of Section 34, Rule 138, a law student may appear as an agent or a
friend of a party litigant, without need of the supervision of a lawyer,
Contents
Cruz v. Mijares .......................................................................................... 1
Nate v. Contreras ...................................................................................... 3
Catu v. Rellosa........................................................................................... 6
A.M. No. 08-6-352-RTC.......................................................................... 8
PCGG v. SB G.R. Nos. 151809-12. April 12, 2005.* .........................13
Cruz v. Mijares
G.R. No. 154464. September 11, 2008.*
FERDINAND A. CRUZ, 332 Edang St., Pasay City,
petitioner, vs. JUDGE PRISCILLA MIJARES, Presiding Judge,
Regional Trial Court, Branch 108, Pasay City, Metro Manila, public
respondent. BENJAMIN MINA, JR., 332 Edang St., Pasay City,
private respondent.
Courts; Jurisdiction; A becoming regard of the judicial hierarchy
most certainly indicates that petitions for the issuance of extraordinary
writs against the Regional Trial Courts (RTCs) should be filed with the
Court of Appeals.—This Court’s jurisdiction to issue writs of
certiorari, prohibition, mandamus and injunction is not
exclusive; it has concurrent jurisdiction with the RTCs and the Court
of Appeals. This concurrence of jurisdiction is not, however, to be taken
as an absolute, unrestrained freedom to choose the court where the
application therefor will be directed. A becoming regard of the judicial
hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against the RTCs should be filed with the Court of
Appeals. The hierarchy of courts is determinative of the appropriate
forum for petitions for the extraordinary writs; and only in exceptional
cases and for compelling reasons, or if warranted by the nature of the
issues reviewed, may this Court take cognizance of petitions filed
directly before it.
Pleadings and Practice; Considering that a party personally
conducting his litigation is restricted to the same rules of evidence and
procedure as those qualified to practice law, petitioner, not being a
lawyer himself, runs the risk of falling into the snares and hazards of
his own ignorance. Therefore, Cruz as plaintiff, at his own instance, can
personally conduct the litigation of Civil Case No. 01-0410.—From the
clear language of this provision of the Rules, it will have to be conceded
that the contention of the petitioner has merit. It recognizes the right
of an individual to represent himself in any case to which he is a party.
The Rules state that a party may conduct his litigation personally or
with the aid of an attorney, and that his appearance must either be
personal or by a duly authorized member of the Bar. The individual
litigant may personally do everything in the course of proceedings from
commencement to the termination of the litigation. Considering that a
party personally conducting his litigation is restricted to the same rules
of evidence and procedure as those qualified to practice law, petitioner,
not being a lawyer himself, runs the risk of falling into the snares and
hazards of his own ignorance. Therefore, Cruz as plaintiff, at his own
instance, can personally conduct the litigation of Civil Case No. 01-
0410. He would then be acting not as a counsel or lawyer, but as a party
exercising his right to represent himself.
Same; A party litigant in a civil case, who insists that he can,
without a lawyer’s assistance, effectively undertake the successful
pursuit of his claim, may be given the chance to do so.—The case at bar
involves a civil case, with the petitioner as plaintiff therein. The
solicitous concern that the Constitution accords the accused in a
criminal prosecution obviously does not obtain in a civil case. Thus,
party litigant in a civil case, who insists that he can, without a lawyer’s
assistance, effectively undertake the successful pursuit of his claim,
may be given the chance to do so. In this case, petitioner alleges that
he is a law student and impliedly asserts that he has the competence
to litigate the case himself. Evidently, he is aware of the perils incident
to this decision.
Same; It was clarified in Bar Matter 730, that by virtue of Section
34, Rule 138, a law student may appear as an agent or a friend of a
party litigant, without need of the supervision of a lawyer, before inferior
courts.—It was subsequently clarified in Bar Matter 730, that by virtue
1
before inferior courts. Here, we have a law student who, as party
litigant, wishes to represent himself in court. We should grant his wish.
Administrative Law; Judges; Disqualification and Inhibition of
Judges; Absent clear and convincing proof of grave abuse of discretion
on the part of the judge, this Court will rule in favor of the presumption
that official duty has been regularly performed.—In a Motion for
Inhibition, the movant must prove the ground for bias and prejudice by
clear and convincing evidence to disqualify a judge from participating
in a particular trial, as voluntary inhibition is primarily a matter of
conscience and addressed to the sound discretion of the judge. The
decision on whether she should inhibit herself must be based on her
rational and logical assessment of the circumstances prevailing in the
case before her. Absent clear and convincing proof of grave abuse of
discretion on the part of the judge, this Court will rule in favor of the
presumption that official duty has been regularly performed.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari,
Prohibition and Mandamus.
The facts are stated in the opinion of the Court.
NACHURA, J.:
This is a Petition for Certiorari, Prohibition and Mandamus, with
prayer for the issuance of a writ of preliminary injunction under Rule
65 of the Rules of Court. It was directly filed with this Court assailing
the Resolutions dated May 10, 20021 and July 31, 20022 of the Regional
Trial Court (RTC), Branch 108, Pasay City, which denied the
appearance of the plaintiff Ferdinand A. Cruz, herein petitioner, as
party litigant, and the refusal of the public respondent, Judge Priscilla
Mijares, to voluntarily inhibit herself from trying the case. No writ of
preliminary injunction was issued by this Court.
The antecedents:
On March 5, 2002, Ferdinand A. Cruz (petitioner) sought
permission to enter his appearance for and on his behalf, before the
RTC, Branch 108, Pasay City, as the plaintiff in Civil Case No. 01-0410,
for Abatement of Nuisance. Petitioner, a fourth year law student,
anchors his claim on Section 34 of Rule 138 of the Rules of Court 3 that
a non-lawyer may appear before any court and conduct his litigation
personally.
During the pre-trial, Judge Priscilla Mijares required the
petitioner to secure a written permission from the Court Administrator
before he could be allowed to appear as counsel for himself, a party-
litigant. Atty. Stanley Cabrera, counsel for Benjamin Mina, Jr., filed a
Motion to Dismiss instead of a pre-trial brief to which petitioner Cruz
vehemently objected alleging that a Motion to Dismiss is not allowed
after the Answer had been filed. Judge Mijares then remarked, “Hay
naku, masama ’yung marunong pa sa Huwes. Ok?” and proceeded to
hear the pending Motion to Dismiss and calendared the next hearing
on May 2, 2002.
On March 6, 2002, petitioner Cruz filed a Manifestation and
Motion to Inhibit,4 praying for the voluntary inhibition of Judge
Mijares. The Motion alleged that expected partiality on the part of the
respondent judge in the conduct of the trial could be inferred from the
contumacious remarks of Judge Mijares during the pre-trial. It asserts
that the judge, in uttering an uncalled for remark, reflects a negative
frame of mind, which engenders the belief that justice will not be
served.5
In an Order6 dated April 19, 2002, Judge Mijares denied the
motion for inhibition stating that throwing tenuous allegations of
partiality based on the said remark is not enough to warrant her
voluntary inhibition, considering that it was said even prior to the start
of pre-trial. Petitioner filed a motion for reconsideration7 of the said
order.
On May 10, 2002, Judge Mijares denied the motion with
finality.8 In the same Order, the trial court held that for the failure of
petitioner Cruz to submit the promised document and jurisprudence,
and for his failure to satisfy the requirements or conditions under Rule
138-A of the Rules of Court, his appearance was denied.
In a motion for reconsideration,9 petitioner reiterated that the
basis of his appearance was not Rule 138-A, but Section 34 of Rule 138.
He contended that the two Rules were distinct and are applicable to
different circumstances, but the respondent judge denied the same,
still invoking Rule 138-A, in an Order10 dated July 31, 2002.
 On August 16, 2002, the petitioner directly filed with this Court,
the instant petition and assigns the following errors:
I.
THE RESPONDENT REGIONAL TRIAL COURT GRAVELY ERRED
AND ABUSED ITS DISCRETION WHEN IT DENIED THE
APPEARANCE OF THE PETITIONER, FOR AND IN THE LATTER’S
BEHALF, IN CIVIL CASE NO. 01-0401 [sic] CONTRARY TO RULE
138, SECTION 34 OF THE RULES OF COURT, PROVIDING FOR
THE APPEARANCE OF NON-LAWYERS AS A PARTY LITIGANT;
II.
THE RESPONDENT COURT GRAVELY ERRED AND ABUSED ITS
DISCRETION WHEN IT DID NOT VOLUNTARILY INHIBIT
DESPITE THE ADVENT OF JURISPRUDENCE [sic] THAT SUCH
AN INHIBITION IS PROPER TO PRESERVE THE PEOPLE’S FAITH
AND CONFIDENCE TO THE COURTS.
The core issues raised before the Court are: (1) whether the
extraordinary writs of certiorari, prohibition and mandamus under
Rule 65 of the 1997 Rules of Court may issue; and (2) whether the
respondent court acted with grave abuse of discretion amounting to
lack or excess of jurisdiction when it denied the appearance of the
petitioner as party litigant and when the judge refused to inhibit
herself from trying the case.
This Court’s jurisdiction to issue writs of certiorari,
prohibition, mandamus and injunction is not exclusive; it has
concurrent jurisdiction with the RTCs and the Court of Appeals. This
concurrence of jurisdiction is not, however, to be taken as an absolute,
unrestrained freedom to choose the court where the application
therefor will be directed.11 A becoming regard of the judicial hierarchy
most certainly indicates that petitions for the issuance of extraordinary
writs against the RTCs should be filed with the Court of Appeals.12 The
hierarchy of courts is determinative of the appropriate forum for
petitions for the extraordinary writs; and only in exceptional cases and
for compelling reasons, or if warranted by the nature of the issues
reviewed, may this Court take cognizance of petitions filed directly
before it.13
Considering, however, that this case involves the interpretation of
Section 34, Rule 138 and Rule 138-A of the Rules of Court, the Court
takes cognizance of herein petition. Nonetheless, the petitioner is
cautioned not to continue his practice of filing directly before this Court
petitions under Rule 65 when the issue raised can be resolved with
dispatch by the Court of Appeals. We will not tolerate litigants who
make a mockery of the judicial hierarchy as it necessarily delays more
important concerns before us.
In resolving the second issue, a comparative reading of Rule 138,
Section 34 and Rule 138-A is necessary.
Rule 138-A, or the Law Student Practice Rule, provides:
RULE 138-A
LAW STUDENT PRACTICE RULE
“Section 1. Conditions for Student Practice.—A law student who
has successfully completed his 3rd year of the regular four-year
prescribed law curriculum and is enrolled in a recognized law
school’s clinical legal education program approved by the
Supreme Court, may appear without compensation in any civil,
criminal or administrative case before any trial court, tribunal, board
or officer, to represent indigent clients accepted by the legal clinic of
the law school.
Sec. 2. Appearance.—The appearance of the law student
authorized by this rule, shall be under the direct supervision and
control of a member of the Integrated Bar of the Philippines
duly accredited by the law school. Any and all pleadings, motions,
briefs, memoranda or other papers to be filed, must be signed by the
supervising attorney for and in behalf of the legal clinic.”
The respondent court held that the petitioner could not appear for
himself and on his behalf because of his failure to comply with Rule
138-A. In denying petitioner’s appearance, the court a quo tersely finds
refuge in the fact that, on December 18, 1986, this Court issued
Circular No. 19, which eventually became Rule 138-A, and the failure
of Cruz to prove on record that he is enrolled in a recognized school’s
clinical legal education program and is under supervision of an
attorney duly accredited by the law school.
However, the petitioner insisted that the basis of his appearance
was Section 34 of Rule 138, which provides:
“Sec. 34. By whom litigation is conducted.—In the court of a
justice of the peace, a party may conduct his litigation in person, with
2
the aid of an agent or friend appointed by him for that purpose, or with
the aid of an attorney. In any other court, a party may conduct his
litigation personally or by aid of an attorney, and his appearance
must be either personal or by a duly authorized member of the bar.”
and is a rule distinct from Rule 138-A.
From the clear language of this provision of the Rules, it will have to
be conceded that the contention of the petitioner has merit. It
recognizes the right of an individual to represent himself in any case to
which he is a party. The Rules state that a party may conduct his
litigation personally or with the aid of an attorney, and that his
appearance must either be personal or by a duly authorized member of
the Bar. The individual litigant may personally do everything in the
course of proceedings from commencement to the termination of
litigation.14 Considering that a party personally conducting his
litigation is restricted to the same rules of evidence and procedure as
those qualified to practice law,15 petitioner, not being a lawyer himself,
runs the risk of falling into the snares and hazards of his own
ignorance. Therefore, Cruz as plaintiff, at his own instance, can
personally conduct the litigation of Civil Case No. 01-0410. He would
then be acting not as a counsel or lawyer, but as a party exercising his
right to represent himself.
The trial court must have been misled by the fact that the
petitioner is a law student and must, therefore, be subject to the
conditions of the Law Student Practice Rule. It erred in applying Rule
138-A, when the basis of the petitioner’s claim is Section 34 of Rule 138.
The former rule provides for conditions when a law student may appear
in courts, while the latter rule allows the appearance of a non-lawyer
as a party representing himself.
The conclusion of the trial court that Rule 138-A superseded Rule
138 by virtue of Circular No. 19 is misplaced. The Court never intended
to repeal Rule 138 when it released the guidelines for limited law
student practice. In fact, it was intended as an addendum to the
instances when a non-lawyer may appear in courts and was
incorporated to the Rules of Court through Rule 138-A.
It may be relevant to recall that, in respect to the constitutional
right of an accused to be heard by himself and counsel,16 this Court has
held that during the trial, the right to counsel cannot be waived. 17 The
rationale for this ruling was articulated in People v. Holgado,18 where
we declared that “even the most intelligent or educated man may have
no skill in the science of law, particularly in the rules of procedure, and
without counsel, he may be convicted not because he is guilty but
because he does not know how to establish his innocence.”
The case at bar involves a civil case, with the petitioner as plaintiff
therein. The solicitous concern that the Constitution accords the
accused in a criminal prosecution obviously does not obtain in a civil
case. Thus, a party litigant in a civil case, who insists that he can,
without a lawyer’s assistance, effectively undertake the successful
pursuit of his claim, may be given the chance to do so. In this case,
petitioner alleges that he is a law student and impliedly asserts that
he has the competence to litigate the case himself. Evidently, he is
aware of the perils incident to this decision.
In addition, it was subsequently clarified in Bar Matter 730, that
by virtue of Section 34, Rule 138, a law student may appear as an agent
or a friend of a party litigant, without need of the supervision of a
lawyer, before inferior courts. Here, we have a law student who, as
party litigant, wishes to represent himself in court. We should grant
his wish.
Additionally, however, petitioner contends that the respondent
judge committed manifest bias and partiality by ruling that there is no
valid ground for her voluntary inhibition despite her alleged negative
demeanor during the pre-trial when she said: “Hay naku, masama
’yung marunong pa sa Huwes. Ok?” Petitioner avers that by denying
his motion, the respondent judge already manifested conduct indicative
of arbitrariness and prejudice, causing petitioner’s and his co-plaintiff’s
loss of faith and confidence in the respondent’s impartiality.
We do not agree.
It must be noted that because of this incident, the petitioner filed
an administrative case19 against the respondent for violation of the
Canons of Judicial Ethics, which we dismissed for lack of merit on
September 15, 2002. We now adopt the Court’s findings of fact in the
administrative case and rule that there was no grave abuse of
discretion on the part of Judge Mijares when she did not inhibit herself
from the trial of the case.
 In a Motion for Inhibition, the movant must prove the ground for since this clarification was made by the Court in the 1980 case Borre
bias and prejudice by clear and convincing evidence to disqualify a v. Moya, 100 SCRA 314, the power of ex officio notaries public have
judge from participating in a particular trial,20 as voluntary inhibition been limited to notarial acts connected to the exercise of their official
is primarily a matter of conscience and addressed to the sound functions and duties. This means that since the promulgation of that
discretion of the judge. The decision on whether she should inhibit ruling, they have no longer had the authority to notarize documents
herself must be based on her rational and logical assessment of the that do not bear any relation to the performance of their official
circumstances prevailing in the case before her.21 Absent clear and functions, such as contracts and other acts of conveyance, affidavits,
convincing proof of grave abuse of discretion on the part of the judge, certificates of candidacy, special powers of attorney, pleadings, sworn
this Court will rule in favor of the presumption that official duty has applications for business permits, or other similar instruments. To
been regularly performed. repeat, the notarization of documents that have no relation to the
WHEREFORE, the Petition is PARTIALLY GRANTED. The performance of their official functions is now considered to be beyond
assailed Resolution and Order of the Regional Trial Court, Branch 108, the scope of their authority as notaries public ex officio. Any one of
Pasay City are MODIFIED. Regional Trial Court, Branch 108, Pasay them who does so would be committing an unauthorized notarial act,
City is DIRECTED to ADMIT the Entry of Appearance of petitioner in which amounts to engaging in the unauthorized practice of law and
Civil Case No. 01-0410 as a party litigant. abuse of authority.
No pronouncement as to costs. Clerks of Court; Clerks of Court take charge of the administrative
SO ORDERED. aspects of the court’s business and chronicle its will and directions,
Tinga,** Chico-Nazario (Actg. Chairperson), Velasco, aside from performing their more obvious function of attending court
Jr.** and Reyes, JJ., concur. sessions. Further, they keep the records and the seal, issue processes,
enter judgments and orders, and give — upon request — certified copies
of the court’s records.—To delve deeper into the question of what
Nate v. Contreras constitutes an action “connected to the exercise of their official
functions and duties” as ex officio notaries public, clerks of court in
(formerly OCA I.P.I. No. 11-3638-RTJ)
particular may refer to the 2002 Revised Manual for Clerks of Court.
Under the manual, they have general administrative supervision over
BENITO B. NATE, complainant, vs. JUDGE LELU P. CONTRERAS,
court personnel. As officers of the court, they serve as custodians of
Branch 43, Regional Trial Court, Virac, Catanduanes (then Clerk of
court funds and revenues, records, properties, and premises. Thus, they
Court, RTC-Iriga City), respondent.
generally act as its treasurer, accountant, guard, and physical plant
Notary Public; Clerks of Court; Clerks of court are authorized to
manager. In other words, they take charge of the administrative
act as ex officio notaries public under Sections 41 and 42 of the
aspects of the court’s business and chronicle its will and directions,
Administrative Code of 1987 in relation to Section D(1), Chapter VI of
aside from performing their more obvious function of attending court
the 2002 Revised Manual for Clerks of Court.—Clerks of court are
sessions. Further, they keep the records and the seal, issue processes,
authorized to act as ex officio notaries public under Sections 41 and 42
enter judgments and orders, and give — upon request — certified
of the Administrative Code of 1987 in relation to Section D(1), Chapter
copies of the court’s records.
VI of the 2002 Revised Manual for Clerks of Court. Historically, justices
Public Officers; Public officials and employees are prohibited
of the peace courts, judges of municipal courts, and clerks of courts —
from engaging in the private practice of their profession unless
as public officers and by virtue of their respective offices — were
authorized by the Constitution, law, or regulation; and under the
authorized to perform any act within the competency of regular
condition that their practice will not conflict or tend to conflict with their
notaries public. This meant that they had the power — to
official functions.—With regard to the third act, we reiterate that the
administer all oaths and affirmations provided for by law, in all
primary employment of court personnel must be their full-time position
matters incident to his notarial office, and in the execution of
in the judiciary, which is the chief concern requiring their dutiful
affidavits, depositions, and other documents requiring an oath,
attention. Nevertheless, we recognize that the Code of Conduct and
and to receive the proof or acknowledgment of all writings relating to
Ethical Standards for Public Officials and Employees does allow for
commerce or navigation x x x, and such other writings as are
limited exceptions. Section 7(b) thereof in relation to Rule X, Section
commonly proved or acknowledged before notaries; to act as a
1(c) of its implementing rules, provides that public officials and
magistrate, in the writing of affidavits or depositions, and to make
employees are prohibited from engaging in the private practice of their
declarations and certify the truth thereof under his seal of
profession unless authorized by the Constitution, law, or regulation;
office, concerning all matters done by him by virtue of his
and under the condition that their practice will not conflict or tend to
office.
conflict with their official functions. Notary Public; Judges; Clerks of
Same; One (1) of the main reasons why these public officers were
Court; The Supreme Court (SC) has, in the past, sanctioned judges and
allowed to perform any notarial act was that there were still rural areas
clerks of court for notarizing — as ex officio notaries public —
in the country that did not have regular notaries public.—One of the
documents that were later found to be unconnected with the exercise of
main reasons why these public officers were allowed to
their official functions and duties.—The Court has, in the past,
perform any notarial act was that there were still rural areas in the
sanctioned judges and clerks of court for notarizing — as ex
country that did not have regular notaries public. While some areas
officio notaries public — documents that were later found to be
had notaries, not all of them kept regular office hours. Thus, residents
unconnected with the exercise of their official functions and duties.
of these communities had to travel to the provincial capital or to larger
In Astorga v. Salas, 361 SCRA 240 (2001), the Court fined a clerk of
towns where they could find lawyers who also practiced as notaries.
court in the amount of P5,000 for notarizing several documents and
Consequently, in the interest of public service and in order for the
administering oaths involving matters unrelated to her official duties.
people to have a more convenient and less expensive option, these
In Cruz v. Centron, 442 SCRA 53 (2004), we imposed a fine on the clerk
public officers were appointed ex officio notaries public with the
of court who notarized one document — a deed of sale — but the fine
authority to perform any act within the competency of regular notaries
was in the lower amount of P2,000, since the act was her first offense.
public. As such, their services and the notarial fees they charged were
All of them were given a stern warning that a repetition of the same or
for the account of the government.
a similar offense would be dealt with by the Court more severely.
Same; Ever since this clarification was made by the Supreme
Considering, however, that the documents notarized by respondent
Court (SC) in the 1980 case Borre v. Moya, 100 SCRA 314, the power of
Contreras do not involve a private or commercial undertaking, and that
ex officio notaries public have been limited to notarial acts connected to
this is the first time that she has been charged, we agree with the
the exercise of their official functions and duties; The notarization of
recommendation of the OCA that the penalty of reprimand, instead of
documents that have no relation to the performance of their official
a fine, is more appropriate under the circumstances.
functions is now considered to be beyond the scope of their authority as
ADMINISTRATIVE MATTER in the Supreme Court. Grave
notaries public ex officio. Any one of them who does so would be
Misconduct.
committing an unauthorized notarial act, which amounts to engaging
The facts are stated in the opinion of the Court.
in the unauthorized practice of law and abuse of authority.—As more
lawyers and regular notaries public populated far-flung areas, the need
SERENO, CJ.:
for ex officio notaries public diminished as did their power. Thus, ever

3

This administrative case concerns allegations that respondent
Judge Lelu P. Contreras committed three counts of grave misconduct
while she was still holding the position Clerk of Court VI of the
Regional Trial Court in Iriga City, Camarines Sur (RTC-Iriga City).
According to the complaint, respondent allegedly notarized an
administrative complaint; certified a document (a labor complaint) as
a true copy of the original; and appeared as counsel for her father in a
hearing before the Integrated Bar of the Philippines (IBP). Clerks of
court are indeed authorized to act as ex officio notaries public under the
Administrative Code of 1987 in relation to the 2002 Revised Manual
for Clerks of Court.1 On the other hand, the Code of Conduct and
Ethical Standards for Public Officials and Employees 2 prohibit public
officials and employees from engaging in the private practice of their
profession. The 2004 Code of Conduct for Court Personnel3 and the
2004 Rules on Notarial Practice4 were not yet in force when respondent
committed the purported offenses.
The Case
Complainant Atty. Benito B. Nate calls the attention of this Court
to the supposed grave misconduct of respondent Contreras while she
was still clerk of court and ex officio provincial sheriff of RTC-Iriga
City. According to him, there were three instances in which respondent
abused her authority.
First, respondent Contreras allegedly notarized an administrative
complaint that was prepared by her own father and filed with this
Court sometime in June 2003.5 Complainant Nate stresses that
respondent could not have legally notarized a document. He points out
that Section 3, Rule 4 of the 2004 Rules of Notarial Practice disqualifies
notaries from performing a notarial act if they are related to the
principal within the fourth civil degree of consanguinity or affinity.
Furthermore, he argues that respondent acted beyond her authority
when she notarized in Iriga City a document that was signed in the
Municipality of Buhi, which was outside that city. We note that
complainant was the subject of the administrative complaint filed by
respondent’s father.
Next, complainant Nate claims that respondent certified a
document as a true copy of the original, and that her sister-in-law later
on used the certified document in a labor case then pending with the
National Labor Relations Commission in Naga City.6 He points out
that respondent, as an ex officio notary public, was empowered to
authenticate only those documents that were in her custody. Since the
document — an amended labor complaint — was not a document
pending before the RTC-Iriga City, respondent allegedly went beyond
her authority when she authenticated it.
Finally, purportedly without this Court’s prior written authority,
respondent Contreras appeared as her father’s counsel before the
Commission on Bar Discipline of the IBP.7 Complainant Nate alleges
that respondent herself admitted during the proceedings before the
IBP that she had not yet obtained a written authority.
Respondent Contreras admits to all of these allegations. However,
she maintains that her actions were allowed under the Manual for
Clerks of Court. As regards the first act, she stresses that as ex
officio notary public, she was authorized to administer oaths and
notarize documents so long as no private document was involved. She
then argues that the administrative complaint against a lawyer, which
was eventually filed with this Court, was not considered a private
document. In fact, it was her ministerial duty as clerk of court to sign
the jurat portion of the complaint regardless of her relationship with
the principal. Furthermore, she explains that the municipality of Buhi
was within the territorial jurisdiction of the RTC-Iriga City.
With respect to the second act, she explains that the Manual for
Clerks of Court allowed her to authenticate copies of documents,
especially since the RTC in Iriga City did not have human resource
management officers. Furthermore, she stresses that the power of
clerks of court to authenticate documents as true copies of the original
is not limited to copies of documents that are in their custody. Rather,
she argues that a clerk of court may certify the authenticity of the
copies so long as they are shown to be faithful reproductions of the
original after a presentation and comparison of the documents.
Regarding the last act, respondent Contreras points out that the
intended first hearing before the IBP was suspended, precisely because
she informed the hearing officer that she had not yet received authority
4
to appear as counsel for her father. She clarifies that the proceedings
pushed through only when she was able to present her written
authority8 from this Court.
The Office of the Court Administrator (OCA) agrees with
complainant as regards the first and the second acts. The OCA
reiterates that as clerk of court and ex officio notary, respondent
Contreras may notarize documents or administer oaths only when
these are related to the exercise of her official functions. It then
explains that there was no connection between her official functions
and the administrative complaint of her father or the labor complaint
of her sister-in-law. On the other hand, with regard to the third act, the
OCA is of the view that respondent did not commit any irregularity,
since she was authorized by this Court to represent her father in the
administrative case he had filed.
The Issues
Whether Contreras is administratively liable for the following acts:
1. Affixing her signature to the jurat portion of the administrative
complaint prepared by her father;
2. Authenticating documents as genuine copies of the original labor
complaint; and
3. Appearing as counsel before the IBP on behalf of her father.
The Ruling
Clerks of court are authorized to act as ex officio notaries public
under Sections 419 and 4210 of the Administrative Code of 1987 in
relation to Section D(1),11 Chapter VI of the 2002 Revised Manual for
Clerks of Court.
9 As amended by R.A. 9406 (2007), this section provides: “Officers
Authorized to Administer Oath.—The following officers have general
authority to administer oaths: x x x clerks of court; x x x.”
10 As amended by R.A. 9406 (2007), this section provides: “Duty
to Administer Oaths.—Officers authorized to administer oaths, with
the exception of notaries public, municipal judges and clerks of court,
are not obliged to administer oaths or execute certificates save in
matters of official business or in relation to their functions as such;
x x x.”
11 The Manual provides as follows: “D. GENERAL FUNCTIONS
AND DUTIES OF CLERKS OF COURT AND OTHER COURT
PERSONNEL. 1. CLERKS OF COURT. 1.1. Office of the Clerk of Court
of a Multiple Sala Court. 1.1.1 Clerk of Court. x x x x. 1.1.1.7. acts as ex
officio notary public.”
Historically, justices of the peace courts, judges of municipal
courts, and clerks of courts — as public officers and by virtue of their
respective offices — were authorized to perform any act within the
competency of regular notaries public.12 This meant that they had the
power —
to administer all oaths and affirmations provided for by law, in
all matters incident to his notarial office, and in the execution of
affidavits, depositions, and other documents requiring an oath,
and to receive the proof or acknowledgment of all writings relating to
commerce or navigation x x x, and such other writings as are
commonly proved or acknowledged before notaries; to act as a
magistrate, in the writing of affidavits or depositions, and to make
declarations and certify the truth thereof under his seal of
office, concerning all matters done by him by virtue of his
office.13 (Emphases supplied)
12 See R.A. 296 (The Judiciary Act of 1948), Sec. 76, as originally enacted. It provides:
“A justice of the peace shall have power anywhere within his territorial jurisdiction to
solemnize marriages, authenticate merchant’s books, administer oaths and take depositions
and acknowledgment, and, in his capacity as ex officio notary public, may perform any
act within the competency of a notary public.”; Lapena v. Marcos, 200 Phil. 69; 114 SCRA
572 (1982); and Act. No. 2711 – Revised Administrative Code of 1917, Chap. 11, Title IV – The
Notarial Law, Secs. 235, 242 & 243 (hereinafter The Notarial Law). According to Sec. 242:
“Officers acting as notaries public ex officio.—Except as otherwise specially provided, the
following officials, and none other, shall be deemed to be notaries public ex officio, and as
such they are authorized to perform, within the limits of their territorial jurisdiction as
herein below defined, all the duties appertaining to the office of notary
public x x x”; Borre v. Moya, 188 Phil. 362; 100 SCRA 314 (1980).
13 The Notarial Law, Sec. 241.
 One of the main reasons why these public officers were allowed to
perform any notarial act was that there were still rural areas in the
country that did not have regular notaries public.14 While some areas
had notaries, not all of them kept regular office hours.15 Thus, residents
of these communities had to travel to the provincial capital or to larger
towns where they could find lawyers who also practiced as
notaries.16 Consequently, in the interest of public service and in order
for the people to have a more convenient and less expensive option,
these public officers were appointed ex officio notaries public with the
authority to perform any act within the competency of regular notaries
public.17 As such, their services and the notarial fees they charged were
for the account of the government.18
As more lawyers and regular notaries public populated far-flung
areas, the need for ex officio notaries public diminished as did their
power. Thus, ever since this clarification was made by the Court in the
1980 case Borre v. Moya,19 the power of ex officio notaries public have
been limited to notarial acts connected to the exercise of their official
functions and duties.20 This means that since the promulgation of that
ruling, they have no longer had the authority to notarize documents
that do not bear any relation to the performance of their official
functions, such as contracts and other acts of
conveyance,21 affidavits,22 certificates of candidacy,23 special powers of
attorney,24 pleadings,25 sworn applications for business permits,26 or
other similar instruments. To repeat, the notarization of documents
that have no relation to the performance of their official functions is
now considered to be beyond the scope of their authority as notaries
public ex officio.27 Any one of them who does so would be committing an
unauthorized notarial act,28 which amounts to engaging in the
unauthorized practice of law29 and abuse of authority.30
Consequently, the empowerment of ex officio notaries public to
perform acts within the competency of regular notaries public — such
as acknowledgments, oaths and affirmations, jurats, signature
witnessing, copy certifications, and other acts authorized under the
2004 Rules on Notarial Practice31 — is now more of an exception rather
than a general rule. They may perform notarial acts on such documents
that bear no relation to their official functions and duties only if (1) a
certification is included in the notarized documents attesting to the
lack of any other lawyer or notary public in the municipality or circuit;
and (2) all notarial fees charged will be for the account of the
government and turned over to the municipal treasurer.32
To delve deeper into the question of what constitutes an action
“connected to the exercise of their official functions and duties” as ex
officio notaries public, clerks of court in particular may refer to the
2002 Revised Manual for Clerks of Court. Under the manual, 33 they
have general administrative supervision over court personnel. As
officers of the court, they serve as custodians of court funds and
revenues, records, properties, and premises. Thus, they generally act
as its treasurer, accountant, guard, and physical plant manager. In
other words, they take charge of the administrative aspects of the
court’s business and chronicle its will and directions, aside from
performing their more obvious function of attending court sessions.
Further, they keep the records and the seal, issue processes, enter
judgments and orders, and give — upon request — certified copies of
the court’s records.
According to the manual, below are the general functions and
duties of a Clerk of Court VI in a multiple-sala court:
D. GENERAL FUNCTIONS AND DUTIES OF CLERKS OF
COURT AND OTHER COURT PERSONNEL
1. CLERKS OF COURT
1.1. Office of the Clerk of Court of a Multiple Sala Court
1.1.1. Clerk of Court
1.1.1.1. is the administrative officer of the Court under the
supervision of the Executive Judge;
1.1.1.2. has control and supervision over his personnel, all
properties and supplies in his office;
1.1.1.3. acts on applications for leave of absence and signs daily
time records of his staff, as well as the security and janitorial service
personnel;
1.1.1.4. determines docket fees;
1.1.1.5. assists in the raffle of cases to the branches and judicial
notices/sum-mons to accredited publishers;
1.1.1.6. issues clearances in appropriate cases;
1.1.1.7. acts as ex officio notary public;
5
1.1.1.8. acts as ex officio sheriff;
1.1.1.9. represents the Court in administrative dealings with the
local government units and other agencies; and
1.1.1.10. performs and discharges such duties as may be assigned
by the Executive Judge.
Proceeding now to the first act complained about, we agree with
the OCA findings that respondent’s act of affixing her signature to
the jurat portion of the administrative complaint prepared by her
father had no direct relation to her work as the then clerk of court of
RTC-Iriga City. Under Rule 139-B of the Rules of Court, the
proceedings involving the disbarment and discipline of attorneys shall
be conducted before the IBP.34
34 Rules of Court, Rule 139-B, Sec. 1 (as amended) provides: How Instituted.—Proceedings for
the disbarment, suspension, or discipline of attorneys may be taken by the Supreme
Court motu proprio, or by the Integrated Bar of the Philippines (IBP) upon the verified
complaint of any person. The complaint shall state clearly and concisely the facts complained
of and shall be supported by affidavits of persons having personal knowledge of the facts
therein alleged and/or by such documents as may substantiate said facts. x x x x. Six (6) copies
of the verified complaint shall be filed with the Secretary of the IBP or the Secretary of any of
its chapters who shall forthwith transmit the same to the IBP Board of Governors for
assignment to an investigator.
With regard to the third act, we reiterate that the primary employment of court personnel
must be their full-time position in the judiciary,36 which is the chief concern requiring their
dutiful attention. Nevertheless, we recognize that the Code of Conduct and Ethical Standards
for Public Officials and Employees does allow for limited exceptions. Section 7(b) 37 thereof in
relation to Rule X, Section 1(c)38 of its implementing rules, provides that public officials and
employees are prohibited from engaging in the private practice of their profession unless
authorized by the Constitution, law, or regulation; and under the condition that their practice
will not conflict or tend to conflict with their official functions.
Thus, pursuant to the Court’s administrative supervision over all court personnel,39 we
have on a number of occasions,
This means that clerks of court are not among the touchpoints in
the regular procedure pertaining to complaints against an attorney.
Neither may a pleading in a case involving lawyers be filed with the
RTC.
Respondent defends her actions by arguing that she was guided by
the test of whether or not the instrument she notarized was considered
a private document. While we agree with her that ex officio notaries
public are not authorized to perform a notarial act in relation to private
documents, the applicable test is not based merely on the nature of the
transaction as private, but also on the relationship between the
document and the official functions and duties of the ex officio notary
public.35 For clerks of court, a failsafe guideline for determining the
coverage of their authority as ex officio notaries public is to refer to the
functions and duties of their position as outlined in the 2002 Revised
Manual for Clerks of Court.
We apply the same legal reasoning to the second act of respondent
being complained about; that is, her certification of a copy of her sister-
in-law’s labor complaint. Respondent herself admits that the document
was filed before the National Labor Relations Commission in Naga
City, not the RTC-Iriga City. Thus, in the regular course of her duties,
she would not have come across, encountered, or been in custody of the
document. While we agree with her that clerks of court are allowed to
perform the notarial act of copy certification, this act must still be
connected to the exercise of their official functions and duties —
meaning to say, it must be done in connection with public documents
and records that are, by virtue of their position, in their custody. but
on a case-by-case basis,40 granted41 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.
Respondent has satisfactorily proved that she was granted
authority by this Court to “represent her father in Administrative Case
No. 6089 provided that she files the corresponding leaves of absence on
the scheduled dates of hearing of the case and that she will not use
official time in preparing for the case.” 42 We thus agree with the OCA
recommendation that she did not commit any irregularity when she
represented her father before the IBP.
The Court has, in the past, sanctioned judges 43 and clerks of
court44 for notarizing — as ex officio notaries public — documents that
were later found to be unconnected with the exercise of their official
functions and duties. In Astorga v. Salas,45 the Court fined a clerk of
court in the amount of P5,000 for notarizing several documents and
administering oaths involving matters unrelated to her official duties.
In Cruz v. Centron46 we imposed a fine on the clerk of court who
notarized one document — a deed of sale — but the fine was in the
lower amount of P2,000, since the act was her first offense. All of them
were given a stern warning that repetition of the same or a similar
offense would be dealt with by the Court more severely. Considering,
however, that the documents notarized by respondent Contreras do not
involve a private or commercial undertaking, and that this is the first
time that she has been charged, we agree with the recommendation of
the OCA that the penalty of reprimand, instead of a fine, is more
appropriate under the circumstances.
WHEREFORE, respondent Judge Lelu P. Contreras is
found LIABLE for the unauthorized notarization of documents
unrelated to her office duties while she was serving as Clerk of Court
VI of the Regional Trial Court in Iriga City. She is
hereby REPRIMANDED, with a WARNING that a repetition of the
same or a similar act in the future will be dealt with more severely.
SO ORDERED.
Leonardo-De Castro, Bersamin, Perez and Perlas-Bernabe, JJ.,
concur.
Respondent Judge Lelu P. Contreras reprimanded for unauthorized
notarization of documents unrelated to her office duties as Clerk of
Court VI of Regional Trial Court in Iriga City, with warning against
repetition of similar act.
Notes.—Under Section 2(b) of Rule IV of the Rules on Notarial
Practice of 2004, a commissioned notary public is enjoined from
performing a notarial act unless the affiant is: (1) in his presence at the
time of the notarization; and (2) personally known to him or otherwise
identified by him through competent evidence of identity as defined by
these Rules. (Mahilum vs. Lezama, 731 SCRA 204 [2014])
A notary public should not notarize a document unless the persons
who signed the same are the very same persons who executed and
personally appeared before him to attest to the contents and truth of
what are stated therein. (Id.)
36 This principle was restated in the Code of Conduct for Court Personnel, Canon III,
Sec. 5.
37 The provision reads: “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: x x x (b) Outside employment and other activities related thereto.—Public officials
and employees during their incumbency shall not: x x x (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; x x x.”
38 According to the provision: “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 grounds for
administrative disciplinary action, and without prejudice to criminal and civil liabilities
provided herein, such as: x x x (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 x x x.”
39 Constitution, Art. VIII, Sec. 6.
Catu v. Rellosa
A.C. No. 5738. February 19, 2008.*
WILFREDO M. CATU, complainant, vs. ATTY. VICENTE G.
RELLOSA, respondent.
Legal Ethics; Attorneys; Rule 6.03 of the Code of Professional
Responsibility applies only to a lawyer who has left government
service and in connection “with any matter in which he 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, 455 SCRA 526 (2005) 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.
Same; Same; Local Government Code (R.A. No. 7160); The Code
of Conduct and Ethical Standards for Public Officials and Employees
(R.A. 6713); Section 90 of R.A. 7160, not Section 7(B)(2) of R.A. 6713,
governs the practice of profession of elective local 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
6
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 governs: x x x 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. Lex specialibus derogate generalibus.
Same; Same; Same; 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, and 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.—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,211engage 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.
Same; Same; Same; Civil Service; Public Officers; A punong
barangay is not forbidden to practice his profession but he should
procure prior permission or authorization from the head of his
Department, as required by civil service regulations.—Certain local
elective officials (like governors, mayors, provincial board members and
councilors) are expressly subjected to a total or partial proscription to
practice their profession or engage in any occupation, no such
interdiction is made on the punong barangay and the members of
the sangguniang barangay. Expressio unius est exclusio alterius. Since
they are excluded from any prohibition, the presumption is that they
are allowed to practice their profession. And this stands to reason
because they are not mandated to serve full time. In fact,
the sangguniang barangay is supposed to hold regular sessions only
twice a month. 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.
Same; Same; Same; Same; Same; A punong barangay who is also
a lawyer should obtain the prior written permission of the Secretary of
Interior and Local Government before he enters his appearance as
counsel for any party, and his failure to comply with Section 12, Rule
XVIII of the Revised Civil Service Rules constitutes a violation of his
oath as a lawyer—to obey the laws; Lawyers are servants of the law,
vires legis, men of the law.—As punong barangay, respondent should
have therefore obtained the prior written permission of the Secretary
of Interior and Local Government before he entered his appearance as
counsel for Elizabeth and Pastor. This he failed to do. The failure of
respondent to comply with Section 12, Rule XVIII of the Revised Civil
Service Rules constitutes a violation of his oath as a lawyer: to obey the
laws. Lawyers are servants of the law, vires legis, men of the law. Their
paramount duty to society is to obey the law and promote respect for it.
To underscore the primacy and importance of this duty, it is enshrined
as the first canon of the Code of Professional Responsibility. In acting
as counsel for a party without first securing the required written
permission, respondent not only212engaged in the unauthorized
practice of law but also violated civil service rules which is a breach of
Rule 1.01 of the Code of Professional Responsibility: Rule 1.01—A
lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct. (emphasis supplied)
 Same; Same; Same; Same; Same; A lawyer who disobeys the law
disrespects it.—For not living up to his oath as well as for not complying
with the exacting ethical standards of the legal profession, respondent
failed to comply with Canon 7 of the Code of Professional
Responsibility: CANON 7. A LAWYER SHALL AT ALL TIMES
UPHOLD THE INTEGRITY AND THE DIGNITY OF THE
LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR. (emphasis supplied) Indeed, a lawyer who
disobeys the law disrespects it. In so doing, he disregards legal ethics
and disgraces the dignity of the legal profession.
ADMINISTRATIVE CASE in the Supreme Court. Professional
Misconduct for Violating His Oath as a Lawyer and Canons 1 and
7 and Rule 1.01 of the Code of Professional Responsibility.
The facts are stated in the resolution of the Court.
Fortunato F.L. Viray for complainant.
RESOLUTION
CORONA, J.:
Complainant Wilfredo M. Catu is a co-owner of a lot1 and the
building erected thereon located at 959 San Andres Street, Malate,
Manila. His mother and brother, Regina Catu and Antonio Catu,
contested the possession of Elizabeth C. Diaz-Catu2 and Antonio
Pastor3 of one of the units in the building. The latter ignored demands
for them to vacate the premises. Thus, a complaint was initiated
against them in the Lupong Tagapamayapa of Barangay 723, Zone 79
of the 5th District of Manila4 where the parties reside.
Respondent, as punong barangay of Barangay 723, summoned the
parties to conciliation meetings.5 When the parties failed to arrive at
an amicable settlement, respondent 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,6 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.
In his defense, respondent claimed that one of his duties as punong
barangay was to hear complaints referred to the barangay’s Lupong
Tagapamayapa. As such, he heard the complaint of Regina and
Antonio against Elizabeth and Pastor. As head of the Lupon, he
performed his task with utmost objectivity, without bias or partiality
towards any of the parties. The parties, however, were not able to
amicably settle their dispute and Regina and Antonio filed the
ejectment case. It was then that Elizabeth sought his legal assistance.
He acceded to her request. He handled her case for free because she
was financially distressed and he wanted to prevent the commission of
a patent injustice against her.
The complaint was referred to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation. As
there was no factual issue to thresh out, the IBP’s Commission on Bar
Discipline (CBD) required the parties to submit their respective
position papers. After evaluating the contentions of the parties, the
IBP-CBD found sufficient ground to discipline respondent.7
According to the IBP-CBD, respondent admitted that, as punong
barangay, he presided over the conciliation proceedings and heard the
complaint of Regina and Antonio against Elizabeth and Pastor.
Subsequently, however, he represented Elizabeth and Pastor in the
ejectment case filed against them by Regina and Antonio. In the course
thereof, he prepared and signed pleadings including the answer with
counterclaim, pre-trial brief, position paper and notice of appeal. By so
doing, respondent violated Rule 6.03 of the Code of Professional
Responsibility:
“Rule 6.03—A lawyer shall not, after leaving government service,
accept engagement or employment in connection with any matter in
which he intervened while in said service.”
Furthermore, as an elective official, respondent contravened the
prohibition under Section 7(b)(2) of RA 6713:8
“SEC. 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 ands employee
and are hereby declared to be unlawful:
7
xxx xxx xxx
(b) Outside employment and other activities related thereto.—
Public officials and employees during their incumbency shall not:
xxx xxx xxx
(2) Engage in the private practice of profession unless
authorized by the Constitution or law, provided that such practice
will not conflict or tend to conflict with their official functions;
x x x” (emphasis supplied)
According to the IBP-CBD, respondent’s violation of this
prohibition constituted a breach of Canon 1 of the Code of Professional
Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND, PROMOTE
RESPECT FOR LAW AND LEGAL PROCESSES. (emphasis
supplied)
For these infractions, the IBP-CBD recommended the respondent’s
suspension from the practice of law for one month with a stern warning
that the commission of the same or similar act will be dealt with more
severely.9 This was adopted and approved by the IBP Board of
Governors.10
We modify the foregoing findings regarding the transgression of
respondent as well as the recommendation on the imposable penalty.
RULE 6.03 OF THE CODE OF PROFES-
SIONAL RESPONSIBILITY APPLIES ONLY
TO FORMER GOVERNMENT LAWYERS
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,11 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.
SECTION 90 OF RA 7160, 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
716012 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
(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. Lex specialibus derogat generalibus.13
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.14 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.
While, as already discussed, certain local elective officials (like
governors, mayors, provincial board members and councilors) are
expressly subjected to a total or partial proscription to practice their
profession or engage in any occupation, no such interdiction is made on
the punong barangay and the members of the sangguniang
barangay. Expressio unius est exclusio alterius.15 Since they are
excluded from any prohibition, the presumption is that they are
allowed to practice their profession. And this stands to reason because
they are not mandated to serve full time. In fact, the sangguniang
barangay is supposed to hold regular sessions only twice a month.16
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.
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.17 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: 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, time so devoted outside of
office hours should be fixed by the agency to the end that it will not
impair in any way the efficiency of the officer or employee:
And provided, finally, that no permission is necessary in the case of
investments, made by an officer or employee, which do not involve real
or apparent conflict between his private interests and public duties, or
in any way influence him in the discharge of his duties, and he shall
8
not take part in the management of the enterprise or become an officer
of the board of directors.” (emphasis supplied)
As punong barangay, respondent should have therefore obtained
the prior written permission of the Secretary of Interior and Local
Government before he entered his appearance as counsel for Elizabeth
and Pastor. This he failed to do.
The failure of respondent to comply with Section 12, Rule XVIII of
the Revised Civil Service Rules constitutes a violation of his oath as a
lawyer: to obey the laws. Lawyers are servants of the law, vires legis,
men of the law. Their paramount duty to society is to obey the law and
promote respect for it. To underscore the primacy and importance of
this duty, it is enshrined as the first canon of the Code of Professional
Responsibility.
In acting as counsel for a party without first securing the required
written permission, respondent not only engaged in the unauthorized
practice of law but also violated civil service rules which is a breach of
Rule 1.01 of the Code of Professional Responsibility:
“Rule 1.01—A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.” (emphasis supplied)
For not living up to his oath as well as for not complying with the
exacting ethical standards of the legal profession, respondent failed to
comply with Canon 7 of the Code of Professional Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE
INTEGRITY AND THE DIGNITY OF THE LEGAL
PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR.” (emphasis supplied)
Indeed, a lawyer who disobeys the law disrespects it. In so doing, he
disregards legal ethics and disgraces the dignity of the legal profession.
Public confidence in the law and in lawyers may be eroded by the
irresponsible and improper conduct of a member of the221bar.18 Every
lawyer should act and comport himself in a manner that promotes
public confidence in the integrity of the legal profession.19
A member of the bar may be disbarred or suspended from his office
as an attorney for violation of the lawyer’s oath20 and/or for breach of
the ethics of the legal profession as embodied in the Code of
Professional Responsibility.
WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby
found GUILTY of professional misconduct for violating his oath as a
lawyer and Canons 1 and 7 and Rule 1.01 of the Code of Professional
Responsibility. He is therefore SUSPENDED from the practice of law
for a period of six months effective from his receipt of this resolution.
He is sternly WARNED that any repetition of similar acts shall be dealt
with more severely.
Respondent is strongly advised to look up and take to heart the
meaning of the word delicadeza.
Let a copy of this resolution be furnished the Office of the Bar
Confidant and entered into the records of respondent Atty. Vicente G.
Rellosa. The Office of the Court Administrator shall furnish copies to
all the courts of the land for their information and guidance.
SO ORDERED.
Puno (C.J., Chairperson), Sandoval-Gutierrez,
Azcuna and Leonardo-De Castro, JJ., concur.
Atty. Vicente G. Rellosa suspended from practice of law for six (6)
months for professional misconduct for violating his oath as a lawyer
and canons 1 and 7 and Rule 1.01 of Code of Professional
Responsibility.
A.M. No. 08-6-352-RTC
A.M. No. 08-6-352-RTC. August 19, 2009.*
QUERY OF ATTY. KAREN M. SILVERIO-BUFFE, FORMER CLERK
OF COURT — BRANCH 81, ROMBLON, ROMBLON — ON THE
PROHIBITION FROM ENGAGING IN THE PRIVATE PRACTICE OF
LAW.
Courts; Due Process; What due process abhors is lack of opportunity
to be heard.—A last matter to consider before we proceed to the merits
of Atty. Buffe’s actions relates to possible objections on procedural due
process grounds, as we have not made any formal directive to Atty.
Buffe to explain why she should not be penalized for her appearance
before Branch 81 soon after her resignation from that Branch. The
essence of due process is the grant of the opportunity to be heard; what
it abhors is the lack of the opportunity to be heard. The records of this
case show that Atty. Buffe has been amply heard with respect to her
actions. She was notified, and she even responded to our November 11,
2008 directive for the Executive Judge of the RTC of Romblon to report
on Atty. Buffe’s appearances before Branch 81; she expressly
manifested that these appearances were part of the Branch records.
Her legal positions on these appearances have also been expressed
before this Court; first, in her original letter-query, and subsequently,
in her Manifestation. Thus, no due process consideration needs to deter
us from considering the legal consequences of her appearances in her
previous Branch within a year from her resignation.
Civil Service; Administrative Law; Legal Ethics; Coverage of Sec.
7, Republic Act No. 6713 on prohibited transactions of government
employees.—Section 7 of R.A. No. 6713 generally provides for the
prohibited acts and transactions of public officials and employees.
Subsection (b)(2) prohibits them from engaging in the private practice
of their profession during their incumbency. As an exception, a public
official or employee can engage in the practice of his or her profession
under the following conditions: first, the private practice is authorized
by the Constitution or by the law; and second, the practice will not
conflict, or tend to conflict, with his or her official functions.
Same; Same; Same; Coverage of the one-year ban on public
employees getting out of the public service.—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.
Same; Same; Same; Code of Conduct for Court Personnel; The
practice of law is a practice of a profession covered by Republic Act No.
6713 and the Code of Conduct for Court Personnel.—In both the above
discussed aspect of R.A. No. 6713 and the quoted Canon 3, the practice
of law is covered; the practice of law is a practice of profession, while
Canon 3 specifically mentions any outside employment requiring the
practice of law. In Cayetano v. Monsod, 201 SCRA 210 (1991), we
defined the practice of law as any activity, in and out of court, that
requires the application of law, legal procedure, knowledge, training
and experience. Moreover, we ruled that to engage in the practice of
law is to perform those acts which are characteristics of the profession;
to practice law is to give notice or render any kind of service, which
device or service requires the use in any degree of legal knowledge or
skill. Under both provisions, a common objective is to avoid any conflict
of interest on the part of the employee who may wittingly or
unwittingly use confidential information acquired from his
employment, or use his or her familiarity with court personnel still
with the previous office.
Same; Same; Same; Same; Code of Conduct for Court Personnel
applies only to incumbent, Republic Act No. 6713 to continue to apply to
those who have left the government service.—After separation from the
service, Section 5, Canon 3 of the Code of Conduct for Court Personnel
ceases to apply as it applies specifically to incumbents, but Section 7
and its subsection (b)(2) of R.A. No. 6713 continue to apply to the extent
discussed above. Atty. Buffe’s situation falls under Section 7.
Same; Same; Same; Same; Clerks of Court; A clerk of court’s
limitation is that within one year after separation from the service she
cannot practice her profession before the office where she used to work.—
As we discussed above, 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. This analysis again disproves Atty. Buffe’s basic
premises.
Same; Same; Same; Attorneys; Code of Professional Responsibility;
Rule 1.01, Canon 1 of the Code of Professional Responsibility uses the
mandatory word “shall.” Presence of evil intent is not necessary to bring
an act within said Rule 1.01.—As indicated by the use of the mandatory
9
word “shall,” this provision must be strictly complied with. Atty. Buffe
failed to do this, perhaps not with an evil intent, considering the
misgivings she had about Section 7 (b)(2)’s unfairness. Unlawful
conduct under Rule 1.01 of Canon 1, however, does not necessarily
require the element of criminality, although the Rule is broad enough
to include it. Likewise, the presence of evil intent on the part of the
lawyer is not essential to bring his or her act or omission within the
terms of Rule 1.01, when it specifically prohibits lawyers from engaging
in unlawful conduct. Thus, we find Atty. Buffe liable under this quoted
Rule.
Same; Same; Same; Same; Same.—By her open disregard of R.A.
No. 6713, she thereby followed the footsteps of the models she cited and
wanted to replicate — the former court officials who immediately
waded into practice in the very same court they came from. She, like
they, disgraced the dignity of the legal profession by openly disobeying
and disrespecting the law. By her irresponsible conduct, she also
eroded public confidence in the law and in lawyers. Her offense is not
in any way mitigated by her transparent attempt to cover up her
transgressions by writing the Court a letter-query, which she followed
up with unmeritorious petitions for declaratory relief, all of them
dealing with the same Section 7 (b)(2) issue, in the hope perhaps that
at some point she would find a ruling favorable to her cause. These are
acts whose implications do not promote public confidence in the
integrity of the legal profession.
Attorneys; Absence of formal charge or investigation will not
preclude Supreme Court from exercising its disciplining authority.—
These cases clearly show that the absence of any formal charge against
and/or formal investigation of an errant lawyer do not preclude the
Court from immediately exercising its disciplining authority, as long as
the errant lawyer or judge has been given the opportunity to be heard.
As we stated earlier, Atty. Buffe has been afforded the opportunity to
be heard on the present matter through her letter-query and
Manifestation filed before this Court.
Same; Supreme Court takes seriously the practice of law with the
same office a government personnel used to work with.—Under the
circumstances, we find that her actions merit a penalty of fine of
P10,000.00, together with a stern warning to deter her from repeating
her transgression and committing other acts of professional
misconduct. This penalty reflects as well the Court’s sentiments
on how seriously the retired, resigned or separated officers and
employees of the Judiciary should regard and observe the
prohibition against the practice of law with the office that they
used to work with.
ADMINISTRATIVE MATTER in the Supreme Court. Prohibition to
Practice the Legal Profession.
The facts are stated in the opinion of the Court.
BRION, J.:
This administrative matter started as a letter-query dated March
4, 2008 of Atty. Karen M. Silverio-Buffe (Atty. Buffe) addressed to the
Office of the Court Administrator, which query the latter referred to
the Court for consideration. In the course of its action on the matter,
the Court discovered that the query was beyond pure policy
interpretation and referred to the actual situation of Atty. Buffe, and,
hence, was a matter that required concrete action on the factual
situation presented.
The query, as originally framed, related to Section 7(b)(2) of
Republic Act (R.A.) No. 6713, as amended (or the Code of Conduct and
Ethical Standards for Public Officials and Employees). This provision
places a limitation on public officials and employees during their
incumbency, and those already separated from government
employment for a period of one (1) year after separation, in engaging
in the private practice of their profession. Section 7(b)(2) of R.A. No.
6713 provides:
“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:
x x x
(b) Outside employment and other activities related thereto.
—Public officials and employees during their incumbency shall not:
x x
(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; or
x x x
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.”
In her letter-query, Atty. Buffe posed these questions: “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?”1
The query arose because Atty. Buffe previously worked as Clerk of
Court VI of the Regional Trial Court (RTC), Branch 81 of Romblon; she
resigned from her position effective February 1, 2008. Thereafter (and
within the one-year period of prohibition mentioned in the above-
quoted provision), she engaged in the private practice of law by
appearing as private counsel in several cases before RTC-Branch 81 of
Romblon.
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
Atty. Buffe further alleged that the intention of the above
prohibition is to remove the exercise of clout, influence or privity to
insider information, which the incumbent public employee may use in
the private practice of his profession. However, this situation did not
obtain in her case, since she had already resigned as Clerk of Court of
RTC-Branch 18 of Romblon. She advanced the view that she could
engage in the private practice of law before RTC-Branch 81 of Romblon,
so long as her appearance as legal counsel shall not conflict or tend to
conflict with her former duties as former Clerk of Court of that Branch.
Then Deputy Court Administrator (now Court Administrator) Jose
P. Perez made the following observations when the matter was referred
to him:
“The general intent of the law, as defined in its title is “to uphold
the time-honored principle of public office being a public trust.” Section
4 thereof provides for the norms of conduct of public officials and
employees, among others: (a) commitment to public interest; (b)
professionalism; and (c) justness and sincerity. Of particular
significance is the statement under professionalism that “[t]hey [public
officials and employees] shall endeavor to discourage wrong
perceptions of their roles as dispensers or peddlers of undue patronage.
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.” 2
Subsequently, in a Minute Resolution dated July 15, 2008, we
resolved to refer this case to the Office of the Chief Attorney (OCAT)
for evaluation, report and recommendation.3 The OCAT took the view
that:
“The premise of the query is erroneous. She interprets Section
7(b)(2) as a blanket authority for an incumbent clerk of court to practice
law. Clearly, there is a misreading of that provision of law.” 4
and further observed:
“The confusion apparently lies in the use of the term “such
practice” after the phrase “provided that.” It may indeed be
misinterpreted as modifying the phrase “engage in the private practice
of their profession” should be prefatory sentence that public officials
“during their incumbency shall not” be disregarded. However, read in
its entirety, “such practice” may only 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.”
x x x
10
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 …
x x x
The policy thus requires public officials and employees to devote
full time public service so that in case of conflict between personal and
public interest, the latter should take precedence over the
former.”5 [Footnotes omitted]
With respect to lawyers in the judiciary, the OCAT pointed to
Section 5, Canon 3 of the Code of Conduct for Court Personnel – the
rule that deals with outside employment by an incumbent judicial
employee and which limits such outside employment to one that “does
not require the practice of law.” 6 The prohibition to practice law with
respect to any matter where they have intervened while in the
government service is reiterated in Rule 6.03, Canon 6 of the Code of
Professional Responsibility, which governs the conduct of lawyers in
the government service.7
In view of the OCAT findings and recommendations, we issued
an En Banc Resolution dated November 11, 2008 directing the Court
Administrator to draft and submit to the Court a circular on the
practice of profession during employment and within one year from
resignation, retirement from or cessation of employment in the
Judiciary. We likewise required the Executive Judge of the RTC of
Romblon to (i) verify if Atty. Buffe had appeared as counsel during her
incumbency as clerk of court and after her resignation in February
2008, and (ii) submit to the Court a report on his verification. 8
In compliance with this our Resolution, Executive Judge Ramiro
R. Geronimo of RTC-Branch 81 of Romblon reported the following
appearances made by Atty. Buffe:
(1) Civil Case No. V-1564, entitled Oscar Madrigal
Moreno, Jr. et al. versus Leonardo M. Macalam, et al. on
February 19, 2008, March 4, 2008, April 10, 2008 and July 9,
2008 as counsel for the plaintiffs;
(2) Civil Case No. V-1620, entitled Melchor M. Manal
versus Zosimo Malasa, et al., on (sic) February, 2008, as
counsel for the plaintiff;
(3) Civil Case No. V-1396, entitled Solomon Y. Mayor
versus Jose J. Mayor, on February 21, 2008, as counsel for the
plaintiff; and
(4) Civil Case No. V-1639, entitled Philippine National
Bank versus Sps. Mariano and Olivia Silverio, on April 11,
2008 and July 9, 2008, as counsel for the defendants.
Atty. Buffe herself was furnished a copy of our November 11,
2008 En Banc Resolution and she filed a Manifestation (received by the
Court on February 2, 2009) acknowledging receipt of our November 11,
2008 Resolution. She likewise stated that her appearances are part of
Branch 81 records. As well, she informed the Court that she had
previously taken the following judicial remedies in regard to the above
query:
1. SCA No. 089119028 (Annex “C”), filed with Branch 54
of the RTC Manila, which had been dismissed without
prejudice on July 23, 2008 (Annex “D”) – a recourse
taken when undersigned was still a private practitioner;
2. SCA No. 08120423 (Annex “A”), filed with Branch 17
of the RTC of Manila, which had been also dismissed (with or
without prejudice) on December 4, 2008 (Annex “B”) – a
recourse taken when undersigned was already a public
prosecutor appearing before the same Branch 81, after
she took her oath of office as such on August 15, 2008.”
[Emphasis supplied]
She also made known her intent to elevate the dismissal of the above
cases “so that eventually, the Honorable Supreme Court may put to rest
the legal issue/s presented in the above petitions which is, why is it that
R.A. No. 6713, Sec. 7(b)(2) and last par. thereof, apparently contains an
express prohibition (valid or invalid) on the private practice of
undersigned’s law profession, before Branch 81, while on the other hand
not containing a similar, express prohibition in regard to undersigned’s
practice of profession, before the same court, as a public prosecutor —
within the supposedly restricted 1-year period?”
Our Action and Ruling
Preliminary Considerations
As we stated at the outset, this administrative matter confronts us,
not merely with the task of determining how the Court will respond to
the query, both with respect to the substance and form (as the Court
does not give interpretative opinions 9 but can issue circulars and
regulations relating to pleading, practice and procedure in all
courts10 and in the exercise of its administrative supervision over all
courts and personnel thereof),11 but also with the task of responding to
admitted violations of Section 7(b)(2) of R.A. No. 6713 and to multiple
recourses on the same subject.
After our directive to the Office of the Court Administrator to issue
a circular on the subject of the query for the guidance of all personnel
in the Judiciary, we consider this aspect of the present administrative
matter a finished task, subject only to confirmatory closure when the
OCA reports the completion of the undertaking to us.
Atty. Buffe’s admitted appearance, before the very same branch
she served and immediately after her resignation, is a violation that we
cannot close our eyes to and that she cannot run away from under the
cover of the letter-query she filed and her petition for declaratory relief,
whose dismissal she manifested she would pursue up to our level. We
note that at the time she filed her letter-query (on March 4, 2008), Atty.
Buffe had already appeared before Branch 81 in at least three (3) cases.
The terms of Section 7(b)(2) of R.A. No. 6713 did not deter her in any
way and her misgivings about the fairness of the law cannot excuse any
resulting violation she committed. In other words, she took the risk of
appearing before her own Branch and should suffer the consequences
of the risk she took.
Nor can she hide behind the two declaratory relief petitions she
filed, both of which were dismissed, and her intent to elevate the
dismissal to this Court for resolution. The first, filed before the RTC,
Branch 54, Manila, was dismissed on July 23, 2008 because the “court
declined to exercise the power to declare rights as prayed for in the
petition, as any decision that may be rendered will be inutile and will
not generally terminate the uncertainty or controversy.” 12 The second,
filed with the RTC, Branch 17, Manila, was dismissed for being an
inappropriate remedy after the dismissal ordered by the RTC, Branch
54, Manila, on December 4, 2008.13 Under these circumstances, we see
nothing to deter us from ruling on Atty. Buffe’s actions, as no actual
court case other than the present administrative case, is now actually
pending on the issue she raised. On the contrary, we see from Atty.
Buffe’s recourse to this Court and the filing of the two declaratory
petitions the intent to shop for a favorable answer to her query. We
shall duly consider this circumstance in our action on the case.
A last matter to consider before we proceed to the merits of Atty.
Buffe’s actions relates to possible objections on procedural due process
grounds, as we have not made any formal directive to Atty. Buffe to
explain why she should not be penalized for her appearance before
Branch 81 soon after her resignation from that Branch. The essence of
due process is the grant of the opportunity to be heard; what it abhors
is the lack of the opportunity to be heard.14 The records of this case
show that Atty. Buffe has been amply heard with respect to her actions.
She was notified, and she even responded to our November 11, 2008
directive for the Executive Judge of the RTC of Romblon to report on
Atty. Buffe’s appearances before Branch 81; she expressly manifested
that these appearances were part of the Branch records. Her legal
positions on these appearances have also been expressed before this
Court; first, in her original letter-query, and subsequently, in her
Manifestation. Thus, no due process consideration needs to deter us
from considering the legal consequences of her appearances in her
previous Branch within a year from her resignation.
The Governing Law: Section 7 of R.A. No. 6713
Section 7 of R.A. No. 6713 generally provides for the prohibited acts
and transactions of public officials and employees. Subsection (b)(2)
prohibits them from engaging in the private practice of their profession
during their incumbency. As an exception, a public official or employee
can engage in the practice of his or her profession under the following
conditions: first, the private practice is authorized by the Constitution
or by the law; and second, the practice will not conflict, or tend to
conflict, with his or her official functions.
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
11
exception, the one-year prohibited period applies with respect to any
matter before the office the public officer or employee used to work
with.
The Section 7 prohibitions are predicated on the principle that
public office is a public trust; and serve to remove any impropriety, real
or imagined, which may occur in government transactions between a
former government official or employee and his or her former
colleagues, subordinates or superiors. The prohibitions also promote
the observance and the efficient use of every moment of the prescribed
office hours to serve the public.15
Parenthetically, in the case of court employees, Section 7(b)(2) of
R.A. No. 6713 is not the only prohibition to contend with; Section 5,
Canon 3 of the Code of Conduct for Court Personnel also applies. The
latter provision provides the definitive rule on the “outside
employment” that an incumbent court official or court employee may
undertake in addition to his official duties:
“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.
Where a conflict of interest exists, may reasonably appear to exist,
or where the outside employment reflects adversely on the integrity of
the Judiciary, the court personnel shall not accept outside
employment.” [Emphasis supplied]
In both the above discussed aspect of R.A. No. 6713 and the quoted
Canon 3, the practice of law is covered; the practice of law is a practice
of profession, while Canon 3 specifically mentions any outside
employment requiring the practice of law. In Cayetano v. Monsod,16 we
defined the practice of law as any activity, in and out of court, that
requires the application of law, legal procedure, knowledge, training
and experience. Moreover, we ruled that to engage in the practice of
law is to perform those acts which are characteristics of the profession;
to practice law is to give notice or render any kind of service, which
device or service requires the use in any degree of legal knowledge or
skill.17 Under both provisions, a common objective is to avoid any
conflict of interest on the part of the employee who may wittingly or
unwittingly use confidential information acquired from his
employment, or use his or her familiarity with court personnel still
with the previous office.
After separation from the service, Section 5, Canon 3 of the Code
of Conduct for Court Personnel ceases to apply as it applies specifically
to incumbents, but Section 7 and its subsection (b)(2) of R.A. No. 6713
continue to apply to the extent discussed above. Atty. Buffe’s situation
falls under Section 7.
Atty. Buffe’s Situation
A distinctive feature of this administrative matter is Atty. Buffe’s
admission that she immediately engaged in private practice of law
within the one-year period of prohibition stated in Section 7(b)(2) of
R.A. No. 6713. We find it noteworthy, too, that she is aware of this
provision and only objects to its application to her situation; she
perceives it to be unfair that she cannot practice before her old office –
Branch 81 – for a year immediately after resignation, as she believes
that her only limitation is in matters where a conflict of interest exists
between her appearance as counsel and her former duties as Clerk of
Court. She believes that Section 7(b)(2) gives preferential treatment to
incumbent public officials and employees as against those already
separated from government employment.
 Atty. Buffe apparently misreads the law. As the OCAT aptly
stated, she interprets Section 7(b)(2) as a blanket authority for an
incumbent clerk of court to practice law. We reiterate what we have
explained above, that the general rule under Section 7(b)(2) is to bar
public officials and employees from the practice of their professions; it
is unlawful under this general rule for clerks of court to practice their
profession. 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.
As we also mentioned above, 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. Under both the general rule and the
exceptions, therefore, Atty. Buffe’s basic premise is misplaced.
As we discussed above, 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. This analysis again disproves Atty. Buffe’s basic
premises.
A worrisome aspect of Atty. Buffe’s approach to Section 7 (b)(2) is
her awareness of the law and her readiness to risk its violation because
of the unfairness she perceives in the law. We find it disturbing that
she first violated the law before making any inquiry. She also justifies
her position by referring to the practice of other government lawyers
known to her who, after separation from their judicial employment,
immediately engaged in the private practice of law and appeared as
private counsels before the RTC branches where they were previously
employed. Again we find this a cavalier attitude on Atty. Buffe’s part
and, to our mind, only emphasizes her own willful or intentional
disregard of Section 7(b)(2) of R.A. No. 6713.
By acting in a manner that R.A. No. 6713 brands as “unlawful,”
Atty. Buffe contravened Rule 1.01 of Canon 1 of the Code of
Professional Responsibility, which provides:
CANON 1 — A LAWYER SHALL UPHOLD THE
CONSTITUTION, OBEY THE LAWS OF THE LAND
AND PROMOTE RESPECT FOR LAW AND FOR LEGAL
PROCESSES
x x x
Rule 1.01 — A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct.
As indicated by the use of the mandatory word “shall,” this
provision must be strictly complied with. Atty. Buffe failed to do this,
perhaps not with an evil intent, considering the misgivings she had
about Section 7(b)(2)’s unfairness. Unlawful conduct under Rule 1.01
of Canon 1, however, does not necessarily require the element of
criminality, although the Rule is broad enough to include it.18 Likewise,
the presence of evil intent on the part of the lawyer is not essential to
bring his or her act or omission within the terms of Rule 1.01, when it
specifically prohibits lawyers from engaging in unlawful
conduct.19 Thus, we find Atty. Buffe liable under this quoted Rule.
We also find that Atty. Buffe also failed to live up to her lawyer’s
oath and thereby violated Canon 7 of the Code of Professional
Responsibility when she blatantly and unlawfully practised law within
the prohibited period by appearing before the RTC Branch she had just
left. Canon 7 states:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE
INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION
AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.
[Emphasis supplied]
By her open disregard of R.A. No. 6713, she thereby followed the
footsteps of the models she cited and wanted to replicate – the former
court officials who immediately waded into practice in the very same
court they came from. She, like they, disgraced the dignity of the legal
profession by openly disobeying and disrespecting the law.20 By her
12
irresponsible conduct, she also eroded public confidence in the law and
in lawyers.21 Her offense is not in any way mitigated by her transparent
attempt to cover up her transgressions by writing the Court a letter-
query, which she followed up with unmeritorious petitions for
declaratory relief, all of them dealing with the same Section 7(b)(2)
issue, in the hope perhaps that at some point she would find a ruling
favorable to her cause. These are acts whose implications do not
promote public confidence in the integrity of the legal profession. 22
Considering Atty. Buffe’s ready admission of violating Section
7(b)(2), the principle of res ipsa loquitur finds application, making her
administratively liable for violation of Rule 1.01 of Canon 1 and Canon
7 of the Code of Professional Responsibility.23 In several cases, the
Court has disciplined lawyers without further inquiry or resort to any
formal investigation where the facts on record sufficiently provided the
basis for the determination of their administrative liability.
In Prudential Bank v. Castro,24 the Court disbarred a lawyer
without need of any further investigation after considering his actions
based on records showing his unethical misconduct; the misconduct not
only cast dishonor on the image of both the Bench and the Bar, but was
also inimical to public interest and welfare. In this regard, the Court
took judicial notice of several cases handled by the errant lawyer and
his cohorts that revealed their modus operandi in circumventing the
payment of the proper judicial fees for the astronomical sums they
claimed in their cases.25 The Court held that those cases sufficiently
provided the basis for the determination of respondents’ administrative
liability, without need for further inquiry into the matter under the
principle of res ipsa loquitur.26
Also on the basis of this principle, we ruled in Richards v.
Asoy,27 that no evidentiary hearing is required before the respondent
may be disciplined for professional misconduct already established by
the facts on record.
We applied the principle of res ipsa loquitur once more in In re:
Wenceslao Laureta28 where we punished a lawyer for grave professional
misconduct solely based on his answer to a show-cause order for
contempt and without going into a trial-type hearing. We ruled then
that due process is satisfied as long as the opportunity to be heard is
given to the person to be disciplined.29
Likewise in Zaldivar v. Gonzales,30 the respondent was disciplined
and punished for contempt for his slurs regarding the Court’s alleged
partiality, incompetence and lack of integrity on the basis of his answer
in a show-cause order for contempt. The Court took note that the
respondent did not deny making the negative imputations against the
Court through the media and even acknowledged the correctness of his
degrading statements. Through a per curiam decision, we justified
imposing upon him the penalty of suspension in the following tenor:
“The power to punish for contempt of court does not exhaust the
scope of disciplinary authority of the Court over lawyers. The
disciplinary authority of the Court over members of the Bar is but
corollary to the Court’s exclusive power of admission to the Bar. A
lawyer is not merely a professional but also an officer of the court and
as such, he is called upon to share in the task and responsibility of
dispensing justice and resolving disputes in society. Any act on his part
which visibly tends to obstruct, pervert, or impede and degrade the
administration of justice constitutes both professional misconduct
calling for the exercise of disciplinary action against him, and
contumacious conduct warranting application of the contempt
power.”31
These cases clearly show that the absence of any formal charge
against and/or formal investigation of an errant lawyer do not preclude
the Court from immediately exercising its disciplining authority, as
long as the errant lawyer or judge has been given the opportunity to be
heard. As we stated earlier, Atty. Buffe has been afforded the
opportunity to be heard on the present matter through her letter-query
and Manifestation filed before this Court.
A member of the bar may be penalized, even disbarred or
suspended from his office as an attorney, for violation of the lawyer’s
oath and/or for breach of the ethics of the legal profession as embodied
in the Code of Professional Responsibility.32 The appropriate penalty
on an errant lawyer depends on the exercise of sound judicial discretion
based on the surrounding facts.33 In this case, we cannot discern any
mitigating factors we can apply, save OCAT’s observation that Atty
Buffe’s letter-query may really reflect a misapprehension of the
parameters of the prohibition on the practice of the law profession
under Section 7(b)(2) of R.A. No. 6713. Ignorance of the law, however,
is no excuse, particularly on a matter as sensitive as practice of the
legal profession soon after one’s separation from the service. If Atty.
Buffe is correct in the examples she cited, it is time to ring the bell and
to blow the whistle signaling that we cannot allow this practice to
continue.
As we observed earlier,34 Atty. Buffe had no qualms about the
simultaneous use of various fora in expressing her misgivings about
the perceived unfairness of Section 7 of R.A. 6713. She formally lodged
a query with the Office of the Court Administrator, and soon after filed
her successive petitions for declaratory relief. Effectively, she exposed
these fora to the possibility of embarrassment and confusion through
their possibly differing views on the issue she posed. Although this is
not strictly the forum-shopping that the Rules of Court prohibit, what
she has done is something that we cannot help but consider with
disfavor because of the potential damage and embarrassment to the
Judiciary that it could have spawned. This is a point against Atty. Buffe
that cancels out the leniency we might have exercised because of the
OCAT’s observation about her ignorance of and misgivings on the
extent of the prohibition after separation from the service.
Under the circumstances, we find that her actions merit a penalty
of fine of P10,000.00, together with a stern warning to deter her from
repeating her transgression and committing other acts of professional
misconduct.35 This penalty reflects as well the Court’s
sentiments on how seriously the retired, resigned or separated
officers and employees of the Judiciary should regard and
observe the prohibition against the practice of law with the
office that they used to work with.
WHEREFORE, premises considered, we find Atty. Karen M.
Silverio-Buffe GUILTY of professional misconduct for violating Rule
1.01 of Canon 1 and Canon 7 of the Code of Professional Responsibility.
She is hereby FINED in the amount of Ten Thousand Pesos
(P10,000.00), and STERNLY WARNED that a repetition of this
violation and the commission of other acts of professional misconduct
shall be dealt with more severely.
Let this Decision be noted in Atty. Buffe’s record as a member of
the Bar.
SO ORDERED.
Puno (C.J.), Carpio, Corona, Carpio-Morales, Chico-Nazario,
Velasco, Jr., Nachura, Leonardo-De Castro, Peralta, Bersamin, Del
Castillo and Abad, JJ., concur.
Quisumbing and Ynares-Santiago, JJ., On Official Leave.
Atty. Karen M. Silverio-Buffe meted with P10,000.00 fine for
violation of Rule 1.01 of Canon 1 and Canon 7 of Code of Professional
Responsibility, with stern warning against repetition of commission of
other acts of professional misconduct.
Notes.—A lawyer performing notarial work without a commission
violates the lawyer’s oath. (Cruz-Villanueva vs. Rivera, 507 SCRA 248
[2008]).
PCGG v. SB
G.R. Nos. 151809-12. April 12, 2005.*
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT
(PCGG), petitioner, vs. SANDIGANBAYAN (Fifth Division), LUCIO
C. TAN, CARMEN KHAO TAN, FLORENCIO T. SANTOS,
NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI NEE,
MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE
HIONG (represented by TARCIANA C. TAN), FLORENCIO N.
SANTOS, JR., HARRY C. TAN, TAN ENG CHAN, CHUNG POE
KEE, MARIANO KHOO, MANUEL KHOO, MIGUEL KHOO, JAIME
KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T. WONG,
ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO, ALLIED
BANKING CORP., ALLIED LEASING AND FINANCE
CORPORATION, ASIA BREWERY, INC., BASIC HOLDINGS
CORP., FOREMOST FARMS, INC., FORTUNE TOBACCO CORP.,
GRANSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES, IRIS
HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS,
INC., MANUFACTURING SERVICES AND TRADE CORP.,
MARANAW HOTELS & RESORT CORP., NORTHERN TOBACCO
REDRY-ING PLANT, PROGRESSIVE FARMS, INC.,
SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO
HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO P.
MENDOZA, respondents.
13
Attorneys; Legal Ethics; In the seventeenth and eighteenth
centuries, ethical standards for lawyers were pervasive in England and
other parts of Europe and principal thrust of these standards was
directed towards the litigation conduct of lawyers, underscoring the
central duty of truth and fairness in litigation as superior to any
obligation to the client.—In the seventeenth and eighteenth centuries,
ethical standards for lawyers were pervasive in England and other
parts of Europe. The early statements of standards did not resemble
modern codes of conduct. They were not detailed or collected in one
source but surprisingly were comprehensive for their time. The
principal thrust of the standards was directed towards the litigation
conduct of lawyers. It underscored the central duty of truth and
fairness in litigation as superior to any obligation to the client. The
formulations of the litigation duties were at times intricate, including
specific pleading standards, an obligation to inform the court of
falsehoods and a duty to explore settlement alternatives. Most of the
lawyer’s other basic duties—competency, diligence, loyalty,
confidentiality, reasonable fees and service to the poor—originated in
the litigation context, but ultimately had broader application to all
aspects of a lawyer’s practice.
Same; Same; The forms of lawyer regulation in colonial and
early post-revolutionary America did not differ markedly from those in
England; Only three of the traditional core duties can be fairly
characterized as pervasive in the formal, positive law of the colonial and
post-revolutionary period: the duties of litigation fairness, competency
and reasonable fees.—The forms of lawyer regulation in colonial and
early post-revolutionary America did not differ markedly from those in
England. The colonies and early states used oaths, statutes, judicial
oversight, and procedural rules to govern attorney behavior. The
difference from England was in the pervasiveness and continuity of
such regulation. The standards set in England varied over time, but
the variation in early America was far greater. The American
regulation fluctuated within a single colony and differed from colony to
colony. Many regulations had the effect of setting some standards of
conduct, but the regulation was sporadic, leaving gaps in the
substantive standards. Only three of the traditional core duties can be
fairly characterized as pervasive in the formal, positive law of the
colonial and post-revolutionary period: the duties of litigation fairness,
competency and reasonable fees.
Same: Same; The nineteenth century has been termed the “dark
ages” of legal ethics in the United States.—The nineteenth century has
been termed the “dark ages” of legal ethics in the United States. By
mid-century, American legal reformers were filling the void in two
ways. First, David Dudley Field, the drafter of the highly influential
New York “Field Code,” introduced a new set of uniform standards of
conduct for lawyers. This concise statement of eight statutory duties
became law in several states in the second half of the nineteenth
century. At the same time, legal educators, such as David Hoffman and
George Sharswood, and many other lawyers were working to flesh out
the broad outline of a lawyer’s duties. These reformers wrote about
legal ethics in unprecedented detail and thus brought a new level of
understanding to a lawyer’s duties. A number of mid-nineteenth
century laws and statutes, other than the Field Code, governed lawyer
behavior. A few forms of colonial regulations—e.g., the “do no
falsehood” oath and the deceit prohibitions—persisted in some states.
Procedural law continued to directly, or indirectly, limit an attorney’s
litigation behavior. The developing law of agency recognized basic
duties of competence, loyalty and safeguarding of client property.
Evidence law started to recognize with less equivocation the attorney-
client privilege and its underlying theory of confidentiality. Thus, all of
the core duties, with the likely exception of service to the poor, had
some basis in formal law. Yet, as in the colonial and early post-
revolutionary periods, these standards were isolated and did not
provide a comprehensive statement of a lawyer’s duties. The reformers,
by contrast, were more comprehensive in their discussion of a lawyer’s
duties, and they actually ushered a new era in American legal ethics.
Same; Same; Toward the end of the nineteenth century, a new
form of ethical standards began to guide lawyers in their practice—the
bar association code of legal ethics; The bar codes were detailed ethical
standards formulated by lawyers for lawyers.—Toward the end of the
nineteenth century, a new form of ethical standards began to guide
lawyers in their practice—the bar association code of legal ethics. The
bar codes were detailed ethical standards formulated by lawyers for
lawyers. They combined the two primary sources of ethical guidance
from the nineteenth century. Like the academic discourses, the bar
association codes gave detail to the statutory statements of duty and
the oaths of office. Unlike the academic lectures, however, the bar
association codes retained some of theofficial imprimatur of the
statutes and oaths. Over time, the bar association codes became
extremely popular that states adopted them as binding rules of law.
Critical to the development of the new codes was the re-emergence of
bar associations themselves. Local bar associations formed sporadically
during the colonial period, but they disbanded by the early nineteenth
century. In the late nineteenth century, bar associations began to form
again, picking up where their colonial predecessors had left off. Many
of the new bar associations, most notably the Alabama State Bar
Association and the American Bar Association, assumed on the task of
drafting substantive standards of conduct for their members.
Same; Same; In 1917, the Philippine Bar Association adopted as
its own, Canons 1 to 32 of the American Bar Association (ABA) Canons
of Professional Ethics.—In 1917, the Philippine Bar found that the oath
and duties of a lawyer were insufficient to attain the full measure of
public respect to which the legal profession was entitled. In that year,
the Philippine Bar Association adopted as its own, Canons 1 to 32 of
the ABA Canons of Professional Ethics.
Same; Same; Conflict of Interest; “Adverse-Interest Conflicts”
and “Congruent-Interest Conflicts,” and “Revolving Door,” Explained;
Words and Phrases; As early as 1924, some American Bar Association
(ABA) members have questioned the form and function of the canons
and among their concerns was the “revolving door” or “the 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”; “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; “Congruent-interest representation conflicts” are unique to
government lawyers and apply primarily to former government lawyers,
prohibiting lawyers from representing a private practice client even if
the interests of the former government client and the new client are
entirely parallel.—As early as 1924, some ABA members have
questioned the form and function of the canons. Among their concerns
was the “revolving door” or “the 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.” These
concerns were classified as “adverse-interest conflicts” and “congruent-
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. On the other hand, “congruent-interest
representation conflicts” are unique to government lawyers and apply
primarily to former government lawyers. The use of the word “conflict”
is a misnomer; “congruent-interest representation conflicts” arguably
do not involve conflicts at all, as it prohibits lawyers from representing
a private practice client even if the interests of the former government
client and the new client are entirely parallel.
Same; Same; Same; Code of Professional Responsibility; On
June 21, 1988, the Supreme Court promulgated the Code of Professional
Responsibility, Rule 6.03 of which dealing particularly with former
government lawyers.—In cadence with these changes, the Integrated
Bar of the Philippines (IBP) adopted a proposed Code of Professional
Responsibility in 1980 which it submitted to this Court for
approval. The Code was drafted to reflect the local customs, traditions,
and practices of the bar and to conform with new realities. On June 21,
1988, this Court promulgated the Code of Professional
Responsibility. Rule 6.03 of the Code of Professional Responsibility
deals particularly with former government lawyers, and provides, viz.:
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 6.03 of the Code of
Professional Responsibility retained the general structure of
paragraph 2, Canon 36 of the Canons of Professional Ethics
but replaced the expansive phrase “investigated and passed upon” with
14
the word “intervened.” It is, therefore, properly applicable to both
“adverse-interest conflicts” and “congruent-interest conflicts.”
Same; Same; Same; Same; Words and Phrases; The American
Bar Association in its Formal Opinion 342, defined “matter” as any
discrete, isolatable act as well as identifiable transaction or conduct
involving a particular situation and specific party, and not merely an
act of drafting, enforcing or interpreting government or agency
procedures, regulations or laws, or briefing abstract principles of law.—
The key to unlock Rule 6.03 lies in comprehending first, the meaning of
“matter” referred to in the rule and, second, the metes and bounds of
the “intervention” made by the former government lawyer on the
“matter.” The American Bar Association in its Formal Opinion 342,
defined “matter” as any discrete, isolatable act as well as identifiable
transaction or conduct involving a particular situation and specific
party, and not merely an act of drafting, enforcing or interpreting
government or agency procedures, regulations or laws, or briefing
abstract principles of law.
Same; Same; Same; Same; The advice given by respondent
Mendoza, as then Solicitor General on the procedure to liquidate
GENBANK is not the “matter” contemplated by Rule 6.03 of the Code of
Professional Responsibility.—The “matter” or the act of respondent
Mendoza as Solicitor General involved in the case at bar is “advising
the Central Bank, on how to proceed with the said bank’s liquidation
and even filing the petition for its liquidation with the CFI of Manila.”
In fine, the Court should resolve whether his act of advising the Central
Bank on the legal procedure to liquidate GENBANK is included within
the concept of “matter” under Rule 6.03. The procedure of liquidation is
given in black and white in Republic Act No. 265, section 29, viz.: x x x
We hold that this advice given by respondent Mendoza on the
procedure to liquidate GENBANK is not the “matter” contemplated by
Rule 6.03 of the Code of Professional Responsibility. ABA Formal
Opinion No. 342 is clear as daylight in stressing that the
“drafting, enforcing or interpreting government or agency procedures,
regulations or laws, or briefing abstract principles of law” are acts
which do not fall within the scope of the term “matter” and cannot
disqualify.
Same; Same; Same; Same; Responsibility cannot apply to
respondent Mendoza because his alleged intervention while a Solicitor
General in Sp. Proc. No. 107812 (liquidation of Genbank) is an
intervention on a matter different from the matter involved in Civil Case
No. 0096 (sequestration of the stocks in Allied Bank, the successor of
Genbank, on the ground that they are ill-gotten).—It can even be
conceded for the sake of argument that the above act of respondent
Mendoza falls within the definition of matter per ABA Formal Opinion
No. 342. Be that as it may, the said act of respondent Mendoza which
is the “matter” involved in Sp. Proc. No. 107812 is entirely
different from the “matter” involved in Civil Case No. 0096. Again, the
plain facts speak for themselves. It is given that respondent Mendoza
had nothing to do with the decision of the Central Bank to liquidate
GENBANK. It is also given that he did not participate in the sale of
GENBANK to Allied Bank. The “matter” where he got himself
involved was in informing Central Bank on the procedure provided by
law to liquidate GENBANK thru the courts and in filing the necessary
petition in Sp. Proc. No. 107812 in the then Court of First Instance. The
subject “matter” of Sp. Proc. No. 107812, therefore, is not the same nor
is related to but is different from the subject “matter” in Civil Case No.
0096. Civil Case No. 0096 involves the sequestration of the
stocks owned by respondents Tan, et al., in Allied Bank on the alleged
ground that they are ill-gotten. The case does not involve the
liquidation of GENBANK. Nor does it involve the sale of GENBANK to
Allied Bank. Whether the shares of stock of the reorganized Allied
Bank are ill-gotten is far removed from the issue of the dissolution and
liquidation of GENBANK. GENBANK was liquidated by the Central
Bank due, among others, to the alleged banking malpractices of its
owners and officers. In other words, the legality of the liquidation of
GENBANK is not an issue in the sequestration cases. Indeed, the
jurisdiction of the PCGG does not include the dissolution and
liquidation of banks. It goes without saying that Code 6.03 of the Code
of Professional Responsibility cannot apply to respondent Mendoza
because his alleged intervention while a Solicitor General in Sp. Proc.
No. 107812 is an intervention on a matter different from the matter
involved in Civil Case No. 0096.
Same; Same; Same; Same; Words and Phrases; It is the second
interpretation of the word “intervene”—which only includes an act of a
person who has the power to influence the subject proceedings, that is
more appropriate under Rule 6.03 of the Code of Professional
Responsibility in light of its history—in fine, the intervention cannot be
insubstantial and insignificant.—There are, therefore, two possible
interpretations of the word “intervene.” Under the first interpretation,
“intervene” includes participation in a proceeding even if the
intervention is irrelevant or has no effect or little influence. Under
the second interpretation, “intervene” only includes an act of a person
who has the power to influence the subject proceedings. We hold that
this second meaning is more appropriate to give to the word
“intervention” under Rule 6.03 of the Code of Professional
Responsibility in light of its history. The evils sought to be remedied by
the Rule do not exist where the government lawyer does an act which
can be considered as innocuous such as “x x x drafting, enforcing or
interpreting government or agency procedures, regulations or laws, or
briefing abstract principles of law.” In fine, the intervention cannot be
insubstantial and insignificant. Originally, Canon 36 provided that a
former government lawyer “should not, after his retirement, accept
employment in connection with any matter which he has investigated
or passed upon while in such office or employ.” As aforediscussed, the
broad sweep of the phrase “which he has investigated or passed upon”
resulted in unjust disqualification of former government lawyers. The
1969 Code restricted its latitude, hence, in DR 9-101(b), the prohibition
extended only to a matter in which the lawyer, while in the government
service, had “substantial responsibility.” The 1983 Model Rules further
constricted the reach of the rule. MR 1.11(a) provides that “a lawyer
shall not represent a private client in connection with a matter in which
the lawyer participated personally and substantially as a public officer
or employee.”
Same; Same; Same; Same; Banks and
Banking; Liquidation; The principal role of the court in a liquidation of
a bank is to assist the Central Bank in determining claims of creditors
against the bank—the role of the court is not strictly as a court of justice
but as an agent to assist the Central Bank in determining the claims of
creditors.—It is, however, alleged that the intervention of respondent
Mendoza in Sp. Proc. No. 107812 is significant and substantial. We
disagree. For one, the petition in the special proceedings is an initiatory
pleading, hence, it has to be signed by respondent Mendoza as the then
sitting Solicitor General. For another, the record is arid as to
the actual participation of respondent Mendoza in the subsequent
proceedings. Indeed, the case was in slumberville for a long number of
years. None of the parties pushed for its early termination. Moreover,
we note that the petition filed merely seeks the assistance of the court
in the liquidation of GENBANK. The principal role of the court in this
type of proceedings is to assist the Central Bank in determining claims
of creditors against the GENBANK. The role of the court is not strictly
as a court of justice but as an agent to assist the Central Bank in
determining the claims of creditors. In such a proceeding, the
participation of the Office of the Solicitor General is not that of the
usual court litigator protecting the interest of government.
Same; Same; Same; Same; Disqualification of Counsel; Rule
6.03 of our Code of Professional Responsibility represents a
commendable effort on the part of the Integrated Bar of the Philippines
to upgrade the ethics of lawyers in the government service.—Rule 6.03
of our Code of Professional Responsibility represents a commendable
effort on the part of the IBP to upgrade the ethics of lawyers in the
government service. As aforestressed, it is a take-off from similar
efforts especially by the ABA which have not been without difficulties.
To date, the legal profession in the United States is still fine tuning its
DR 9-101(b) rule.
Same; Same; Same; Same; Same; Policy Considerations; Rule
6.03 is not to be interpreted to cause a chilling effect on government
recruitment of able legal talent.—In fathoming the depth and breadth
of Rule 6.03 of our Code of Professional Responsibility, the Court took
account of various policy considerations to assure that its
interpretation and application to the case at bar will achieve its end
without necessarily prejudicing other values of equal importance.
Thus, the rule was not interpreted to cause a chilling effect on
government recruitment of able legal talent. At present, it is already
difficult for government to match compensation offered by the private
sector and it is unlikely that government will be able to reverse that
situation. The observation is not inaccurate that the only card that the
government may play to recruit lawyers is have them defer present
income in return for the experience and contacts that can later be
15
exchanged for higher income in private practice. Rightly, Judge
Kaufman warned that the sacrifice of entering government service
would be too great for most men to endure should ethical rules prevent
them from engaging in the practice of a technical specialty which they
devoted years in acquiring and cause the firm with which they become
associated to be disqualified. Indeed, “to make government service
more difficult to exit can only make it less appealing to enter.”
Same; Same; Same; Same; Same; Same; In interpreting Rule
6.03, the Supreme Court also cast a harsh eye on its use as a litigation
tactic to harass opposing counsel as well as deprive his client of
competent legal representation—the danger that the rule will be
misused to bludgeon an opposing counsel is not a mere guesswork.— In
interpreting Rule 6.03, the Court also cast a harsh eye on its use as a
litigation tactic to harass opposing counsel as well as deprive his client
of competent legal representation. The danger that the rule will be
misused to bludgeon an opposing counsel is not a mere guesswork. The
Court of Appeals for the District of Columbia has noted “the tactical
use of motions to disqualify counsel in order to delay proceedings,
deprive the opposing party of counsel of its choice, and harass and
embarrass the opponent,” and observed that the tactic was “so
prevalent in large civil cases in recent years as to prompt frequent
judicial and academic commentary.” Even the United States Supreme
Court found no quarrel with the Court of Appeals’ description of
disqualification motions as “a dangerous game.” In the case at bar,
the new attempt to disqualify respondent Mendoza is difficult to divine.
The disqualification of respondent Mendoza has long been a dead issue.
It was resuscitated after the lapse of many years and only after PCGG
has lost many legal incidents in the hands of respondent Mendoza.
Same; Same; Same; Same; Same; Same; The Court in
interpreting Rule 6.03 was not unconcerned with the prejudice to the
client which will be caused by its misapplication—it cannot be doubted
that granting a disqualification motion causes the client to lose not only
the law firm of choice, but probably an individual lawyer in whom the
client has confidence.—The Court in interpreting Rule 6.03 was not
unconcerned with the prejudice to the client which will be caused by its
misapplication. It cannot be doubted that granting a disqualification
motion causes the client to lose not only the law firm of choice, but
probably an individual lawyer in whom the client has confidence. The
client with a disqualified lawyer must start again often without the
benefit of the work done by the latter. The effects of this prejudice to
the right to choose an effective counsel cannot be overstated for it can
result in denial of due process.
Same; Same; Same; Same; Same; Same; The Court has to
consider also the possible adverse effect of a truncated reading of the
rule on the official independence of lawyers in the government
service.— The Court has to consider also the possible adverse effect of a
truncated reading of the rule on the official independence of lawyers in
the government service. According to Prof. Morgan: “An individual who
has the security of knowing he or she can find private employment upon
leaving the government is free to work vigorously, challenge official
positions when he or she believes them to be in error, and resist illegal
demands by superiors. An employee who lacks this assurance of private
employment does not enjoy such freedom.” He adds: “Any system that
affects the right to take a new job affects the ability to quit the old job
and any limit on the ability to quit inhibits official independence.” The
case at bar involves the position of Solicitor General, the office once
occupied by respondent Mendoza. It cannot be overly stressed that the
position of Solicitor General should be endowed with a great degree of
independence. It is this independence that allows the Solicitor General
to recommend acquittal of the innocent; it is this independence that
gives him the right to refuse to defend officials who violate the trust of
their office. Any undue diminution of the independence of the Solicitor
General will have a corrosive effect on the rule of law.
Same; Same; Same; Same; Same; Same; No less significant a
consideration is the deprivation of the former government lawyer of the
freedom to exercise his profession.—No less significant a consideration
is the deprivation of the former government lawyer of the freedom to
exercise his profession. Given the current state of our law, the
disqualification of a former government lawyer may extend to all
members of his law firm. Former government lawyers stand in danger
of becoming the lepers of the legal profession.
Same; Same; Same; Same; Same; The accuracy of gauging
public perceptions is a highly speculative exercise at best which can lead
to untoward results.—The mischief sought to be remedied by Rule 6.03
of the Code of Professional Responsibility is the possible appearance of
impropriety and loss of public confidence in government. But as well
observed, the accuracy of gauging public perceptions is a highly
speculative exercise at best which can lead to untoward results. No less
than Judge Kaufman doubts that the lessening of restrictions as to
former government attorneys will have any detrimental effect on that
free flow of information between the govern-ment-client and its
attorneys which the canons seek to protect. Notably, the appearance of
impropriety theory has been rejected in the 1983 ABA Model Rules of
Professional Conduct and some courts have abandoned per
se disqualification based on Canons 4 and 9 when an actual conflict of
interest exists, and demand an evaluation of the interests of the
defendant, government, the witnesses in the case, and the public.
SANDOVAL-GUTIERREZ, J., Concurring Opinion:
Attorneys; Legal Ethics; Motions to disqualify counsel from
representing their clients must be viewed with jaundiced eyes, for
oftentimes they pose the very threat to the integrity of the judicial
process.—I join Mr. Justice Reynato S. Puno in his ponencia. Motions
to disqualify counsel from representing their clients must be viewed
with jaundiced eyes, for oftentimes they pose the very threat to the
integrity of the judicial process. Such motions are filed to harass a
particular counsel, to delay the litigation, to intimidate adversary, or
for other strategic purposes. It therefore behooves the courts to always
look for the parties’ inner motivations in filing such motions. This case
illustrates the sad reality that the filing of motions for disqualification
may be motivated, not by a fine sense of ethics or sincere desire to
remove from litigation an unethical practitioner, but to achieve a
tactical advantage.
Courts; Judgments; An order is deemed final when it finally
disposes of the pending action so that nothing more can be done with it
in the lower court.—An order is deemed final when it finally disposes
of the pending action so that nothing more can be done with it in the
lower court. On the other hand, an interlocutory order is one made
during the pendency of an action, which does not dispose of the case,
but leaves it for further action by the trial court in order to settle and
determine the entire controversy.
Same; Same; Disqualification of Counsel; An order denying a
motion to disqualify counsel is final and, therefore, appealable.— With
the foregoing disquisition as basis, it is my view that an order denying
a motion to disqualify counsel is final and, therefore, appealable. The
issue of whether or not Atty. Mendoza should be disqualified from
representing Tan, et al. is separable from, independent of and collateral
to the main issues in Civil Cases Nos. 0096-0099. In short, it is separable
from the merits. Clearly, the present petition for certiorari, to my mind,
is dismissible.
Same; Same; Same; The PCGG may not relitigate such issue of
disqualification as it was actually litigated and finally decided in G.R.
Nos. 112707-09.—It will be recalled that on August 23, 1996, the
Sandiganbayan rendered a Decision granting Tan, et al.’s petitions
in Civil Cases Nos. 0095 and 0100. Such Decision reached this Court
in G.R. Nos. 112708-09. On March 29, 1996, we affirmed it. The PCGG
could have assigned or raised as error in G.R. Nos. 112708-09 the
Sandiganbayan Resolution dated May 7, 1991 in Civil Case No. 0100
denying its motion to disqualify Atty. Mendoza but it did not. The fact
that a final Decision therein has been promulgated by this Court
renders the Resolution dated May 7, 1991 beyond review. The PCGG
may not relitigate such issue of disqualification as it was actually
litigated and finally decided in G.R. Nos. 112707-09. To rule otherwise
is to encourage the risk of inconsistent judicial rulings on the basis of
the same set of facts. This should not be countenanced. Public policy,
judicial orderliness, economy of judicial time and the interest of
litigants, as well as the peace and order of society, all require that
stability should be accorded judicial rulings and that controversies once
decided shall remain in repose, and that there be an end to litigation.
Same; Same; Same; Words and Phrases; Since the word “inter-
vene” has two connotations, one affecting interest of others and one done
merely in influencing others, Rule 6.03 should be read in the context of
the former—to interpret it otherwise is to enlarge the coverage of Rule
6.03.—Webster Dictionary defines “intervene” as “to come or happen
between two points of time or events;” “to come or be in between as
something unnecessary or irrelevant;” or “to come between as an
influencing force. The ponencia defines “to intervene” as “to enter or
appear as an irrelevant or extraneous feature or circumstance.”
16
“Intervention” is interference that may affect the interest of others.
Corollarily, the counterpart of Rule 6.03 is the Disciplinary Rule (DR)
9-101 (B) of the American Bar Association (ABA), thus: A lawyer shall
not accept private employment in a manner in which he had
“substantial responsibility” while he was a public employee.
Substantial responsibility envisages a lawyer having such a heavy
responsibility for the matter in question that it is likely he becomes
personally and substantially involve in the investigative or deliberative
processes regarding the matter. Since the word “intervene” has two
connotations, one affecting interest of others and one done merely in
influencing others, Rule 6.03 should be read in the context of the
former. To interpret it otherwise is to enlarge the coverage of Rule 6.03.
Surely, this could not have been the intention of the drafters of our
Code of Professional Responsibility.
PANGANIBAN, J., Separate Opinion:
Courts; Judgments; Res Judicata; “Bar by Former Judgment,”
and “Conclusiveness of Judgment,” Explained; Words and Phrases;
There are two distinct concepts of res judicata—(1) bar by former
judgment and (2) conclusiveness of judgment.—The above provision
comprehends two distinct concepts of res judicata: (1) bar by former
judgment and (2) conclusiveness of judgment. Under the first
concept, res judicata serves as an absolute proscription of a subsequent
action when the following requisites concur: (1) the former judgment or
order was final; (2) it adjudged the pertinent issue or issues on their
merits; (3) it was rendered by a court that had jurisdiction over the
subject matter and the parties; and (4) between the first and the second
actions, there was identity of parties, of subject matter, and of causes
of action. In regard to the fourth requirement, if there is no identity of
causes of action but only an identity of issues, res judicata exists under
the second concept; that is, under conclusiveness of judgment. In the
latter concept, the rule bars the re-litigation of particular facts or issues
involving the same parties but on different claims or causes of action.
Such rule, however, does not have the same effect as a bar by former
judgment, which prohibits the prosecution of a second action upon
the same claim, demand or cause of action.
Same; Same; Same; Same; Conclusiveness of judgment finds
application when a fact or question has been squarely put in issue,
judicially passed upon, and adjudged in a former suit by a court of
competent jurisdiction—it has thus been conclusively settled by a
judgment or final order issued therein; While conclusiveness of
judgment does not have the same effect as a bar by former judgment,
which proscribes subsequent actions, it nonetheless operates as an
estoppel to issues or points controverted, on which the determination of
the earlier findings or judgment has been anchored.—Conclusiveness of
judgment finds application when a fact or question has been squarely
put in issue, judicially passed upon, and adjudged in a former suit by a
court of competent jurisdiction; it has thus been conclusively settled by
a judgment or final order issued therein. Insofar as the parties to that
action (and persons in privity with them) are concerned, and while the
judgment or order remains unreversed or un-vacated by a proper
authority upon a timely motion or petition, such conclusively settled
fact or question cannot again be litigated in any future or other action
between the same parties or their privies, in the same or in any other
court of concurrent jurisdiction, either for the same or for a different
cause of action. Thus, the only identities required for the operation of
the principle of conclusiveness of judgment is that between parties and
issues. While it does not have the same effect as a bar by former
judgment, which proscribes subsequent actions, conclusiveness of
judgment nonetheless operates as an estoppel to issues or points
controverted, on which the determination of the earlier finding or
judgment has been anchored. The dictum laid down in such a finding
or judgment becomes conclusive and continues to be binding between
the same parties, as long as the facts on which that judgment was
predicated continue to be the facts of the case or incident before the
court. The binding effect and enforceability of that dictum can no longer
be relitigated, since the said issue or matter has already been resolved
and finally laid to rest in the earlier case.
Same; Same; Words and Phrases; “Final Orders and
Judgments” and “Interlocutory Orders,” Distinguished; As
distinguished from an interlocutory order, a final judgment or order
decisively puts an end to (or disposes of) a case or a disputed issue—in
respect thereto, nothing else (except its execution) is left for the court to
do.— As distinguished from an interlocutory order, a final judgment or
order decisively puts an end to (or disposes of) a case or a disputed
issue; in respect thereto, nothing else—except its execution—is left for
the court to do. Once that judgment or order is rendered, the
adjudicative task of the court on the particular matter involved is
likewise ended. Such an order may refer to the entire controversy or to
some defined and separate branch thereof. On the other hand, an order
is interlocutory if its effects are merely provisional in character and
still leave substantial proceedings to be further conducted by the
issuing court in order to put the issue or controversy to rest.
Same; Same; The general test for determining whether an order
is interlocutory applies to orders that dispose of incidents or issues that
are intimately related to the very cause of action or merits of the case but
the exception lies when the order refers to a “definite and separate
branch” of the main controversy.—I have no quarrel with
the general test—expounded, with acknowledged authorities, in the
Dissenting Opinions of Justices Conchita Carpio-Morales and Callejo—
for determining whether an order is interlocutory. Such test, however,
applies to orders that dispose of incidents or issues that
are intimately related to the very cause of action or merits of the case.
The exception lies when the order refers to a “definite and separate
branch” of the main controversy, as held by the Court in Republic v.
Tacloban City Ice Plant.
Same; Same; The 22 April 1991 Resolution of the
Sandiganbayan (Second Division) in Civil Case No. 0005 had finally
and definitively determined the issue of Atty. Mendoza’s
disqualification to act as counsel for Tan, et al., and since that
Resolution was not appealed, it became final and executory, a conclusive
judgment insofar as that particular question was concerned.—Under
the present factual milieu, the matter of disqualification of Atty.
Mendoza as counsel for respondents is a “defined and separate branch”
of the main case for “reversion, reconveyance, and restitution” of the
sequestered properties. This matter has no direct bearing on the
adjudication of the substantive issues in the principal controversy. The
final judgment resolving the main case does not depend on the
determination of the particular question raised in the Motion. The
April 22, 1991 Resolution of the Sandiganbayan (Second Division) in
Civil Case No. 0005 had finally and definitively determined the issue
of Atty. Mendoza’s disqualification to act as counsel for Tan, et al. Since
that Resolution was not appealed, it became final and executory. It
became a conclusive judgment insofar as that particular question was
concerned.
Same; Same; While it merely disposed of a question that was
collateral to the main controversy, the 22 April 1991 Resolution should
be differentiated from an ordinary interlocutory order that resolves an
incident arising from the very subject matter or cause of action, or one
that is related to the disposition of the main substantive issues of the
case itself.—There is, as yet, no final adjudication of the merits of
the main issues of “reversion, reconveyance and restitution.” However,
I submit that the question with respect to the disqualification of Atty.
Mendoza had nonetheless been conclusively settled. Indeed, the April
22, 1991 SBN Resolution had definitively disposed of the Motion to
Disqualify on its merits. Since no appeal was taken therefrom, it
became final and executory after the lapse of the reglementary period.
While it merely disposed of a question that was collateral to the main
controversy, the Resolution should be differentiated from an ordinary
interlocutory order that resolves an incident arising from the very
subject matter or cause of action, or one that is related to the
disposition of the main substantive issues of the case itself. Such an
order is not appealable, but may still be modified or rescinded upon
sufficient grounds adduced before final judgment. Verily, res
judicata would not apply therein.
Attorneys; Legal Ethics; Code of Professional
Responsibility; Conflict of Interest; Disqualification of
Counsel; Prescription; The prohibition in Rule 6.03 of the Code of
Professional Responsibility cannot be absolute, perpetual and
permanent.—Rule 6.03 of the Code of Professional Responsibility does
not expressly specify the period of its applicability or enforceability.
However, I submit that one cannot infer that, ergo, the prohibition is
absolute, perpetual and permanent. All civil actions have a prescriptive
period. Unless a law makes an action imprescriptible or lays down no
other period, the action is subject to a bar by prescription five (5) years
after the right of action accrued. Criminal offenses—even the most
heinous ones—as well as the penalties therefor, likewise prescribe.
Relatedly, even so-called perpetual penalties and multiple sentences
17
have maximum periods. Relevantly, it is worth pointing out that
Republic Act No. 6713 prohibits public officers and employees from
practicing their profession for only one year after their resignation,
retirement or separation from public office, in connection with any
matter before their former office.
Same; Same; Same; Same; Same; Same; Consistent with law
and jurisprudence and the purpose of statutes of limitations, the
prohibition on former government attorneys from involvement in
matters in which they took part long ago, pursuant to their official
functions while in public service, should likewise have an expiry or
duration.—Prescription is intended to suppress stale and fraudulent
claims arising from transactions or facts that have been obscured by
defective memory or the lapse of time. It was designed to promote
justice by preventing surprises through the revival of claims that have
been allowed to slumber until relevant proofs are lost, memories faded,
and witnesses no longer available. Consistent with law and
jurisprudence and the purpose of statutes of limitations, the
prohibition on former government attorneys from involvement in
matters in which they took part long ago, pursuant to their official
functions while in public service, should likewise have an expiry or
duration.
Same; Same; Same; Same; Same; Same; To perpetually and
absolutely ban former government lawyers from taking part in all cases
involving some matter in which they have taken part in some distant
past, pursuant to their official functions then, would be unduly harsh,
unreasonable and unfair.—It is undeniable that government lawyers
usually handle a multitude of cases simultaneously or within
overlapping periods of time. This is in fact a common remonstration,
especially among prosecutors, public attorneys, solicitors, government
corporate counsels, labor arbiters, even trial and appellate judges. Yet,
as dutiful public servants, they cannot reject or shrink from
assignments even if they are already overloaded with work. Similarly,
lawyers in private practice, whether by themselves or employed in law
firms, are in a comparative plight. It would not be strange or
uncommon that, in a period of five years, an attorney in government
service would have handled or interfered in hundreds of legal matters
involving varied parties. Thousands of attorneys who have chosen to
dedicate their service to the government for some years are in such a
situation. Hence, to perpetually and absolutely ban them from taking
part in all cases involving some matter in which they have taken part
in some distant past, pursuant to their official functions then, would be
unduly harsh, unreasonable and unfair. It would be tantamount to an
unwarranted deprivation of the exercise of their profession. Be it
remembered that a profession, trade or calling partakes of the nature
of a property right within the meaning of our constitutional guarantees.
Same; Same; Same; Same; Same; Same; I submit that the
restriction on government lawyers specifically with respect to
subsequent engagement or employment in connection with matters
falling under the “congruent-interest representation conflict”—should
be allowed to expire after a reasonable period when no further prejudice
to the public may be contemplated—the duration of this prohibition
should be no more than five (5) years from retirement or separation from
government service.—I submit that the restraint on the exercise of one’s
profession, or right of employment including that of attorneys formerly
in government service, must survive the test of fairness and
reasonableness. The restriction should not be as pervasive and longer
than is necessary to afford a fair and reasonable protection to the
interests of the government. After all, the disqualification of
government attorneys is a drastic measure, and courts should hesitate
to impose it except when necessary. Thus, I submit that the restriction
on government lawyers—specifically with respect to subsequent
engagement or employment in connection with matters falling under
the “congruent-interest representation conflict”—should be allowed to
expire after a reasonable period when no further prejudice to the public
may be contemplated. The duration of this prohibition should be no
more than five (5) years from retirement or separation from
government service. Five years is the prescriptive period for suits for
which no period is prescribed by law.
Courts; Judges; The disqualification of members of the judiciary
under Section 5(b) and (d) of Canon 3 of the New Code of Judicial
Conduct should also prescribe in five (5) years from the time they
assumed their judicial position, or from the time they retire from or
otherwise end their government service.—For the same reasons, the
disqualification of members of the judiciary under Section 5(b) and (d)
of Canon 3 of the New Code of Judicial Conduct should also prescribe
in five (5) years from the time they assumed their judicial position; or
from the time they retire from or otherwise end their government
service.
Attorneys; The reality is that the best lawyers will want to join
the more lucrative private sector sooner or later, and the government
will hardly be able to attract them if they would later be unreasonably
restricted from putting their government experience to some use—after
all, government service should afford lawyers the opportunity to
improve their subsequent private employment.—The reality is that the
best lawyers will want to join the more lucrative private sector sooner
or later, and the government will hardly be able to attract them if they
would later be unreasonably restricted from putting their government
experience to some use. After all, government service should afford
lawyers the opportunity to improve their subsequent private
employment. The nature of the job brings such lawyers into inevitable
contact with clients interested in their fields of expertise. Because the
practice of law is becoming increasingly specialized, the likely
consequence of a wholesale approach to disqualification would be
encouragement of a two-track professional structure: government
lawyer, private lawyer. The suspicion, and the reality, of ethical
improprieties unrelated to particular government cases would be
eliminated—but at the cost of creating an insular, static legal
bureaucracy. Such a pervasive, perpetual ban would deter too many
competent attorneys from entering government service, to the
detriment of the public. The Court must strike a balance. I believe that
the adoption of the aforementioned period of limitation would achieve
the purpose behind Rule 6.03 of the Code of Professional Responsibility,
as well as Section 5 of Canon 3 of the New Code of Judicial Conduct.
CARPIO-MORALES, J., Dissenting Opinion:
Courts; Judgments; Law of the Case; The doctrine of law of the
case does not, I believe, apply to the present case for this is the first time
that the issue to disqualify Atty. Mendoza has been elevated before this
Court.—The doctrine of law of the case does not, I believe, apply to the
present case for this is the first time that the issue to disqualify Atty.
Mendoza has been elevated before this Court. It is the decision in this
case which will be the law of the case. A reading of Republic v.
Sandiganbayan cited by Justice Sandoval-Gutierrez shows that the
issue currently before this Court was not passed upon.
Same; Same; Conclusiveness of Judgment; I also believe that the
doctrine of conclusiveness of judgment does not apply since in the case
at bar, the question of whether the motion to disqualify Atty. Mendoza
should be granted is undoubtedly a legal question.—I also believe that
the doctrine of conclusiveness of judgment does not apply since in the
case at bar, the question of whether the motion to disqualify Atty.
Mendoza should be granted is undoubtedly a legal question. Moreover,
Civil Case No. 005 and Civil Case No. 0096 involve two different
substantially unrelated claims.
Same; Same; With all due respect I believe that we cannot
characterize the denial of PCGG’s motion to disqualify Atty. Mendoza
as a final order.—With all due respect, I believe that we cannot
characterize the denial of PCGG’s motion to disqualify Atty. Mendoza
as a final order. Black’s Law Dictionary defines interlocutory in the
following manner: Provisional; interim; temporary; not final.
Something intervening between the commencement and the end of a
suit which decides some point or matter, but is not a final decision of
the whole controversy. An interlocutory order or decree is one
which does not finally determine a cause of action but
only decides some intervening matter pertaining to the cause,
and which requires further steps to be taken in order to enable
the court to adjudicate the cause on the merits. (Emphasis and
italics supplied)
Attorneys; Legal Ethics; Code of Professional
Responsibility; Rule 6.03; Conflict of Interest; Disqualification of
Lawyers; Prescription; Carried to its logical conclusion, Justice
Panganiban’s proposal that the prohibition in Rule 6.03 merely lasts for
five years would mean that after five years from the termination of the
attorney-client relationship, all lawyers would be able to represent an
interest in conflict with that of the former client and that they would no
longer be bound by the rule on privileged communication.—Justice Pan-
ganiban further suggests that the prohibition in Rule 6.03 of the Code
of Professional Responsibility is not perpetual but merely lasts for five
18
years primarily relying on the Civil Code provisions on prescription and
the doctrine that the right to practice law is a property right protected
by the Constitution. I do not agree with this framework of analysis.
Carried to its logical conclusion, Justice Pangani-ban’s proposal would
mean that after five years from the termination of the attorney-client
relationship, all lawyers would be able to represent an interest in
conflict with that of the former client and that they would no longer be
bound by the rule on privileged communication. It bears emphasis that
the law is not trade nor a craft but a profession, a noble profession at
that.
Same; Same; Same; Same; Same; Same; Same; While it is true
that over time memory does fade, the ravages of time have been
mitigated with the invention of the paper and pen and its modern off-
spring—the computer.—Justice Panganiban justifies his theory on the
ground that in 5 years time, the lawyer will develop a mild case of
amnesia such that “in all probability, the lapse of the said period would
also naturally obscure to a reasonable extent a lawyer’s memory of
details of a specific case despite active participation in the proceedings
therein.” He thus cites his own personal experience as a member of this
Court: Modesty aside, in my nearly ten (10) years in this Court, I have
disposed of about a thousand cases in full-length ponencias and
countless cases by way of unsigned minute or extended Resolutions.
This does not include the thousands of other cases, assigned to other
members of the Court, in which I actively took part during their
deliberations. In all honesty, I must admit that I cannot with certainty
recall the details of the facts and issues in each of these cases,
especially in their earlier ones. While it is true that over time memory
does fade, the ravages of time have been mitigated with the invention
of the paper and pen and its modern offspring—the computer. It is not
uncommon for lawyers to resort to note taking in the course of handling
legal matters.
Same; Same; Same; Same; Same; Same; Atty. Mendoza’s lack of
participation in the decision of the Central Bank to liquidate
GENBANK is to me not material—what is material is his role in
facilitating the liquidation of GENBANK through his legal expertise.—
In his ponencia, Justice Reynato S. Puno labels as insignificant the role
of then Solicitor General in the liquidation of General Bank and Trust
Company (GENBANK), saying that “it is indubitable from the facts
that Atty. Mendoza had no iota of participation in the decision of the
Central Bank to liquidate GENBANK” and that his only involvement
was “advising the Central Bank on how to proceed with the said bank’s
liquidation and even filing the petition for its liquidation with the CFI
of Manila.” Justice Puno observes that “the procedure of liquidation is
simple and is given in black and white in Republic Act No. 265, section
29.” Atty. Mendoza’s lack of participation in the decision of the Central
Bank to liquidate GEN-BANK is to me not material. What is material
is his role in facilitating the liquidation of GENBANK through his legal
expertise. In advising the Central Bank, Atty. Mendoza did not just
mechanically point to section 29 of Republic 265. As then Solicitor
General, and as a lawyer known for his keen legal acumen, Atty.
Mendoza synthesized facts, which by reason of his position he was privy
to, and law with a view to successfully liquidate the bank.
Same; Same; Same; Same; Same; Same; While it is desirable to
recruit competent lawyers into government service, this does not justify
the disturbance of our mores—I submit that while financial
considerations are important, they are not the sole factor affecting
recruitment of lawyers to the government sector.—Ultimately, Justice
Puno advocates for a liberal interpretation of Rule 6.03 since a strict
interpretation would cause “a chilling effect on government
recruitment of able legal talent.” With all due respect, I cannot
subscribe to this position which is grounded on the premise that this is
“the only card that the government may play to recruit lawyers.”
Effectively, this is likely to result in the compromising of ethical
standards which this Court must never allow. While it is desirable to
recruit competent lawyers into government service, this does not justify
the disturbance of our mores. The canons and rules of the Code of
Professional Responsibility must be strictly construed. Admittedly the
salary for serving in government often pales in comparison to that of
the private sector. I submit, however, that while financial
considerations are important, they are not the sole factor affecting
recruitment of lawyers to the government sector. I would like to think
that serving in government is its own reward. One needs only to look
at all of us members of this Court to know that money is not everything.
All of us have, at one point in our legal careers, been tempted by the
promise of financial success that private practice usually brings. But in or order; (2) the court rendering it has jurisdiction over the subject
the end, we decided to take the road less traveled and serve in matter and the parties; (3) the judgment is one on the merits; and (4)
government. And I would like to believe that each and everyone of us there is, between the two cases, identity of parties, subject matter and
has made a difference. There is more to this mortal coil than the pursuit cause of action. When there is no identity of causes of action, but only
of material wealth. As Winston Churchill puts it: “What is the use of an identity of issues, there exists res judicata in the concept of
living if it be not to strive for noble causes and make this muddled world conclusiveness of judgment. In any case, whether as a bar by prior
a better place for those who will live in it after we are gone?” judgment or in the concept of conclusiveness of judgment, the doctrine
of res judicata applies only when there is a judgment or final order
CALLEJO, SR., J., Dissenting Opinion: which, as earlier discussed, leaves nothing else to be done. As explained
by Justice Panganiban, a judgment or an order on the merits is one
rendered after a determination of which party is upheld, as
Attorneys; Legal Ethics; Code of Professional
distinguished from an order rendered upon some preliminary or formal
Responsibility; Conflict of Interest; I believe that the present case
or merely technical point. To reiterate, the said judgment or order is
behooves the Court to strictly apply the Code of Professional
not interlocutory and does not settle only some incidental, subsidiary
Responsibility and provide an ethical compass to lawyers who, in the
or collateral matter arising in an action.
pursuit of the profession, often find themselves in the unchartered sea of
Same; The 22 April 1991 Resolution of the Sandiganbayan
conflicting ideas and interests.—With due respect, I dissent from the
(Second Division) in Civil Case No. 0005 denying the PCGG’s motion to
majority opinion. I believe that the present case behooves the Court to
disqualify Atty. Mendoza as counsel for respondents Tan, et al. therein
strictly apply the Code of Professional Responsibility and provide an
was evidently an interlocutory order as it did not terminate or finally
ethical compass to lawyers who, in the pursuit of the profession, often
dispose of the said case.—The Resolution dated April 22, 1991 of the
find themselves in the unchartered sea of conflicting ideas and
Sandiganbayan (Second Division) in Civil Case No. 0005 denying the
interests. There is certainly, without exception, no profession in which
PCGG’s similar motion to disqualify Atty. Mendoza as counsel for
so many temptations beset the path to swerve from the line of strict
respondents Tan, et al. therein was evidently an interlocutory order as
integrity; in which so many delicate and difficult questions of duty are
it did not terminate or finally dispose of the said case. It merely settled
continually arising. The Code of Professional Responsibility establishes
an incidental or collateral matter arising therein. As such, it cannot
the norms of conduct and ethical standards in the legal profession and
operate to bar the filing of another motion to disqualify Atty. Mendoza
the Court must not shirk from its duty to ensure that all lawyers live
in the other cases because, strictly speaking, the doctrine of res
up to its provisions. Moreover, the Court must not tolerate any
judicata, whether to serve as a bar by prior judgment or in the concept
departure from the “straight and narrow” path demanded by the ethics
of conclusiveness of judgment, does not apply to decisions or orders
of the legal profession and enjoin all lawyers to be like Caesar’s wife—
adjudicating interlocutory motions.
to be pure and appear to be so.
Public Officers; The restriction against a public official from
Same; Same; Same; Same; Disqualification of
using his public position as a vehicle to promote or advance his private
Counsel; Judgments; Denial of a motion to disqualify a lawyer is an
interests extends beyond his tenure on certain matters in which he
interlocutory order, hence not appealable.—In this case, the remedy of
intervened as a public official.—Indeed, the restriction against a public
appeal is not available to the PCGG because the denial of its motion to
official from using his public position as a vehicle to promote or advance
disqualify Atty. Mendoza as counsel for respondents Tan, et al. is an
his private interests extends beyond his tenure on certain matters in
interlocutory order; hence, not appealable. The word “interlocutory”
which he intervened as a public official. Rule 6.03 makes this
refers to “something intervening between the commencement and the
restriction specifically applicable to lawyers who once held public office.
end of a suit which decides some point or matter, but is not a final
A plain reading of the rule shows that the interdiction (1) applies to a
decision of the whole controversy.” An interlocutory order does not
lawyer who once served in the government, and (2) relates to his
terminate nor does it finally dispose of the case; it does not end the task
accepting “engagement or employment in connection with any matter
of the court in adjudicating the parties’ contentions and determining
in which he had intervened while in said service.”
their rights and liabilities as against each other but leaves something
Attorneys; Legal Ethics; Code of Professional
yet to be done by the court before the case is finally decided on the
Responsibility; Rule 6.03; Conflict of Interest; The acts of Atty. Mendoza
merits.
may be rightfully considered as falling within the contemplation of the
Judgments; The term “final” in the phrase judgments or final
term “matter” within the meaning of Rule 6.03—These acts were
orders in Section 47, Rule 39 of the Revised Rules of Court has two
discrete, isolatable as well as identifiable transactions or conduct
accepted interpretations—in the first sense, it is an order that one can
involving a particular situation and specific party, i.e., the procedure
no longer appeal because the period to do so has expired, or because the
for the liquidation of GENBANK.—The majority opinion downplays the
order has been affirmed by the highest possible tribunal involved, and
role of Atty. Mendoza by stating that he “merely advised the Central
in the second sense connotes that it is an order that leaves nothing else
Bank on the legal procedure to liquidate GENBANK” which procedure
to be done, as distinguished from one that is interlocutory.— The
is “given in black and white in R.A. No. 265, section 29.” This
doctrine of res judicata comprehends two distinct concepts—(1) bar by
procedural advice, according to the majority opinion, “is not the matter
former judgment and (2) conclusiveness of judgment. Paragraph (b)
contemplated by Rule 6.03 of the Code of Professional Responsibility.”
embodies the doctrine of res judicata or res adjudicata or bar by prior
On the contrary, the acts of Atty. Mendoza may be rightfully considered
judgment, while paragraph (c) estoppel by judgment or conclusiveness
as falling within the contemplation of the term “matter” within the
of judgment. In Macahilig v. Heirs of Grace M. Magalit, Justice
meaning of Rule 6.03. Specifically, Atty. Mendoza’s giving counsel to
Artemio Panganiban explained that the term “final” in the
the Central Bank on the procedure to go about GENBANK’s liquidation
phrase judgments or final orders in the above section has two accepted
and the filing of the petition therefor in Special Proceedings No. 107812
interpretations. In the first sense, it is an order that one can no longer
did not merely involve the drafting, enforcing or interpreting
appeal because the period to do so has expired, or because the order has
government or agency procedures, regulations or laws, or briefing
been affirmed by the highest possible tribunal involved. The second
abstract principles of law. These acts were discrete, isolatable as well
sense connotes that it is an order that leaves nothing else to be done,
as identifiable transactions or conduct involving a particular situation
as distinguished from one that is interlocutory. The phrase refers to a
and specific party, i.e., the procedure for the liquidation of GENBANK.
final determination as opposed to a judgment or an order that settles
Consequently, the same can be properly considered “matter” within the
only some incidental, subsidiary or collateral matter arising in an
contemplation of Rule 6.03.
action; for example, an order postponing a trial, denying a motion to
Same; Same; Same; Same; Same; Integrated Bar of the
dismiss or allowing intervention. Orders that give rise to res
Philippines (IBP); The Comments of the Integrated Bar of the
judicata or conclusiveness of judgment apply only to those falling under
Philippines (IBP) that drafted our Code of Professional Responsibility
the second category.
explained that the restriction covers “engagement or employment, which
Same; Whether as a bar by prior judgment or in the concept of
means that he cannot accept any work or employment, from anyone that
conclusiveness of judgment, the doctrine of res judicata applies only
will involve or relate to the matter in which he intervened as a public
when there is a judgment or final order which leaves nothing else to be
official.”—Contrary to the contention of respondents Tan, et al., the
done.—For res judicata to serve as an absolute bar to a subsequent
interdiction in Rule 6.03 does not only apply if precisely the same legal
action, the following elements must concur: (1) there is a final judgment

19
issues are involved in each representation. The Comments of the
Integrated Bar of the Philippines (IBP) that drafted our Code of
Professional Responsibility explained that the restriction covers
“engagement or employment, which means that he cannot accept any
work or employment from anyone that will involve or relate to the
matter in which he intervened as a public official.” The sequestration
of the shares of stock in Allied Banking Corp. in the names of
respondents Tan, et al., which is subject of Civil Case No. 0096,
necessarily involves or relates to their acquisition of GENBANK upon
its liquidation, in which Atty. Mendoza had intervened as the Solicitor
General. It should be emphasized that Atty. Mendoza’s participation in
GENBANK’s liquidation is sufficient to place his present engagement
as counsel for respondents Tan, et al. in Civil Case No. 0096 within the
ambit of Rule 6.03. His role was significant and substantial.
Same; Same; Same; Same; Same; That the decision to declare
GENBANK insolvent was made wholly by the Central Bank, without
the participation of Atty. Mendoza, is not in question—rather, it was his
participation in the proceedings taken subsequent to such declaration,
i.e., his giving advise to the Central Bank on how to proceed with
GENBANK’s liquidation and his filing of the petition in Special
Proceeding No. 107812 pursuant to Section 29 of Rep. Act No. 265, that
constitutes “intervention” as to place him within the contemplation of
Rule 6.03.—I disagree with the ponencia’s holding that Atty. Mendoza
could not be considered as having intervened as it describes the
participation of Atty. Mendoza by stating that he “had no iota of
participation in the decision of the Central Bank to liquidate
GENBANK.” That the decision to declare GENBANK insolvent was
made wholly by the Central Bank, without the participation of Atty.
Mendoza, is not in question. Rather, it was his participation in the
proceedings taken subsequent to such declaration, i.e., his giving
advise to the Central Bank on how to proceed with GENBANK’s
liquidation and his filing of the petition in Special Proceeding No.
107812 pursuant to Section 29 of Rep. Act No. 265, that constitutes
“intervention” as to place him within the contemplation of Rule 6.03.
To intervene means—1: to enter or appear as an irrelevant or
extraneous feature or circumstance; 2: to occur, fall or come between
points of time or events; 3: to come in or between by way of hindrance or
modification: INTERPOSE; 4: to occur or lie between two things.
Same; Same; Same; Same; Same; By giving counsel to the
Central Bank on how to proceed with GENBANK’s liquidation and
filing the necessary petition therefor with the court, Atty. Mendoza “had
intervened,” “had come in,” or “had interfered,” in the liquidation of
GENBANK and the subsequent acquisition by respondents Tan, et al.
of the said banking institution.—With the foregoing definitions, it is not
difficult to see that by giving counsel to the Central Bank on how to
proceed with GENBANK’s liquidation and filing the necessary petition
therefor with the court, Atty. Mendoza “had intervened,” “had come in,”
or “had interfered,” in the liquidation of GENBANK and the
subsequent acquisition by respondents Tan, et al. of the said banking
institution. Moreover, his acts clearly affected the interests of
GENBANK as well as its stockholders.
Same; Same; Same; Same; Same; American Bar
Association; Being undoubtedly of American origin, the interpretation
adopted by the American courts and the ABA has persuasive effect on
the interpretation of Rule 6.03.—Being undoubtedly of American origin,
the interpretation adopted by the American courts and the ABA has
persuasive effect on the interpretation of Rule 6.03. Accordingly, I find
the case of General Motors Corporation v. City of New York, where the
pertinent ethical precepts were applied by the United States Court of
Appeals (2nd Circuit), particularly instructive. The said US court
disqualified the privately retained counsel of the City of New York in
the antitrust case it filed against the General Motors Corp. because the
said counsel, a former lawyer of the US Department of Justice, had not
only participated in the latter’s case against General Motors Corp. but
signed the complaint in that action.
Same; Same; Same; Same; Same; “Congruent-Interest
Representation Conflict,” Doctrine; Words and Phrases; “Congruent-
Interest Representation Conflict” Doctrine, Explained.—The General
Motors case is illustrative of the “congruent-interest representation
conflict” doctrine. It bears stressing that this doctrine applies uniquely
to former government lawyers and has been distinguished from the
normal rule applicable for non-government lawyers in this wise—To
illustrate the normal rule for non-government lawyers, imagine that
the lawyer has represented passenger A and has recovered substantial
20
damages in a suit against a driver. No conflict of interest principle or
rule restricts the lawyer from later representing passenger B against
the driver with respect to exactly the same accident. B may obtain the
benefits of the lawyer’s help regardless of the fact that the lawyer might
be able to employ to B’s advantage information and strategies
developed in the representation of A. The critical element is that the
interest of A and B do not conflict. The analysis does not change if we
move from an area that is entirely private into one that is arguably
more connected with the public interest. Suppose a lawyer in private
practice represents Small Soap Company in its suit for damages under
the federal antitrust laws against Giant Soap Company. The lawyer
would not be disqualified from representing Medium Soap Company
against Giant Soap in a succeeding suit for damages based on precisely
the same conspiracy. The congruence of interests between Small Soap
and Medium Soap would almost certainly mean that the lawyer could
represent both clients. In the absence of a conflict—an opposing
interest between the two clients—the existence of a substantial
relationship between the matters involved in both cases is irrelevant.
Now, suppose the lawyer has filed suit in behalf of the government
against Giant Soap Company to force divestiture of an acquired
company on a theory that, because of the acquisition, Giant Soap has
monopolized an industry in conflict with antitrust laws. May the
lawyer, after leaving government service and while in private practice,
represent Medium Soap Company against Giant Soap in a suit for
damages based on the same antitrust conspiracy? Does the absence of
opposing interests between Medium Soap and the lawyer’s former
government client similarly mean that there should be no
disqualification? At this point, the rules for the former government
lawyer diverge sharply from the normal former-client conflict rules: the
lawyer is disqualified from representing the successive client in private
practice, despite the fact that the interests of the client and the lawyer’s
former government client are apparently aligned. All that is required for
disqualification is the relationship between the former and the
succeeding representations.
Same; Same; Same; Same; Same; Same; Rationale.—The
rationale for the “congruent-interest representation conflict” doctrine
has been explained, thus: The rationale for disqualification is rooted in
a concern with the impact that any other rule would have upon the
decisions and actions taken by the government lawyer during the
course of the earlier representation of the government. Both courts and
commentators have expressed the fear that permitting a lawyer to take
action in behalf of a government client that later could be to the
advantage of private practice client would present grave dangers that
a government lawyer’s largely discretionary actions would be wrongly
influenced by the temptation to secure private practice employment or
to favor parties who might later become private practice clients . . . The
fear that government lawyers will misuse government power in that
way is not idle. Lawyers who represent the government often exercise
enormous discretion unchecked by an actual client who oversees the
lawyer’s work. For that reason a special rule is needed to remove the
incentive for government lawyers to take discretionary decisions with
an eye cast toward advantages in future, nongovernmental
employment. The broad disqualification accomplishes that and,
particularly under rubrics that do not invariably require
disqualification of the entire firm with which the former government
lawyer practices, does it without unnecessarily discouraging lawyers
from entering temporary public service.
Same; Same; Same; Same; Same; Same; A textual reading of
Rule 6.03 of our Code of Professional Responsibility reveals that no
conflict of interests or adverse interests is required for the interdiction
to apply.—The foregoing disquisition applies to the case of Atty.
Mendoza. Indeed, a textual reading of Rule 6.03 of our Code of
Professional Responsibility reveals that no conflict of interests or
adverse interests is required for the interdiction to apply. If it were so,
or if conflict of interests were an element, then the general conflict of
interests rule (Rule 15.03) would apply. Rather, the interdiction in Rule
6.03 broadly covers “engagement or employment in connection with any
matter in which he had intervened while in the said service.” To
reiterate, the drafters of our Code of Professional Responsibility had
construed this to mean that a lawyer “cannot accept any work or
employment from anyone that will involve or relate to the matter in
which he intervened as a public official, except on behalf of the body or
authority which he served during his public employment.” In Civil Case
No. 0096, Atty. Mendoza is certainly not representing the Central Bank
but respondents Tan, et al. Granting arguendo that the interests of his
present private practice clients (respondents Tan, et al.) and former
government client (Central Bank) are apparently aligned, the
interdiction in Rule 6.03 applies.
Same; Same; Same; Same; Same; Prescription; Unless the Code
of Professional Responsibility itself provides, the Court cannot set a
prescriptive period for any of the provisions therein.—Unless the Code
itself provides, the Court cannot set a prescriptive period for any of the
provisions therein. That Rule 6.03, in particular, contains no explicit
temporal limitation is deliberate. It recognizes that while passage of
time is a factor to consider in determining its applicability, the
peculiarities of each case have to be considered. For example, in Control
Data Corp. v. International Business Mach. Corp., the US District
Court of Minnesota held that the lawyer who, 15 years earlier, while
an employee of the Department of Justice had been in charge of
negotiations in antitrust case against a corporation, was not
disqualified from acting as counsel for the plaintiffs suing such
corporation. On the other hand, the lawyer whose conduct was the
subject of the ABA Opinion No. 37, earlier cited, was himself 10 years
removed from the matter over which he had substantial responsibility
while in public employ at the time he accepted the private engagement
relating to the same matter. Clearly, it is the degree of involvement or
participation in the matter while in government service, not the
passage of time, which is the crucial element in Rule 6.03.
Same; Same; Same; Same; Same; Disqualification of
Counsel; Words and Phrases; More specifically and practically
considered, legal ethics may be defined as that branch of moral science
which treats of the duties which the attorney-at-law owes to his clients,
to the courts, to the bar, and to the public; The Court has consistently
characterized disciplinary proceedings, including disqualification
cases, against lawvers as sui generis, neither purely civil nor purely
criminal, and it is for this reason that the civil law concept of
prescription of actions finds no application in disqualification cases
against lawyers.—The Code of Professional Responsibility is a
codification of legal ethics, that “body of principles by which the conduct
of members of the legal profession is controlled. More specifically and
practically considered, legal ethics may be defined as that branch of
moral science which treats of the duties which the attorney-at-law owes
to his clients, to the courts, to the bar, and to the public.” In this
connection, the Court has consistently characterized disciplinary
proceedings, including disqualification cases, against lawyers as sui
generis, neither purely civil nor purely criminal, thus: [D]isciplinary
proceedings against lawyers are sui generis. Neither purely civil nor
pure criminal, they do not involve a trial of an action or a suit, but are
rather investigations by the Court into the conduct of one of its officers.
Not being intended to inflict punishment, [they are] in no sense a
criminal prosecution. Accordingly, there is neither a plaintiff nor a
prosecutor therein. [They] may be initiated by the Court motu propio.
Public interest is [their] primary objective, and the real question for
determination is whether or not the attorney is still a fit person be
allowed the privileges as such. Hence, in the exercise of its disciplinary
powers, the Court merely calls upon a member of the Bar to account for
his actuations as an officer of the Court with the end view of preserving
the purity of the legal profession and the proper and honest
administration of justice… For this reason, the civil law concept of
prescription of actions finds no application in disqualification cases
against lawyers.
Same; Same; Same; Same; Same; Same; Disqualification cases
involving former government lawyers will have to be resolved on the
basis of peculiar circumstances attending each case.—From the
foregoing disquisition, it can be gleaned that disqualification cases
involving former government lawyers will have to be resolved on the
basis of peculiar circumstances attending each case. A balance between
the two seemingly conflicting policy considerations of maintaining high
ethical standards for former Government employees, on the one hand,
and encouraging entry into Government service, on the other, must be
struck based on, inter alia, the relationship between the former and the
succeeding representations of the former government lawyer. Likewise,
as already discussed, the degree of his involvement in the matter while
in Government employ is a crucial element in determining if his
present representation is within the purview of Rule 6.03.
TINGA, J., Separate Opinion:
21
Attorneys; Legal Ethics; Code of Professional Responsibility; I
have qualms in holding any member of the Bar liable for violating
Section 6.03 of the Code of Professional Responsibility, in connection
with acts that they may have engaged in as government officials before
the enactment of the said Code.—I have qualms in holding any member
of the Bar liable for violating Section 6.03 of the Code of Professional
Responsibility, in connection with acts that they may have engaged in
as government officials before the enactment of the said Code. In this
case, at the time Atty. Mendoza entered the government service he had
no idea of the kind of inhibition proposed to be foisted on him currently.
Indeed, he is being faulted for representing the respondents in Civil
Case No. 0096 notwithstanding the fact that as Solicitor General and
in the discharge of his official functions, he had advised the Central
Bank on the procedure to bring about the liquidation of General Bank
and Trust Company, which was subsequently acquired by the
respondents. However, whether it be at the time then Solicitor General
Mendoza participated in the process of the dissolution of General Bank
in 1977, or at sometime in 1987 when he agreed to represent the
respondents, the Code of Professional Responsibility had not yet been
promulgated. The Code of Professional Responsibility was promulgated
by the Supreme Court on 21 June 1988. Prior to its official adoption,
there was no similar official body of rules or guidelines enacted by the
Supreme Court other than the provisions on Legal Ethics in the Rules
of Court.
Same; Same; Same; Statutes; It is settled that the presumption is
that all laws operate prospectively absent clear contrary language in the
text, and that in every case of doubt, the doubt will be resolved against
the retroactive operation of laws.—I fear it would set a dangerous
precedent to hinge Atty. Mendoza’s culpability on the Code of
Professional Responsibility, as it would effectively imply that the Code
of Professional Responsibility has application even as to acts performed
prior to its enactment. Our laws frown upon the prospectivity of
statutes. Article 4 of the Civil Code declares that “Laws shall have no
retroactive effect, unless the contrary is provided.” There is no
declaration in the Code of Professional Responsibility that gives
retroactive effect to its canons and rules. It is settled that the
presumption is that all laws operate prospectively absent clear
contrary language in the text, and that in every case of doubt, the doubt
will be resolved against the retroactive operation of laws.
Same; Same; Same; There is a greater demand to ward off the
retroactive application of the Code of Professional Responsibility for the
Code is the source of penal liabilities against its infringers.—I believe
that there is a greater demand to ward off the retroactive application
of the Code of Professional Responsibility for the Code is the source of
penal liabilities against its infringers. It is well entrenched that
generally, penal laws or those laws which define offenses and prescribe
penalties for their violation operate prospectively. The Constitution
itself bars the enactment of ex-post facto laws. I do not think it
necessary to flirt with the constitutional issue whether the Code of
Professional Responsibility operates as a penal statute within the
definition of an ex-post facto law, but I am satisfied with the general
rules, affirmed by jurisprudence, that abhor the retroactivity of
statutes and regulations such as the Code of Professional
Responsibility.
Same; Same; Same; Philippine Bar Association (PBA); There is
no denying that the Philippine Bar Association, a civic non-profit
association, is a private entity of limited membership within the
Philippine bar; The rules or canons the PBA has adopted are per se
binding only on its members, and the penalties for violation of the same
could affect only the status or rights of the infringers as members of the
association.—The Canons of Professional Ethics originated from the
American Bar Association. They were adopted by the Philippine Bar
Association as its own in 1917 and in 1946. There is no denying the
high regard enjoyed by the Philippine Bar Association in the legal
community in its nearly one hundred years of existence. However,
there is also no denying that the Philippine Bar Association, a civic
non-profit association, is a private entity of limited membership within
the Philippine bar. The rules or canons it has adopted are per
se binding only on its members, and the penalties for violation of the
same could affect only the status or rights of the infringers as members
of the association.
Same; Same; Same; Same; Canons of Professional Ethics; If
provisions of the Canons of Professional Ethics of the PBA have
jurisprudentially been enforced, or acknowledged as basis for legal
liability by the Supreme Court, they may be recognized as a binding
standard imposable upon members of the bar, but not because said
Canons or the PBA itself said so, but because the Supreme Court said
so.—Reference has been had by this Court to the Canons of Professional
Ethics in deciding administrative cases against lawyers, especially
prior to the adoption of the Code of Professional Ethics. Hence, the
belief by some commentators that the said Canons may serve as a
source of legal ethics in this country. However, I think it would be grave
error to declare that the Canons of Professional Ethics, on their own,
serves as an indisputable source of obligations and basis of penalties
imposable upon members of the Philippine legal profession. This would
violate the long-established constitutional principle that it is the
Supreme Court which is tasked with the promulgation of rules
governing the admission to the practice of law, as well as the pleading,
practice and procedure in all courts. The task of formulating ethical
rules governing the practice of law in the Philippines could not have
been delegated to the Philippine Bar Association by the Supreme
Court. Neither could such rules as adopted by the private body be
binding on the Supreme Court or the members of the bar. If provisions
of the Canons of Professional Ethics of the Philippine Bar Association
have jurisprudentially been enforced, or acknowledged as basis for
legal liability by the Supreme Court, they may be recognized as a
binding standard imposable upon members of the bar, but not because
said Canons or the Philippine Bar Association itself said so, but because
the Supreme Court said so. This is keeping in line with the entrenched
rule, as evinced by Article 8 of the Civil Code, which states that
“judicial decisions applying or interpreting the laws or the Constitution
shall form a part of the legal system.”

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and

Prohibition.

The facts are stated in the opinion of the Court.

The Solicitor General for petitioner.
Estelito P. Mendoza and Orlando A. Santiago for respondents
Lucio C. Tan, et al.

22