enter government service from private life and
then leave it for large fees in private practice, where they can exploit information, contacts, and
influence garnered in government service.“ - PCCG v. Sandiganbayan and Tan, G.R. Nos. 151809-12
[April 12, 2005]

These concerns were classified as adverse-interest conflicts" and "congruent-interest conflicts.

Considerations against disqualification of former government attorney

If service with the government will tend to sterilize an attorney in too large an area of law for too long a
time, or will prevent him from engaging in practice of the very specialty for which the government
sought his service — and if that sterilization will spread to the firm with which he becomes associated
— the sacrifices of entering government service will be too great for most men to make. As for those
men willing to make these sacrifices, not only will they and their firms suffer a restricted practice
thereafter, but clients will find it difficult to obtain counsel, particularly in those specialties and suits
dealing with the government. - US v.Russell White BROTHERS, Jr., G. Thomas Nebel, and Thomas White
Brothers 856 F.Supp. 370 (1992)

Favors disqualification of former government lawyers

On the other hand, policy considerations underlying DR 9-101(B) which militate toward disqualification
include [t]he treachery of switching sides; the safeguarding of confidential governmental information
from future use against the government; the need to discourage government lawyers from handling
particular assignments in such a way as to encourage their own future employment in regard to those
particular matters after leaving government service; and the professional benefit derived from avoiding
the appearance of evil.- US v.Russell White BROTHERS, Jr., G. Thomas Nebel, and Thomas White Brothers
856 F.Supp. 370 (1992)

Definition of “substantial responsibility”

With these competing policies in mind, the Court turns to the requirements of Canon 9 which prohibit a
former government attorney from accepting private employment in a matter in which he had

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"substantial responsibility" while working for the government. According to the American Bar
Association, a "substantial responsibility" is "a responsibility requiring the official to become personally
involved to an important, material degree, in the investigative or deliberative processes regarding the
transactions or facts in question." - US v.Russell White BROTHERS, Jr., G. Thomas Nebel, and Thomas
White Brothers 856 F.Supp. 370 (1992)

Application of C.P.R. on a government lawyer

The Code of Professional Responsibility does not cease to apply to a lawyer simply because he has
joined the government service. In fact, by the express provision of Canon 6 thereof, the rules
governing the conduct of lawyers“shall apply to lawyers in government service in the discharge of their
official tasks.” Thus, where a lawyer’s misconduct as a government official is of such nature as to affect
his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of
the bar on such grounds.

Although the general rule is that a lawyer who holds a government office may not be disciplined as a
member of the bar for infractions he committed as a government official, he may, however, be
disciplined as a lawyer if his misconduct constitutes a violation of his oath a member of the legal
profession. - Ali v. Atty. Bubong, A.C. No. 4018 [2005]

Now, a lawyer who holds a government position may not be disciplined as a member of the bar for
misconduct in the discharge of his duties as a government official. However, if the misconduct also
constitutes a violation of the Code of Professional Responsibility or the lawyer's oath or is of such
character as to affect his qualification as a lawyer or shows moral delinquency on his part, such
individual may be disciplined as a member of the bar for such misconduct. - Pimentel, Jr. v. Attys.
Llorente and Salayon, A.C. no. 4680 [2000]

We begin with the veritable fact that lawyers in government service in the discharge of their official task
have more restrictions than lawyers in private practice. Want of moral integrity is to be more severely
condemned in a lawyer who holds a responsible public office.

Otherwise said, a lawyer in government service is a keeper of the public faith and is burdened with high
degree of social responsibility, perhaps higher than his brethren in private practice.
It bears stressing also that government lawyers who are public servants owe fidelity to the public
service, a public trust. As such, government lawyers should be more sensitive to their professional
obligations as their disreputable conduct is more likely to be magnified in the public eye - Huyssen v.
Atty. Gutierrez, A.C. No. 6707 [2006]

WON violations of RA 6713 are subject to disciplinary action under the CPR
Nonetheless, respondent admitted that he rendered his legal services to complainant while working as a
government prosecutor. Even the receipts he signed stated that the payments by Taggat were for

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"Retainer's fee." Thus, as correctly pointed out by complainant, respondent clearly violated the
prohibition in RA 6713.
However, violations of RA 6713 are not subject to disciplinary action under the Code of Professional
Responsibility unless the violations also constitute infractions of specific provisions of the Code of
Professional Responsibility.
……
Certainly, the IBP has no jurisdiction to investigate violations of RA 6713 - the Code of Conduct and
Ethical Standards for Public Officials and Employees - unless the acts involved also transgress provisions
of the Code of Professional Responsibility.
Here, respondent's violation of RA 6713 also constitutes a violation of Rule 1.01 of Canon 1, which
mandates that "[a] lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct."
Respondent's admission that he received from Taggat fees for legal services while serving as a
government prosecutor is an unlawful conduct, which constitutes a violation of Rule 1.01. - Lim-Santiago
v. Atty. Sagucio, A.C. NO. 6705, March 31, 2006

Code of Ethical Standards for Public Officials and Employees RA 6713 Rule X
Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and
employees now prescribed in the Constitution and existing laws, the following shall constitute
prohibited acts and transactions of any public official and employee and are hereby declared to be
unlawful:
xxxx
(b) Outside employment and other activities related thereto. - Public officials and employees during
their incumbency shall not:
(2) Engage in the private practice of their profession unless authorized by the Constitution or law,
provided, that such practice will not conflict or tend to conflict with their official functions;
Cont…
These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or
separation from public office, except in the case of subparagraph (b) (2) above, but the professional
concerned cannot practice his profession in connection with any matter before the office he used to
be with, in which case the one-year prohibition shall likewise apply.

IRR of RA 6713 Rule X

Grounds for Administrative Disciplinary Action
Section 1. In addition to the grounds for administrative disciplinary action prescribed under
existing laws, the acts and omissions of any official or employee, whether or not he holds office or
employment in a casual, temporary, hold-over, permanent or regular capacity, declared unlawful
or prohibited by the Code, shall constitute the grounds for administrative disciplinary action, and
without prejudice to criminal and civil liabilities provided herein, such as:

(c) Engaging in the private practice of his profession unless authorized by the, Constitution, law or
regulation, provided that such practice will not conflict or tend to conflict with his official functions;

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Cont…
These acts shall continue to be prohibited for a period of one (1) year after resignation, retirement, or
separation from public office, except in the case of paragraph (c) above, but the professional concerned
cannot practice his profession in connection with any matter before the office he used to be with,
within one year after such resignation, retirement, or separation, provided that any violation hereof
shall be a ground for administrative disciplinary action upon re-entry to the government service.

Correct Interpretation
“[s]uch practice" - refer to practice "authorized by the Constitution or law" or the exception to the
prohibition against the practice of profession.

The term "law" was intended by the legislature to include "a memorandum or a circular or an
administrative order issued pursuant to the authority of law.“
- Query of Atty. Silverio-Buffe, A.M. No. 08-6-352-RTC [2009]

Purpose of the Law

Thus, it may be well to say that the prohibition was intended to avoid any impropriety or the
appearance of impropriety which may occur in any transaction between the retired government
employee and his former colleagues, subordinates or superiors brought about by familiarity, moral
ascendancy or undue influence, as the case may be.

Private practice of law

Private practice has been defined by this Court as follows:

“x x x. Practice is more than an isolated appearance, for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is frequent habitual exercise. Practice of law to
fall within the prohibition of statute [referring to the prohibition for judges and other officials or
employees of the superior courts or of the Office of the Solicitor General from engaging in private
practice] has been interpreted as customarily or habitually holding one's self out to the public, as a
lawyer and demanding payment for such services. x x x.”- Maderada v. Judge Mediodea, A.M. No. MTJ-
02-1459. October 14, 2003

Various ways a government lawyer leaves government service

1. retirement
2. resignation
3. expiration of the term of office
4. dismissal
5. abandonment

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Pro se litigant
The raison d’etre for allowing litigants to represent themselves in court will not apply when a person is
already appearing for another party. Obviously, because she was already defending the rights of
another person when she appeared for her co-plaintiff, it cannot be argued that complainant was
merely protecting her rights. That their rights may be interrelated will not give complainant authority to
appear in court. The undeniable fact remains that she and her co-plaintiff are two distinct individuals.
The former may be impairing the efficiency of public service once she appears for the latter without
permission from this Court. - Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459. October 14, 2003

Under the Rules of Court, parties to a case in a first-level court may -- without having to resign from
their posts -- conduct their own litigation in person as well as appear for and on their own behalf as
plaintiffs or defendants.

The law allows persons who are not lawyers by profession to litigate their own case in court. The right
of complainant to litigate her case personally cannot be taken away from her. Her being an employee
of the judiciary does not remove from her the right to proceedings in propria persona or to self-
representation. To be sure, the lawful exercise of a right cannot make one administratively liable. xxx
However, it was also clearly established that complainant had appeared on behalf of her co-plaintiff in
the case below, for which act the former cannot be completely exonerated. Representing oneself is
different from appearing on behalf of someone else.- Maderada v. Judge Mediodea, A.M. No. MTJ-02-
1459. October 14, 2003

To appear as counsel on behalf of their immediate family members

Thus, pursuant to the Court’s administrative supervision over all court personnel, we have on a number
of occasions, but on a case-by-case basis, requests of court personnel to appear as counsel on behalf of
their immediate family members.

This grant is premised on the strict condition that their representation will not conflict or tend to
conflict with their official functions.
Furthermore, they must not use official time in preparing for the case and must file a leave of absence
every time they are required to attend to the case. - Benito Nate v. Judge Lelu P. Contreras A.M. No. RTJ-
15-2406 February 18, 2015

Two theories on the disqualification of former government lawyers in representing a client

“Adverse-interest conflict”
“Congruent-interest representation conflicts."

"Adverse-interest conflicts"
"Adverse-interest conflicts" exist where the matter in which the former government lawyer represents a
client in private practice is substantially related to a matter that the lawyer dealt with while employed

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by the government and the interests of the current and former are adverse.”- PCCG v. Sandiganbayan
and Tan, G.R. Nos. 151809-12 [April 12, 2005]

Adverse-interest conflict
In the “adverse-interest conflict” a former government lawyer is enjoined from representing a client in
private practice when the matter is substantially related to a matter that the lawyer dealt with while
employed by the government and if the interests of the current and former clients are adverse.
It must be observed that the “adverse-interest conflict” applies to all lawyers in that they are generally
disqualified from accepting employment in a subsequent representation if the interests of the former
client and the present client are adverse and the matters involved are the same or substantially
related.

Congruent-interest conflict
In “congruent-interest conflict”, the disqualification does not really involve a conflict at all, because it
prohibits the lawyer from representing a private practice client even if the interests of the former
government client and the new client are entirely parallel. The “congruent-interest representation
conflict”, unlike the “adverse-interest conflict”, is unique to former government lawyers.

Grounds for Disqualification arising from COI

The fatal taint which would require disqualification arises in two types of cases:
(1) where an attorney's conflict of interests in violation of [Canons] undermines the court's confidence
in the vigor of the attorney's representation of his client, or more commonly

(2) where the attorney is at least potentially in a position to use privileged information concerning the
other side through prior representation xxx thus giving his present client an unfair advantage. - US
v.Russell White BROTHERS, Jr., G. Thomas Nebel, and Thomas White Brothers 856 F.Supp. 370 (1992)

PAO to provide free legal assistance

The PAO was created for the purpose of providing free legal assistance to indigent litigants. Section
14(3), Chapter 5, Title III, Book V of the Revised Administrative Code provides:
Sec. 14. xxx

The PAO shall be the principal law office of the Government in extending free legal assistance to
indigent persons in criminal, civil, labor, administrative and other quasi-judicial cases.

PAO lawyer should not accept any remuneration for his services
As a PAO lawyer, respondent should not have accepted attorney's fees from the complainant as this was
inconsistent with the office's mission. Respondent violated the prohibition against accepting legal fees
other than his salary.

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Acceptance of money by a government lawyer
Acceptance of money from a client establishes an attorney-client relationship. Respondent's admission
that he accepted money from the complainant and the receipt confirmed the presence of an attorney-
client relationship between him and the complainant. Moreover, the receipt showed that he accepted
the complainant's case while he was still a government lawyer. Respondent clearly violated the
prohibition on private practice of profession. - Ramos v. Atty. Jose R. Imbang, A.C. no. 6788 [2007]

Query
Why may an incumbent engage in private practice under (b)(2), assuming the same does not conflict or
tend to conflict with his official duties, but a non-incumbent like myself cannot, as is apparently
prohibited by the last paragraph of Sec. 7?

Why is the former allowed, who is still occupying the very public position that he is liable to exploit, but
a non-incumbent like myself – who is no longer in a position of possible abuse/exploitation – cannot?"
Atty. Buffe alleged that Section 7(b)(2) of R.A. No. 6713 gives preferential treatment to an incumbent
public employee, who may engage in the private practice of his profession so long as this practice does
not conflict or tend to conflict with his official functions.

In contrast, a public official or employee who has retired, resigned, or has been separated from
government service like her, is prohibited from engaging in private practice on any matter before the
office where she used to work, for a period of one (1) year from the date of her separation from
government employment.

The interpretation that Section 7 (b) (2) generally prohibits incumbent public officials and employees
from engaging in the practice of law, which is declared therein a prohibited and unlawful act, accords
with the constitutional policy on accountability of public officers stated in Article XI of the
Constitution …

Exception
As an exception, a public official or employee can engage in the practice of his or her profession under
the following conditions:
1. the private practice is authorized by the Constitution or by the law; and
2.the practice will not conflict, or tend to conflict, with his or her official functions.

By way of exception, they can practice their profession if the Constitution or the law allows them, but
no conflict of interest must exist between their current duties and the practice of their profession.

Interpretation
The Section 7 prohibitions continue to apply for a period of one year after the public official or
employee’s resignation, retirement, or separation from public office, except for the private practice of
profession under subsection (b)(2), which can already be undertaken even within the one-year

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prohibition period. As an exception to this exception, the one-year prohibited period applies with
respect to any matter before the office the public officer or employee used to work with.

Section 5, Canon 3 of the Code of Conduct for Court Personnel

Outside employment may be allowed by the head of office provided it complies with all of the following
requirements:
(a) The outside employment is not with a person or entity that practices law before the courts or
conducts business with the Judiciary;
(b) The outside employment can be performed outside of normal working hours and is not
incompatible with the performance of the court personnel’s duties and responsibilities;
(c) That outside employment does not require the practice of law; Provided, however, that court
personnel may render services as professor, lecturer, or resource person in law schools, review or
continuing education centers or similar institutions;
(d) The outside employment does not require or induce the court personnel to disclose confidential
information acquired while performing officials duties;
(e) The outside employment shall not be with the legislative or executive branch of government, unless
specifically authorized by the Supreme Court.

No lawyer in the Judiciary can practice law

No chance exists for lawyers in the Judiciary to practice their profession, as they are in fact expressly
prohibited by Section 5, Canon 3 of the Code of Conduct for Court Personnel from doing so.
Clerk of Court status after separation from government
A clerk of court can already engage in the practice of law immediately after her separation from the
service and without any period limitation that applies to other prohibitions under Section 7 of R.A. No.
6713.

The clerk of court’s limitation is that she cannot practice her profession within one year before the
office where he or she used to work with. In a comparison between a resigned, retired or separated
official or employee, on the one hand, and an incumbent official or employee, on the other, the former
has the advantage because the limitation is only with respect to the office he or she used to work with
and only for a period of one year.
The incumbent cannot practice at all, save only where specifically allowed by the Constitution and the
law and only in areas where no conflict of interests exists.

Inclusion of name in a business card is “private practice of law”

"Baligod, Gatdula, Tacardon, Dimailig and Celera"
with office at Rm. 220 Mariwasa Bldg., 717 Aurora Blvd., Cubao, Quezon City

While respondent denied having assumed any position in said office, the fact remains that his name is
included therein which may therefore tend to show that he has dealings with said office. Thus, while he
may not be actually and directly employed with the firm, the fact that his name appears on the calling

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card as a partner in the Baligod, Gatdula, Tacardon, Dimailig & Celera Law Offices give the impression
that he is connected therein and may constitute an act of solicitation and private practice which is
declared unlawful under Republic Act No. 6713. - Samonte v. Atty. Gatdula, A.M. No. P-99-1292 [1999]

Section 7 sub-par. (b)(2) of Republic Act No. 6713, otherwise known as "Code of Conduct and Ethical
Standards for Public Officials and Employees" which declares it unlawful for a public official or
employee to, among others:

"(2) Engage in the private practice of their profession unless authorized by the Constitution or law,
provided that such practice will not conflict or tend to conflict with official functions."

Preparation of a legal document [Assurance] after separation from government service

The complainant, too, failed to sufficiently establish that the respondent was engaged in the practice of
law. At face value, the legal service rendered by the respondent was limited only in the preparation of
a single document.

We specifically described private practice of law as one that contemplates a succession of acts of the
same nature habitually or customarily holding one’s self to the public as a lawyer.
In any event, even granting that respondent’s act fell within the definition of practice of law, the
available pieces of evidence are insufficient to show that the legal representation was made before the
Committee on Awards, or that the Assurance was intended to be presented before it.-Olazo v. Justice
Tinga, A.M. No. 10-5-7-SC [2010]

Can the Office of the Solicitor General represent a public officer or employee in the preliminary
investigation of a criminal action against him or in a civil action for damages against him?
Accordingly, the Court is of the opinion, and so holds that the Office of the Solicitor General is not
authorized to represent a public official at any stage of a criminal case or in a civil suit for damages
arising from a felony. This pronouncement applies to all public officials and employees in the executive,
legislative and judicial branches of the Government. - G.R. No. 87977 March 19, 1990

IBP has no jurisdiction to investigate lawyers [who are public officials] involving their official
functions
Considering that both Exconde and Madrona are public officers being charged for actions, which are
allegedly unfair and discriminatory, involving their official functions during their tenure, the present
case should be resolved by the Office of the Ombudsman as the appropriate government agency.
Indeed, the IBP has no jurisdiction over government lawyers who are charged with administrative
offenses involving their official duties. For such acts, government lawyers fall under the disciplinary
authority of either their superior or the Ombudsman. Moreover, an anomalous situation will arise if the
IBP asserts jurisdiction and decides against a government lawyer, while the disciplinary authority finds in
favor of the government lawyer. - B. Buffe and Karen M. Silverio-Buffo v. former Secretary of Justice Raul

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M. Gonzalez, former Undersecretary of Justice Fidel J. Exconde, Jr., and former Congressman Eleandro
Jesus F. Madrona, A.C. No. 8168, October 12, 2016

Problem
Complainant Teresita P. Fajardo was the Municipal Treasurer of San Leonardo, Nueva Ecija. She hired
respondent Atty. Nicanor C. Alvarez [a lawyer working in the Legal Section of the National Center for
Mental Health under the Department of Health] to defend her in criminal and administrative cases
before the Office of the Ombudsman. Granting that Atty. Alvarez has an authority to engage in private
of law, can he ethically represent complainant as counsel before the Office of the Ombudsman? –
Fajardo v. Atty. Nicanor C. Alvarez, A.C. No. 9018, April 20, 2016
……
There is basic conflict of interest here. Respondent is a public officer, an employee of government. The
Office of the Ombudsman is part of government. By appearing against the Office of the Ombudsman,
respondent is going against the same employer he swore to serve.
However, by assisting and representing complainant in a suit against the Ombudsman and against
government in general, respondent put himself in a situation of conflict of interest.
Respondent's practice of profession was expressly and impliedly conditioned on the requirement that
his practice will not be "in conflict with the interest of the Center and the Philippine government as a
whole."

………
Thus, a conflict of interest exists when an incumbent government employee represents another
government employee or public officer in a case pending before the Office of the Ombudsman. The
incumbent officer ultimately goes against government's mandate under the Constitution to prosecute
public officers or employees who have committed acts or omissions that appear to be illegal, unjust,
improper, or inefficient. Furthermore, this is consistent with the constitutional directive that "[p]ublic
officers and employees must, at all times, be accountable to the [P]eople, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives."–
Fajardo v. Atty. Nicanor C. Alvarez, A.C. No. 9018, April 20, 2016

……

Republic Act No. 6713:

Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and
employees now prescribed in the Constitution and existing laws, the following shall constitute
prohibited acts and transactions of any public official and employee and are hereby declared to be
unlawful:
xxx
(b) Outside employment and other activities related thereto. - Public officials and employees during
their incumbency shall not:

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 xxx
(2) Engage in the private practice of their profession unless authorized by the Constitution or law,
provided, that such practice will not conflict or tend to conflict with their official functions[.]

……..
Memorandum Circular No. 17:
The authority to grant permission to any official or employee shall be granted by the head of the
ministry or agency in accordance with Section 12, Rule XVIII of the Revised Civil Service Rules, which
provides:

"Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or
be connected with any commercial, credit, agricultural, or industrial undertaking without a written
permission from the head of Department;

Provided, That this prohibition will be absolute in the case of those officers and employees whose
duties and responsibilities require that their entire time be at the disposal of the Government;

Provided, further, That if an employee is granted permission to engage in outside activities, the time so
devoted outside of office hours should be fixed by the chief of the agency to the end that it will not
impair in any way the efficiency of the other officer or employee:

Problem
The petitioner was an incumbent City Councilor or member of the Sangguniang Panlungsod of Bago
City. He was a lawyer by profession and had continuously engaged in the practice of law without
securing authority from the Regional Director of the Department of Local Government.
In 1989, the petitioner acted as counsel for Antonio Javiero and Rolando Catapang and filed a case for
Illegal Dismissal and Reinstatement with Damages against Engr. Ernesto C. Divinagracia, City Engineer
of Bago City.
…….
In the first place, complaints against public officers and employees relating or incidental to the
performance of their duties are necessarily impressed with public interest for by express constitutional
mandate, a public office is a public trust.
The complaint for illegal dismissal filed by Javiero and Catapang against City Engineer Divinagracia is in
effect a complaint against the City Government of Bago City, their real employer, of which petitioner
Javellana is a councilman.
………
Hence, judgment against City Engineer Divinagracia would actually be a judgment against the City
Government. By serving as counsel for the complaining employees and assisting them to prosecute
their claims against City Engineer Divinagracia, the petitioner violated Memorandum Circular No. 74-58
(in relation to Section 7[b-2] of R[epublic] A[ct] [No.] 6713) prohibiting a government official from
engaging in the private practice of his profession, if such practice would represent interests adverse to

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the government. - Javellana v. Department of Interior and Local Government, G.R. No. 102549, August
10, 1992, 212

Problem
The members of the Land Bank legal department were appointed in their individual capacities but
styled themselves as "Piczon Beramo & Associates." And as members of the Legal Department, they are
deemed as public officials, salaried by the Land Bank, and in the employ of the government-owned or
controlled corporation with original charter. Can the members of the Land Bank legal department
properly do so?
……..
On this score, two points are relevant. First, under Section 7(b)(2) of the Code of Conduct and Ethical
Standards for Public Officials and Employees (Rep. Act No. 6713), public officials and employees during
their incumbency are barred from engaging in the private practice of their profession unless
authorized by the Constitution or by law. There is no law authorizing the members of the Legal
Department of Land Bank from engaging in private practice, and presumably these lawyers are
precluded from any professional legal practice other than in the service of Land Bank. Thus, it behooves
this Court why these members of the Land Bank Legal Department choose to undertake the
appearance of a private law firm when they are barred by law from engaging in such private practice.
……
Second, Rule 3.03 of the Code of Professional Responsibility declares that "where a partner accepts
public office, he shall withdraw from the firm and his name shall be dropped from the firm name
unless the law allows him to practice law concurrently." Again, this ethical rule precludes the members
of the Land Bank Legal Department from establishing a private law firm or being designated a "named
partner" in such a firm. Thus, the impropriety of Attys. Piczon, Bersamo and Berbaño representing
themselves as "Piczon Bersamo and Associates" becomes even more glaring, considering that by their
own admission, these three lawyers belong to the Legal Department of Land Bank. – Landbank v.
Luciano, G.R. No. 165428. April 27, 2005

Problem
A complaint was initiated before the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5th District
of Manila where the parties reside.
Respondent lawyer, as punong barangay of Barangay 723, summoned the parties to conciliation
meetings. When the parties failed to arrive at an amicable settlement, respondent lawyer issued a
certification for the filing of the appropriate action in court.
……..
Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth and Pastor in the
Metropolitan Trial Court of Manila, Branch 11.
Respondent entered his appearance as counsel for the defendants in that case. Because of this,
complainant filed the instant administrative complaint, claiming that respondent committed an act of
impropriety as a lawyer and as a public officer when he stood as counsel for the defendants despite the
fact that he presided over the conciliation proceedings between the litigants as punong barangay.

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For these infractions, the IBP-CBD recommended the respondent’s suspension from the practice of law.

WON respondent is administratively liable.

…….
Rule 6.03 - A lawyer shall not, after leaving government service, accept engagement or employment in
connection with any matter in which he had intervened while in said service.
Respondent cannot be found liable for violation of Rule 6.03 of the Code of Professional Responsibility.
As worded, that Rule applies only to a lawyer who has left government service and in connection with
any matter in which he intervened while in said service.
…….
In PCGG v. Sandiganbayan, we ruled that Rule 6.03 prohibits former government lawyers from accepting
engagement or employment in connection with any matter in which [they] had intervened while in said
service.
Respondent was an incumbent punong barangay at the time he committed the act complained of.
Therefore, he was not covered by that provision. – Catu v. Atty. Rellosa, A.C. No. 5738, February 19,
2008
……..
Section 90 of RA 7160 [The Local Government Code of 1992], not Section 7(B)(2) OF RA 6713, governs
the practice of profession of elective local government officials.
Section 7(b)(2) of RA 6713 prohibits public officials and employees, during their incumbency, from
engaging in the private practice of their profession unless authorized by the Constitution or law,
provided that such practice will not conflict or tend to conflict with their official functions. This is the
general law which applies to all public officials and employees.

……
For elective local government officials, Section 90 of RA 7160[12] governs:
SEC. 90. Practice of Profession.
(a) All governors, city and municipal mayors are prohibited from practicing their profession or engaging
in any occupation other than the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools
except during session hours: Provided, That sanggunian members who are members of the Bar shall
not:
(1) Appear as counsel before any court in any civil case wherein a local government unit or any office,
agency, or instrumentality of the government is the adverse party;

……..
(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local
government is accused of an offense committed in relation to his office;
(3) Collect any fee for their appearance in administrative proceedings involving the local government
unit of which he is an official; and

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(4) Use property and personnel of the Government except when the sanggunian member concerned is
defending the interest of the Government.
…….
(c) Doctors of medicine may practice their profession even during official hours of work only on
occasions of emergency: Provided, That the officials concerned do not derive monetary compensation
therefrom.

This is a special provision that applies specifically to the practice of profession by elective local officials.
As a special law with a definite scope (that is, the practice of profession by elective local officials), it
constitutes an exception to Section 7(b)(2) of RA 6713, the general law on engaging in the private
practice of profession by public officials and employees.

……
Under RA 7160, elective local officials of provinces, cities, municipalities and barangays are the
following: the governor, the vice governor and members of the sangguniang panlalawigan for provinces;
the city mayor, the city vice mayor and the members of the sangguniang panlungsod for cities; the
municipal mayor, the municipal vice mayor and the members of the sangguniang bayan for
municipalities and the punong barangay, the members of the sangguniang barangay and the members
of the sangguniang kabataan for barangays.
Of these elective local officials, governors, city mayors and municipal mayors are prohibited from
practicing their profession or engaging in any occupation other than the exercise of their functions as
local chief executives. This is because they are required to render full time service. They should
therefore devote all their time and attention to the performance of their official duties.
……..
On the other hand, members of the sangguniang panlalawigan, sangguniang panlungsod or sangguniang
bayan may practice their professions, engage in any occupation, or teach in schools except during
session hours.
In other words, they may practice their professions, engage in any occupation, or teach in schools
outside their session hours. Unlike governors, city mayors and municipal mayors, members of the
sangguniang panlalawigan, sangguniang panlungsod or sangguniang bayan are required to hold regular
sessions only at least once a week. Since the law itself grants them the authority to practice their
professions, engage in any occupation or teach in schools outside session hours, there is no longer any
need for them to secure prior permission or authorization from any other person or office for any of
these purposes.

A lawyer in government service who is not prohibited to practice law must secure prior authority from
the head of his department.
A civil service officer or employee whose responsibilities do not require his time to be fully at the
disposal of the government can engage in the private practice of law only with the written permission
of the head of the department concerned. Section 12, Rule XVIII of the Revised Civil Service Rules
provides:

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Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or
be connected with any commercial, credit, agricultural, or industrial undertaking without a written
permission from the head of the Department:
……..
Accordingly, as punong barangay, respondent was not forbidden to practice his profession. However, he
should have procured prior permission or authorization from the head of his Department, as required
by civil service regulations.

Suspension from the practice of law includes suspension from public office
Respondent attorney argues that, "[t]o stretch the coverage of [his suspension from the practice of law]
to [his] public office would be tantamount to [violating] his constitutional rights [sic] to due process and
to the statutory principle in law that what is not included is deemed excluded.“
The exercise of the powers and functions of a Commission on Human Rights Regional Director
constitutes practice of law. Thus, the Regional Director must be an attorney - a member of the bar in
good standing and authorized to practice law. When the Regional Director loses this authority, such as
when he or she is disbarred or suspended from the practice of law, the Regional Director loses a
necessary qualification to the position he or she is holding. The disbarred or suspended lawyer must
desist from holding the position of Regional Director. – Lingan v. Atty. Calubaquib & Baliga, A.C. No.
5377, June 30, 2014

As a government lawyer
Government lawyers who are public servants owe utmost fidelity to the public service because public
service is a public trust. A lawyer does not shed his professional obligations upon assuming public
office. In fact, his professional obligations should make him more sensitive to his official obligations
because a lawyer's disreputable conduct is more likely to be magnified in the public eye. - Provincial
Prosecutor Visbal v. judge Buban, Branch 1, Tacloban City, A.M. NO. MTJ-02-1432 : September 3, 2004

Who may legally represent a municipality in a suit for or against it

We ruled that private attorneys cannot represent a province or municipality in lawsuits.
Section 1683 of the Revised Administrative Code provides:
Sec. 1683. Duty of fiscal to represent provinces and provincial subdivisions in litigation. — The provincial
fiscal shall represent the province and any municipality or municipal district thereof in any court, except
in cases whereof (sic) original jurisdiction is vested in the Supreme Court or in cases where the
municipality or municipal district in question is a party adverse to the provincial government or to
some other municipality or municipal district in the same province. When the interests of a provincial
government and of any political division thereof are opposed, the provincial fiscal shall act on behalf of
the province.

…….
When the provincial fiscal is disqualified to serve any municipality or other political subdivision of a
province a special attorney may be employed by its council.

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Under the above provision, complemented by Section 3, Republic Act No. 2264, the Local Autonomy
Law, only provincial fiscal and the municipal attorney can represent a province or municipality in their
lawsuits. The provision is mandatory. The municipality's authority to employ a private lawyer is
expressly limited only to situations where the provincial fiscal is disqualified to represent it.
For the aforementioned exception to apply, the fact that the provincial fiscal was disqualified to handle
the municipality's case must appear on record. In the instant case, there is nothing in the records to
show that the provincial fiscal is disqualified to act as counsel for the Municipality of Pililla on appeal,
hence the appearance of herein private counsel is without authority of law.

……
None of the foregoing exceptions is present in this case. It may be said that Atty. Romanillos appeared
for respondent municipality inasmuch as he was already counsel of Kristi Corporation which was sued
with respondent municipality in this same case. The order of the trial court dated September 19, 1990,
stated that Atty. Romanillos "entered his appearance as collaborating counsel of the provincial
prosecutor and the provincial attorney." This collaboration is contrary to law and hence should not have
been recognized as legal. It has already been ruled in this wise:

……..
The fact that the municipal attorney and the fiscal are supposed to collaborate with a private law firm
does not legalize the latter's representation of the municipality of Hagonoy in Civil Case No. 5095-M.
While a private prosecutor is allowed in criminal cases, an analogous arrangement is not allowed in
civil cases wherein a municipality is the plaintiff.
As already stated, private lawyers may not represent municipalities on their own. Neither may they do
so even in collaboration with authorized government lawyers. This is anchored on the principle that
only accountable public officers may act for and in behalf of public entities and that public funds should
not be expanded to hire private lawyers. – Ramos et. al. v. Court of Appeals, G.R. No. 99425 March 3,
1997

Authority of private counsel can be questioned even on appeal

The contention of Atty. Mendiola that private respondent cannot raise for the first time on appeal his
lack of authority to represent the municipality is untenable. The legality of his representation can be
questioned at any stage of the proceedings. In the cases hereinbefore cited, the issue of lack of
authority of private counsel to represent a municipality was only raised for the first time in the
proceedings for the collection of attorney's fees for services rendered in the particular case, after the
first time in the proceedings for the collection of attorney's fees for services rendered in the particular
case, after the decision in that case had become final and executory and/or had been duly executed. –
Ramos et. al. v. Court of Appeals, G.R. No. 99425 March 3, 1997

What is the Effect of Unauthorized Representation?

Would the adoption by government lawyers of the proceedings participated in by private counsel

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validate such proceedings?

[This Court] agree with public respondent that such adoption produces validity. Public respondent
stated the reasons to which we agree:

…….
Moreover, it does not appear that the adoption of proceedings participated in or undertaken by Atty.
Romanillos when he was private counsel for the respondent municipality of Baliuag — such as the
proceedings on the motion to dissolve the injunction, wherein petitioners had even cross-examined the
witnesses presented by Atty. Romanillos in support of said motion and had even started to present their
witnesses to sustain their objection to the motion — would have resulted in any substantial prejudice to
petitioners' interest. As Wee see it, to declare the said proceedings null and void — notwithstanding the
formal adoption thereof by Atty. Regalado as Provincial Attorney of Bulacan in court — and to require
trial anew to cover the same subject matter, to hear the same witnesses and to admit the same
evidence adduced by the same parties cannot enhance the promotion of justice.

…….
The rule on appearances of a lawyers is that until the contrary is clearly shown, an attorney is presumed
to be acting under authority of the litigant whom he purports to represent. His authority to appear for
and represent petitioner in litigation, not having been questioned in the lower court, it will be presumed
on appeal that counsel was properly authorized to file the complaint and appear for his client. – Ramos
et. al. v. Court of Appeals, G.R. No. 99425 March 3, 1997

OSG cannot represent an accused in a criminal case

There is likewise another reason, as earlier discussed, why the OSG cannot represent an accused in a
criminal case. Inasmuch as the State can speak and act only by law, whatever it does say and do must be
lawful, and that which in unlawful is not the word or deed of the State, but is the mere wrong or
trespass of those individual persons who falsely speak and act in its name. Therefore, the accused public
official should not expect the State, through the OSG, to defend him for a wrongful act which cannot
be attributed to the State itself. In the same light, a public official who is sued in a criminal case is
actually sued in his personal capacity inasmuch as his principal, the State, can never be the author of a
wrongful act, much less commit a crime. - Celso Pascual v. Beltran, G.R. No. 129318, October 27, 2006

The OSG cannot represent a public official in a civil suit for damages
The Court further ruled that its observation should apply as well to a public official who is hailed to court
in a civil suit for damages arising from a felony allegedly committed by him. Any pecuniary liability he
may be held to account for on the occasion of such civil suit is for his own account. The Sate is not liable
for the same. A fortiori, the Office of the Solicitor General likewise has no authority to represent him in
such a civil suit for damages.
To repeat, the Solicitor General is the lawyer of the government, any of its agents and officials in any
litigation, proceeding, investigation or matter requiring the services of a lawyer. The exception is when

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such officials or agents are being charged or are being civilly sued for damages arising from a felony. -
Celso Pascual v. Beltran, G.R. No. 129318, October 27, 2006

Solicitor General cannot refuse to represent the government, its agencies, instrumentalities, officials
and agents without a just and valid reason
Thus, the Solicitor General cannot refuse to represent the government, its agencies, instrumentalities,
officials and agents without a just and valid reason. He should not desist from appearing before the
Court even in those cases where his opinions may be inconsistent with the government or any of its
agents he is expected to represent. As in the case of fiscals or prosecutors, bias or prejudice and
animosity or hostility do not constitute legal and valid excuses for inhibition.
……
Unlike a practicing lawyer who has the right to decline employment, a fiscal or prosecutor, or the
Solicitor General in the case at bar, cannot refuse to perform his functions without violating his oath of
office. Refusal to perform the duty is compellable by a writ of mandamus. On the other hand,
government agencies were admonished not to reject the services of the Solicitor General, or otherwise
fail or refuse to forward the papers of a case to the OSG for appropriate action. Actions filed in the
name of the Republic that are not initiated by the OSG will be summarily dismissed. Moreover, the fee
of the lawyer who rendered legal service to the government in lieu of the OSG or the OGCC is the
personal liability of the government official who hired his services without the prior written conformity
of the OSG or the OGCC, as the case may be. – Gumaro v. Quirino State Colleges, G.R. No. 164196,
June 22, 2007

A fiscal cannot refuse to perform his functions

Unlike a practicing lawyer who has the right to decline employment, a fiscal cannot refuse to perform his
functions on grounds not provided for by law without violating his oath of office. Instead of engaging the
services of a special attorney, the municipal council should request the Secretary of Justice to appoint an
acting provincial fiscal in place of the provincial fiscal who has declined to handle and prosecute its case
in court, pursuant to Section 1679 of the Revised Administrative Code. - Municipality of Pililla, Rizal vs.
Court of Appeals, G.R. No. 105909 June 28, 1994

Provincial fiscal disqualified to represent a particular municipality

With Sec. 1683 of the old Administrative Code as legal basis, the Court therein cited Enriquez, Sr. v.
Gimenez [107 Phil 932 (1960)] which enumerated instances when the provincial fiscal is disqualified to
represent in court a particular municipality;
1. if and when original jurisdiction of case involving the municipality is vested in the Supreme Court,
2. when the municipality is a party adverse to the provincial government or to some other
municipality in the same province, and when,
3. in a case involving the municipality, he, or his wife, or child, is pecuniarily involved, as heir legatee,
creditor or otherwise. – Ramos, et. al. v. Court of Appeals, G.R. No. 99425 March 3, 1997

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Counsel not guilty of contempt for representing two inconsistent positions or interests
Counsel espouses two inconsistent positions or interests: the first, in favor of Central Bank and Lucio
Tan, which is the position taken in the case at bar, and the second, in favor of the Republic but against
Lucio Tan and his cohorts in the Civil Case before the Sandiganbayan.
Petitioners harp on the alleged conflicting positions of respondent’s [counsel] in Spec. Proc. No.
107812/CA-G.R. CV No. 39939 and in Sandiganbayan Civil Case No. 0005.
…..
Assuming arguendo that [counsel] participated in these two cases, this Court cannot hold him personally
liable. The perceived inconsistent positions are the official positions taken by his office as the principal
law office and legal defender of the Government.
In other words, the State in both cases has knowingly allowed counsel to represent it, and for this
reason, the latter may not be held in contempt and subjected to any disciplinary action. - General Bank
and Trust Company (GBTC) v. The Ombudsman, et. al., G.R. No. 125440. January 31, 2000

Thank you for your attention!!

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