G.R. No.
100113 September 3, 1991
RENATO CAYETANO, petitioner, vs. CHRISTIAN MONSOD, HON. JOVITO R. SALONGA,
COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as
Secretary of Budget and Management, respondents.
PARAS, J.:
We are faced here with a controversy of far-reaching proportions. While ostensibly only
legal issues are involved, the Court's decision in this case would indubitably have a
profound effect on the political aspect of our national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of age, holders of a college
degree, and must not have been candidates for any elective position in the
immediately preceding -elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in the
practice of law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973
Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a Chairman and eight
Commissioners who shall be natural-born citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of age and holders of a college degree. However,
a majority thereof, including the Chairman, shall be members of the Philippine Bar who
have been engaged in the practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of
law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is not
limited to appearing in court, or advising and assisting in the conduct of litigation,
but embraces the preparation of pleadings, and other papers incident to actions
and special proceedings, conveyancing, the preparation of legal instruments of all
kinds, and the giving of all legal advice to clients. It embraces all advice to clients
and all actions taken for them in matters connected with the law. An attorney
engages in the practice of law by maintaining an office where he is held out to be-
an attorney, using a letterhead describing himself as an attorney, counseling
clients in legal matters, negotiating with opposing counsel about pending
litigation, and fixing and collecting fees for services rendered by his associate.
(Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and
Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the
practice of law when he:
... for valuable consideration engages in the business of advising person, firms,
associations or corporations as to their rights under the law, or appears in a
representative capacity as an advocate in proceedings pending or prospective,
before any court, commissioner, referee, board, body, committee, or commission
constituted by law or authorized to settle controversies and there, in such
representative capacity performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise stated, one who, in a
representative capacity, engages in the business of advising clients as to their
rights under the law, or while so engaged performs any act or acts either in court
or outside of court for that purpose, is engaged in the practice of law. (State ex. rel.
Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177)
stated:
The practice of law is not limited to the conduct of cases or litigation in court; it
embraces the preparation of pleadings and other papers incident to actions and
special proceedings, the management of such actions and proceedings on behalf of
clients before judges and courts, and in addition, conveying. In general, all advice
to clients, and all action taken for them in matters connected with the
law incorporation services, assessment and condemnation services contemplating
an appearance before a judicial body, the foreclosure of a mortgage, enforcement
of a creditor's claim in bankruptcy and insolvency proceedings, and conducting
proceedings in attachment, and in matters of estate and guardianship have been
held to constitute law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by the trained legal
mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis
supplied)
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to proceedings
in court. It embraces conveyancing, the giving of legal advice on a large variety of
subjects, and the preparation and execution of legal instruments covering an
extensive field of business and trust relations and other affairs. Although these
transactions may have no direct connection with court proceedings, they are always
subject to become involved in litigation. They require in many aspects a high degree
of legal skill, a wide experience with men and affairs, and great capacity for
adaptation to difficult and complex situations. These customary functions of an
attorney or counselor at law bear an intimate relation to the administration of
justice by the courts. No valid distinction, so far as concerns the question set forth
1
 in the order, can be drawn between that part of the work of the lawyer which
involves appearance in court and that part which involves advice and drafting of
instruments in his office. It is of importance to the welfare of the public that these
manifold customary functions be performed by persons possessed of adequate
learning and skill, of sound moral character, and acting at all times under the
heavy trust obligations to clients which rests upon all attorneys.
(Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re
Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v.
Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation briefing for new
lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as
advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in the
profession. If what he does exacts knowledge of the law and is of a kind usual for
attorneys engaging in the active practice of their profession, and he follows some
one or more lines of employment such as this he is a practicing attorney at law
within the meaning of the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of law,
legal procedure, knowledge, training and experience. "To engage in the practice of law is to
perform those acts which are characteristics of the profession. Generally, 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." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has adopted a
liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation which I
forgot to do during our review of the provisions on the Commission on Audit. May
I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the Commission on
Audit. Among others, the qualifications provided for by Section I is that "They must
be Members of the Philippine Bar" — I am quoting from the provision — "who have
been engaged in the practice of law for at least ten years".
To avoid any misunderstanding which would result in excluding members of the Bar who
are now employed in the COA or Commission on Audit, we would like to make the
clarification that this provision on qualifications regarding members of the Bar does not
necessarily refer or involve actual practice of law outside the COA We have to interpret this to
mean that as long as the lawyers who are employed in the COA are using their legal
knowledge or legal talent in their respective work within COA, then they are qualified to be
considered for appointment as members or commissioners, even chairman, of the Commission
on Audit.
This has been discussed by the Committee on Constitutional Commissions and Agencies and
we deem it important to take it up on the floor so that this interpretation may be made
available whenever this provision on the qualifications as regards members of the
Philippine Bar engaging in the practice of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to
the requirement of a law practice that is set forth in the Article on the Commission
on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is auditing,
will necessarily involve legal work; it will involve legal work. And, therefore, lawyers
who are employed in COA now would have the necessary qualifications in
accordance with the Provision on qualifications under our provisions on the
Commission on Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is equivalent to
the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the
Chairman and two Commissioners of the Commission on Audit (COA) should either be
certified public accountants with not less than ten years of auditing practice, or members of
the Philippine Bar who have been engaged in the practice of law for at least ten years.
(emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways synonymous
with the word "lawyer." Today, although many lawyers do not engage in private practice, it
is still a fact that the majority of lawyers are private practitioners. (Gary
Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).
2
At this point, it might be helpful to define private practice. The term, as commonly
understood, means "an individual or organization engaged in the business of delivering
legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners."
Groups of lawyers are called "firms." The firm is usually a partnership and members of the
firm are the partners. Some firms may be organized as professional corporations and the
members called shareholders. In either case, the members of the firm are the experienced
attorneys. In most firms, there are younger or more inexperienced salaried attorneyscalled
"associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice is
essentially tautologous, unhelpful defining the practice of law as that which lawyers do.
(Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593).
The practice of law is defined as the performance of any acts . . . in or out of court,
commonly understood to be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust
Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn.
325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in
the commercial and governmental realm, such a definition would obviously be too global to
be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly
familiar role for lawyers as well as an uncommon role for the average lawyer. Most lawyers
spend little time in courtrooms, and a large percentage spend their entire practice without
litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the
litigating lawyer's role colors much of both the public image and the self perception of the
legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not
reality. (Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once
articulated on the importance of a lawyer as a business counselor in this wise: "Even today,
there are still uninformed laymen whose concept of an attorney is one who principally tries
cases before the courts. The members of the bench and bar and the informed laymen such
as businessmen, know that in most developed societies today, substantially more legal work
is transacted in law offices than in the courtrooms. General practitioners of law who do
both litigation and non-litigation work also know that in most cases they find themselves
spending more time doing what [is] loosely desccribe[d] as business counseling than in
trying cases. The business lawyer has been described as the planner, the diagnostician and
the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine,
surgery should be avoided where internal medicine can be effective." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner wig engage in a number of
legal tasks, each involving different legal doctrines, legal skills, legal processes, legal
institutions, clients, and other interested parties. Even the increasing numbers of lawyers in
specialized practice wig usually perform at least some legal services outside their specialty.
And even within a narrow specialty such as tax practice, a lawyer will shift from one legal
task or role such as advice-giving to an importantly different one such as representing a
client before an administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of the
relatively rare types — a litigator who specializes in this work to the exclusion of much else.
Instead, the work will require the lawyer to have mastered the full range of traditional
lawyer skills of client counselling, advice-giving, document drafting, and negotiation. And
increasingly lawyers find that the new skills of evaluation and mediation are both effective
for many clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is
constrained in very important ways, at least theoretically, so as to remove from it some of
the salient features of adversarial litigation. Of these special roles, the most prominent is
that of prosecutor. In some lawyers' work the constraints are imposed both by the nature of
the client and by the way in which the lawyer is organized into a social unit to perform that
work. The most common of these roles are those of corporate practice and government
legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are emerging
trends in corporate law practice, a departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional groups,
in particular those members participating in various legal-policy decisional
contexts, are finding that understanding the major emerging trends in corporation
law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an
accurate understanding of the nature and implications of the corporate law
research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate legal
policy formulation, particularly "model-making" and "contingency planning," has
impressed upon us the inadequacy of traditional procedures in many decisional
contexts.
In a complex legal problem the mass of information to be processed, the sorting
and weighing of significant conditional factors, the appraisal of major trends, the
necessity of estimating the consequences of given courses of action, and the need
for fast decision and response in situations of acute danger have prompted the use
of sophisticated concepts of information flow theory, operational analysis,
automatic data processing, and electronic computing equipment. Understandably,
an improved decisional structure must stress the predictive component of the
policy-making process, wherein a "model", of the decisional context or a segment
thereof is developed to test projected alternative courses of action in terms of
futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in predicting and
projecting the trends of the law, the subject of corporate finance law has received
relatively little organized and formalized attention in the philosophy of advancing
3
corporate legal education. Nonetheless, a cross-disciplinary approach to legal
research has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained
primarily in the law can be improved through an early introduction to multi-
variable decisional context and the various approaches for handling such
problems. Lawyers, particularly with either a master's or doctorate degree in
business administration or management, functioning at the legal policy level of
decision-making now have some appreciation for the concepts and analytical
techniques of other professions which are currently engaged in similar types of
complex decision-making.
Truth to tell, many situations involving corporate finance problems would require
the services of an astute attorney because of the complex legal implications that
arise from each and every necessary step in securing and maintaining the business
issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as
the "abogado de campanilla." He is the "big-time" lawyer, earning big money and
with a clientele composed of the tycoons and magnates of business and industry.
Despite the growing number of corporate lawyers, many people could not explain
what it is that a corporate lawyer does. For one, the number of attorneys
employed by a single corporation will vary with the size and type of the
corporation. Many smaller and some large corporations farm out all their legal
problems to private law firms. Many others have in-house counsel only for certain
matters. Other corporation have a staff large enough to handle most legal
problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal
affairs of a corporation. His areas of concern or jurisdiction may include, inter alia:
corporate legal research, tax laws research, acting out as corporate secretary (in
board meetings), appearances in both courts and other adjudicatory agencies
(including the Securities and Exchange Commission), and in other capacities
which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the legal
affairs of the business of the corporation he is representing. These include such
matters as determining policy and becoming involved in management. ( Emphasis
supplied.)
In a big company, for example, one may have a feeling of being isolated from the
action, or not understanding how one's work actually fits into the work of the
orgarnization. This can be frustrating to someone who needs to see the results of
his work first hand. In short, a corporate lawyer is sometimes offered this fortune
to be more closely involved in the running of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law field.
After all, international law is practiced in a relatively small number of companies
and law firms. Because working in a foreign country is perceived by many as
glamorous, tills is an area coveted by corporate lawyers. In most cases, however,
the overseas jobs go to experienced attorneys while the younger attorneys do
their "international practice" in law libraries. (Business Star, "Corporate Law
Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance.
To borrow the lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad
lawyer is one who fails to spot problems, a good lawyer is one who perceives the
difficulties, and the excellent lawyer is one who surmounts them." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so to
speak. No longer are we talking of the traditional law teaching method of confining
the subject study to the Corporation Code and the Securities Code but an incursion
as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types of
learning: (1) acquisition of insights into current advances which are of particular
significance to the corporate counsel; (2) an introduction to usable disciplinary
skins applicable to a corporate counsel's management responsibilities; and (3) a
devotion to the organization and management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with a shared
area linking them. Otherwise known as "intersecting managerial jurisprudence," it
forms a unifying theme for the corporate counsel's total learning.
Some current advances in behavior and policy sciences affect the counsel's role.
For that matter, the corporate lawyer reviews the globalization process, including
the resulting strategic repositioning that the firms he provides counsel for are
required to make, and the need to think about a corporation's; strategy at multiple
levels. The salience of the nation-state is being reduced as firms deal both with
global multinational entities and simultaneously with sub-national governmental
units. Firms increasingly collaborate not only with public entities but with each
other — often with those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained a new role
as a stakeholder — in some cases participating in the organization and operations
of governance through participation on boards and other decision-making roles.
Often these new patterns develop alongside existing legal institutions and laws are
perceived as barriers. These trends are complicated as corporations organize for
global operations. ( Emphasis supplied)
4
The practising lawyer of today is familiar as well with governmental policies toward
the promotion and management of technology. New collaborative arrangements for
promoting specific technologies or competitiveness more generally require
approaches from industry that differ from older, more adversarial relationships and
traditional forms of seeking to influence governmental policies. And there are
lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are
examples of collaborative efforts between governmental and business
Japan's MITI is world famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate Counsel
comprises a distinct group within the managerial structure of all kinds of
organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the group-
context interaction such as the groups actively revising their knowledge of the
environment coordinating work with outsiders, promoting team achievements
within the organization. In general, such external activities are better predictors of
team performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-
vis the managerial mettle of corporations are challenged. Current research is
seeking ways both to anticipate effective managerial procedures and to
understand relationships of financial liability and insurance considerations.
(Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors are apropos:
First System Dynamics. The field of systems dynamics has been found an effective
tool for new managerial thinking regarding both planning and pressing immediate
problems. An understanding of the role of feedback loops, inventory levels, and
rates of flow, enable users to simulate all sorts of systematic problems — physical,
economic, managerial, social, and psychological. New programming techniques
now make the system dynamics principles more accessible to managers — including
corporate counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions involving
complexity and uncertainty. In the context of a law department, it can be used to
appraise the settlement value of litigation, aid in negotiation settlement, and
minimize the cost and risk involved in managing a portfolio of cases. (Emphasis
supplied)
Third Modeling for Negotiation Management. Computer-based models can be used
directly by parties and mediators in all lands of negotiations. All integrated set of
such tools provide coherent and effective negotiation support, including hands-on
on instruction in these techniques. A simulation case of an international joint
venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function, concern
three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that comprise a
major part of the general counsel's responsibilities. They differ from those of
remedial law. Preventive lawyering is concerned with minimizing the risks of legal
trouble and maximizing legal rights for such legal entities at that time when
transactional or similar facts are being considered and made.
Managerial Jurisprudence. This is the framework within which are undertaken
those activities of the firm to which legal consequences attach. It needs to be
directly supportive of this nation's evolving economic and organizational fabric as
firms change to stay competitive in a global, interdependent environment. The
practice and theory of "law" is not adequate today to facilitate the relationships
needed in trying to make a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The general counsel
has emerged in the last decade as one of the most vibrant subsets of the legal
profession. The corporate counsel hear responsibility for key aspects of the firm's
strategic issues, including structuring its global operations, managing improved
relationships with an increasingly diversified body of employees, managing
expanded liability exposure, creating new and varied interactions with public
decision-makers, coping internally with more complex make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is not
enough to make one a good general corporate counsel nor to give him a full sense
of how the legal system shapes corporate activities. And even if the corporate
lawyer's aim is not the understand all of the law's effects on corporate activities,
he must, at the very least, also gain a working knowledge of the management
issues if only to be able to grasp not only the basic legal "constitution' or makeup
of the modem corporation. "Business Star", "The Corporate Counsel," April 10,
1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more than a
passing knowledge of financial law affecting each aspect of their work. Yet, many
would admit to ignorance of vast tracts of the financial law territory. What
transpires next is a dilemma of professional security: Will the lawyer admit
ignorance and risk opprobrium?; or will he feign understanding and risk
exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the
position of Chairman of the COMELEC in a letter received by the Secretariat of the
Commission on Appointments on April 25, 1991. Petitioner opposed the nomination
because allegedly Monsod does not possess the required qualification of having been
engaged in the practice of law for at least ten years.
5
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as
Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he
assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of
Monsod's nomination, petitioner as a citizen and taxpayer, filed the instant petition for
certiorari and Prohibition praying that said confirmation and the consequent appointment
of Monsod as Chairman of the Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar
examinations of 1960 with a grade of 86-55%. He has been a dues paying member of the
Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his
professional license fees as lawyer for more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod
worked in the law office of his father. During his stint in the World Bank Group (1963-
1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama,
which involved getting acquainted with the laws of member-countries negotiating loans and
coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines
in 1970, he worked with the Meralco Group, served as chief executive officer of an investment
bank and subsequently of a business conglomerate, and since 1986, has rendered services to
various companies as a legal and economic consultant or chief executive officer. As former
Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work
involved being knowledgeable in election law. He appeared for NAMFREL in its accreditation
hearings before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as
former Co-Chairman of the Bishops Businessmen's Conference for Human Development, has
worked with the under privileged sectors, such as the farmer and urban poor groups, in
initiating, lobbying for and engaging in affirmative action for the agrarian reform law and
lately the urban land reform bill. Monsod also made use of his legal knowledge as a member of
the Davide Commission, a quast judicial body, which conducted numerous hearings (1990)
and as a member of the Constitutional Commission (1986-1987), and Chairman of its
Committee on Accountability of Public Officers, for which he was cited by the President of the
Commission, Justice Cecilia Muñoz-Palma for "innumerable amendments to reconcile
government functions with individual freedoms and public accountability and the party-list
system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to be a
member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which is
adequately constituted to meet the various contingencies that arise during a
negotiation. Besides top officials of the Borrower concerned, there are the legal
officer (such as the legal counsel), the finance manager, and an operations
officer (such as an official involved in negotiating the contracts) who comprise the
members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for
Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines,
Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays down
the law as far as the loan transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5) fundamental parts: (1)
business terms; (2) borrower's representation; (3) conditions of closing; (4)
covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring program.
For aside from performing the tasks of legislative drafting and legal advising, they
score national development policies as key factors in maintaining their countries'
sovereignty. (Condensed from the work paper, entitled "Wanted: Development
Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal
adviser of the United States Agency for International Development, during the
Session on Law for the Development of Nations at the Abidjan World Conference
in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-
31, 1973). ( Emphasis supplied)
Loan concessions and compromises, perhaps even more so than purely renegotiation
policies, demand expertise in the law of contracts, in legislation and agreement
drafting and in renegotiation. Necessarily, a sovereign lawyer may work with an
international business specialist or an economist in the formulation of a model
loan agreement. Debt restructuring contract agreements contain such a mixture of
technical language that they should be carefully drafted and signed only with the
advise of competent counsel in conjunction with the guidance of adequate
technical support personnel. (See International Law Aspects of the Philippine
External Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987,
p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is the set of
terms and conditions which determines the contractual remedies for a failure to
perform one or more elements of the contract. A good agreement must not only
define the responsibilities of both parties, but must also state the recourse open to
either party when the other fails to discharge an obligation. For a compleat debt
restructuring represents a devotion to that principle which in the ultimate
analysis is sine qua non for foreign loan agreements-an adherence to the rule of
law in domestic and international affairs of whose kind U.S. Supreme Court Justice
Oliver Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums;
but where they are, men learn that bustle and bush are not the equal of quiet
genius and serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in
Foreign Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and
4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law". particularly the
modern concept of law practice, and taking into consideration the liberal construction
intended by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-
economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of
contracts, and a lawyer-legislator of both the rich and the poor — verily more than satisfy the
constitutional requirement — that he has been engaged in the practice of law for at least ten
years.
6
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court
said:
Appointment is an essentially discretionary power and must be performed by the
officer in which it is vested according to his best lights, the only condition being
that the appointee should possess the qualifications required by law. If he does,
then the appointment cannot be faulted on the ground that there are others better
qualified who should have been preferred. This is a political question involving
considerations of wisdom which only the appointing authority can decide. (emphasis
supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171
SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all the
other legal requirements are satisfied, the Commission has no alternative but to
attest to the appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position. It also has no authority
to direct the appointment of a substitute of its choice. To do so would be an
encroachment on the discretion vested upon the appointing authority. An
appointment is essentially within the discretionary power of whomsoever it is vested,
subject to the only condition that the appointee should possess the qualifications
required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists of four (4)
stages: (1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance
of a commission (in the Philippines, upon submission by the Commission on Appointments
of its certificate of confirmation, the President issues the permanent appointment; and (4)
acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October
14, 1949; Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the nomination of
Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-
Article C, Article IX of the Constitution which provides:
The Chairman and the Commisioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven
years, two Members for five years, and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term
of the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of law, which
modern connotation is exactly what was intended by the eminent framers of the
1987 Constitution. Moreover, Justice Padilla's definition would require generally a
habitual law practice, perhaps practised two or three times a week and would
outlaw say, law practice once or twice a year for ten consecutive years. Clearly,
this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written
opinion, I made use of a definition of law practice which really means nothing because the
definition says that law practice " . . . is what people ordinarily mean by the practice of law."
True I cited the definition but only by way of sarcasm as evident from my statement that the
definition of law practice by "traditional areas of law practice is essentially tautologous" or
defining a phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all situations, most
individuals, in making use of the law, or in advising others on what the law means, are
actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that
Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for
over ten years. This is different from the acts of persons practising law, without first
becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected President of the
Philippines, say, on the ground that he lacks one or more qualifications. This matter, I
greatly doubt. For one thing, how can an action or petition be brought against the
President? And even assuming that he is indeed disqualified, how can the action be
entertained since he is the incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings on Monsod's
confirmation, implicitly determined that he possessed the necessary qualifications as
required by law. The judgment rendered by the Commission in the exercise of such an
acknowledged power is beyond judicial interference except only upon a clear showing of a
grave abuse of discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1
Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the
Court interfere with the Commission's judgment. In the instant case, there is no occasion for
the exercise of the Court's corrective power, since no abuse, much less a grave abuse of
discretion, that would amount to lack or excess of jurisdiction and would warrant the
issuance of the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the President, may
the Supreme Court reverse the Commission, and thus in effect confirm the
appointment? Clearly, the answer is in the negative.
7
 (2) In the same vein, may the Court reject the nominee, whom the Commission
has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S. Congress)
decides to confirm a Presidential nominee, it would be incredible that the U.S.
Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked
Delilah (who was Samson's beloved) for help in capturing Samson. Delilah agreed on
condition that —
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod
burning white-hot two or three inches away from in front of Samson's eyes. This blinded
the man. Upon hearing of what had happened to her beloved, Delilah was beside herself
with anger, and fuming with righteous fury, accused the procurator of reneging on his word.
The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his
veins?" The procurator was clearly relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
EN BANC
Bar Matter No. 553 June 17, 1993
MAURICIO C. ULEP, Petitioner, vs. THE LEGAL CLINIC, INC., Respondent.
REGALADO, J.:
Petitioner prays this Court "to order the respondent to cease and desist from issuing
advertisements similar to or of the same tenor as that of annexes "A" and "B" (of said
petition) and to perpetually prohibit persons or entities from making advertisements
pertaining to the exercise of the law profession other than those allowed by
law."chanrobles virtual law library
The advertisements complained of by herein petitioner are as follows:
Annex A
SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE. ABSENCE.
ANNULMENT. VISA.chanrobles virtual law library
THE Please call: 521-0767 LEGAL 5217232, 5222041 CLINIC, INC. 8:30 am- 6:00 pm 7-Flr.
Victoria Bldg., UN Ave., Mla.
Annex B
GUAM DIVORCE.
DON PARKINSONchanrobles virtual law library
an Attorney in Guam, is giving FREE BOOKS on Guam Divorce through The Legal Clinic
beginning Monday to Friday during office hours.chanroblesvirtualawlibrarychanrobles
virtual law library
Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext. Quota/Non-quota
Res. & Special Retiree's Visa. Declaration of Absence. Remarriage to Filipina Fiancees.
Adoption. Investment in the Phil. US/Foreign Visa for Filipina Spouse/Children. Call
Marivic.chanrobles virtual law library
THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila nr. US Embassy CLINIC, INC. 1 Tel.
521-7232; 521-7251; 522-2041; 521-0767
It is the submission of petitioner that the advertisements above reproduced are
champterous, unethical, demeaning of the law profession, and destructive of the confidence
of the community in the integrity of the members of the bar and that, as a member of the
legal profession, he is ashamed and offended by the said advertisements, hence the reliefs
sought in his petition as hereinbefore quoted.chanroblesvirtualawlibrarychanrobles virtual
law library
In its answer to the petition, respondent admits the fact of publication of said
advertisement at its instance, but claims that it is not engaged in the practice of law but in
the rendering of "legal support services" through paralegals with the use of modern
computers and electronic machines. Respondent further argues that assuming that the
services advertised are legal services, the act of advertising these services should be
allowed supposedly
in the light of the case of John R. Bates and Van O'Steen vs. State Bar of Arizona, 2reportedly
decided by the United States Supreme Court on June 7,
1977.chanroblesvirtualawlibrarychanrobles virtual law library
8
Considering the critical implications on the legal profession of the issues raised herein, we
required the (1) Integrated Bar of the Philippines (IBP), (2) Philippine Bar Association
(PBA), (3) Philippine Lawyers' Association (PLA), (4) U.P. Womens Lawyers' Circle
(WILOCI), (5) Women Lawyers Association of the Philippines (WLAP), and (6) Federacion
International de Abogadas (FIDA) to submit their respective position papers on the
controversy and, thereafter, their memoranda. 3The said bar associations readily responded
and extended their valuable services and cooperation of which this Court takes note with
appreciation and gratitude.chanroblesvirtualawlibrarychanrobles virtual law library
The main issues posed for resolution before the Court are whether or not the services
offered by respondent, The Legal Clinic, Inc., as advertised by it constitutes practice of law
and, in either case, whether the same can properly be the subject of the advertisements
herein complained of.chanroblesvirtualawlibrarychanrobles virtual law library
Before proceeding with an in-depth analysis of the merits of this case, we deem it proper
and enlightening to present hereunder excerpts from the respective position papers
adopted by the aforementioned bar associations and the memoranda submitted by them on
the issues involved in this bar matter.
1. Integrated Bar of the Philippines:
xxx xxx xxxchanrobles virtual law library
Notwithstanding the subtle manner by which respondent endeavored to distinguish the
two terms, i.e., "legal support services" vis-a-vis "legal services", common sense would
readily dictate that the same are essentially without substantial distinction. For who could
deny that document search, evidence gathering, assistance to layman in need of basic
institutional services from government or non-government agencies like birth, marriage,
property, or business registration, obtaining documents like clearance, passports, local or
foreign visas, constitutes practice of law?
xxx xxx xxxchanrobles virtual law library
The Integrated Bar of the Philippines (IBP) does not wish to make issue with respondent's
foreign citations. Suffice it to state that the IBP has made its position manifest, to wit, that it
strongly opposes the view espoused by respondent (to the effect that today it is alright to
advertise one's legal services).chanroblesvirtualawlibrarychanrobles virtual law library
The IBP accordingly declares in no uncertain terms its opposition to respondent's act of
establishing a "legal clinic" and of concomitantly advertising the same through newspaper
publications.chanroblesvirtualawlibrarychanrobles virtual law library
The IBP would therefore invoke the administrative supervision of this Honorable Court to
perpetually restrain respondent from undertaking highly unethical activities in the field of
law practice as aforedescribed. 4
xxx xxx xxxchanrobles virtual law library
A. The use of the name "The Legal Clinic, Inc." gives the impression that respondent
corporation is being operated by lawyers and that it renders legal
services.chanroblesvirtualawlibrarychanrobles virtual law library
While the respondent repeatedly denies that it offers legal services to the public, the
advertisements in question give the impression that respondent is offering legal services.
The Petition in fact simply assumes this to be so, as earlier mentioned, apparently because
this (is) the effect that the advertisements have on the reading
public.chanroblesvirtualawlibrarychanrobles virtual law library
The impression created by the advertisements in question can be traced, first of all, to the
very name being used by respondent - "The Legal Clinic, Inc." Such a name, it is respectfully
submitted connotes the rendering of legal services for legal problems, just like a medical
clinic connotes medical services for medical problems. More importantly, the term "Legal
Clinic" connotes lawyers, as the term medical clinic connotes
doctors.chanroblesvirtualawlibrarychanrobles virtual law library
Furthermore, the respondent's name, as published in the advertisements subject of the
present case, appears with (the) scale(s) of justice, which all the more reinforces the
impression that it is being operated by members of the bar and that it offers legal services.
In addition, the advertisements in question appear with a picture and name of a person
being represented as a lawyer from Guam, and this practically removes whatever doubt
may still remain as to the nature of the service or services being
offered.chanroblesvirtualawlibrarychanrobles virtual law library
It thus becomes irrelevant whether respondent is merely offering "legal support services"
as claimed by it, or whether it offers legal services as any lawyer actively engaged in law
practice does. And it becomes unnecessary to make a distinction between "legal services"
and "legal support services," as the respondent would have it. The advertisements in
question leave no room for doubt in the minds of the reading public that legal services are
being offered by lawyers, whether true or not.chanroblesvirtualawlibrarychanrobles virtual
law library
B. The advertisements in question are meant to induce the performance of acts contrary to
law, morals, public order and public policy.chanroblesvirtualawlibrarychanrobles virtual
law library
It may be conceded that, as the respondent claims, the advertisements in question are only
meant to inform the general public of the services being offered by it. Said advertisements,
however, emphasize to Guam divorce, and any law student ought to know that under the
Family Code, there is only one instance when a foreign divorce is recognized, and that is:
Article 26. . . .chanroblesvirtualawlibrarychanrobles virtual law library
9
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under Philippine Law.
It must not be forgotten, too, that the Family Code (defines) a marriage as follows:
Article 1. Marriage is special contract of permanent union between a man and woman
entered into accordance with law for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution whose nature, consequences, and
incidents are governed by law and not subject to stipulation, except that marriage
settlements may fix the property relation during the marriage within the limits provided by
this Code.
By simply reading the questioned advertisements, it is obvious that the message being
conveyed is that Filipinos can avoid the legal consequences of a marriage celebrated in
accordance with our law, by simply going to Guam for a divorce. This is not only misleading,
but encourages, or serves to induce, violation of Philippine law. At the very least, this can be
considered "the dark side" of legal practice, where certain defects in Philippine laws are
exploited for the sake of profit. At worst, this is outright malpractice.
Rule 1.02. - A lawyer shall not counsel or abet activities aimed at defiance of the law or at
lessening confidence in the legal system.
In addition, it may also be relevant to point out that advertisements such as that shown in
Annex "A" of the Petition, which contains a cartoon of a motor vehicle with the words "Just
Married" on its bumper and seems to address those planning a "secret marriage," if not
suggesting a "secret marriage," makes light of the "special contract of permanent union,"
the inviolable social institution," which is how the Family Code describes marriage,
obviously to emphasize its sanctity and inviolability. Worse, this particular advertisement
appears to encourage marriages celebrated in secrecy, which is suggestive of immoral
publication of applications for a marriage license.chanroblesvirtualawlibrarychanrobles
virtual law library
If the article "Rx for Legal Problems" is to be reviewed, it can readily be concluded that the
above impressions one may gather from the advertisements in question are accurate. The
Sharon Cuneta-Gabby Concepcion example alone confirms what the advertisements
suggest. Here it can be seen that criminal acts are being encouraged or committed
(a bigamous marriage in Hong Kong or Las Vegas) with impunity simply because the
jurisdiction of Philippine courts does not extend to the place where the crime is
committed.chanroblesvirtualawlibrarychanrobles virtual law library
Even if it be assumed, arguendo, (that) the "legal support services" respondent offers do not
constitute legal services as commonly understood, the advertisements in question give the
impression that respondent corporation is being operated by lawyers and that it offers legal
services, as earlier discussed. Thus, the only logical consequence is that, in the eyes of an
ordinary newspaper reader, members of the bar themselves are encouraging or inducing
the performance of acts which are contrary to law, morals, good customs and the public
good, thereby destroying and demeaning the integrity of the Bar.
xxx xxx xxxchanrobles virtual law library
It is respectfully submitted that respondent should be enjoined from causing the
publication of the advertisements in question, or any other advertisements similar thereto.
It is also submitted that respondent should be prohibited from further performing or
offering some of the services it presently offers, or, at the very least, from offering such
services to the public in general.chanroblesvirtualawlibrarychanrobles virtual law library
The IBP is aware of the fact that providing computerized legal research, electronic data
gathering, storage and retrieval, standardized legal forms, investigators for gathering of
evidence, and like services will greatly benefit the legal profession and should not be stifled
but instead encouraged. However, when the conduct of such business by non-members of
the Bar encroaches upon the practice of law, there can be no choice but to prohibit such
business.chanroblesvirtualawlibrarychanrobles virtual law library
Admittedly, many of the services involved in the case at bar can be better performed by
specialists in other fields, such as computer experts, who by reason of their having devoted
time and effort exclusively to such field cannot fulfill the exacting requirements for
admission to the Bar. To prohibit them from "encroaching" upon the legal profession will
deny the profession of the great benefits and advantages of modern technology. Indeed, a
lawyer using a computer will be doing better than a lawyer using a typewriter, even if both
are (equal) in skill.chanroblesvirtualawlibrarychanrobles virtual law library
Both the Bench and the Bar, however, should be careful not to allow or tolerate the illegal
practice of law in any form, not only for the protection of members of the Bar but also, and
more importantly, for the protection of the public. Technological development in the
profession may be encouraged without tolerating, but instead ensuring prevention of illegal
practice.chanroblesvirtualawlibrarychanrobles virtual law library
There might be nothing objectionable if respondent is allowed to perform all of its services,
but only if such services are made available exclusively to members of the Bench and Bar.
Respondent would then be offering technical assistance, not legal services. Alternatively,
the more difficult task of carefully distinguishing between which service may be offered to
the public in general and which should be made available exclusively to members of the Bar
may be undertaken. This, however, may require further proceedings because of the factual
considerations involved.chanroblesvirtualawlibrarychanrobles virtual law library
It must be emphasized, however, that some of respondent's services ought to be prohibited
outright, such as acts which tend to suggest or induce celebration abroad of marriages
which are bigamous or otherwise illegal and void under Philippine law. While respondent
may not be prohibited from simply disseminating information regarding such matters, it
must be required to include, in the information given, a disclaimer that it is not authorized
to practice law, that certain course of action may be illegal under Philippine law, that it is
not authorized or capable of rendering a legal opinion, that a lawyer should be consulted
10
before deciding on which course of action to take, and that it cannot recommend any
particular lawyer without subjecting itself to possible sanctions for illegal practice of
law.chanroblesvirtualawlibrarychanrobles virtual law library
If respondent is allowed to advertise, advertising should be directed exclusively at
members of the Bar, with a clear and unmistakable disclaimer that it is not authorized to
practice law or perform legal services.chanroblesvirtualawlibrarychanrobles virtual law
library
The benefits of being assisted by paralegals cannot be ignored. But nobody should be
allowed to represent himself as a "paralegal" for profit, without such term being clearly
defined by rule or regulation, and without any adequate and effective means of regulating
his activities. Also, law practice in a corporate form may prove to be advantageous to the
legal profession, but before allowance of such practice may be considered, the corporation's
Article of Incorporation and By-laws must conform to each and every provision of the Code
of Professional Responsibility and the Rules of Court. 5
2. Philippine Bar Association:
xxx xxx xxx.chanroblesvirtualawlibrarychanrobles virtual law library
Respondent asserts that it "is not engaged in the practice of law but engaged in giving legal
support services to lawyers and laymen, through experienced paralegals, with the use of
modern computers and electronic machines" (pars. 2 and 3, Comment). This is absurd.
Unquestionably, respondent's acts of holding out itself to the public under the trade name
"The Legal Clinic, Inc.," and soliciting employment for its enumerated services fall within
the realm of a practice which thus yields itself to the regulatory powers of the Supreme
Court. For respondent to say that it is merely engaged in paralegal work is to stretch
credulity. Respondent's own commercial advertisement which announces a certain Atty.
Don Parkinsonto be handling the fields of law belies its pretense. From all indications,
respondent "The Legal Clinic, Inc." is offering and rendering legal services through its
reserve of lawyers. It has been held that the practice of law is not limited to the conduct of
cases in court, but includes drawing of deeds, incorporation, rendering opinions, and
advising clients as to their legal right and then take them to an attorney and ask the latter to
look after their case in court See Martin, Legal and Judicial Ethics, 1984 ed., p.
39).chanroblesvirtualawlibrarychanrobles virtual law library
It is apt to recall that only natural persons can engage in the practice of law, and such
limitation cannot be evaded by a corporation employing competent lawyers to practice for
it. Obviously, this is the scheme or device by which respondent "The Legal Clinic, Inc." holds
out itself to the public and solicits employment of its legal services. It is an odious vehicle for
deception, especially so when the public cannot ventilate any grievance
for malpractice against the business conduit. Precisely, the limitation of practice of law to
persons who have been duly admitted as members of the Bar (Sec. 1, Rule 138, Revised
Rules of Court) is to subject the members to the discipline of the Supreme Court. Although
respondent uses its business name, the persons and the lawyers who act for it are subject to
court discipline. The practice of law is not a profession open to all who wish to engage in it
nor can it be assigned to another (See 5 Am. Jur. 270). It is a personal rightlimited to
persons who have qualified themselves under the law. It follows that not only respondent
but also all the persons who are acting for respondent are the persons engaged in unethical
law practice. 6
3. Philippine Lawyers' Association:chanrobles virtual law library
The Philippine Lawyers' Association's position, in answer to the issues stated herein, are
wit:
1. The Legal Clinic is engaged in the practice of law;
2. Such practice is unauthorized;
3. The advertisements complained of are not only unethical, but also misleading and
patently immoral; and
4. The Honorable Supreme Court has the power to supress and punish the Legal Clinic and
its corporate officers for its unauthorized practice of law and for its unethical, misleading
and immoral advertising.
xxx xxx xxxchanrobles virtual law library
Respondent posits that is it not engaged in the practice of law. It claims that it merely
renders "legal support services" to answers, litigants and the general public as enunciated
in the Primary Purpose Clause of its Article(s) of Incorporation. (See pages 2 to 5 of
Respondent's Comment). But its advertised services, as enumerated above, clearly and
convincingly show that it is indeed engaged in law practice, albeit outside of
court.chanroblesvirtualawlibrarychanrobles virtual law library
As advertised, it offers the general public its advisory services on Persons and Family
Relations Law, particularly regarding foreign divorces, annulment of marriages, secret
marriages, absence and adoption; Immigration Laws, particularly on visa related problems,
immigration problems; the Investments Law of the Philippines and such other related
laws.chanroblesvirtualawlibrarychanrobles virtual law library
Its advertised services unmistakably require the application of the aforesaid law, the legal
principles and procedures related thereto, the legal advices based thereon and which
activities call for legal training, knowledge and
experience.chanroblesvirtualawlibrarychanrobles virtual law library
Applying the test laid down by the Court in the aforecited Agrava Case, the activities of
respondent fall squarely and are embraced in what lawyers and laymen equally term as
"the practice of law." 7
11
4. U.P. Women Lawyers' Circle:chanrobles virtual law library
In resolving, the issues before this Honorable Court, paramount consideration should be
given to the protection of the general public from the danger of being exploited by
unqualified persons or entities who may be engaged in the practice of
law.chanroblesvirtualawlibrarychanrobles virtual law library
At present, becoming a lawyer requires one to take a rigorous four-year course of study on
top of a four-year bachelor of arts or sciences course and then to take and pass the bar
examinations. Only then, is a lawyer qualified to practice
law.chanroblesvirtualawlibrarychanrobles virtual law library
While the use of a paralegal is sanctioned in many jurisdiction as an aid to the
administration of justice, there are in those jurisdictions, courses of study and/or standards
which would qualify these paralegals to deal with the general public as such. While it may
now be the opportune time to establish these courses of study and/or standards, the fact
remains that at present, these do not exist in the Philippines. In the meantime, this
Honorable Court may decide to make measures to protect the general public from being
exploited by those who may be dealing with the general public in the guise of being
"paralegals" without being qualified to do so.chanroblesvirtualawlibrarychanrobles virtual
law library
In the same manner, the general public should also be protected from the dangers which
may be brought about by advertising of legal services. While it appears that lawyers are
prohibited under the present Code of Professional Responsibility from advertising, it
appears in the instant case that legal services are being advertised not by lawyers but by an
entity staffed by "paralegals." Clearly, measures should be taken to protect the general
public from falling prey to those who advertise legal services without being qualified to
offer such services. 8
A perusal of the questioned advertisements of Respondent, however, seems to give the
impression that information regarding validity of marriages, divorce, annulment of
marriage, immigration, visa extensions, declaration of absence, adoption and foreign
investment, which are in essence, legal matters , will be given to them if they avail of its
services. The Respondent's name - The Legal Clinic, Inc. - does not help matters. It gives the
impression again that Respondent will or can cure the legal problems brought to them.
Assuming that Respondent is, as claimed, staffed purely by paralegals, it also gives the
misleading impression that there are lawyers involved in The Legal Clinic, Inc., as there are
doctors in any medical clinic, when only "paralegals" are involved in The Legal Clinic,
Inc.chanroblesvirtualawlibrarychanrobles virtual law library
Respondent's allegations are further belied by the very admissions of its President and
majority stockholder, Atty. Nogales, who gave an insight on the structure and main purpose
of Respondent corporation in the aforementioned "Starweek" article." 9
5. Women Lawyer's Association of the Philippines:chanrobles virtual law library
Annexes "A" and "B" of the petition are clearly advertisements to solicit cases for the
purpose of gain which, as provided for under the above cited law, (are) illegal and against
the Code of Professional Responsibility of lawyers in this
country.chanroblesvirtualawlibrarychanrobles virtual law library
Annex "A" of the petition is not only illegal in that it is an advertisement to solicit cases, but
it is illegal in that in bold letters it announces that the Legal Clinic, Inc., could work
out/cause the celebration of a secret marriage which is not only illegal but immoral in this
country. While it is advertised that one has to go to said agency and pay P560 for a valid
marriage it is certainly fooling the public for valid marriages in the Philippines are
solemnized only by officers authorized to do so under the law. And to employ an agency for
said purpose of contracting marriage is not
necessary.chanroblesvirtualawlibrarychanrobles virtual law library
No amount of reasoning that in the USA, Canada and other countries the trend is towards
allowing lawyers to advertise their special skills to enable people to obtain from qualified
practitioners legal services for their particular needs can justify the use of advertisements
such as are the subject matter of the petition, for one (cannot) justify an illegal act even by
whatever merit the illegal act may serve. The law has yet to be amended so that such act
could become justifiable.chanroblesvirtualawlibrarychanrobles virtual law library
We submit further that these advertisements that seem to project that secret marriages and
divorce are possible in this country for a fee, when in fact it is not so, are highly
reprehensible.chanroblesvirtualawlibrarychanrobles virtual law library
It would encourage people to consult this clinic about how they could go about having a
secret marriage here, when it cannot nor should ever be attempted, and seek advice on
divorce, where in this country there is none, except under the Code of Muslim Personal
Laws in the Philippines. It is also against good morals and is deceitful because it falsely
represents to the public to be able to do that which by our laws cannot be done (and) by our
Code of Morals should not be done.chanroblesvirtualawlibrarychanrobles virtual law
library
In the case (of) In re Taguda, 53 Phil. 37, the Supreme Court held that solicitation for clients
by an attorney by circulars of advertisements, is unprofessional, and offenses of this
character justify permanent elimination from the Bar. 10
6. Federacion Internacional de Abogados:
xxx xxx xxxchanrobles virtual law library
1.7 That entities admittedly not engaged in the practice of law, such as management
consultancy firms or travel agencies, whether run by lawyers or not, perform the services
rendered by Respondent does not necessarily lead to the conclusion that Respondent is not
unlawfully practicing law. In the same vein, however, the fact that the business of
respondent (assuming it can be engaged in independently of the practice of law) involves
12
knowledge of the law does not necessarily make respondent guilty of unlawful practice of
law.
. . . . Of necessity, no one . . . . acting as a consultant can render effective service unless he is
familiar with such statutes and regulations. He must be careful not to suggest a course of
conduct which the law forbids. It seems . . . .clear that (the consultant's) knowledge of the
law, and his use of that knowledge as a factor in determining what measures he shall
recommend, do not constitute the practice of law . . . . It is not only presumed that all men
know the law, but it is a fact that most men have considerable acquaintance with broad
features of the law . . . . Our knowledge of the law - accurate or inaccurate - moulds our
conduct not only when we are acting for ourselves, but when we are serving others.
Bankers, liquor dealers and laymen generally possess rather precise knowledge of the laws
touching their particular business or profession. A good example is the architect, who must
be familiar with zoning, building and fire prevention codes, factory and tenement house
statutes, and who draws plans and specification in harmony with the law. This is not
practicing law.chanroblesvirtualawlibrarychanrobles virtual law library
But suppose the architect, asked by his client to omit a fire tower, replies that it is required
by the statute. Or the industrial relations expert cites, in support of some measure that he
recommends, a decision of the National Labor Relations Board. Are they practicing law? In
my opinion, they are not, provided no separate fee is charged for the legal advice or
information, and the legal question is subordinate and incidental to a major non-legal
problem.chanroblesvirtualawlibrarychanrobles virtual law library
It is largely a matter of degree and of custom.chanroblesvirtualawlibrarychanrobles virtual
law library
If it were usual for one intending to erect a building on his land to engage a lawyer to advise
him and the architect in respect to the building code and the like, then an architect who
performed this function would probably be considered to be trespassing on territory
reserved for licensed attorneys. Likewise, if the industrial relations field had been pre-
empted by lawyers, or custom placed a lawyer always at the elbow of the lay personnel
man. But this is not the case. The most important body of the industrial relations experts
are the officers and business agents of the labor unions and few of them are lawyers. Among
the larger corporate employers, it has been the practice for some years to delegate special
responsibility in employee matters to a management group chosen for their practical
knowledge and skill in such matter, and without regard to legal thinking or lack of it. More
recently, consultants like the defendants have the same service that the larger employers
get from their own specialized staff.chanroblesvirtualawlibrarychanrobles virtual law
library
The handling of industrial relations is growing into a recognized profession for which
appropriate courses are offered by our leading universities. The court should be very
cautious about declaring [that] a widespread, well-established method of conducting
business is unlawful, or that the considerable class of men who customarily perform a
certain function have no right to do so, or that the technical education given by our schools
cannot be used by the graduates in their business.
In determining whether a man is practicing law, we should consider his work for any
particular client or customer, as a whole. I can imagine defendant being engaged primarily to
advise as to the law defining his client's obligations to his employees, to guide his client's
obligations to his employees, to guide his client along the path charted by law. This, of
course, would be the practice of the law. But such is not the fact in the case before me.
Defendant's primarily efforts are along economic and psychological lines. The law only
provides the frame within which he must work, just as the zoning code limits the kind of
building the limits the kind of building the architect may plan. The incidental legal advice or
information defendant may give, does not transform his activities into the practice of law. Let
me add that if, even as a minor feature of his work, he performed services which are
customarily reserved to members of the bar, he would be practicing law. For instance, if as
part of a welfare program, he drew employees' wills.chanroblesvirtualawlibrarychanrobles
virtual law library
Another branch of defendant's work is the representations of the employer in the
adjustment of grievances and in collective bargaining, with or without a mediator. This is
not per se the practice of law. Anyone may use an agent for negotiations and may select an
agent particularly skilled in the subject under discussion, and the person appointed is free
to accept the employment whether or not he is a member of the bar. Here, however, there
may be an exception where the business turns on a question of law. Most real estate sales
are negotiated by brokers who are not lawyers. But if the value of the land depends on a
disputed right-of-way and the principal role of the negotiator is to assess the probable
outcome of the dispute and persuade the opposite party to the same opinion, then it may be
that only a lawyer can accept the assignment. Or if a controversy between an employer and
his men grows from differing interpretations of a contract, or of a statute, it is quite likely
that defendant should not handle it. But I need not reach a definite conclusion here, since
the situation is not presented by the proofs.chanroblesvirtualawlibrarychanrobles virtual
law library
Defendant also appears to represent the employer before administrative agencies of the
federal government, especially before trial examiners of the National Labor Relations
Board. An agency of the federal government, acting by virtue of an authority granted by the
Congress, may regulate the representation of parties before such agency. The State of New
Jersey is without power to interfere with such determination or to forbid representation
before the agency by one whom the agency admits. The rules of the National Labor
Relations Board give to a party the right to appear in person, or by counsel, or by other
representative. Rules and Regulations, September 11th, 1946, S. 203.31. 'Counsel' here
means a licensed attorney, and ther representative' one not a lawyer. In this phase of his
work, defendant may lawfully do whatever the Labor Board allows, even arguing questions
purely legal. (Auerbacher v. Wood, 53 A. 2d 800, cited in Statsky, Introduction to
Paralegalism [1974], at pp. 154-156.).
1.8 From the foregoing, it can be said that a person engaged in a lawful calling (which may
involve knowledge of the law) is not engaged in the practice of law provided
that:chanrobles virtual law library
(a) The legal question is subordinate and incidental to a major non-legal
problem;.chanroblesvirtualawlibrarychanrobles virtual law library
13
(b) The services performed are not customarily reserved to members of the bar;
.chanroblesvirtualawlibrarychanrobles virtual law library
(c) No separate fee is charged for the legal advice or
information.chanroblesvirtualawlibrarychanrobles virtual law library
All these must be considered in relation to the work for any particular client as a
whole.chanroblesvirtualawlibrarychanrobles virtual law library
1.9. If the person involved is both lawyer and non-lawyer, the Code of Professional
Responsibility succintly states the rule of conduct:chanrobles virtual law library
Rule 15.08 - A lawyer who is engaged in another profession or occupation concurrently
with the practice of law shall make clear to his client whether he is acting as a lawyer or in
another capacity.chanroblesvirtualawlibrarychanrobles virtual law library
1.10. In the present case. the Legal Clinic appears to render wedding services (See Annex
"A" Petition). Services on routine, straightforward marriages, like securing a marriage
license, and making arrangements with a priest or a judge, may not constitute practice of
law. However, if the problem is as complicated as that described in "Rx for Legal Problems"
on the Sharon Cuneta-Gabby Concepcion-Richard Gomez case, then what may be involved is
actually the practice of law. If a non-lawyer, such as the Legal Clinic, renders such services
then it is engaged in the unauthorized practice of
law.chanroblesvirtualawlibrarychanrobles virtual law library
1.11. The Legal Clinic also appears to give information on divorce, absence, annulment of
marriage and visas (See Annexes "A" and "B" Petition). Purely giving informational
materials may not constitute of law. The business is similar to that of a bookstore where the
customer buys materials on the subject and determines on the subject and determines by
himself what courses of action to take.chanroblesvirtualawlibrarychanrobles virtual law
library
It is not entirely improbable, however, that aside from purely giving information, the Legal
Clinic's paralegals may apply the law to the particular problem of the client, and give legal
advice. Such would constitute unauthorized practice of law.
It cannot be claimed that the publication of a legal text which publication of a legal text
which purports to say what the law is amount to legal practice. And the mere fact that the
principles or rules stated in the text may be accepted by a particular reader as a solution to
his problem does not affect this. . . . . Apparently it is urged that the conjoining of these two,
that is, the text and the forms, with advice as to how the forms should be filled out,
constitutes the unlawful practice of law. But that is the situation with many approved and
accepted texts. Dacey's book is sold to the public at large. There is no personal contact or
relationship with a particular individual. Nor does there exist that relation of confidence and
trust so necessary to the status of attorney and client. THIS IS THE ESSENTIAL OF LEGAL
PRACTICE - THE REPRESENTATION AND ADVISING OF A PARTICULAR PERSON IN A
PARTICULAR SITUATION. At most the book assumes to offer general advice on common
problems, and does not purport to give personal advice on a specific problem peculiar to a
designated or readily identified person. Similarly the defendant's publication does not
purport to give personal advice on a specific problem peculiar to a designated or readily
identified person in a particular situation - in their publication and sale of the kits, such
publication and sale did not constitutes the unlawful practice of law . . . . There being no
legal impediment under the statute to the sale of the kit, there was no proper basis for the
injunction against defendant maintaining an office for the purpose of selling to persons
seeking a divorce, separation, annulment or separation agreement any printed material or
writings relating to matrimonial law or the prohibition in the memorandum of modification
of the judgment against defendant having an interest in any publishing house publishing his
manuscript on divorce and against his having any personal contact with any prospective
purchaser. The record does fully support, however, the finding that for the change of $75 or
$100 for the kit, the defendant gave legal advice in the course of personal contacts
concerning particular problems which might arise in the preparation and presentation of
the purchaser's asserted matrimonial cause of action or pursuit of other legal remedies and
assistance in the preparation of necessary documents (The injunction therefore sought to)
enjoin conduct constituting the practice of law, particularly with reference to the giving of
advice and counsel by the defendant relating to specific problems of particular individuals
in connection with a divorce, separation, annulment of separation agreement sought and
should be affirmed. (State v. Winder, 348, NYS 2D 270 [1973], cited in Statsky, supra at p.
101.).
1.12. Respondent, of course, states that its services are "strictly non-diagnostic, non-
advisory. "It is not controverted, however, that if the services "involve giving legal advice or
counselling," such would constitute practice of law (Comment, par. 6.2). It is in this light
that FIDA submits that a factual inquiry may be necessary for the judicious disposition of
this case.
xxx xxx xxxchanrobles virtual law library
2.10. Annex "A" may be ethically objectionable in that it can give the impression (or
perpetuate the wrong notion) that there is a secret marriage. With all the solemnities,
formalities and other requisites of marriages (See Articles 2, et seq., Family Code), no
Philippine marriage can be secret.chanroblesvirtualawlibrarychanrobles virtual law library
2.11. Annex "B" may likewise be ethically objectionable. The second paragraph thereof
(which is not necessarily related to the first paragraph) fails to state the limitation that only
"paralegal services?" or "legal support services", and not legal services, are
available." 11chanrobles virtual law library
A prefatory discussion on the meaning of the phrase "practice of law" becomes exigent for
the proper determination of the issues raised by the petition at bar. On this score, we note
that the clause "practice of law" has long been the subject of judicial construction and
interpretation. The courts have laid down general principles and doctrines explaining the
meaning and scope of the term, some of which we now take into
account.chanroblesvirtualawlibrarychanrobles virtual law library
14
Practice of law means any activity, in or out of court, which requires the application of law,
legal procedures, knowledge, training and experience. To engage in the practice of law is to
perform those acts which are characteristic of the profession. Generally, to practice law is to
give advice or render any kind of service that involves legal knowledge or
skill. 12chanrobles virtual law library
The practice of law is not limited to the conduct of cases in court. It includes legal advice
and counsel, and the preparation of legal instruments and contract by which legal rights are
secured, although such matter may or may not be pending in a court. 13chanrobles virtual
law library
In the practice of his profession, a licensed attorney at law generally engages in three
principal types of professional activity: legal advice and instructions to clients to inform
them of their rights and obligations, preparation for clients of documents requiring
knowledge of legal principles not possessed by ordinary layman, and appearance for clients
before public tribunals which possess power and authority to determine rights of life,
liberty, and property according to law, in order to assist in proper interpretation and
enforcement of law. 14chanrobles virtual law library
When a person participates in the a trial and advertises himself as a lawyer, he is in the
practice of law. 15One who confers with clients, advises them as to their legal rights and
then takes the business to an attorney and asks the latter to look after the case in court, is
also practicing law. 16Giving advice for compensation regarding the legal status and rights
of another and the conduct with respect thereto constitutes a practice of law. 17One who
renders an opinion as to the proper interpretation of a statute, and receives pay for it, is, to
that extent, practicing law. 18chanrobles virtual law library
In the recent case of Cayetano vs. Monsod, 19after citing the doctrines in several cases, we
laid down the test to determine whether certain acts constitute "practice of law," thus:
Black defines "practice of law" as:chanrobles virtual law library
The rendition of services requiring the knowledge and the application of legal principles
and technique to serve the interest of another with his consent. It is not limited to
appearing in court, or advising and assisting in the conduct of litigation, but embraces the
preparation of pleadings, and other papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal
advice to clients. It embraces all advice to clients and all actions taken for them in matters
connected with the law.
The practice of law is not limited to the conduct of cases on court.(Land Title Abstract and
Trust Co. v. Dworken , 129 Ohio St. 23, 193N. E. 650). A person is also considered to be in
the practice of law when he:
. . . . for valuable consideration engages in the business of advising person, firms,
associations or corporations as to their right under the law, or appears in a representative
capacity as an advocate in proceedings, pending or prospective, before any court,
commissioner, referee, board, body, committee, or commission constituted by law or
authorized to settle controversies and there, in such representative capacity, performs any
act or acts for the purpose of obtaining or defending the rights of their clients under the
law. Otherwise stated, one who, in a representative capacity, engages in the business of
advising clients as to their rights under the law, or while so engaged performs any act or
acts either in court or outside of court for that purpose, is engaged in the practice of law.
(State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S. W. 2d 895, 340 Mo. 852).
This Court, in the case of Philippines Lawyers Association v. Agrava (105 Phil. 173, 176-
177),stated:
The practice of law is not limited to the conduct of cases or litigation in court; it embraces
the preparation of pleadings and other papers incident to actions and special proceedings,
the management of such actions and proceedings on behalf of clients before judges and
courts, and in addition, conveying. In general, all advice to clients, and all action taken for
them in matters connected with the law incorporation services, assessment and
condemnation services contemplating an appearance before a judicial body, the foreclosure
of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings,
and conducting proceedings in attachment, and in matters or estate and guardianship have
been held to constitute law practice, as do the preparation and drafting of legal instruments,
where the work done involves the determination by the trained legal mind of the legal
effect of facts and conditions. (5 Am. Jr. p. 262, 263).chanroblesvirtualawlibrarychanrobles
virtual law library
Practice of law under modern conditions consists in no small part of work performed
outside of any court and having no immediate relation to proceedings in court. It embraces
conveyancing, the giving of legal advice on a large variety of subjects and the preparation
and execution of legal instruments covering an extensive field of business and trust
relations and other affairs. Although these transactions may have no direct connection with
court proceedings, they are always subject to become involved in litigation. They require in
many aspects a high degree of legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations. These customary functions of an
attorney or counselor at law bear an intimate relation to the administration of justice by the
courts. No valid distinction, so far as concerns the question set forth in the order, can be
drawn between that part of the work of the lawyer which involves appearance in court and
that part which involves advice and drafting of instruments in his office. It is of importance
to the welfare of the public that these manifold customary functions be performed by
persons possessed of adequate learning and skill, of sound moral character, and acting at all
times under the heavy trust obligations to clients which rests upon all attorneys. (Moran,
Comments on the Rules o Court, Vol. 3 [1973 ed.], pp. 665-666, citing In Re Opinion of the
Justices [Mass], 194 N. E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc.
[R.I.] 197 A. 139, 144).
The practice of law, therefore, covers a wide range of activities in and out of court. Applying
the aforementioned criteria to the case at bar, we agree with the perceptive findings and
observations of the aforestated bar associations that the activities of respondent, as
advertised, constitute "practice of law."chanrobles virtual law library
15
The contention of respondent that it merely offers legal support services can neither be
seriously considered nor sustained. Said proposition is belied by respondent's own
description of the services it has been offering, to wit:
Legal support services basically consists of giving ready information by trained paralegals
to laymen and lawyers, which are strictly non-diagnostic, non-advisory, through the
extensive use of computers and modern information technology in the gathering,
processing, storage, transmission and reproduction of information and communication,
such as computerized legal research; encoding and reproduction of documents and
pleadings prepared by laymen or lawyers; document search; evidence gathering; locating
parties or witnesses to a case; fact finding investigations; and assistance to laymen in need
of basic institutional services from government or non-government agencies, like birth,
marriage, property, or business registrations; educational or employment records or
certifications, obtaining documentation like clearances, passports, local or foreign visas;
giving information about laws of other countries that they may find useful, like foreign
divorce, marriage or adoption laws that they can avail of preparatory to emigration to the
foreign country, and other matters that do not involve representation of clients in court;
designing and installing computer systems, programs, or software for the efficient
management of law offices, corporate legal departments, courts and other entities engaged
in dispensing or administering legal services. 20chanrobles virtual law library
While some of the services being offered by respondent corporation merely involve
mechanical and technical knowhow, such as the installation of computer systems and
programs for the efficient management of law offices, or the computerization of research
aids and materials, these will not suffice to justify an exception to the general
rule.chanroblesvirtualawlibrarychanrobles virtual law library
What is palpably clear is that respondent corporation gives out legal information to laymen
and lawyers. Its contention that such function is non-advisory and non-diagnostic is more
apparent than real. In providing information, for example, about foreign laws on marriage,
divorce and adoption, it strains the credulity of this Court that all the respondent
corporation will simply do is look for the law, furnish a copy thereof to the client, and stop
there as if it were merely a bookstore. With its attorneys and so called paralegals, it will
necessarily have to explain to the client the intricacies of the law and advise him or her on
the proper course of action to be taken as may be provided for by said law. That is what its
advertisements represent and for the which services it will consequently charge and be
paid. That activity falls squarely within the jurisprudential definition of "practice of law."
Such a conclusion will not be altered by the fact that respondent corporation does not
represent clients in court since law practice, as the weight of authority holds, is not limited
merely giving legal advice, contract drafting and so
forth.chanroblesvirtualawlibrarychanrobles virtual law library
The aforesaid conclusion is further strengthened by an article published in the January 13,
1991 issue of the Starweek/The Sunday Magazine of the Philippines Star, entitled "Rx for
Legal Problems," where an insight into the structure, main purpose and operations of
respondent corporation was given by its own "proprietor," Atty. Rogelio P. Nogales:
This is the kind of business that is transacted everyday at The Legal Clinic, with offices on
the seventh floor of the Victoria Building along U. N. Avenue in Manila. No matter what the
client's problem, and even if it is as complicated as the Cuneta-Concepcion domestic
situation, Atty. Nogales and his staff of lawyers, who, like doctors are "specialists" in various
fields can take care of it. The Legal Clinic, Inc. has specialists in taxation and criminal law,
medico-legal problems, labor, litigation, and family law. These specialist are backed up by a
battery of paralegals, counsellors and attorneys.chanroblesvirtualawlibrarychanrobles
virtual law library
Atty. Nogales set up The Legal Clinic in 1984. Inspired by the trend in the medical field
toward specialization, it caters to clients who cannot afford the services of the big law
firms.chanroblesvirtualawlibrarychanrobles virtual law library
The Legal Clinic has regular and walk-in clients. "when they come, we start by analyzing the
problem. That's what doctors do also. They ask you how you contracted what's bothering
you, they take your temperature, they observe you for the symptoms and so on. That's how
we operate, too. And once the problem has been categorized, then it's referred to one of our
specialists.chanroblesvirtualawlibrary chanrobles virtual law library
There are cases which do not, in medical terms, require surgery or follow-up treatment.
These The Legal Clinic disposes of in a matter of minutes. "Things like preparing a simple
deed of sale or an affidavit of loss can be taken care of by our staff or, if this were a hospital
the residents or the interns. We can take care of these matters on a while you wait basis.
Again, kung baga sa hospital, out-patient, hindi kailangang ma-confine. It's just like a
common cold or diarrhea," explains Atty. Nogales.chanroblesvirtualawlibrarychanrobles
virtual law library
Those cases which requires more extensive "treatment" are dealt with accordingly. "If you
had a rich relative who died and named you her sole heir, and you stand to inherit millions
of pesos of property, we would refer you to a specialist in taxation. There would be real
estate taxes and arrears which would need to be put in order, and your relative is even
taxed by the state for the right to transfer her property, and only a specialist in taxation
would be properly trained to deal with the problem. Now, if there were other heirs
contesting your rich relatives will, then you would need a litigator, who knows how to
arrange the problem for presentation in court, and gather evidence to support the
case. 21chanrobles virtual law library
That fact that the corporation employs paralegals to carry out its services is not controlling.
What is important is that it is engaged in the practice of law by virtue of the nature of the
services it renders which thereby brings it within the ambit of the statutory prohibitions
against the advertisements which it has caused to be published and are now assailed in this
proceeding.chanroblesvirtualawlibrarychanrobles virtual law library
Further, as correctly and appropriately pointed out by the U.P. WILOCI, said reported facts
sufficiently establish that the main purpose of respondent is to serve as a one-stop-shop of
sorts for various legal problems wherein a client may avail of legal services from simple
documentation to complex litigation and corporate undertakings. Most of these services are
16
undoubtedly beyond the domain of paralegals, but rather, are exclusive functions of lawyers
engaged in the practice of law. 22chanrobles virtual law library
It should be noted that in our jurisdiction the services being offered by private respondent
which constitute practice of law cannot be performed by paralegals. Only a person duly
admitted as a member of the bar, or hereafter admitted as such in accordance with the
provisions of the Rules of Court, and who is in good and regular standing, is entitled to
practice law. 23chanrobles virtual law library
Public policy requires that the practice of law be limited to those individuals found duly
qualified in education and character. The permissive right conferred on the lawyers is an
individual and limited privilege subject to withdrawal if he fails to maintain proper
standards of moral and professional conduct. The purpose is to protect the public, the court,
the client and the bar from the incompetence or dishonesty of those unlicensed to practice
law and not subject to the disciplinary control of the court. 24chanrobles virtual law library
The same rule is observed in the american jurisdiction wherefrom respondent would wish
to draw support for his thesis. The doctrines there also stress that the practice of law is
limited to those who meet the requirements for, and have been admitted to, the bar, and
various statutes or rules specifically so provide. 25The practice of law is not a lawful
business except for members of the bar who have complied with all the conditions required
by statute and the rules of court. Only those persons are allowed to practice law who, by
reason of attainments previously acquired through education and study, have been
recognized by the courts as possessing profound knowledge of legal science entitling them
to advise, counsel with, protect, or defend the rights claims, or liabilities of their clients,
with respect to the construction, interpretation, operation and effect of law. 26The
justification for excluding from the practice of law those not admitted to the bar is found,
not in the protection of the bar from competition, but in the protection of the public from
being advised and represented in legal matters by incompetent and unreliable persons over
whom the judicial department can exercise little control. 27chanrobles virtual law library
We have to necessarily and definitely reject respondent's position that the concept in the
United States of paralegals as an occupation separate from the law profession be adopted in
this jurisdiction. Whatever may be its merits, respondent cannot but be aware that this
should first be a matter for judicial rules or legislative action, and not of unilateral adoption
as it has done.chanroblesvirtualawlibrarychanrobles virtual law library
Paralegals in the United States are trained professionals. As admitted by respondent, there
are schools and universities there which offer studies and degrees in paralegal education,
while there are none in the Philippines. 28As the concept of the "paralegals" or "legal
assistant" evolved in the United States, standards and guidelines also evolved to protect the
general public. One of the major standards or guidelines was developed by the American
Bar Association which set up Guidelines for the Approval of Legal Assistant Education
Programs (1973). Legislation has even been proposed to certify legal assistants. There are
also associations of paralegals in the United States with their own code of professional
ethics, such as the National Association of Legal Assistants, Inc. and the American Paralegal
Association. 29chanrobles virtual law library
In the Philippines, we still have a restricted concept and limited acceptance of what may be
considered as paralegal service. As pointed out by FIDA, some persons not duly licensed to
practice law are or have been allowed limited representation in behalf of another or to
render legal services, but such allowable services are limited in scope and extent by the law,
rules or regulations granting permission therefor. 30chanrobles virtual law library
Accordingly, we have adopted the American judicial policy that, in the absence of
constitutional or statutory authority, a person who has not been admitted as an attorney
cannot practice law for the proper administration of justice cannot be hindered by the
unwarranted intrusion of an unauthorized and unskilled person into the practice of
law. 31That policy should continue to be one of encouraging persons who are unsure of their
legal rights and remedies to seek legal assistance only from persons licensed to practice law
in the state. 32chanrobles virtual law library
Anent the issue on the validity of the questioned advertisements, the Code of Professional
Responsibility provides that a lawyer in making known his legal services shall use only true,
honest, fair, dignified and objective information or statement of facts. 33He is not supposed
to use or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-
laudatory or unfair statement or claim regarding his qualifications or legal services. 34Nor
shall he pay or give something of value to representatives of the mass media in anticipation
of, or in return for, publicity to attract legal business. 35Prior to the adoption of the code of
Professional Responsibility, the Canons of Professional Ethics had also warned that lawyers
should not resort to indirect advertisements for professional employment, such as
furnishing or inspiring newspaper comments, or procuring his photograph to be published
in connection with causes in which the lawyer has been or is engaged or concerning the
manner of their conduct, the magnitude of the interest involved, the importance of the
lawyer's position, and all other like self-laudation. 36chanrobles virtual law library
The standards of the legal profession condemn the lawyer's advertisement of his talents. A
lawyer cannot, without violating the ethics of his profession. advertise his talents or skill as
in a manner similar to a merchant advertising his goods. 37The prescription against
advertising of legal services or solicitation of legal business rests on the fundamental
postulate that the that the practice of law is a profession. Thus, in the case of The Director of
Religious Affairs. vs. Estanislao R. Bayot 38 an advertisement, similar to those of respondent
which are involved in the present proceeding, 39was held to constitute improper
advertising or solicitation.chanroblesvirtualawlibrarychanrobles virtual law library
The pertinent part of the decision therein reads:
It is undeniable that the advertisement in question was a flagrant violation by the
respondent of the ethics of his profession, it being a brazen solicitation of business from the
public. Section 25 of Rule 127 expressly provides among other things that "the practice of
soliciting cases at law for the purpose of gain, either personally or thru paid agents or
brokers, constitutes malpractice." It is highly unethical for an attorney to advertise his
talents or skill as a merchant advertises his wares. Law is a profession and not a trade. The
lawyer degrades himself and his profession who stoops to and adopts the practices of
mercantilism by advertising his services or offering them to the public. As a member of the
17
bar, he defiles the temple of justice with mercenary activities as the money-changers of old
defiled the temple of Jehovah. "The most worthy and effective advertisement possible, even
for a young lawyer, . . . . is the establishment of a well-merited reputation for professional
capacity and fidelity to trust. This cannot be forced but must be the outcome of character
and conduct." (Canon 27, Code of Ethics.).
We repeat, the canon of the profession tell us that the best advertising possible for a lawyer
is a well-merited reputation for professional capacity and fidelity to trust, which must be
earned as the outcome of character and conduct. Good and efficient service to a client as
well as to the community has a way of publicizing itself and catching public attention. That
publicity is a normal by-product of effective service which is right and proper. A good and
reputable lawyer needs no artificial stimulus to generate it and to magnify his success. He
easily sees the difference between a normal by-product of able service and the
unwholesome result of propaganda. 40chanrobles virtual law library
Of course, not all types of advertising or solicitation are prohibited. The canons of the
profession enumerate exceptions to the rule against advertising or solicitation and define
the extent to which they may be undertaken. The exceptions are of two broad categories,
namely, those which are expressly allowed and those which are necessarily implied from
the restrictions. 41chanrobles virtual law library
The first of such exceptions is the publication in reputable law lists, in a manner consistent
with the standards of conduct imposed by the canons, of brief biographical and informative
data. "Such data must not be misleading and may include only a statement of the lawyer's
name and the names of his professional associates; addresses, telephone numbers, cable
addresses; branches of law practiced; date and place of birth and admission to the bar;
schools attended with dates of graduation, degrees and other educational distinction; public
or quasi-public offices; posts of honor; legal authorships; legal teaching positions;
membership and offices in bar associations and committees thereof, in legal and scientific
societies and legal fraternities; the fact of listings in other reputable law lists; the names and
addresses of references; and, with their written consent, the names of clients regularly
represented." 42chanrobles virtual law library
The law list must be a reputable law list published primarily for that purpose; it cannot be a
mere supplemental feature of a paper, magazine, trade journal or periodical which is
published principally for other purposes. For that reason, a lawyer may not properly
publish his brief biographical and informative data in a daily paper, magazine, trade journal
or society program. Nor may a lawyer permit his name to be published in a law list the
conduct, management or contents of which are calculated or likely to deceive or injure the
public or the bar, or to lower the dignity or standing of the profession. 43chanrobles virtual
law library
The use of an ordinary simple professional card is also permitted. The card may contain
only a statement of his name, the name of the law firm which he is connected with, address,
telephone number and special branch of law practiced. The publication of a simple
announcement of the opening of a law firm or of changes in the partnership, associates, firm
name or office address, being for the convenience of the profession, is not objectionable. He
may likewise have his name listed in a telephone directory but not under a designation of
special branch of law. 44chanrobles virtual law library
Verily, taking into consideration the nature and contents of the advertisements for which
respondent is being taken to task, which even includes a quotation of the fees charged by
said respondent corporation for services rendered, we find and so hold that the same
definitely do not and conclusively cannot fall under any of the above-mentioned
exceptions.chanroblesvirtualawlibrarychanrobles virtual law library
The ruling in the case of Bates, et al. vs. State Bar of Arizona, 45 which is repeatedly invoked
and constitutes the justification relied upon by respondent, is obviously not applicable to
the case at bar. Foremost is the fact that the disciplinary rule involved in said case explicitly
allows a lawyer, as an exception to the prohibition against advertisements by lawyers, to
publish a statement of legal fees for an initial consultation or the availability upon request
of a written schedule of fees or an estimate of the fee to be charged for the specific services.
No such exception is provided for, expressly or impliedly, whether in our former Canons of
Professional Ethics or the present Code of Professional Responsibility. Besides, even the
disciplinary rule in the Bates case contains a proviso that the exceptions stated therein are
"not applicable in any state unless and until it is implemented by such authority in that
state." 46This goes to show that an exception to the general rule, such as that being invoked
by herein respondent, can be made only if and when the canons expressly provide for such
an exception. Otherwise, the prohibition stands, as in the case at
bar.chanroblesvirtualawlibrarychanrobles virtual law library
It bears mention that in a survey conducted by the American Bar Association after the
decision in Bates, on the attitude of the public about lawyers after viewing television
commercials, it was found that public opinion dropped significantly 47 with respect to these
characteristics of lawyers:
Trustworthy from 71% to 14%
Professional from 71% to 14%
Honest from 65% to 14%
Dignified from 45% to 14%
Secondly, it is our firm belief that with the present situation of our legal and judicial
systems, to allow the publication of advertisements of the kind used by respondent would
only serve to aggravate what is already a deteriorating public opinion of the legal
profession whose integrity has consistently been under attack lately by media and the
community in general. At this point in time, it is of utmost importance in the face of such
negative, even if unfair, criticisms at times, to adopt and maintain that level of professional
conduct which is beyond reproach, and to exert all efforts to regain the high esteem
formerly accorded to the legal profession.chanroblesvirtualawlibrarychanrobles virtual law
library
In sum, it is undoubtedly a misbehavior on the part of the lawyer, subject to disciplinary
action, to advertise his services except in allowable instances 48or to aid a layman in the
unauthorized practice of law. 49Considering that Atty. Rogelio P. Nogales, who is the prime
18
incorporator, major stockholder and proprietor of The Legal Clinic, Inc. is a member of the
Philippine Bar, he is hereby reprimanded, with a warning that a repetition of the same or
similar acts which are involved in this proceeding will be dealt with more
severely.chanroblesvirtualawlibrarychanrobles virtual law library
While we deem it necessary that the question as to the legality or illegality of the purpose/s
for which the Legal Clinic, Inc. was created should be passed upon and determined, we are
constrained to refrain from lapsing into an obiter on that aspect since it is clearly not within
the adjudicative parameters of the present proceeding which is merely administrative in
nature. It is, of course, imperative that this matter be promptly determined, albeit in a
different proceeding and forum, since, under the present state of our law and jurisprudence,
a corporation cannot be organized for or engage in the practice of law in this country. This
interdiction, just like the rule against unethical advertising, cannot be subverted by
employing some so-called paralegals supposedly rendering the alleged support
services.chanroblesvirtualawlibrarychanrobles virtual law library
The remedy for the apparent breach of this prohibition by respondent is the concern and
province of the Solicitor General who can institute the corresponding quo
warranto action, 50 after due ascertainment of the factual background and basis for the
grant of respondent's corporate charter, in light of the putative misuse thereof. That spin-
off from the instant bar matter is referred to the Solicitor General for such action as may be
necessary under the circumstances.chanroblesvirtualawlibrarychanrobles virtual law
library
ACCORDINGLY, the Court Resolved to RESTRAIN and ENJOIN herein respondent, The Legal
Clinic, Inc., from issuing or causing the publication or dissemination of any advertisement in
any form which is of the same or similar tenor and purpose as Annexes "A" and "B" of this
petition, and from conducting, directly or indirectly, any activity, operation or transaction
proscribed by law or the Code of Professional Ethics as indicated herein. Let copies of this
resolution be furnished the Integrated Bar of the Philippines, the Office of the Bar Confidant
and the Office of the Solicitor General for appropriate action in accordance herewith.
EN BANC
[B. M. No. 1036. June 10, 2003]
DONNA MARIE S. AGUIRRE, complainant, vs. EDWIN L. RANA, respondent.
CARPIO, J.:
The Case
Before one is admitted to the Philippine Bar, he must possess the requisite moral
integrity for membership in the legal profession. Possession of moral integrity is of greater
importance than possession of legal learning. The practice of law is a privilege bestowed
only on the morally fit. A bar candidate who is morally unfit cannot practice law even if he
passes the bar examinations.
The Facts
Respondent Edwin L. Rana (respondent) was among those who passed the 2000 Bar
Examinations.
On 21 May 2001, one day before the scheduled mass oath-taking of successful bar
examinees as members of the Philippine Bar, complainant Donna Marie Aguirre
(complainant) filed against respondent a Petition for Denial of Admission to the
Bar. Complainant charged respondent with unauthorized practice of law, grave misconduct,
violation of law, and grave misrepresentation.
The Court allowed respondent to take his oath as a member of the Bar during the
scheduled oath-taking on 22 May 2001 at the Philippine International Convention
Center. However, the Court ruled that respondent could not sign the Roll of Attorneys
pending the resolution of the charge against him. Thus, respondent took the lawyers oath
on the scheduled date but has not signed the Roll of Attorneys up to now.
Complainant charges respondent for unauthorized practice of law and grave
misconduct. Complainant alleges that respondent, while not yet a lawyer, appeared as
counsel for a candidate in the May 2001 elections before the Municipal Board of Election
Canvassers (MBEC) of Mandaon, Masbate. Complainant further alleges that respondent filed
with the MBEC a pleading dated 19 May 2001 entitled Formal Objection to the Inclusion in
the Canvassing of Votes in Some Precincts for the Office of Vice-Mayor. In this pleading,
respondent represented himself as counsel for and in behalf of Vice Mayoralty Candidate,
George Bunan, and signed the pleading as counsel for George Bunan (Bunan).
On the charge of violation of law, complainant claims that respondent is a municipal
government employee, being a secretary of the Sangguniang Bayan of Mandaon,
Masbate. As such, respondent is not allowed by law to act as counsel for a client in any court
or administrative body.
On the charge of grave misconduct and misrepresentation, complainant accuses
respondent of acting as counsel for vice mayoralty candidate George Bunan (Bunan)
without the latter engaging respondents services. Complainant claims that respondent filed
the pleading as a ploy to prevent the proclamation of the winning vice mayoralty candidate.
On 22 May 2001, the Court issued a resolution allowing respondent to take the
lawyers oath but disallowed him from signing the Roll of Attorneys until he is cleared of the
charges against him. In the same resolution, the Court required respondent to comment on
the complaint against him.
In his Comment, respondent admits that Bunan sought his specific assistance to
represent him before the MBEC. Respondent claims that he decided to assist and advice
Bunan, not as a lawyer but as a person who knows the law. Respondent admits signing the
19 May 2001 pleading that objected to the inclusion of certain votes in the canvassing. He
explains, however, that he did not sign the pleading as a lawyer or represented himself as
an attorney in the pleading.
On his employment as secretary of the Sangguniang Bayan, respondent claims that he
submitted his resignation on 11 May 2001 which was allegedly accepted on the same date.
He submitted a copy of the Certification of Receipt of Revocable Resignation dated 28 May
2001 signed by Vice-Mayor Napoleon Relox. Respondent further claims that the complaint
is politically motivated considering that complainant is the daughter of Silvestre Aguirre,
19
the losing candidate for mayor of Mandaon, Masbate. Respondent prays that the complaint
be dismissed for lack of merit and that he be allowed to sign the Roll of Attorneys.
On 22 June 2001, complainant filed her Reply to respondents Comment and refuted
the claim of respondent that his appearance before the MBEC was only to extend specific
assistance to Bunan. Complainant alleges that on 19 May 2001 Emily Estipona-Hao
(Estipona-Hao) filed a petition for proclamation as the winning candidate for mayor.
Respondent signed as counsel for Estipona-Hao in this petition. When respondent appeared
as counsel before the MBEC, complainant questioned his appearance on two grounds: (1)
respondent had not taken his oath as a lawyer; and (2) he was an employee of the
government.
Respondent filed a Reply (Re: Reply to Respondents Comment) reiterating his claim that
the instant administrative case is motivated mainly by political vendetta.
On 17 July 2001, the Court referred the case to the Office of the Bar Confidant (OBC)
for evaluation, report and recommendation.
OBCs Report and Recommendation
The OBC found that respondent indeed appeared before the MBEC as counsel for
Bunan in the May 2001 elections. The minutes of the MBEC proceedings show that
respondent actively participated in the proceedings. The OBC likewise found that
respondent appeared in the MBEC proceedings even before he took the lawyers oath on 22
May 2001. The OBC believes that respondents misconduct casts a serious doubt on his
moral fitness to be a member of the Bar. The OBC also believes that respondents
unauthorized practice of law is a ground to deny his admission to the practice of law. The
OBC therefore recommends that respondent be denied admission to the Philippine Bar.
On the other charges, OBC stated that complainant failed to cite a law which
respondent allegedly violated when he appeared as counsel for Bunan while he was a
government employee. Respondent resigned as secretary and his resignation was accepted.
Likewise, respondent was authorized by Bunan to represent him before the MBEC.
The Courts Ruling
We agree with the findings and conclusions of the OBC that respondent engaged in the
unauthorized practice of law and thus does not deserve admission to the Philippine Bar.
Respondent took his oath as lawyer on 22 May 2001. However, the records show that
respondent appeared as counsel for Bunan prior to 22 May 2001, before respondent took
the lawyers oath. In the pleading entitled Formal Objection to the Inclusion in the Canvassing
of Votes in Some Precincts for the Office of Vice-Mayor dated 19 May 2001, respondent signed
as counsel for George Bunan. In the first paragraph of the same pleading respondent
stated that he was the (U)ndersigned Counsel for, and in behalf of Vice Mayoralty
Candidate, GEORGE T. BUNAN. Bunan himself wrote the MBEC on 14 May 2001 that he had
authorized Atty. Edwin L. Rana as his counsel to represent him before the MBEC and similar
bodies.
On 14 May 2001, mayoralty candidate Emily Estipona-Hao also retained respondent
as her counsel. On the same date, 14 May 2001, Erly D. Hao informed the MBEC that Atty.
Edwin L. Rana has been authorized by REFORMA LM-PPC as the legal counsel of the party
and the candidate of the said party. Respondent himself wrote the MBEC on 14 May 2001
that he was entering his appearance as counsel for Mayoralty Candidate Emily Estipona-
Hao and for the REFORMA LM-PPC. On 19 May 2001, respondent signed as counsel for
Estipona-Hao in the petition filed before the MBEC praying for the proclamation of
Estipona-Hao as the winning candidate for mayor of Mandaon, Masbate.
All these happened even before respondent took the lawyers oath. Clearly, respondent
engaged in the practice of law without being a member of the Philippine Bar.
In Philippine Lawyers Association v. Agrava,[1] the Court elucidated that:
The practice of law is not limited to the conduct of cases or litigation in court; it embraces
the preparation of pleadings and other papers incident to actions and special proceedings,
the management of such actions and proceedings on behalf of clients before judges and
courts, and in addition, conveyancing. In general, all advice to clients, and all action taken for
them in matters connected with the law,incorporation services, assessment and
condemnation services contemplating an appearance before a judicial body, the foreclosure
of a mortgage, enforcement of a creditor's claim in bankruptcy and insolvency proceedings,
and conducting proceedings in attachment, and in matters of estate and guardianship have
been held to constitute law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by the trained legal mind of the
legal effect of facts and conditions. (5 Am. Jur. p. 262, 263). (Italics supplied) x x x
In Cayetano v. Monsod,[2] the Court held that practice of law means any activity, in or
out of court, which requires the application of law, legal procedure, knowledge, training and
experience. To engage in the practice of law is to perform acts which are usually performed
by members of the legal profession. Generally, to practice law is to render any kind of
service which requires the use of legal knowledge or skill.
Verily, respondent was engaged in the practice of law when he appeared in the
proceedings before the MBEC and filed various pleadings, without license to do so. Evidence
clearly supports the charge of unauthorized practice of law. Respondent called himself
counsel knowing fully well that he was not a member of the Bar. Having held himself out as
counsel knowing that he had no authority to practice law, respondent has shown moral
unfitness to be a member of the Philippine Bar.[3]
The right to practice law is not a natural or constitutional right but is a privilege. It is
limited to persons of good moral character with special qualifications duly ascertained and
certified.The exercise of this privilege presupposes possession of integrity, legal knowledge,
educational attainment, and even public trust[4] since a lawyer is an officer of the court. A
bar candidate does not acquire the right to practice law simply by passing the bar
examinations. The practice of law is a privilege that can be withheld even from one who has
20
passed the bar examinations, if the person seeking admission had practiced law without a
license.[5]
The regulation of the practice of law is unquestionably strict. In Beltran, Jr. v.
Abad,[6] a candidate passed the bar examinations but had not taken his oath and signed the
Roll of Attorneys. He was held in contempt of court for practicing law even before his
admission to the Bar. Under Section 3 (e) of Rule 71 of the Rules of Court, a person who
engages in the unauthorized practice of law is liable for indirect contempt of court.[7]
True, respondent here passed the 2000 Bar Examinations and took the lawyers
oath. However, it is the signing in the Roll of Attorneys that finally makes one a full-fledged
lawyer. The fact that respondent passed the bar examinations is immaterial. Passing the bar
is not the only qualification to become an attorney-at-law.[8] Respondent should know that
two essential requisites for becoming a lawyer still had to be performed, namely: his
lawyers oath to be administered by this Court and his signature in the Roll of Attorneys.[9]
On the charge of violation of law, complainant contends that the law does not allow
respondent to act as counsel for a private client in any court or administrative body since
respondent is the secretary of the Sangguniang Bayan.
Respondent tendered his resignation as secretary of the Sangguniang Bayan prior to
the acts complained of as constituting unauthorized practice of law. In his letter dated 11
May 2001 addressed to Napoleon Relox, vice- mayor and presiding officer of the
Sangguniang Bayan, respondent stated that he was resigning effective upon your
acceptance.[10] Vice-Mayor Relox accepted respondents resignation effective 11 May
2001.[11] Thus, the evidence does not support the charge that respondent acted as counsel
for a client while serving as secretary of the Sangguniang Bayan.
On the charge of grave misconduct and misrepresentation, evidence shows that Bunan
indeed authorized respondent to represent him as his counsel before the MBEC and similar
bodies. While there was no misrepresentation, respondent nonetheless had no authority to
practice law.
WHEREFORE, respondent Edwin L. Rana is DENIED admission to the Philippine Bar.
SO ORDERED.
March 11, 2015 A.C. No. 7593
ALVIN S. FELICIANO, Complainant, vs.
ATTY. CARMELITA BAUTISTA LOZADA, Respondent.
PERALTA, J.:
Before us is a Petition for Disbarment1 dated August 2, 2007 filed by Alvin S. Feliciano
(complainant) against respondent Atty. Carmelita Bautista-Lozada (Atty. Lozada) for
violation of Section 27,2 Rule 138 of the Rules of Court.
The facts of the case, as culled from the records, are as follows:
On December 13, 2005, the Court en banc promulgated a Resolution in A.C. No. 6656
entitled "Bobie Rose V. Frias vs. Atty. Carmencita Bautista Lozada"3 suspending Atty. Lozada
for violation of Rules 15.03 and 16.04 of the Code of Professional Responsibility, the
dispositive portion of which reads:
WHEREFORE, respondent Atty. Carmencita Bautista Lozada is hereby found guilty of
violating Rules 15.03 and 16.04 of the Code of Professional Responsibility and of willfully
disobeying a final and executory decision of the Court of Appeals. She is hereby SUSPENDED
from the practice of law for a period of two (2) years from notice, with a STERN WARNING
that a repetition of the same or similar acts will be dealt with more severely.
Let copies of this Resolution be furnished all courts of the land, the Integrated Bar of the
Philippines, as well as the Office of the Bar Confidant, for their information and guidance,
and let it be entered in respondent's personal records.
SO ORDERED.4
On May 4, 2006, the Court denied with finality Atty. Lozada's motion for reconsideration. 5
However, on June 5, 2007, in an action for injunction with prayer for issuance of a
temporary restraining order and/or writ of preliminary injunction docketed as Civil Case
no. 101-V-07 entitled "Edilberto Lozada, et.al. vs. Alvin S. Feliciano, et al.," where
complainant was one of the respondents, complainant lamented that Atty. Lozada appeared
as counsel for the plaintiff and her husband, Edilberto Lozada, and actively participated in
the proceedings of the case before Branch 75 of the Regional Trial Court of Valenzuela City.
To prove his allegation, complainant submitted certified true copies of the minutes of the
hearings, dated June 12, 2007, July 3, 2007 and July 6, 2007, wherein Atty. Lozada signed
her name as one of the counsels,6 as well as the transcript of stenographic notes showing
that Atty. Lozada conducted direct examination and cross-examination of the witnesses
during the trial proceedings.7
Complainant argued that the act of Atty. Lozada in appearing as counsel while still
suspended from the practice of law constitutes willfull disobedience to the resolutions of
the Court which suspended her from the practice of law for two (2) years.
On September 12, 2007, the Court resolved to require Atty. Lozada to comment on the
complaint against him.8
In her Comment9 dated November 19, 2007, Atty. Lozada explained that she was forced by
circumstances and her desire to defend the rights of her husband who is embroiled in a
21
legal dispute. She claimed that she believed in good faith that her appearance as wife of
Edilberto Lozada is not within the prohibition to practice law, considering that she is
defending her husband and not a client.1awp++i1 She insisted that her husband is a victim
of grave injustice, and his reputation and honor are at stake; thus, she has no choice but to
give him legal assistance.10
On January 30, 2008, the Court referred the instant case to the Integrated Bar of the
Philippines for investigation, report and recommendation.11
In its Report and Recommendation12 dated March 9, 2009, the Integrated Bar of the
Philippines-Commission on Bar Discipline (IBP-CBD) found Atty. Lozada guilty of violating
Rule 1.01 & 1.02, Rule 18.01 of the Code of Professional Responsibility and the terms of her
suspension from the practice of law as imposed by the Court. Thus, the IBP-CBD
recommended the disbarment of Atty. Lozada.
On May 14, 2011, however, the IBP-Board of Governors resolved to adopt and approve with
modification the report and recommendation of the IBP-CBD such that it recommended
instead that Atty. Lozada be suspended from the practice of law for three (3) months.
RULING
We adopt the ruling of the IBP-Board of Governors with modification.
Indeed, this Court has the exclusive jurisdiction to regulate the practice of law. When this
Court orders a lawyer suspended from the practice of law, as in the instant case, the lawyer
must desist from performing all functions requiring the application of legal knowledge
within the period of suspension.13
Suffice it to say that practice of law embraces "any activity, in or out of court, which
requires the application of law, legal procedure, knowledge, training and experience." It
includes "[performing] acts which are characteristics of the [legal] profession" or
"[rendering any kind of] service [which] requires the use in any degree of legal knowledge
or skill."14
In the instant case, Atty. Lozada's guilt is undisputed. Based on the records, there is no
doubt that Atty. Lozada's actuations, that is, in appearing and signing as counsel for and in
behalf of her husband, conducting or offering stipulation/admission of facts, conducting
direct and cross- examination, all constitute practice of law. Furthermore, the findings of
the IBP would disclose that such actuations of Atty. Lozada of actively engaging in the
practice of law in June-July 2007 were done within the period of her two (2)-year
suspension considering that she was suspended from the practice of law by this Court in
May 4, 2006. It would then appear that, at the very least, Atty. Lozada cannot practice law
from 2006 to 2008. Thus, it is clear that when Atty. Lozada appeared for and in behalf of her
husband in Civil Case No. 101-V-07 and actively participated in the proceedings therein in
June-July 2007, or within the two (2)-year suspension, she, therefore, engaged in the
unauthorized practice of law.
Atty. Lozada's defense of good faith fails to convince. She knew very well that at the time
she represented her husband, she is still serving her two (2)-year suspension order. Yet, she
failed to inform the court about it. Neither did she seek any clearance or clarification from
the Court if she can represent her husband. While we understand her devotion and desire to
defend her husband whom she believed has suffered grave injustice, Atty. Lozada should
not forget that she is first and foremost, an officer of the court who is bound to obey the
lawful order of the Court.
Under Section 27, Rule 138 of the Revised Rules of Court, as amended, willful disobedience
to any lawful order of a superior court is a ground for disbarment or suspension from the
practice of law:
SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds
therefor.1âwphi1 - A member of the bar may be disbarred or suspended from his office as
attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in
such office, grossly immoral conduct, or by reason of his conviction of a crime involving
moral turpitude, or for any violation of the oath which he is required to take before
admission to practice, or for a willful disobedience of any lawful order of a superior court,
or for corruptly or willfully appearing as an attorney for a party to a case without authority
to do so. The practice of soliciting cases at law for the purpose of gain, either personally or
through paid agents or brokers, constitutes malpractice.15
Atty. Lozada would have deserved a harsher penalty, but this Court recognizes the fact that
it is part of the Filipino culture that amid an adversity, families will always look out and
extend a helping hand to a family member, more so, in this case, to a spouse. Thus,
considering that Atty. Lozada's actuation was prompted by her affection to her husband and
that in essence, she was not representing a client but rather a spouse, we deem it proper to
mitigate the severeness of her penalty.
Following the recent case of Victor C. Lingan v. Atty. Romeo Calubaquib and Jimmy P.
Baliga,16 citing Molina v. Atty. Magat,17 where this Court suspended further respondents
from the practice of law for six (6) months for practicing their profession despite this
court's previous order of suspension, we, thus, impose the same penalty on Atty. Lozada for
representing her husband as counsel despite lack of authority to practice law.
Disbarment of lawyers is a proceeding that aims to purge the law profession of unworthy
members of the bar. It is intended to preserve the nobility and honor of the legal profession.
While the Supreme Court has the plenary power to discipline erring lawyers through this
kind of proceedings, it does so in the most vigilant manner so as not to frustrate its
preservative principle. The Court, in the exercise of its sound judicial discretion, is inclined
to impose a less severe punishment if, through it, the end desire of reforming the errant
lawyer is possible.18
WHEREFORE, premises considered, Atty. Carmelita S. Bautista- Lozada is found GUILTY of
violating Section 27,19Rule 138 of the Rules of Court, and is hereby SUSPENDED for a period
of six (6) months from the practice of law, with a WARNING that a repetition of the same or
similar offense will warrant a more severe penalty.
22
Let copies of this Decision be furnished all courts, the Office of the Bar Confidant and the
Integrated Bar of the Philippines for their information and guidance. The Office of the Bar
Confidant is DIRECTED to append a copy of this Decision to respondent’s record as member
of the Bar.
Atty. Lozada is DIRECTED to inform the Court of the date of her receipt of this Decision, so
that we can determine the reckoning point when her suspension shall take effect.
This Decision is immediately executory.
SO ORDERED.
CBD Case No. 176 January 20, 1995
SALLY D. BONGALONTA, complainant, vs.
ATTY. PABLITO M. CASTILLO and ALFONSO M. MARTIJA, respondents.
MELO, J.:
In a sworn letter-complaint dated February 15, 1995, addressed to the Commission on Bar
Discipline, National Grievance Investigation Office, Integrated Bar of the Philippines,
complainant Sally Bongalonta charged Pablito M. Castillo and Alfonso M. Martija, members
of the Philippine Bar, with unjust and unethical conduct, to wit: representing conflicting
interests and abetting a scheme to frustrate the execution or satisfaction of a judgment
which complainant might obtain.
The letter-complaint stated that complainant filed with the Regional Trial Court of Pasig,
Criminal Case No. 7635-55, for estafa, against the Sps. Luisa and Solomer Abuel. She also
filed, a separate civil action Civil Case No. 56934, where she was able to obtain a writ of
preliminary attachment and by virtue thereof, a piece of real property situated in Pasig,
Rizal and registered in the name of the Sps. Abuel under TCT No. 38374 was attached. Atty.
Pablito Castillo was the counsel of the Sps. Abuel in the aforesaid criminal and civil cases.
During the pendency of these cases, one Gregorio Lantin filed civil Case No. 58650 for
collection of a sum of money based on a promissory note, also with the Pasig Regional Trial
Court, against the Sps. Abuel. In the said case Gregorio Lantin was represented by Atty.
Alfonso Martija. In this case, the Sps. Abuel were declared in default for their failure to file
the necessary responsive pleading and evidence ex-parte was received against them
followed by a judgment by default rendered in favor of Gregorio Lantin. A writ of execution
was, in due time, issued and the same property previously attached by complainant was
levied upon.
It is further alleged that in all the pleadings filed in these three (3) aforementioned cases,
Atty. Pablito Castillo and Atty. Alfonso Martija placed the same address, the same PTR and
the same IBP receipt number to wit" Permanent Light Center, No. 7, 21st Avenue, Cubao,
Quezon City, PTR No. 629411 dated 11-5-89 IBP No. 246722 dated 1-12-88.
Thus, complainant concluded that civil Case No. 58650 filed by Gregorio Lantin was merely
a part of the scheme of the Sps. Abuel to frustrate the satisfaction of the money judgment
which complainant might obtain in Civil Case No. 56934.
After hearing, the IBP Board of Governors issued it Resolution with the following findings
and recommendations:
Among the several documentary exhibits submitted by Bongalonta and
attached to the records is a xerox copy of TCT No. 38374, which
Bongalonta and the respondents admitted to be a faithful reproduction
of the original. And it clearly appears under the Memorandum of
Encumbrances on aid TCT that the Notice of Levy in favor of Bongalonta
and her husband was registered and annotated in said title of February
7, 1989, whereas, that in favor of Gregorio Lantin, on October 18, 1989.
Needless to state, the notice of levy in favor of Bongalonta and her
husband is a superior lien on the said registered property of the Abuel
spouses over that of Gregorio Lantin.
Consequently, the charge against the two respondents (i.e. representing
conflicting interests and abetting a scheme to frustrate the execution or
satisfaction of a judgment which Bongalonta and her husband might
obtain against the Abuel spouses) has no leg to stand on.
However, as to the fact that indeed the two respondents placed in their
appearances and in their pleadings the same IBP No. "246722 dated
1-12-88", respondent Atty. Pablito M. Castillo deserves to be
SUSPENDED for using, apparently thru his negligence, the IBP official
receipt number of respondent Atty. Alfonso M. Martija. According to the
records of the IBP National Office, Atty. Castillo paid P1,040.00 as his
delinquent and current membership dues, on February 20, 1990, under
IBP O.R. No. 2900538, after Bongalonta filed her complaint with the IBP
Committee on Bar Discipline.
The explanation of Atty. Castillo's Cashier-Secretary by the name of Ester
Fraginal who alleged in her affidavit dated March 4, 1993, that it was all
her fault in placing the IBP official receipt number pertaining to Atty.
Alfonso M. Martija in the appearance and pleadings Atty. Castillo and in
failing to pay in due time the IBP membership dues of her employer,
deserves scant consideration, for it is the bounded duty and obligation of
every lawyer to see to it that he pays his IBP membership dues on time,
especially when he practices before the courts, as required by the
Supreme Court.
WHEREFORE, it is respectfully recommended that Atty. Pablito M.
Castillo be SUSPENDED from the practice of law for a period of six (6)
months for using the IBP Official Receipt No. of his co-respondent Atty.
Alfonso M. Martija.
23
 The complaint against Atty. Martija is hereby DISMISSED for lack of
evidence. (pp. 2-4, Resolution)
The Court agrees with the foregoing findings and recommendations. It is well to stress
again that the practice of law is not a right but a privilege bestowed by the State on those
who show that they possess, and continue to possess, the qualifications required by law for
the conferment of such privilege. One of these requirements is the observance of honesty
and candor. Courts are entitled to expect only complete candor and honesty from the
lawyers appearing and pleading before them. A lawyer, on the other hand, has the
fundamental duty to satisfy that expectation. for this reason, he is required to swear to do
no falsehood, nor consent to the doing of any in court.
WHEREFORE, finding respondent Atty. Pablito M. Castillo guilty committing a falsehood in
violation of his lawyer's oath and of the Code of Professional Responsibility, the Court
Resolved to SUSPEND him from the practice of law for a period of six (6) months, with a
warning that commission of the same or similar offense in the future will result in the
imposition of a more severe penalty. A copy of the Resolution shall be spread on the
personal record of respondent in the Office of the Bar Confidant.
SO ORDERED.
B.M. No. 712 July 13, 1995
IN THE MATTER OF THE ADMISSION TO THE BAR AND OATH-TAKING OF SUCCESSFUL
BAR APPLICANT AL C. ARGOSINO, petitioner.
RESOLUTION
FELICIANO, J.:
A criminal information was filed on 4 February 1992 with the Regional Trial Court of
Quezon City, Branch 101, charging Mr. A.C. Argosino along with thirteen (13) other
individuals, with the crime of homicide in connection with the death of one Raul Camaligan
on 8 September 1991. The death of Raul Camaligan stemmed from the infliction of severe
physical injuries upon him in the course of "hazing" conducted as part of university
fraternity initiation rites. Mr. Argosino and his co-accused then entered into plea bargaining
with the prosecution and as a result of such bargaining, pleaded guilty to the lesser offense
of homicide through reckless imprudence. This plea was accepted by the trial court. In a
judgment dated 11 February 1993, each of the fourteen (14) accused individuals was
sentenced to suffer imprisonment for a period ranging from two (2) years, four (4) months
and one (1) day to four (4) years.
Eleven (11) days later, Mr. Argosino and his colleagues filed an application for probation
with the lower court. The application for probation was granted in an Order dated 18 June
1993 issued by Regional Trial Court Judge Pedro T. Santiago. The period of probation was
set at two (2) years, counted from the probationer's initial report to the probation officer
assigned to supervise him.
Less than a month later, on 13 July 1993, Mr. Argosino filed a Petition for Admission to Take
the 1993 Bar Examinations. In this Petition, he disclosed the fact of his criminal conviction
and his then probation status. He was allowed to take the 1993 Bar Examinations in this
Court's En Banc Resolution dated 14 August 1993.1 He passed the Bar Examination. He was
not, however, allowed to take the lawyer's oath of office.
On 15 April 1994, Mr. Argosino filed a Petition with this Court to allow him to take the
attorney's oath of office and to admit him to the practice of law, averring that Judge Pedro T.
Santiago had terminated his probation period by virtue of an Order dated 11 April 1994. We
note that his probation period did not last for more than ten (10) months from the time of
the Order of Judge Santiago granting him probation dated 18 June 1993. Since then, Mr.
Argosino has filed three (3) Motions for Early Resolution of his Petition for Admission to the
Bar.
The practice of law is not a natural, absolute or constitutional right to be granted to
everyone who demands it. Rather, it is a high personal privilege limited to citizens of good
moral character, with special educational qualifications, duly ascertained and certified.2 The
essentiality of good moral character in those who would be lawyers is stressed in the
following excerpts which we quote with approval and which we regard as having
persuasive effect:
In Re Farmer: 3
xxx xxx xxx
This "upright character" prescribed by the statute, as a condition
precedent to the applicant's right to receive a license to practice law in
North Carolina, and of which he must, in addition to other requisites,
satisfy the court, includes all the elements necessary to make up such a
character. It is something more than an absence of bad character. It is the
good name which the applicant has acquired, or should have acquired,
24
through association with his fellows. It means that he must have
conducted himself as a man of upright character ordinarily would, or
should, or does. Such character expresses itself, not in negatives nor in
following the line of least resistance, but quite often, in the will to do the
unpleasant thing if it is right, and the resolve not to do the pleasant thing if
it is wrong. . . .
xxx xxx xxx
And we may pause to say that this requirement of the statute is
eminently proper. Consider for a moment the duties of a lawyer. He is
sought as counsellor, and his advice comes home, in its ultimate effect, to
every man's fireside. Vast interests are committed to his care; he is the
recipient of unbounded trust and confidence; he deals with is client's
property, reputation, his life, his all. An attorney at law is a sworn officer of
the Court, whose chief concern, as such, is to aid the administration of
justice. . . .
xxx xxx xxx4
In Re Application of Kaufman,5 citing Re Law Examination of 1926 (1926)
191 Wis 359, 210 NW 710:
It can also be truthfully said that there exists nowhere greater
temptations to deviate from the straight and narrow path than in the
multiplicity of circumstances that arise in the practice of profession. For
these reasons the wisdom of requiring an applicant for admission to the
bar to possess a high moral standard therefore becomes clearly
apparent, and the board of bar examiners as an arm of the court, is
required to cause a minute examination to be made of the moral
standard of each candidate for admission to practice. . . . It needs no
further argument, therefore, to arrive at the conclusion that the highest
degree of scrutiny must be exercised as to the moral character of a
candidate who presents himself for admission to the bar. The evil must, if
possible, be successfully met at its very source, and prevented, for, after a
lawyer has once been admitted, and has pursued his profession, and has
established himself therein, a far more difficult situation is presented to
the court when proceedings are instituted for disbarment and for the
recalling and annulment of his license.
In Re Keenan:6
The right to practice law is not one of the inherent rights of every citizen,
as in the right to carry on an ordinary trade or business. It is a peculiar
privilege granted and continued only to those who demonstrate special
fitness in intellectual attainment and in moral character. All may aspire to
it on an absolutely equal basis, but not all will attain it. Elaborate
machinery has been set up to test applicants by standards fair to all and
to separate the fit from the unfit. Only those who pass the test are
allowed to enter the profession, and only those who maintain the
standards are allowed to remain in it.
Re Rouss:7
Membership in the bar is a privilege burdened with conditions, and a fair
private and professional character is one of them; to refuse admission to an
unworthy applicant is not to punish him for past offense: an examination
into character, like the examination into learning, is merely a test of
fitness.
Cobb vs. Judge of Superior Court:8
Attorney's are licensed because of their learning and ability, so that they
may not only protect the rights and interests of their clients, but be able
to assist court in the trial of the cause. Yet what protection to clients or
assistance to courts could such agents give? They are required to be of
good moral character, so that the agents and officers of the court, which
they are, may not bring discredit upon the due administration of the law,
and it is of the highest possible consequence that both those who have not
such qualifications in the first instance, or who, having had them, have
fallen therefrom, shall not be permitted to appear in courts to aid in the
administration of justice.
It has also been stressed that the requirement of good moral character is, in fact, of greater
importance so far as the general public and the proper administration of justice are
concerned, than the possession of legal learning:
. . . (In re Applicants for License, 55 S.E. 635, 143 N.C. 1, 10 L.R.A. [N.S.]
288, 10 Ann./Cas. 187):
The public policy of our state has always been to
admit no person to the practice of the law unless he
covered an upright moral character. The possession of
this by the attorney is more important, if anything, to
the public and to the proper administration of justice
than legal learning. Legal learning may be acquired in
after years, but if the applicant passes the threshold of
the bar with a bad moral character the chances are
that his character will remain bad, and that he will
become a disgrace instead of an ornament to his great
calling — a curse instead of a benefit to his
community — a Quirk, a Gammon or a Snap, instead of
a Davis, a Smith or a Ruffin.9
25
All aspects of moral character and behavior may be inquired into in respect of those seeking
admission to the Bar. The scope of such inquiry is, indeed, said to be properly broader than
inquiry into the moral proceedings for disbarment:
Re Stepsay: 10
The inquiry as to the moral character of an attorney in a proceeding for
his admission to practice is broader in scope than in a disbarment
proceeding.
Re Wells: 11
. . . that an applicant's contention that upon application for admission to
the California Bar the court cannot reject him for want of good moral
character unless it appears that he has been guilty of acts which would
be cause for his disbarment or suspension, could not be sustained; that
the inquiry is broader in its scope than that in a disbarment
proceeding, and the court may receive any evidence which tends to show
the applicant's character as respects honesty, integrity, and general
morality, and may no doubt refuse admission upon proofs that might not
establish his guilt of any of the acts declared to be causes for disbarment.
The requirement of good moral character to be satisfied by those who would seek
admission to the bar must of necessity be more stringent than the norm of conduct
expected from members of the general public. There is a very real need to prevent a general
perception that entry into the legal profession is open to individuals with inadequate moral
qualifications. The growth of such a perception would signal the progressive destruction of
our people's confidence in their courts of law and in our legal system as we know it.12
Mr. Argosino's participation in the deplorable "hazing" activities certainly fell far short of
the required standard of good moral character. The deliberate (rather than merely
accidental or inadvertent) infliction of severe physical injuries which proximately led to the
death of the unfortunate Raul Camaligan, certainly indicated serious character flaws on the
part of those who inflicted such injuries. Mr. Argosino and his co-accused had failed to
discharge their moral duty to protect the life and well-being of a "neophyte" who had, by
seeking admission to the fraternity involved, reposed trust and confidence in all of them
that, at the very least, he would not be beaten and kicked to death like a useless stray dog.
Thus, participation in the prolonged and mindless physical beatings inflicted upon Raul
Camaligan constituted evident rejection of that moral duty and was totally irresponsible
behavior, which makes impossible a finding that the participant was then possessed of good
moral character.
Now that the original period of probation granted by the trial court has expired, the Court is
prepared to consider de novo the question of whether applicant A.C. Argosino has purged
himself of the obvious deficiency in moral character referred to above. We stress that good
moral character is a requirement possession of which must be demonstrated not only at the
time of application for permission to take the bar examinations but also, and more
importantly, at the time of application for admission to the bar and to take the attorney's
oath of office.
Mr. Argosino must, therefore, submit to this Court, for its examination and consideration,
evidence that he may be now regarded as complying with the requirement of good moral
character imposed upon those seeking admission to the bar. His evidence may consist, inter
alia, of sworn certifications from responsible members of the community who have a good
reputation for truth and who have actually known Mr. Argosino for a significant period of
time, particularly since the judgment of conviction was rendered by Judge Santiago. He
should show to the Court how he has tried to make up for the senseless killing of a helpless
student to the family of the deceased student and to the community at large. Mr. Argosino
must, in other words, submit relevant evidence to show that he is a different person now,
that he has become morally fit for admission to the ancient and learned profession of the
law.
Finally, Mr. Argosino is hereby DIRECTED to inform this Court, by appropriate written
manifestation, of the names and addresses of the father and mother (in default thereof,
brothers and sisters, if any, of Raul Camaligan), within ten (10) day from notice hereof. Let a
copy of this Resolution be furnished to the parents or brothers and sisters, if any, of Raul
Camaligan.
G.R. No. 154207 April 27, 2007
FERDINAND A. CRUZ, Petitioner,
vs. ALBERTO MINA, HON. ELEUTERIO F. GUERRERO and HON. ZENAIDA
LAGUILLES, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court, grounded on
pure questions of law, with Prayer for Preliminary Injunction assailing the Resolution dated
May 3, 2002 promulgated by the Regional Trial Court (RTC), Branch 116, Pasay City, in Civil
Case No. 02-0137, which denied the issuance of a writ of preliminary injunction against the
Metropolitan Trial Court (MeTC), Branch 45, Pasay City, in Criminal Case No. 00-1705;1 and
26
the RTC’s Order dated June 5, 2002 denying the Motion for Reconsideration. No writ of
preliminary injunction was issued by this Court.
The antecedents:
On September 25, 2000, Ferdinand A. Cruz (petitioner) filed before the MeTC a formal Entry
of Appearance, as private prosecutor, in Criminal Case No. 00-1705 for Grave Threats,
where his father, Mariano Cruz, is the complaining witness.
The petitioner, describing himself as a third year law student, justifies his appearance as
private prosecutor on the bases of Section 34 of Rule 138 of the Rules of Court and the
ruling of the Court En Banc in Cantimbuhan v. Judge Cruz, Jr.2 that a non-lawyer may appear
before the inferior courts as an agent or friend of a party litigant. The petitioner
furthermore avers that his appearance was with the prior conformity of the public
prosecutor and a written authority of Mariano Cruz appointing him to be his agent in the
prosecution of the said criminal case.
However, in an Order dated February 1, 2002, the MeTC denied permission for petitioner to
appear as private prosecutor on the ground that Circular No. 19 governing limited law
student practice in conjunction with Rule 138-A of the Rules of Court (Law Student Practice
Rule) should take precedence over the ruling of the Court laid down in Cantimbuhan; and
set the case for continuation of trial.3
On February 13, 2002, petitioner filed before the MeTC a Motion for Reconsideration
seeking to reverse the February 1, 2002 Order alleging that Rule 138-A, or the Law Student
Practice Rule, does not have the effect of superseding Section 34 of Rule 138, for the
authority to interpret the rule is the source itself of the rule, which is the Supreme Court
alone.
In an Order dated March 4, 2002, the MeTC denied the Motion for Reconsideration.
On April 2, 2002, the petitioner filed before the RTC a Petition for Certiorari and Mandamus
with Prayer for Preliminary Injunction and Temporary Restraining Order against the
private respondent and the public respondent MeTC.
After hearing the prayer for preliminary injunction to restrain public respondent MeTC
Judge from proceeding with Criminal Case No. 00-1705 pending the Certiorari proceedings,
the RTC, in a Resolution dated May 3, 2002, resolved to deny the issuance of an injunctive
writ on the ground that the crime of Grave Threats, the subject of Criminal Case No. 00-
1705, is one that can be prosecuted de oficio, there being no claim for civil indemnity, and
that therefore, the intervention of a private prosecutor is not legally tenable.
On May 9, 2002, the petitioner filed before the RTC a Motion for Reconsideration. The
petitioner argues that nowhere does the law provide that the crime of Grave Threats has no
civil aspect. And last, petitioner cites Bar Matter No. 730 dated June 10, 1997 which
expressly provides for the appearance of a non-lawyer before the inferior courts, as an
agent or friend of a party litigant, even without the supervision of a member of the bar.
Pending the resolution of the foregoing Motion for Reconsideration before the RTC, the
petitioner filed a Second Motion for Reconsideration dated June 7, 2002 with the MeTC
seeking the reversal of the March 4, 2002 Denial Order of the said court, on the strength of
Bar Matter No. 730, and a Motion to Hold In Abeyance the Trial dated June 10, 2002 of
Criminal Case No. 00-1705 pending the outcome of the certiorari proceedings before the
RTC.
On June 5, 2002, the RTC issued its Order denying the petitioner’s Motion for
Reconsideration.
Likewise, in an Order dated June 13, 2002, the MeTC denied the petitioner’s Second Motion
for Reconsideration and his Motion to Hold in Abeyance the Trial on the ground that the
RTC had already denied the Entry of Appearance of petitioner before the MeTC.
On July 30, 2002, the petitioner directly filed with this Court, the instant Petition and
assigns the following errors:
I.
the respondent regional trial court abused its discretion when it resolved to deny the
prayer for the writ of injunction of the herein petitioner despite petitioner having
established the necessity of granting the writ;
II.
THE RESPONDENT TRIAL COURT ABUSED ITS DISCRETION, TANTAMOUNT TO
IGNORANCE OF THE LAW, WHEN IT RESOLVED TO DENY THE PRAYER FOR THE WRIT OF
PRELIMINARY INJUNCTION AND THE SUBSEQUENT MOTION FOR RECONSIDERATION OF
THE HEREIN PETITIONER ON THE BASIS THAT [GRAVE] THREATS HAS NO CIVIL ASPECT,
FOR THE SAID BASIS OF DENIAL IS NOT IN ACCORD WITH THE LAW;
III.
THE RESPONDENT METROPOLITAN TRIAL COURT ABUSED ITS DISCRETION WHEN IT
DENIED THE MOTION TO HOLD IN ABEYANCE TRIAL, WHEN WHAT WAS DENIED BY THE
RESPONDENT REGIONAL TRIAL COURT IS THE ISSUANCE OF THE WRIT OF PRELIMINARY
INJUNCTION and WHEN THE RESPONDENT REGIONAL TRIAL COURT IS YET TO DECIDE
ON THE MERITS OF THE PETITION FOR CERTIORARI;
IV.
27
THE RESPONDENT COURT[s] ARE CLEARLY IGNORING THE LAW WHEN THEY PATENTLY
REFUSED TO HEED TO [sic] THE CLEAR MANDATE OF THE LAPUT, CANTIMBUHAN AND
BULACAN CASES, AS WELL AS BAR MATTER NO. 730, PROVIDING FOR THE APPEARANCE
OF NON-LAWYERS BEFORE THE LOWER COURTS (MTC’S).4
This Court, in exceptional cases, and for compelling reasons, or if warranted by the nature
of the issues reviewed, may take cognizance of petitions filed directly before it.5
Considering that this case involves the interpretation, clarification, and implementation of
Section 34, Rule 138 of the Rules of Court, Bar Matter No. 730, Circular No. 19 governing
law student practice and Rule 138-A of the Rules of Court, and the ruling of the Court
in Cantimbuhan, the Court takes cognizance of herein petition.
The basic question is whether the petitioner, a law student, may appear before an inferior
court as an agent or friend of a party litigant.
The courts a quo held that the Law Student Practice Rule as encapsulated in Rule 138-A of
the Rules of Court, prohibits the petitioner, as a law student, from entering his appearance
in behalf of his father, the private complainant in the criminal case without the supervision
of an attorney duly accredited by the law school.
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.
However, in Resolution6 dated June 10, 1997 in Bar Matter No. 730, the Court En Banc
clarified:
The rule, however, is different if the law student appears before an inferior court, where the
issues and procedure are relatively simple. In inferior courts, a law student may appear in
his personal capacity without the supervision of a lawyer. Section 34, Rule 138 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 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.
Thus, a law student may appear before an inferior court as an agent or friend of a party
without the supervision of a member of the bar.7 (Emphasis supplied)
The phrase "In the court of a justice of the peace" in Bar Matter No. 730 is subsequently
changed to "In the court of a municipality" as it now appears in Section 34 of Rule 138,
thus:8
SEC. 34. By whom litigation is conducted. — In the Court of a municipality a party may
conduct his litigation in person, with 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. (Emphasis supplied)
which is the prevailing rule at the time the petitioner filed his Entry of Appearance with the
MeTC on September 25, 2000. No real distinction exists for under Section 6, Rule 5 of the
Rules of Court, the term "Municipal Trial Courts" as used in these Rules shall include
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and
Municipal Circuit Trial Courts.
There is really no problem as to the application of Section 34 of Rule 138 and Rule 138-A. In
the former, the appearance of a non-lawyer, as an agent or friend of a party litigant, is
expressly allowed, while the latter rule provides for conditions when a law student, not as
an agent or a friend of a party litigant, may appear before the courts.
Petitioner expressly anchored his appearance on Section 34 of Rule 138. The court a
quo must have been confused by the fact that petitioner referred to himself as a law student
in his entry of appearance. Rule 138-A should not have been used by the courts a quo in
denying permission to act as private prosecutor against petitioner for the simple reason
that Rule 138-A is not the basis for the petitioner’s appearance.
Section 34, Rule 138 is clear that appearance before the inferior courts by a non-lawyer is
allowed, irrespective of whether or not he is a law student. As succinctly clarified in Bar
Matter No. 730, by virtue of Section 34, Rule 138, a law student may appear, as an agent or a
friend of a party litigant, without the supervision of a lawyer before inferior courts.
Petitioner further argues that the RTC erroneously held that, by its very nature, no civil
liability may flow from the crime of Grave Threats, and, for this reason, the intervention of a
private prosecutor is not possible.
28
It is clear from the RTC Decision that no such conclusion had been intended by the RTC. In
denying the issuance of the injunctive court, the RTC stated in its Decision that there was no
claim for civil liability by the private complainant for damages, and that the records of the
case do not provide for a claim for indemnity; and that therefore, petitioner’s appearance as
private prosecutor appears to be legally untenable.
Under Article 100 of the Revised Penal Code, every person criminally liable for a felony is
also civilly liable except in instances when no actual damage results from an offense, such as
espionage, violation of neutrality, flight to an enemy country, and crime against popular
representation.9 The basic rule applies in the instant case, such that when a criminal action
is instituted, the civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted with criminal action, unless the offended party waives
the civil action, reserves the right to institute it separately or institutes the civil action prior
to the criminal action.10
The petitioner is correct in stating that there being no reservation, waiver, nor prior
institution of the civil aspect in Criminal Case No. 00-1705, it follows that the civil aspect
arising from Grave Threats is deemed instituted with the criminal action, and, hence, the
private prosecutor may rightfully intervene to prosecute the civil aspect.
WHEREFORE, the Petition is GRANTED. The assailed Resolution and Order of the Regional
Trial Court, Branch 116, Pasay City are REVERSED and SET ASIDE. The Metropolitan Trial
Court, Branch 45, Pasay City is DIRECTED to ADMIT the Entry of Appearance of petitioner
in Criminal Case No. 00-1705 as a private prosecutor under the direct control and
supervision of the public prosecutor.
No pronouncement as to costs.
SO ORDERED.
B.M. No. 1370 May 9, 2005
LETTER OF ATTY. CECILIO Y. AREVALO, JR., REQUESTING EXEMPTION FROM
PAYMENT OF IBP DUES.
DECISION
CHICO-NAZARIO, J.:
This is a request for exemption from payment of the Integrated Bar of the Philippines (IBP)
dues filed by petitioner Atty. Cecilio Y. Arevalo, Jr.
In his letter,1 dated 22 September 2004, petitioner sought exemption from payment of IBP
dues in the amount of P12,035.00 as alleged unpaid accountability for the years 1977-2005.
He alleged that after being admitted to the Philippine Bar in 1961, he became part of the
Philippine Civil Service from July 1962 until 1986, then migrated to, and worked in, the USA
in December 1986 until his retirement in the year 2003. He maintained that he cannot be
assessed IBP dues for the years that he was working in the Philippine Civil Service since the
Civil Service law prohibits the practice of one's profession while in government service, and
neither can he be assessed for the years when he was working in the USA.
On 05 October 2004, the letter was referred to the IBP for comment.2
On 16 November 2004, the IBP submitted its comment3 stating inter alia: that membership
in the IBP is not based on the actual practice of law; that a lawyer continues to be included
in the Roll of Attorneys as long as he continues to be a member of the IBP; that one of the
obligations of a member is the payment of annual dues as determined by the IBP Board of
Governors and duly approved by the Supreme Court as provided for in Sections 9 and 10,
Rule 139-A of the Rules of Court; that the validity of imposing dues on the IBP members has
been upheld as necessary to defray the cost of an Integrated Bar Program; and that the
policy of the IBP Board of Governors of no exemption from payment of dues is but an
implementation of the Court's directives for all members of the IBP to help in defraying the
cost of integration of the bar. It maintained that there is no rule allowing the exemption of
payment of annual dues as requested by respondent, that what is allowed is voluntary
termination and reinstatement of membership. It asserted that what petitioner could have
done was to inform the secretary of the IBP of his intention to stay abroad, so that his
membership in the IBP could have been terminated, thus, his obligation to pay dues could
have been stopped. It also alleged that the IBP Board of Governors is in the process of
discussing proposals for the creation of an inactive status for its members, which if
approved by the Board of Governors and by this Court, will exempt inactive IBP members
from payment of the annual dues.
In his reply4 dated 22 February 2005, petitioner contends that what he is questioning is the
IBP Board of Governor's Policy of Non-Exemption in the payment of annual membership
dues of lawyers regardless of whether or not they are engaged in active or inactive practice.
He asseverates that the Policy of Non-Exemption in the payment of annual membership
dues suffers from constitutional infirmities, such as equal protection clause and the due
process clause. He also posits that compulsory payment of the IBP annual membership dues
would indubitably be oppressive to him considering that he has been in an inactive status
and is without income derived from his law practice. He adds that his removal from
nonpayment of annual membership dues would constitute deprivation of property right
without due process of law. Lastly, he claims that non-practice of law by a lawyer-member
in inactive status is neither injurious to active law practitioners, to fellow lawyers in
inactive status, nor to the community where the inactive lawyers-members reside.
Plainly, the issue here is: whether or nor petitioner is entitled to exemption from payment
of his dues during the time that he was inactive in the practice of law that is, when he was in
the Civil Service from 1962-1986 and he was working abroad from 1986-2003?
29
We rule in the negative.
An "Integrated Bar" is a State-organized Bar, to which every lawyer must belong, as
distinguished from bar association organized by individual lawyers themselves,
membership in which is voluntary. Integration of the Bar is essentially a process by which
every member of the Bar is afforded an opportunity to do his shares in carrying out the
objectives of the Bar as well as obliged to bear his portion of its responsibilities. Organized
by or under the direction of the State, an Integrated Bar is an official national body of which
all lawyers are required to be members. They are, therefore, subject to all the rules
prescribed for the governance of the Bar, including the requirement of payment of a
reasonable annual fee for the effective discharge of the purposes of the Bar, and adherence
to a code of professional ethics or professional responsibility, breach of which constitutes
sufficient reason for investigation by the Bar and, upon proper cause appearing, a
recommendation for discipline or disbarment of the offending member.5
The integration of the Philippine Bar means the official unification of the entire lawyer
population. This requires membership and financial support of every attorney as
condition sine qua non to the practice of law and the retention of his name in the Roll of
Attorneys of the Supreme Court.6
Bar integration does not compel the lawyer to associate with anyone. He is free to attend or
not to attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its
elections as he chooses. The only compulsion to which he is subjected is the payment of his
annual dues. The Supreme Court, in order to foster the State's legitimate interest in
elevating the quality of professional legal services, may require that the cost of improving
the profession in this fashion be shared by the subjects and beneficiaries of the regulatory
program – the lawyers.7
Moreover, there is nothing in the Constitution that prohibits the Court, under its
constitutional power and duty to promulgate rules concerning the admission to the practice
of law and in the integration of the Philippine Bar8 - which power required members of a
privileged class, such as lawyers are, to pay a reasonable fee toward defraying the expenses
of regulation of the profession to which they belong. It is quite apparent that the fee is,
indeed, imposed as a regulatory measure, designed to raise funds for carrying out the noble
objectives and purposes of integration.
The rationale for prescribing dues has been explained in the Integration of the Philippine
Bar,9 thus:
For the court to prescribe dues to be paid by the members does not mean that the
Court is attempting to levy a tax.
A membership fee in the Bar association is an exaction for regulation, while tax
purpose of a tax is a revenue. If the judiciary has inherent power to regulate the
Bar, it follows that as an incident to regulation, it may impose a membership fee
for that purpose. It would not be possible to put on an integrated Bar program
without means to defray the expenses. The doctrine of implied powers necessarily
carries with it the power to impose such exaction.
The only limitation upon the State's power to regulate the privilege of law is that
the regulation does not impose an unconstitutional burden. The public interest
promoted by the integration of the Bar far outweighs the slight inconvenience to a
member resulting from his required payment of the annual dues.
Thus, payment of dues is a necessary consequence of membership in the IBP, of which no
one is exempt. This means that the compulsory nature of payment of dues subsists for as
long as one's membership in the IBP remains regardless of the lack of practice of, or the
type of practice, the member is engaged in.
There is nothing in the law or rules which allows exemption from payment of membership
dues. At most, as correctly observed by the IBP, he could have informed the Secretary of the
Integrated Bar of his intention to stay abroad before he left. In such case, his membership in
the IBP could have been terminated and his obligation to pay dues could have been
discontinued.
As abovementioned, the IBP in its comment stated that the IBP Board of Governors is in the
process of discussing the situation of members under inactive status and the nonpayment
of their dues during such inactivity. In the meantime, petitioner is duty bound to comply
with his obligation to pay membership dues to the IBP.
Petitioner also contends that the enforcement of the penalty of removal would amount to a
deprivation of property without due process and hence infringes on one of his
constitutional rights.
This question has been settled in the case of In re Atty. Marcial Edillon,10 in this wise:
. . . Whether the practice of law is a property right, in the sense of its being one that
entitles the holder of a license to practice a profession, we do not here pause to
consider at length, as it [is] clear that under the police power of the State, and
under the necessary powers granted to the Court to perpetuate its existence, the
respondent's right to practice law before the courts of this country should be and
is a matter subject to regulation and inquiry. And, if the power to impose the fee as
a regulatory measure is recognize[d], then a penalty designed to enforce its
payment, which penalty may be avoided altogether by payment, is not void as
unreasonable or arbitrary.
But we must here emphasize that the practice of law is not a property right but a
mere privilege, and as such must bow to the inherent regulatory power of the
Court to exact compliance with the lawyer's public responsibilities.
30
As a final note, it must be borne in mind that membership in the bar is a privilege burdened
with conditions,11 one of which is the payment of membership dues. Failure to abide by any
of them entails the loss of such privilege if the gravity thereof warrants such drastic move.
WHEREFORE, petitioner's request for exemption from payment of IBP dues is DENIED. He
is ordered to pay P12,035.00, the amount assessed by the IBP as membership fees for the
years 1977-2005, within a non-extendible period of ten (10) days from receipt of this
decision, with a warning that failure to do so will merit his suspension from the practice of
law.
SO ORDERED.
Adm. Case No. 4749 January 20, 2000
SOLIMAN M. SANTOS, JR., complainant,
vs. ATTY. FRANCISCO R. LLAMAS, respondent.
MENDOZA, J.:
This is a complaint for misrepresentation and non-payment of bar membership dues filed
against respondent Atty. Francisco R. Llamas.
In a letter-complaint to this Court dated February 8, 1997, complainant Soliman M. Santos,
Jr., himself a member of the bar, alleged that:
On my oath as an attorney, I wish to bring to your attention and appropriate sanction the
matter of Atty. Francisco R. Llamas who, for a number of years now, has not indicated the
proper PTR and IBP O.R. Nos. and data (date & place of issuance) in his pleadings. If at all,
he only indicates "IBP Rizal 259060" but he has been using this for at least three years
already, as shown by the following attached sample pleadings in various courts in 1995,
1996 and 1997: (originals available).
Annex A — "Ex-Parte Manifestation and Submission" dated December 1, 1995 in
Civil Case No. Q-95-25253, RTC, Br. 224, QC.
Annex B — "Urgent Ex-Parte Manifestation Motion" dated November 13, 1996 in
Sp. Proc. No. 95-030, RTC Br. 259 (not 257), Parañaque, MM.
Annex C — "An Urgent and Respectful Plea for extension of Time to File Required
Comment and Opposition" dated January 17, 1997 in CA-G.R. SP (not Civil Case)
No. 42286, CA 6th Div.
This matter is being brought in the context of Rule 138, Section 1 which qualifies that only a
duly admitted member of the bar "who is in good and regular standing, is entitled to
practice law". There is also Rule 139-A, Section 10 which provides that "default in the
payment of annual dues for six months shall warrant suspension of membership in the
Integrated Bar, and default in such payment for one year shall be a ground for the removal
of the name of the delinquent member from the Roll of Attorneys."
Among others, I seek clarification (e.g. a certification) and appropriate action on the bar
standing of Atty. Francisco R. Llamas both with the Bar Confidant and with the IBP,
especially its Rizal Chapter of which Atty. Llamas purports to be a member.
Please note that while Atty. Llamas indicates "IBP Rizal 259060" sometimes, he does not
indicate any PTR for payment of professional tax.
Under the Rules, particularly Rule 138, Sections 27 and 28, suspension of an attorney may
be done not only by the Supreme Court but also by the Court of Appeals or a Regional Trial
Court (thus, we are also copy furnishing some of these courts).
Finally, it is relevant to note the track record of Atty. Francisco R. Llamas, as shown by:
1. his dismissal as Pasay City Judge per Supreme Court Admin. Matter No. 1037-
CJ En Banc Decision on October 28, 1981 (in SCRA).
2. his conviction for estafa per Decision dated June 30, 1994 in Crim. Case No.
11787, RTC Br. 66, Makati, MM (see attached copy of the Order dated February 14,
1995 denying the motion for reconsideration of the conviction which is
purportedly on appeal in the Court of Appeals).
Attached to the letter-complaint were the pleadings dated December 1, 1995, November 13,
1996, and January 17, 1997 referred to by complainant, bearing, at the end thereof, what
appears to be respondent's signature above his name, address and the receipt number "IBP
Rizal 259060."1 Also attached was a copy of the order,2 dated February 14, 1995, issued by
Judge Eriberto U. Rosario, Jr. of the Regional Trial Court, Branch 66, Makati, denying
respondent's motion for reconsideration of his conviction, in Criminal Case No. 11787, for
violation of Art. 316, par. 2 of the Revised Penal Code.
On April 18, 1997, complainant filed a certification3 dated March 18, 1997, by the then
president of the Integrated Bar of the Philippines, Atty. Ida R. Macalinao-Javier, that
respondent's "last payment of his IBP dues was in 1991. Since then he has not paid or
remitted any amount to cover his membership fees up to the present."
On July 7, 1997, respondent was required to comment on the complaint within ten days
from receipt of notice, after which the case was referred to the IBP for investigation, report
and recommendation. In his comment-memorandum4 dated June 3, 1998, respondent
alleged:5
3. That with respect to the complainant's absurd claim that for using in 1995,
1996 and 1997 the same O.R. No. 259060 of the Rizal IBP, respondent is
automatically no longer a member in good standing.
31
Precisely, as cited under the context of Rule 138, only an admitted member of the
bar who is in good standing is entitled to practice law.
The complainant's basis in claiming that the undersigned was no longer in good
standing, were as above cited, the October 28, 1981 Supreme Court decision of
dismissal and the February 14, 1995 conviction for Violation of Article 316 RPC,
concealment of encumbrances.
As above pointed out also, the Supreme Court dismissal decision was set aside and
reversed and respondent was even promoted from City Judge of Pasay City to
Regional Trial Court Judge of Makati, Br. 150.
Also as pointed out, the February 14, 1995 decision in Crim. Case No. 11787 was
appealed to the Court of Appeals and is still pending.
Complainant need not even file this complaint if indeed the decision of dismissal
as a Judge was never set aside and reversed, and also had the decision of
conviction for a light felony, been affirmed by the Court of Appeals. Undersigned
himself would surrender his right or privilege to practice law.
4. That complainant capitalizes on the fact that respondent had been delinquent in
his dues.
Undersigned since 1992 have publicly made it clear per his Income Tax Return, up
to the present, that he had only a limited practice of law. In fact, in his Income Tax
Return, his principal occupation is a farmer of which he is. His 30 hectares orchard
and pineapple farm is located at Calauan, Laguna.
Moreover, and more than anything else, respondent being a Senior Citizen since
1992, is legally exempt under Section 4 of Rep. Act 7432 which took effect in 1992,
in the payment of taxes, income taxes as an example. Being thus exempt, he
honestly believe in view of his detachment from a total practice of law, but only in
a limited practice, the subsequent payment by him of dues with the Integrated Bar
is covered by such exemption. In fact, he never exercised his rights as an IBP
member to vote and be voted upon.
Nonetheless, if despite such honest belief of being covered by the exemption and if
only to show that he never in any manner wilfully and deliberately failed and
refused compliance with such dues, he is willing at any time to fulfill and pay all
past dues even with interests, charges and surcharges and penalties. He is ready to
tender such fulfillment or payment, not for allegedly saving his skin as again
irrelevantly and frustratingly insinuated for vindictive purposes by the
complainant, but as an honest act of accepting reality if indeed it is reality for him
to pay such dues despite his candor and honest belief in all food faith, to the
contrary.
On December 4, 1998, the IBP Board of Governors passed a resolution6 adopting and
approving the report and recommendation of the Investigating Commissioner which found
respondent guilty, and recommended his suspension from the practice of law for three
months and until he pays his IBP dues. Respondent moved for a reconsideration of the
decision, but this was denied by the IBP in a resolution,7 dated April 22, 1999. Hence,
pursuant to Rule 139-B, §12(b) of the Rules of Court, this case is here for final action on the
decision of the IBP ordering respondent's suspension for three months.
The findings of IBP Commissioner Alfredo Sanz are as follows:
On the first issue, Complainant has shown "respondent's non-indication of the
proper IBP O.R. and PTR numbers in his pleadings (Annexes "A", "B" and "C" of the
letter complaint, more particularly his use of "IBP Rizal 259060 for at least three
years."
The records also show a "Certification dated March 24, 1997 from IBP Rizal
Chapter President Ida R. Makahinud Javier that respondent's last payment of his
IBP dues was in 1991."
While these allegations are neither denied nor categorically admitted by
respondent, he has invoked and cited that "being a Senior Citizen since 1992, he is
legally exempt under Section 4 of Republic Act No. 7432 which took effect in 1992
in the payment of taxes, income taxes as an example.
xxx xxx xxx
The above cited provision of law is not applicable in the present case. In fact,
respondent admitted that he is still in the practice of law when he alleged that the
"undersigned since 1992 have publicly made it clear per his Income tax Return up
to the present time that he had only a limited practice of law." (par. 4 of
Respondent's Memorandum).
Therefore respondent is not exempt from paying his yearly dues to the Integrated
Bar of the Philippines.
On the second issue, complainant claims that respondent has misled the court
about his standing in the IBP by using the same IBP O.R. number in his pleadings
of at least six years and therefore liable for his actions. Respondent in his
memorandum did not discuss this issue.
First. Indeed, respondent admits that since 1992, he has engaged in law practice without
having paid his IBP dues. He likewise admits that, as appearing in the pleadings submitted
by complainant to this Court, he indicated "IBP-Rizal 259060" in the pleadings he filed in
court, at least for the years 1995, 1996, and 1997, thus misrepresenting that such was his
IBP chapter membership and receipt number for the years in which those pleadings were
filed. He claims, however, that he is only engaged in a "limited" practice and that he believes
32
in good faith that he is exempt from the payment of taxes, such as income tax, under R.A. No.
7432, §4 as a senior citizen since 1992.
Rule 139-A provides:
Sec. 9. Membership dues. — Every member of the Integrated Bar shall pay such
annual dues as the Board of Governors shall determine with the approval of the
Supreme Court. A fixed sum equivalent to ten percent (10%) of the collections
from each Chapter shall be set aside as a Welfare Fund for disabled members of
the Chapter and the compulsory heirs of deceased members thereof.
Sec. 10. Effect of non-payment of dues. — Subject to the provisions of Section 12 of
this Rule, default in the payment of annual dues for six months shall warrant
suspension of membership in the Integrated Bar, and default in such payment for
one year shall be a ground for the removal of the name of the delinquent member
from the Roll of Attorneys.
In accordance with these provisions, respondent can engage in the practice of law only by
paying his dues, and it does not matter that his practice is "limited." While it is true that R.A.
No. 7432, §4 grants senior citizens "exemption from the payment of individual income
taxes: provided, that their annual taxable income does not exceed the poverty level as
determined by the National Economic and Development Authority (NEDA) for that year,"
the exemption does not include payment of membership or association dues.
Second. By indicating "IBP-Rizal 259060" in his pleadings and thereby misrepresenting to
the public and the courts that he had paid his IBP dues to the Rizal Chapter, respondent is
guilty of violating the Code of Professional Responsibility which provides:
Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.
CANON 7 — A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND
DIGNITY OF THE LEGAL PROFESSION, AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR.
CANON 10 — A LAWYER OWES CANDOR, FAIRNESS AND GOOD FAITH TO THE
COURT.
Rule 10.01 — A lawyer shall not do any falsehood, nor consent to the doing of any
court; nor shall he mislead or allow the court to be misled by any artifice.
Respondent's failure to pay his IBP dues and his misrepresentation in the pleadings he filed
in court indeed merit the most severe penalty. However, in view of respondent's advanced
age, his express willingness to pay his dues and plea for a more temperate application of the
law,8 we believe the penalty of one year suspension from the practice of law or until he has
paid his IBP dues, whichever is later, is appropriate.
WHEREFORE, respondent Atty. Francisco R. Llamas is SUSPENDED from the practice of law
for ONE (1) YEAR, or until he has paid his IBP dues, whichever is later. Let a copy of this
decision be attached to Atty. Llamas' personal record in the Office of the Bar Confidant and
copies be furnished to all chapters of the Integrated Bar of the Philippines and to all courts
in the land.1âwphi1.nêt
SO ORDERED.
B.M. No. 1678 December 17, 2007
PETITION FOR LEAVE TO RESUME PRACTICE OF LAW,
BENJAMIN M. DACANAY, petitioner.
CORONA, J.:
This bar matter concerns the petition of petitioner Benjamin M. Dacanay for leave to
resume the practice of law.
Petitioner was admitted to the Philippine bar in March 1960. He practiced law until he
migrated to Canada in December 1998 to seek medical attention for his ailments. He
subsequently applied for Canadian citizenship to avail of Canada’s free medical aid
program. His application was approved and he became a Canadian citizen in May 2004.
On July 14, 2006, pursuant to Republic Act (RA) 9225 (Citizenship Retention and Re-
Acquisition Act of 2003), petitioner reacquired his Philippine citizenship.1 On that day, he
took his oath of allegiance as a Filipino citizen before the Philippine Consulate General in
Toronto, Canada. Thereafter, he returned to the Philippines and now intends to resume his
law practice. There is a question, however, whether petitioner Benjamin M. Dacanay lost his
membership in the Philippine bar when he gave up his Philippine citizenship in May 2004.
Thus, this petition.
In a report dated October 16, 2007, the Office of the Bar Confidant cites Section 2, Rule 138
(Attorneys and Admission to Bar) of the Rules of Court:
SECTION 2. Requirements for all applicants for admission to the bar. – Every
applicant for admission as a member of the bar must be a citizen of the
Philippines, at least twenty-one years of age, of good moral character, and a
resident of the Philippines; and must produce before the Supreme Court
satisfactory evidence of good moral character, and that no charges against him,
involving moral turpitude, have been filed or are pending in any court in the
Philippines.
Applying the provision, the Office of the Bar Confidant opines that, by virtue of his
reacquisition of Philippine citizenship, in 2006, petitioner has again met all the
qualifications and has none of the disqualifications for membership in the bar. It
recommends that he be allowed to resume the practice of law in the Philippines,
33
conditioned on his retaking the lawyer’s oath to remind him of his duties and
responsibilities as a member of the Philippine bar.
We approve the recommendation of the Office of the Bar Confidant with certain
modifications.
The practice of law is a privilege burdened with conditions.2 It is so delicately affected with
public interest that it is both a power and a duty of the State (through this Court) to control
and regulate it in order to protect and promote the public welfare.3
Adherence to rigid standards of mental fitness, maintenance of the highest degree of
morality, faithful observance of the rules of the legal profession, compliance with the
mandatory continuing legal education requirement and payment of membership fees to the
Integrated Bar of the Philippines (IBP) are the conditions required for membership in good
standing in the bar and for enjoying the privilege to practice law. Any breach by a lawyer of
any of these conditions makes him unworthy of the trust and confidence which the courts
and clients repose in him for the continued exercise of his professional privilege.4
Section 1, Rule 138 of the Rules of Court provides:
SECTION 1. Who may practice law. – Any person heretofore duly admitted as a
member of the bar, or thereafter admitted as such in accordance with the
provisions of this Rule, and who is in good and regular standing, is entitled to
practice law.
Pursuant thereto, any person admitted as a member of the Philippine bar in accordance
with the statutory requirements and who is in good and regular standing is entitled to
practice law.
Admission to the bar requires certain qualifications. The Rules of Court mandates that an
applicant for admission to the bar be a citizen of the Philippines, at least twenty-one years
of age, of good moral character and a resident of the Philippines.5 He must also produce
before this Court satisfactory evidence of good moral character and that no charges against
him, involving moral turpitude, have been filed or are pending in any court in the
Philippines.6
Moreover, admission to the bar involves various phases such as furnishing satisfactory
proof of educational, moral and other qualifications;7 passing the bar examinations;8 taking
the lawyer’s oath9 and signing the roll of attorneys and receiving from the clerk of court of
this Court a certificate of the license to practice.10
The second requisite for the practice of law ― membership in good standing ― is a
continuing requirement. This means continued membership and, concomitantly, payment
of annual membership dues in the IBP;11 payment of the annual professional
tax;12 compliance with the mandatory continuing legal education requirement;13 faithful
observance of the rules and ethics of the legal profession and being continually subject to
judicial disciplinary control.14
Given the foregoing, may a lawyer who has lost his Filipino citizenship still practice law in
the Philippines? No.
The Constitution provides that the practice of all professions in the Philippines shall be
limited to Filipino citizens save in cases prescribed by law.15 Since Filipino citizenship is a
requirement for admission to the bar, loss thereof terminates membership in the Philippine
bar and, consequently, the privilege to engage in the practice of law. In other words, the loss
of Filipino citizenship ipso jure terminates the privilege to practice law in the Philippines.
The practice of law is a privilege denied to foreigners.16
The exception is when Filipino citizenship is lost by reason of naturalization as a citizen of
another country but subsequently reacquired pursuant to RA 9225. This is because "all
Philippine citizens who become citizens of another country shall be deemed not to have lost
their Philippine citizenship under the conditions of [RA 9225]."17Therefore, a Filipino lawyer
who becomes a citizen of another country is deemed never to have lost his Philippine
citizenship if he reacquires it in accordance with RA 9225. Although he is also deemed
never to have terminated his membership in the Philippine bar, no automatic right to
resume law practice accrues.
Under RA 9225, if a person intends to practice the legal profession in the Philippines and he
reacquires his Filipino citizenship pursuant to its provisions "(he) shall apply with the
proper authority for a license or permit to engage in such practice."18 Stated otherwise,
before a lawyer who reacquires Filipino citizenship pursuant to RA 9225 can resume his
law practice, he must first secure from this Court the authority to do so, conditioned on:
(a) the updating and payment in full of the annual membership dues in the IBP;
(b) the payment of professional tax;
(c) the completion of at least 36 credit hours of mandatory continuing legal
education; this is specially significant to refresh the applicant/petitioner’s
knowledge of Philippine laws and update him of legal developments and
(d) the retaking of the lawyer’s oath which will not only remind him of his
duties and responsibilities as a lawyer and as an officer of the Court, but also
renew his pledge to maintain allegiance to the Republic of the Philippines.
Compliance with these conditions will restore his good standing as a member of the
Philippine bar.
WHEREFORE, the petition of Attorney Benjamin M. Dacanay is hereby GRANTED, subject
to compliance with the conditions stated above and submission of proof of such compliance
to the Bar Confidant, after which he may retake his oath as a member of the Philippine bar.X
34