W - 10. Limitations of Government Lawyers

W - 10.
Limitations of government
lawyers.docx
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.
https://lookaside.fbsbx.com/file/W%20-%2010.%20Limitations%…FdqQL9KIH9YXgox875w_eHV3S9UP4ifx-hjh9OgauQDBc7jcMmw 10/10/19, 6:29 PM

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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-

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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]
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

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“[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)

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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
"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

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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]

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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
"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

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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

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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

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authorized by the, Constitution, law or regulation, provided that such
practice will not conflict or tend to conflict with his official
functions;
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]

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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

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

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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

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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 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

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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

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(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

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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.

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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 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

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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

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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 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]

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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

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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

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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 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

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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
……

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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:
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:

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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 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

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

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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

Page 29 of 45
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

Page 30 of 45
as counsel for the defendants despite the fact that he presided over
the conciliation proceedings between the litigants as punong
barangay.
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,

Page 31 of 45
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:

Page 32 of 45
(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
(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

Page 33 of 45
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.

Page 34 of 45
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:
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

Page 35 of 45
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

Page 36 of 45
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

Page 37 of 45
employed by its council.
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:

Page 38 of 45
……..
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

Page 39 of 45
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 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

Page 40 of 45
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

Page 41 of 45
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 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

Page 42 of 45
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.

Page 43 of 45
- 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
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

Page 44 of 45
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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W - 10. Limitations of Government Lawyers

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W - 10. Limitations of Government Lawyers

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W - 10.

Problem Areas in Legal Ethics

Arellano University School of Law – Arellano Law Foundation

Canon 6 – These canons shall apply to lawyers in government

Rule 6.01 - The primary duty of a lawyer engaged in public

Rule 6.03 - A lawyer shall not, after leaving government service,

https://lookaside.fbsbx.com/file/W%20-%2010.%20Limitations%…FdqQL9KIH9YXgox875w_eHV3S9UP4ifx-hjh9OgauQDBc7jcMmw 10/10/19, 6:29 PM

Rule 3.03 - Where a partner accepts public office, he shall

The term "intervene" which we previously interpreted to include an

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Thus, lawyers in government service cannot handle private cases for

Admonition to government lawyers

We previously held that the restriction extends to all government

“Revolving door” law practice

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These concerns were classified as adverse-interest conflicts" and

Considerations against disqualification of former government

If service with the government will tend to sterilize an attorney in too

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On the other hand, policy considerations underlying DR 9-101(B)

Definition of “substantial responsibility”

With these competing policies in mind, the Court turns to the

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

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Although the general rule is that a lawyer who holds a government

Now, a lawyer who holds a government position may not be disciplined

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Otherwise said, a lawyer in government service is a keeper of the

It bears stressing also that government lawyers who are public

WON violations of RA 6713 are subject to disciplinary action under

Nonetheless, respondent admitted that he rendered his legal services

However, violations of RA 6713 are not subject to disciplinary action

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Certainly, the IBP has no jurisdiction to investigate violations of RA

Here, respondent's violation of RA 6713 also constitutes a violation of

Code of Ethical Standards for Public Officials and Employees RA

Section 7. Prohibited Acts and Transactions. - In addition to acts and

(b) Outside employment and other activities related thereto. - Public

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(2) Engage in the private practice of their profession unless authorized

IRR of RA 6713 Rule X

Grounds for Administrative Disciplinary Action

Section 1. In addition to the grounds for administrative disciplinary

(c) Engaging in the private practice of his profession unless

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“[s]uch practice" - refer to practice "authorized by the Constitution or

The term "law" was intended by the legislature to include "a

- Query of Atty. Silverio-Buffe, A.M. No. 08-6-352-RTC [2009]

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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

Various ways a government lawyer leaves government service

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3.​expiration of the term of office

The raison d’etre for allowing litigants to represent themselves in court

Under the Rules of Court, parties to a case in a first-level court may --

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To appear as counsel on behalf of their immediate family

Thus, pursuant to the Court’s administrative supervision over all court

This grant is premised on the strict condition that their representation

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Two theories on the disqualification of former government

3.expiration of the term of office