I REPUBLIC OF TIIE PHtI_IPPtNES o

DEPARTFNENT OF THE INTERIOR A[,!D LOCAL GOVERNMENT

Francisco Gold Condominium ll
Edsa Cor. Mapagmahal St., Diliman
Quezon City

LEGAL SERVICE

DrLG oPrNroN N0. 7 5.2011

t'lAR i Y 2011

HON. MARCEI,O V. DELA CRUZ, JR.

Mayor, Municipality of llizal

Dear Mayor Dela Cruz,

This has reference to your letter datecl 04 March 201 I requesting a certification from this
Department that vour act of hiring a private lawycr.to represcnt your rnunicipality in a pending
court litigation was proper, after the Provincial Prosecutor and Provincial Leeal Officer inhibited
from said proceedings due to conflict of interest.

Please be advised that this Department already lrad the occasion to rule upon this
particular issue in Legal Opinion No. 59, series of2007. Quoted hereunder are the pe(inent rules
relative to the employment of a private lawyer to represent a municipality, thus:

"ln reply thereto, please be inlbrmed that, as a seneral rule, a n-runicipality

cannot engage theservices ofa privatc lawyer. only the provinoial prosecutor
(Fiscal), the Provincial Attorney or the Municipal Attorney could validly
represent a municipality in all cases/conrplaints and legal problems involving it.
The reasor being that only accountable public officers may act lor and in behalf
of public entities and that public funds should not be expended to hire private
lawyers (llamos vs. Court of Appeals, 269 SCRA 34). Thus, in the case of
Ramos vs. Court of Appeals, 108 SCRA 728, the Supreme Court was rather
emphatic when it dcclared that a private lauyer cannot represent a local
government unit even if the services renderecl was gratis, and stated that ..the
municipality should not be burdened witl.r expenses of hiring a private lawyer ancl
that interests of the mu.icipality would be best protected if a govemment lawyer
handles its litigation."

"Hor.vever, in the case of Edgar Mancenido, et al. vs. Court of Appeals

(330 SCRA 419), the Supreme Court elrumerated several exceptions to the
general rule discussed above, to wit:

(l ) Only when the provincial fiscal is disqualified rnay the municipal

council be authorized to hire the scrvices ofa special attorncy;

(2) The provincial public prosecutor is disqualil.red from representing

a particular municipality: (a) whcn thc .iurisdiction of a case involving the
municipalities lies with the Supreme Court; (b) when the municipality is a pafiy
adverse to the Provincial government or to sonre othcr municipality in the same
province; and (c) when in a case involving thc municipality, the provincial
prosecutor, his spouse, or his child is involved as a creditor, heir. lesatee or
otherwise;

(3) In resolving whether a local government official may secure the

services o1'a private counsel in an action filcd against him in his official capacity,
the nature o1'the action and the relicf sought are to bc considered. In Albuera vs.
Torres (102 Phit. 2l I [957]), the Suprcme Court approved the representation by

Oehr{"o1a* 2l? tk:a* al le<a../ :4cAaa&raq ar. ilo ?klqp*zt

 private counsel of a provincial governor sued in his official capacity, wherel the
complaint contained other allegations and a prayer for moral damages, which, if
due from the defendants, must be satisfied by them in their private capacity."

Based on the foregoing pronouncements of the suprerne court, it is the posilion of this
Department that your act of hiring a private lawyer to handle the cases filed against you in your
official capacity as the Municipal Mayor of Rizal was appropriate and in accordarroe with law
and relevant jurisprudence.

According to the documents furnished this Department, all necessary efforts upre exerted
by your good office in order to get hold of the services of a lawyer cominA from the
government. Being a fourth class municipality with no Legal officer. you sought thi assistance
of the Provincial Prosecutor and Provincial Legal Officer, but both lawyers begged off, citilg
conflict ofinterest as reason therefor.

Your reqttest to the Office of the Solicitor General likewise having been denie<1, you were
then obliged to hire a private lawyer after seeking legislative iuthorization irom the
Sangguniang Bayan to defend your good office in thb suits to which you were charqed in your
official capacity.

Thus, it is clear that having no other legal recourse, your act of hiring a privhte lawycr,
upon prior authorization from the Sangguniang Bayan, was justified under the iircl-rmstances.
The inhibition of both the Provincial Prosecutor and Provincial Legal Officer can b{ likened to
a disqualilication of said government lawyers to represent the Municipality of Rizal, and
therefore should be considered as an exception to the rule on non-employment of a private
lawyer in accordance with the Mancenido ruling.

We hope that we have addressed your concern accordingly.

Very truly yourp,

LStr+

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