Get Homework/Assignment Done

Homeworkping.com

Homework Help

https://www.homeworkping.com/

Research Paper help

https://www.homeworkping.com/

Online Tutoring

https://www.homeworkping.com/

click here for freelancing tutoring sites

G.R. No. 100113 September 3, 1991

RENATO CAYETANO vs. CHRISTIAN MONSOD

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. Mckittrickv..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 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, citingIn 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).

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 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)

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.

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.

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.

(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.

Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition.

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the respondents to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC Chairman.

After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of "practice of law for at least ten (10) years" has not been met.

The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be resolved in this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC, including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries."

The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard is met and complied with.

What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of knowledge as distinguished from mere possession of

knowledge; it connotes an active, habitual, repeated or customary action. To "practice" law, or any profession for that matter, means, to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily.

Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an accountant. In the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be in the practice of law.

As aptly held by this Court in the case of People vs. Villanueva:

Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public as a lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).

It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several factors determinative of whether a particular activity constitutes "practice of law." It states:

1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).

2. Compensation. Practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for compensation, as a service of his livelihood or in consideration of his said services. (People v. Villanueva, supra). Hence, charging for services such as preparation of documents involving the use of legal knowledge and skill is within the term "practice of law" (ErnaniPaño, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an opinion as to the

proper interpretation of a statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in matters connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)

3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is within the term "practice of law". (Martin supra)

4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3

The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman.

The following relevant questions may be asked:

1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?

2. Did respondent perform such tasks customarily or habitually?

3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?

Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman.

While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions or activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must be a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva: 4

Essentially, the word private practice of law implies that one must have presented himself to be in theactive and continued practice of the legal profession and that his professional services are available to the public for

a compensation, as a source of his livelihood or in consideration of his said services.

ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position.

CRUZ, J., dissenting:

I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on which I must differ with him while of course respecting hisviewpoint.

To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination has been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from resolving. Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that body. Even if it were, the exercise of that discretion would still be subject to our review.

In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority to choosebetween two claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not be reviewed.

If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see no reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments.

Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not the wisdom of his election but whether or not he was qualified to be elected in the first place.

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as embraced in the term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his activities involve the application of some law, however peripherally. The stock broker and the insurance adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become involved in litigation."

The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and applies some law only as an incident of such business. That covers every company organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is not affected by some law or government regulation the businessman must know

about and observe. In fact, again going by the definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He can be so deemed when, on his own, he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the laws regulating such transactions. If he operates a public utility vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board.

The ponencia quotes an American decision defining the practice of law as the "performance of any acts ... in or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because lawyers perform almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be workable."

The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely) connected with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions.

The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which areas he has distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and priests) and was a member of the Davide Commission, he has not proved that his activities in these capacities extended over the prescribed 10-year period of actual practice of the law. He is doubtless eminently qualified for many other positions worthy of his abundant talents but not as Chairman of the Commission on Elections.

I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition.

GUTIERREZ, JR., J., dissenting:

When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result.

Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he did not practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of

discretion; one of official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision.

There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms of executive ability, proficiency in management, educational background, experience in international banking and finance, and instant recognition by the public. His integrity and competence are not questioned by the petitioner. What is before us is compliance with a specific requirement written into the Constitution.

Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits.

A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law.

Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the bar examinations?

The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows that the practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten years requires committed participation in something which is the result of one's decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the ten-year period.

I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then his law practice must have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of Pennsylvania during that period. How could he practice law in the United States while not a member of the Bar there?

The professional life of the respondent follows:

1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following:

1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania

2. 1963-1970: World Bank Group — Economist, Industry Department; Operations, Latin American Department; Division Chief, South Asia and Middle East, International Finance Corporation

3. 1970-1973: Meralco Group — Executive of various companies, i.e., Meralco Securities Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation

4. 1973-1976: Yujuico Group — President, Fil-Capital Development Corporation and affiliated companies

5. 1976-1978: Finaciera Manila — Chief Executive Officer

6. 1978-1986: Guevent Group of Companies — Chief Executive Officer

7. 1986-1987: Philippine Constitutional Commission — Member

8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt — Member

9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:

a. ACE Container Philippines, Inc.

b. Dataprep, Philippines

c. Philippine SUNsystems Products, Inc.

d. Semirara Coal Corporation

e. CBL Timber Corporation

Member of the Board of the Following:

a. Engineering Construction Corporation of the Philippines

b. First Philippine Energy Corporation

c. First Philippine Holdings Corporation

d. First Philippine Industrial Corporation

e. Graphic Atelier

f. Manila Electric Company

g. Philippine Commercial Capital, Inc.

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation

l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)

There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the lawenough attention or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of legal services, he was the oneadvice and those services as an executive but not as a lawyer.

The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use of legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be helpful.

I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly assert that as such, they are engaged in the practice of law?

The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a member of the Philippine bar for at least ten years."

Some American courts have defined the practice of law, as follows:

The practice of law involves not only appearance in court in connection with litigation but also services rendered out of court, and it includes the giving of advice or the rendering of any services requiring the use of legal skill or knowledge, such as preparing a will, contract or other instrument, the legal effect of which, under the facts and conditions involved, must be carefully determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex rel. Illinois State Bar Ass'n v.People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases cited.

It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law. "Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill." Without adopting that definition, we referred to it as being substantially correct in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)

For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer, they should also be performed, habitually, frequently or customarily, to wit:

xxxxxxxxx

Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he ever prepared contracts for the parties in real-estate transactions where he was not the procuring agent. He answered: "Very seldom." In answer to the question as to how many times he had prepared contracts for the parties during the twenty-one years of his business, he said: "I have no Idea." When asked if it would be more than half a dozen times his answer was I suppose. Asked if he did not recall making the statement to several parties that he had prepared contracts in a large number of instances, he answered: "I don't recall exactly what was said." When asked if he did not remember saying that he had made a practice of preparing deeds, mortgages and contracts and charging a fee to the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I don't believe so, that is not a practice." Pressed further for an answer as to his practice in preparing contracts and deeds for parties where he was not the broker, he finally answered: "I have done about everything that is on the books as far as real estate is concerned."

xxxxxxxxx

Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in connection with real-estate

transactions, especially in drawing of real-estate contracts, deeds, mortgages, notes and the like. There is no doubt but that he has engaged in these practices over the years and has charged for his services in that connection. ... (People v. Schafer, 87 N.E. 2d 773)

xxxxxxxxx

... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an agent; more especially, one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings. Strictly, these professional persons are attorneys at law, and non-professional agents are properly styled "attorney's in fact;" but the single word is much used as meaning an attorney at law. A person may be an attorney in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend actions in such court on the retainerof clients. "The principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage the business of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his business; (4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or perform frequently, customarily, or habitually; to perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied)

In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):

xxxxxxxxx

... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and demanding payment for such services. ... . (at p. 112)

It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:

l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one

takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).

Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)

xxxxxxxxx

While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business in the Philippines. As in the practice of law, doing business also should be active and continuous. Isolated business transactions or occasional, incidental and casual transactions are not within the context of doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).

Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the background, competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law for at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges the public respondents no less than this Court to obey its mandate.

I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of respondent Monsod as Chairman of the COMELEC.

[B. M. No. 1036. June 10, 2003]

DONNA MARIE S. AGUIRRE, complainant, vs. EDWIN L. RANA, respondent.

D E C I S I O N

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 lawyer’s 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 respondent’s 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 lawyer’s 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, 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 respondent’s 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 Respondent’s 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.

OBC’s 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 lawyer’s oath on 22 May 2001. The OBC believes that respondent’s misconduct casts a serious doubt on his moral fitness to be a member of the Bar. The OBC also believes that respondent’s 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 Court’s 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 lawyer’s 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 lawyer’s 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 xx

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 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 lawyer’s 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 lawyer’s 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 respondent’s 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.

ATTY. CARMEN LEONOR M. ALCANTARA, VICENTE P. MERCADO, SEVERINO P. MERCADO AND SPOUSES JESUS AND ROSARIO MERCADO, Complainants,

A.C. No. 5859 (Formerly CBD Case No. 421) Present: CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR.,

- versus -

NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO,*

ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ.

ATTY. EDUARDO C. DE VERA, Respondent.

Promulgated: November 23, 2010

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION

PER CURIAM:

For our review is the Resolution [1] of the Board of Governors of the Integrated Bar of the Philippines (IBP) finding respondent Atty. Eduardo C. De Vera liable for professional malpractice and gross misconduct and recommending his disbarment.

The facts, as appreciated by the investigating commissioner,[2] are undisputed.

The respondent is a member of the Bar and was the former counsel of Rosario P. Mercado in a civil case filed in 1984 with the Regional Trial Court of Davao City and an administrative case filed before the Securities and Exchange Commission, Davao City Extension Office.[3]

Pursuant to a favorable decision, a writ of execution pending appeal was issued in favor of Rosario P. Mercado. Herein respondent, as her legal counsel, garnished the bank deposits of the defendant, but did not turn over the proceeds to Rosario. Rosario demanded that the respondent turn over the proceeds of the garnishment, but the latter refused claiming that he had paid part of the money to the judge while the balance was his, as attorney’s fees. Such refusal prompted Rosario to file an administrative case for disbarment against the respondent.[4]

On March 23, 1993, the IBP Board of Governors promulgated a Resolution holding the respondent guilty of infidelity in the custody and handling of client’s funds and recommending to the Court his one-year suspension from the practice of law.[5]

Following the release of the aforesaid IBP Resolution, the respondent filed a series of lawsuits against the Mercado family except George Mercado. The respondent also instituted cases against the family corporation, the corporation’s accountant and the judge who ruled against the reopening of the case where respondent tried to collect the balance of his alleged fee from Rosario. Later on, the respondent also filed cases against the chairman and members of the IBP Board of Governors who voted to recommend his suspension from the practice of law for one year. Complainants allege that the respondent committed barratry, forum shopping, exploitation of family problems, and use of intemperate language when he filed several frivolous and unwarranted lawsuits against the complainants and their family members, their lawyers, and the family corporation.[6] They maintain that the primary purpose of the cases is to harass and to exact revenge for the one-year suspension from the practice of law meted out by the IBP against the respondent. Thus, they pray that the respondent be disbarred for malpractice and gross misconduct under Section 27, [7] Rule 138 of the Rules of Court.

In his defense the respondent basically offers a denial of the charges against him.

He denies he has committed barratry by instigating or stirring up George Mercado to file lawsuits against the complainants. He insists that the lawsuits that he and George filed against the complainants were not harassment suits but were in fact filed in good faith and were based on strong facts.[8]

Also, the respondent denies that he has engaged in forum shopping. He argues that he was merely exhausting the remedies allowed by law and that he was merely constrained to seek relief elsewhere by reason of the denial of the trial court to reopen the civil case so he could justify his attorney’s fees.

Further, he denies that he had exploited the problems of his client’s family. He argues that the case that he and George Mercado filed against the complainants arose from their perception of unlawful transgressions committed by the latter for which they must be held accountable for the public interest.

Finally, the respondent denies using any intemperate, vulgar, or unprofessional language. On the contrary, he asserts that it was the complainants who resorted to intemperate and vulgar language in accusing him of “extorting from Rosario shocking and unconscionable attorney’s fees.”[9]

After careful consideration of the records of this case and the parties’ submissions, we find ourselves in agreement with the findings and recommendation of the IBP Board of Governors.

It is worth stressing that the practice of law is not a right but a privilege bestowed by the State upon those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege.[10] Membership in the bar is a privilege burdened with conditions. A lawyer has the privilege and right to practice law only during good behavior and can only be deprived of it for misconduct ascertained and declared by judgment of the court after opportunity to be heard has been afforded him. Without invading any constitutional privilege or right, an attorney’s right to practice law may be resolved by a proceeding to suspend or disbar him, based on conduct rendering him unfit to hold a license or to exercise the duties and responsibilities of an attorney. It must be understood that the purpose of suspending or disbarring an attorney is to remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to an office of an attorney, and thus to protect the public and those charged with the administration of justice, rather than to punish the attorney. [11] In Maligsa v. Cabanting,[12] we explained that the bar should maintain a high standard of legal proficiency as well as of honesty and fair dealing. A lawyer brings honor to the legal profession by faithfully performing his duties to society, to the bar, to the courts and to his clients. To this end a member of the legal profession should refrain from doing any act which might lessen in any degree the confidence and trust reposed by the public in the fidelity, honesty and integrity of the legal profession. An attorney may be disbarred or suspended for any violation of his oath or of his duties as an attorney and counselor, which include statutory grounds enumerated in Section 27, Rule 138 of the Rules of Court.

In the present case, the respondent committed professional malpractice and gross misconduct particularly in his acts against his former clients after the issuance of the IBP Resolution suspending him from the practice of law for one year. In summary, the respondent filed against his former client, her family members, the family corporation of his former client,

the Chairman and members of the Board of Governors of the IBP who issued the said Resolution, the Regional Trial Court Judge in the case where his former client received a favorable judgment, and the present counsel of his former client, a total of twelve (12) different cases in various fora which included the Securities and Exchange Commission; the Provincial Prosecutors Office of Tagum, Davao; the Davao City Prosecutors Office; the IBP-Commission on Bar Discipline; the Department of Agrarian Reform; and the Supreme Court.[13]

In addition to the twelve (12) cases filed, the respondent also re-filed cases which had previously been dismissed. The respondent filed six criminal cases against members of the Mercado family separately docketed as I.S. Nos. 97-135; 97-136; 97-137; 97-138; 97-139; and 97-140. With the exception of I.S. No. 97-139, all the aforementioned cases are re-filing of previously dismissed cases.[14]

Now, there is nothing ethically remiss in a lawyer who files numerous cases in different fora, as long as he does so in good faith, in accordance with the Rules, and without any ill-motive or purpose other than to achieve justice and fairness. In the present case, however, we find that the barrage of cases filed by the respondent against his former client and others close to her was meant to overwhelm said client and to show her that the respondent does not fold easily after he was meted a penalty of one year suspension from the practice of law.

The nature of the cases filed by the respondent, the fact of re-filing them after being dismissed, the timing of the filing of cases, the fact that the respondent was in conspiracy with a renegade member of the complainants’ family, the defendants named in the cases and the foul language used in the pleadings and motions [15] all indicate that the respondent was acting beyond the desire for justice and fairness. His act of filing a barrage of cases appears to be an act of revenge and hate driven by anger and frustration against his former client who filed the disciplinary complaint against him for infidelity in the custody of a client’s funds.

In the case of Prieto v. Corpuz,[16] the Court pronounced that it is professionally irresponsible for a lawyer to file frivolous lawsuits. Thus, we stated in Prieto,

Atty. Marcos V. Prieto must be sanctioned for filing this unfounded complaint. Although no person should be penalized for the exercise of the right to litigate, however, this right must be exercised in good faith.[17]

As officers of the court, lawyers have a responsibility to assist in the proper administration of justice. They do not discharge this duty by filing frivolous petitions that only add to the workload of the judiciary.

A lawyer is part of the machinery in the administration of justice. Like the court itself, he is an instrument to advance its ends – the speedy, efficient, impartial, correct and inexpensive adjudication of cases and the prompt satisfaction of final judgments. A lawyer should not only help attain these objectives but should likewise avoid any unethical or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting in the speedy and efficient administration of justice.[18] Canon 12 of the Code of Professional Responsibility promulgated on 21 June 1988 is very explicit that lawyers must exert every effort and consider it their duty to assist in the speedy and efficient administration of justice.

Further, the respondent not only filed frivolous and unfounded lawsuits that violated his duties as an officer of the court in aiding in the proper administration of justice, but he did so against a former client to whom he owes loyalty and fidelity. Canon 21 and Rule 21.02 of the Code of Professional Responsibility [19] provides:

CANON 21 - A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relation is terminated.

Rule 21.02 – A lawyer shall not, to the disadvantage of his client, use information acquired in the course of employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.

The cases filed by the respondent against his former client involved matters and information acquired by the respondent during the time when he was still Rosario’s counsel. Information as to the structure and operations of the family corporation, private documents, and other pertinent facts and figures used as basis or in support of the cases filed by the respondent in pursuit of his malicious motives were all acquired through the attorney-client relationship with herein complainants. Such act is in direct violation of the Canons and will not be tolerated by the Court.

WHEREFORE, respondent Atty. Eduardo C. De Vera is hereby DISBARRED from the practice of law effective immediately upon his receipt of this Resolution.

Let copies of this Resolution be furnished the Bar Confidant to be spread on the records of the respondent; the Integrated Bar of the Philippines for distribution to all its chapters; and the Office of the Court Administrator for dissemination to all courts throughout the country.

SO ORDERED. PEDRO L. LINSANGAN,

- v e r s u s - ATTY. NICOMEDES TOLENTINO,

 CORONA, J.:   This is a complaint for disbarment[1] filed by Pedro Linsangan of the LinsanganLinsangan&Linsangan Law Office against Atty. Nicomedes Tolentino for solicitation of clients and encroachment of professional services.

Complainant alleged that respondent, with the help of paralegal Fe Marie Labiano,

convinced his clients[2] to transfer legal representation. Respondent promised them financial

assistance[3] and expeditious collection on their claims.[4] To induce them to hire his services,

he persistently called them and sent them text messages.

To support his allegations, complainant presented the sworn affidavit [5] of James

Gregorio attesting that Labiano tried to prevail upon him to sever his lawyer-client relations

with complainant and utilize respondent’s services instead, in exchange for a loan of P50,000.

Complainant also attached “respondent’s” calling card:[6]

Hence, this complaint.

Respondent, in his defense, denied knowing Labiano and authorizing the printing and

circulation of the said calling card.[7]

The complaint was referred to the Commission on Bar Discipline (CBD) of the Integrated

Bar of the Philippines (IBP) for investigation, report and recommendation. [8]

Based on testimonial and documentary evidence, the CBD, in its report and

recommendation,[9] found that respondent had encroached on the professional practice of

complainant, violating Rule 8.02[10] and other canons[11] of the Code of Professional

Responsibility (CPR). Moreover, he contravened the rule against soliciting cases for gain,

personally or through paid agents or brokers as stated in Section 27, Rule 138 [12] of the Rules

of Court. Hence, the CBD recommended that respondent be reprimanded with a stern warning

that any repetition would merit a heavier penalty.

We adopt the findings of the IBP on the unethical conduct of respondent but we modify

the recommended penalty.

The complaint before us is rooted on the alleged intrusion by respondent into

complainant’s professional practice in violation of Rule 8.02 of the CPR. And the means

employed by respondent in furtherance of the said misconduct themselves constituted distinct

violations of ethical rules.

Canons of the CPR are rules of conduct all lawyers must adhere to, including the manner

by which a lawyer’s services are to be made known. Thus, Canon 3 of the CPR provides: CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE, HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS.

Time and time again, lawyers are reminded that the practice of law is a profession and

not a business; lawyers should not advertise their talents as merchants advertise their wares.

[13] To allow a lawyer to advertise his talent or skill is to commercialize the practice of law,

degrade the profession in the public’s estimation and impair its ability to efficiently render that

high character of service to which every member of the bar is called. [14]

Rule 2.03 of the CPR provides:

RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY ACT DESIGNED PRIMARILY TO SOLICIT LEGAL BUSINESS.

Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either personally

or through paid agents or brokers.[15] Such actuation constitutes malpractice, a ground for

disbarment.[16]

Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides:

RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR INTEREST, ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY MAN’S CAUSE.

This rule proscribes “ambulance chasing” (the solicitation of almost any kind of legal business

by an attorney, personally or through an agent in order to gain employment) [17] as a measure

to protect the community from barratry and champerty.[18]

Complainant presented substantial evidence[19] (consisting of the sworn statements of the

very same persons coaxed by Labiano and referred to respondent’s office) to prove that

respondent indeed solicited legal business as well as profited from referrals’ suits.

Although respondent initially denied knowing Labiano in his answer, he later

admitted it during the mandatory hearing.

Through Labiano’s actions, respondent’s law practice was benefited. Hapless

seamen were enticed to transfer representation on the strength of Labiano’s word that

respondent could produce a more favorable result.

Based on the foregoing, respondent clearly solicited employment violating Rule 2.03, and

Rule 1.03 and Canon 3 of the CPR and Section 27, Rule 138 of the Rules of Court.

With regard to respondent’s violation of Rule 8.02 of the CPR, settled is the rule that a

lawyer should not steal another lawyer’s client nor induce the latter to retain him by a promise

of better service, good result or reduced fees for his services. [20] Again the Court notes that

respondent never denied having these seafarers in his client list nor receiving benefits from

Labiano’s “referrals.” Furthermore, he never denied Labiano’s connection to his office.

[21] Respondent committed an unethical, predatory overstep into another’s legal practice. He

cannot escape liability under Rule 8.02 of the CPR.

Moreover, by engaging in a money-lending venture with his clients as borrowers,

respondent violated Rule 16.04: Rule 16.04 – A lawyer shall not borrow money from his client unless the

client’s interests are fully protected by the nature of the case or by independent advice. Neither shall a lawyer lend money to a client except, when in the interest of justice, he has to advance necessary expenses in a legal matter he is handling for the client.

The rule is that a lawyer shall not lend money to his client. The only exception is,

when in the interest of justice, he has to advance necessary expenses (such as filing fees,

stenographer’s fees for transcript of stenographic notes, cash bond or premium for surety

bond, etc.) for a matter that he is handling for the client.

The rule is intended to safeguard the lawyer’s independence of mind so that the free

exercise of his judgment may not be adversely affected. [22] It seeks to ensure his undivided

attention to the case he is handling as well as his entire devotion and fidelity to the client’s

cause. If the lawyer lends money to the client in connection with the client’s case, the lawyer

in effect acquires an interest in the subject matter of the case or an additional stake in its

outcome.[23] Either of these circumstances may lead the lawyer to consider his own recovery

rather than that of his client, or to accept a settlement which may take care of his interest in

the verdict to the prejudice of the client in violation of his duty of undivided fidelity to the

client’s cause.[24]

As previously mentioned, any act of solicitation constitutes malpractice [25] which calls for

the exercise of the Court’s disciplinary powers. Violation of anti-solicitation statutes warrants

serious sanctions for initiating contact with a prospective client for the purpose of obtaining

employment.[26] Thus, in this jurisdiction, we adhere to the rule to protect the public from the

Machiavellian machinations of unscrupulous lawyers and to uphold the nobility of the legal

profession.

Considering the myriad infractions of respondent (including violation of the

prohibition on lending money to clients), the sanction recommended by the IBP, a mere

reprimand, is a wimpy slap on the wrist. The proposed penalty is grossly incommensurate to

its findings.

A final word regarding the calling card presented in evidence by petitioner. A lawyer’s

best advertisement is a well-merited reputation for professional capacity and fidelity to trust

based on his character and conduct.[27] For this reason, lawyers are only allowed to announce

their services by publication in reputable law lists or use of simple professional cards.

Professional calling cards may only contain the following details:

(a) lawyer’s name;(b) name of the law firm with which he is connected;(c) address;(d) telephone number and(e) special branch of law practiced.[28]

Labiano’s calling card contained the phrase “with financial assistance.” The

phrase was clearly used to entice clients (who already had representation) to change

counsels with a promise of loans to finance their legal actions. Money was dangled to lure

clients away from their original lawyers, thereby taking advantage of their financial distress

and emotional vulnerability. This crass commercialism degraded the integrity of the bar and

deserved no place in the legal profession. However, in the absence of substantial evidence to

prove his culpability, the Court is not prepared to rule that respondent was personally and

directly responsible for the printing and distribution of Labiano’s calling cards.

WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03, 2.03,

8.02 and 16.04 and Canon 3 of the Code of Professional Responsibility and Section 27, Rule

138 of the Rules of Court is hereby SUSPENDED from the practice of law for a period of

one year effective immediately from receipt of this resolution. He is STERNLY WARNED that

a repetition of the same or similar acts in the future shall be dealt with more severely.

Let a copy of this Resolution be made part of his records in the Office of the Bar

Confidant, Supreme Court of the Philippines, and be furnished to the Integrated Bar of the

Philippines and the Office of the Court Administrator to be circulated to all courts.

[A.C. No. 5299. August 19, 2003]ATTY. ISMAEL G. KHAN, JR., Assistant Court Administrator and Chief, Public Information Office, complainant, vs. ATTY. RIZALINO T. SIMBILLO

[G.R. No. 157053. August 19, 2003]ATTY. RIZALINO T. SIMBILLO, petitioner, vsCOMMISSION ON BAR DISCIPLINE and ATTY. ISMAEL G. KHAN, JR., in his capacity as Assistant Court Administrator and Chief, Public Information Office, respondents.

YNARES-SANTIAGO, J.:

This administrative complaint arose from a paid advertisement that appeared in the July 5, 2000 issue of the newspaper, Philippine Daily Inquirer, which reads: “ANNULMENT OF MARRIAGE Specialist 532-4333/521-2667.”[1]

Ms. Ma. Theresa B. Espeleta, a staff member of the Public Information Office of the Supreme Court, called up the published telephone number and pretended to be an interested party. She spoke to Mrs. Simbillo, who claimed that her husband, Atty. RizalinoSimbillo, was an expert in handling annulment cases and can guarantee a court decree within four to six months, provided the case will not involve separation of property or custody of children. Mrs. Simbillo also said that her husband charges a fee of P48,000.00, half of which is payable at the time of filing of the case and the other half after a decision thereon has been rendered.

Further research by the Office of the Court Administrator and the Public Information Office revealed that similar advertisements were published in the August 2 and 6, 2000 issues of the Manila Bulletin and August 5, 2000 issue of The Philippine Star.[2]

On September 1, 2000, Atty. Ismael G. Khan, Jr., in his capacity as Assistant Court Administrator and Chief of the Public Information Office, filed an administrative complaint against Atty. Rizalino T. Simbillo for improper advertising and solicitation of his legal services, in violation of Rule 2.03 and Rule 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court.[3]

In his answer, respondent admitted the acts imputed to him, but argued that advertising and solicitation per se are not prohibited acts; that the time has come to change our views about the prohibition on advertising and solicitation; that the interest of the public is not served by the absolute prohibition on lawyer advertising; that the Court can lift the ban on lawyer advertising; and that the rationale behind the decades-old prohibition should be abandoned. Thus, he prayed that he be exonerated from all the charges against him and that the Court promulgate a ruling that advertisement of legal services offered by a lawyer is not contrary to law, public policy and public order as long as it is dignified. [4]

The case was referred to the Integrated Bar of the Philippines for investigation, report and recommendation.[5] On June 29, 2002, the IBP Commission on Bar Discipline passed Resolution No. XV-2002-306,[6] finding respondent guilty of violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court, and suspended him from the practice of law for one (1) year with the warning that a repetition of similar acts would be dealt with more severely. The IBP Resolution was noted by this Court on November 11, 2002.[7]

In the meantime, respondent filed an Urgent Motion for Reconsideration, [8] which was denied by the IBP in Resolution No. XV-2002-606 dated October 19, 2002 [9]

Hence, the instant petition for certiorari, which was docketed as G.R. No. 157053 entitled, “Atty. Rizalino T. Simbillo, Petitioner versus IBP Commission on Bar Discipline, Atty. Ismael G. Khan, Jr., Asst. Court Administrator and Chief, Public Information Office, Respondents.” This petition was consolidated with A.C. No. 5299 per the Court’s Resolution dated March 4, 2003.

In a Resolution dated March 26, 2003, the parties were required to manifest whether or not they were willing to submit the case for resolution on the basis of the pleadings.[10] Complainant filed his Manifestation on April 25, 2003, stating that he is not submitting any additional pleading or evidence and is submitting the case for its early resolution on the basis of pleadings and records thereof. [11] Respondent, on the other hand, filed a Supplemental Memorandum on June 20, 2003.

We agree with the IBP’s Resolutions Nos. XV-2002-306 and XV-2002-606.

Rules 2.03 and 3.01 of the Code of Professional Responsibility read:

Rule 2.03. – A lawyer shall not do or permit to be done any act designed primarily to solicit legal business.

Rule 3.01. – A lawyer shall not 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.

Rule 138, Section 27 of the Rules of Court states:

SEC. 27. Disbarment and suspension of attorneys by Supreme Court, grounds therefor. – 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 the admission to practice, or for a willful disobedience appearing as attorney for a party without authority to do so.

It has been repeatedly stressed that the practice of law is not a business. [12] It is a profession in which duty to public service, not money, is the primary consideration. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits.[13] The gaining of a livelihood should be a secondary consideration.[14] The duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves.[15] The following elements distinguish the legal profession from a business:

1. A duty of public service, of which the emolument is a by-product, and in which one may attain the highest eminence without making much money;

2. A relation as an “officer of the court” to the administration of justice involving thorough sincerity, integrity and reliability;

3. A relation to clients in the highest degree of fiduciary;

4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.[16]

There is no question that respondent committed the acts complained of. He himself admits that he caused the publication of the advertisements. While he professes repentance and begs for the Court’s indulgence, his contrition rings hollow considering the fact that he advertised his legal services again after he pleaded for compassion and after claiming that he had no intention to violate the rules. Eight months after filing his answer, he again advertised his legal services in the August 14, 2001 issue of the Buy & Sell Free Ads Newspaper.[17] Ten months later, he caused the same advertisement to be published in the October 5, 2001 issue of Buy & Sell.[18] Such acts of respondent are a deliberate and contemptuous affront on the Court’s authority.

What adds to the gravity of respondent’s acts is that in advertising himself as a self-styled “Annulment of Marriage Specialist,” he wittingly or unwittingly erodes and undermines not only the stability but also the sanctity of an institution still considered sacrosanct despite the contemporary climate of permissiveness in our society. Indeed, in assuring prospective clients that an annulment may be obtained in four to six months from the time of the filing of the case,[19] he in fact encourages people, who might have otherwise been disinclined and would have refrained from dissolving their marriage bonds, to do so.

Nonetheless, the solicitation of legal business is not altogether proscribed. However, for solicitation to be proper, it must be compatible with the dignity of the legal profession. If it is made in a modest and decorous manner, it would bring no injury to the lawyer and to the bar.[20] Thus, the use of simple signs stating the name or names of the lawyers, the office and

residence address and fields of practice, as well as advertisement in legal periodicals bearing the same brief data, are permissible. Even the use of calling cards is now acceptable.[21] Publication in reputable law lists, in a manner consistent with the standards of conduct imposed by the canon, of brief biographical and informative data is likewise allowable. As explicitly stated in Ulep v. Legal Clinic, Inc.:[22]

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 distinctions; 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.

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 dignity or standing of the profession.

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. (emphasis and italics supplied)

WHEREFORE, in view of the foregoing, respondent RIZALINO T. SIMBILLO is found GUILTY of violation of Rules 2.03 and 3.01 of the Code of Professional Responsibility and Rule 138, Section 27 of the Rules of Court. He is SUSPENDED from the practice of law for ONE (1) YEAR effective upon receipt of this Resolution. He is likewise STERNLY WARNED that a repetition of the same or similar offense will be dealt with more severely.

Let copies of this Resolution be entered in his record as attorney and be furnished the Integrated Bar of the Philippines and all courts in the country for their information and guidance.

BAR MATTER NO. 730 June 13, 1997

Gentlemen:

Quoted hereunder, for your information, is a resolution of the Court En Banc dated June 10, 1997.

IN RE: NEED THAT LAW STUDENT PRACTICING UNDER RULE 138-A BE ACTUALLY SUPERVISED DURING TRIAL (BAR MATTER NO. 730).

The issue in this Consulta is whether a law student who appears before the court under the Law Student Practice Rule (Rule 138-A) should be accompanied by a member of the bar during the trial. This issue was raised by retired Supreme Court Justice Antonio P. Barredo, counsel for the defendant in Civil Case No. BCV-92-11 entitled Irene A. Caliwara v. Roger T. Catbagan filed before the Regional Trial Court of Bacoor, Cavite.

The records show that the plaintiff in civil Case No. BCV-92-11 was represented by Mr. Cornelio Carmona, Jr., an intern at the Office of Legal Aid, UP-College of Law (UP-OLA). Mr. Carmona conducted hearings and completed the presentation of the plaintiff's evidence-in-chief without the presence of a supervising lawyer. Justice Barredo questioned the appearance of Mr. Carmona during the hearing because the latter was not accompanied by a duly accredited lawyer. On December 15, 1994, Presiding Judge Edelwina Pastoral issued an Order requiring Mr. Carmona to be accompanied by a supervising lawyer on the next hearing. In compliance with said Order, UP-OLA and the Secretary of Justice executed a Memorandum of Agreement directing Atty. Catubao and Atty. Legayada of the Public Attorney's Office to supervise Mr. Carmona during the subsequent hearings.

Justice Barredo asserts that a law student appearing before the trial court under Rule 138-A should be accompanied by a supervising lawyer. 1 On the other hand, UP-OLA, through its Director, Atty. Alfredo F. Tadiar, submits that "the matter of allowing a law intern to appear unaccompanied by a duly accredited supervising lawyer should be . . . left to the sound discretion of the court after having made at least one supervised appearance." 2

For the guidance of the bench and bar, we hold that a law student appearing before the Regional Trial Court under Rule 138-A should at all times be accompanied by a supervising lawyer. Section 2 of Rule 138-A provides.

Section 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 the by supervising attorney for and in behalf of the legal clinic.

The phrase "direct supervision and control" requires no less than the physical presence of the supervising lawyer during the hearing. This is in accordance with the threefold rationale behind the Law Student Practice Rule, to wit: 3

1. to ensure that there will be no miscarriage of justice as a result of incompetence or inexperience of law students, who, not having as yet passed the test of professional competence, are presumably not fully equipped to act a counsels on their own;

2. to provide a mechanism by which the accredited law school clinic may be able to protect itself from any potential vicarious

liability arising from some culpable action by their law students; and

3. to ensure consistency with the fundamental principle that no person is allowed to practice a particular profession without possessing the qualifications, particularly a license, as required by law.

The matter of allowing a law student to appear before the court unaccompanied by a supervising lawyer cannot be left to the discretion of the presiding judge. The rule clearly states that the appearance of the law student shall be under the direct control and supervision of a member of the Integrated Bar of the Philippines duly accredited by law schools. The rule must be strictly construed because public policy demands that legal work should be entrusted only to those who possess tested qualifications, are sworn to observe the rules and ethics of the legal profession and subject to judicial disciplinary control. 4 We said in Bulacan v. Torcino: 5

Court procedures are often technical and may prove like snares to the ignorant or the unwary. In the past, our law has allowed non-lawyers to appear for party litigants in places where duly authorized members of the bar are not available (U.S. vs. Bacansas, 6 Phil. 539). For relatively simple litigation before municipal courts, the Rules still allow a more educated or capable person in behalf of a litigant who cannot get a lawyer. But for the protection of the parties and in the interest of justice, the requirement for appearances in regional trial courts and higher courts is more stringent.

The Law Student Practice Rule is only an exception to the rule. Hence, the presiding judge should see to it that the law student appearing before the court is properly guided and supervised by a member of the bar.

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;

Section 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.

G.R. No. 154207 April 27, 2007

FERDINAND A. CRUZ vs. ALBERTO MINA

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 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 inCantimbuhan; 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.

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:

RULE138-ALAW 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.

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.

FERDINAND A. CRUZ - versus - JUDGE PRISCILLA MIJARES, Presiding Judge, Regional Trial Court, Branch 108, Pasay City, Metro Manila,

NACHURA, J.:

This is a Petition for Certiorari, Prohibition and Mandamus, with prayer for the issuance of a writ of preliminary injunction under Rule 65 of the Rules of Court. It was directly filed with this Court assailing the Resolutions dated May 10, 2002 [1] and July 31, 2002[2] of the Regional Trial Court (RTC), Branch 108, Pasay City, which denied the appearance of the plaintiff Ferdinand A. Cruz, herein petitioner, as party litigant, and the refusal of the public respondent, Judge Priscilla Mijares, to voluntarily inhibit herself from trying the case. No writ of preliminary injunction was issued by this Court.

The antecedents:

On March 5, 2002, Ferdinand A. Cruz (petitioner) sought permission to enter his

appearance for and on his behalf, before the RTC, Branch 108, Pasay City, as the plaintiff in

Civil Case No. 01-0410, for Abatement of Nuisance. Petitioner, a fourth year law student,

anchors his claim on Section 34 of Rule 138 of the Rules of Court [3] that a non-lawyer may

appear before any court and conduct his litigation personally.

During the pre-trial, Judge Priscilla Mijares required the petitioner to secure a written

permission from the Court Administrator before he could be allowed to appear as counsel for

himself, a party-litigant. Atty. Stanley Cabrera, counsel for Benjamin Mina, Jr., filed a Motion to

Dismiss instead of a pre-trial brief to which petitioner Cruz vehemently objected alleging that a

Motion to Dismiss is not allowed after the Answer had been filed. Judge Mijares then

remarked, “Hay naku, masama ‘yungmarunong pa saHuwes. Ok?” and proceeded to hear the

pending Motion to Dismiss and calendared the next hearing on May 2, 2002.

On March 6, 2002, petitioner Cruz filed a Manifestation and Motion to Inhibit,[4] praying for the voluntary inhibition of Judge Mijares. The Motion alleged that expected

partiality on the part of the respondent judge in the conduct of the trial could be inferred from

the contumacious remarks of Judge Mijares during the pre-trial. It asserts that the judge, in

uttering an uncalled for remark, reflects a negative frame of mind, which engenders the belief

that justice will not be served.[5]

In an Order[6] dated April 19, 2002, Judge Mijares denied the motion for inhibition

stating that throwing tenuous allegations of partiality based on the said remark is not enough

to warrant her voluntary inhibition, considering that it was said even prior to the start of pre-

trial. Petitioner filed a motion for reconsideration [7] of the said order.

On May 10, 2002, Judge Mijares denied the motion with finality. [8] In the same

Order, the trial court held that for the failure of petitioner Cruz to submit the promised

document and jurisprudence, and for his failure to satisfy the requirements or conditions under

Rule 138-A of the Rules of Court, his appearance was denied.

In a motion for reconsideration,[9] petitioner reiterated that the basis of his

appearance was not Rule 138-A, but Section 34 of Rule 138. He contended that the two

Rules were distinct and are applicable to different circumstances, but the respondent judge

denied the same, still invoking Rule 138-A, in an Order[10] dated July 31, 2002.

On August 16, 2002, the petitioner directly filed with this Court, the instant petition

and assigns the following errors:

I.THE RESPONDENT REGIONAL TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED THE APPEARANCE OF THE PETITIONER, FOR AND IN THE LATTER’S BEHALF, IN CIVIL CASE NO. 01-0401 [sic] CONTRARY TO RULE 138, SECTION 34 OF THE RULES OF COURT, PROVIDING FOR THE APPEARANCE OF NON-LAWYERS AS A PARTY LITIGANT;

II.THE RESPONDENT COURT GRAVELY ERRED AND ABUSED ITS DISCRETION WHEN IT DID NOT VOLUNTARILY INHIBIT DESPITE THE ADVENT OF JURISPRUDENCE [sic] THAT SUCH AN INHIBITION IS PROPER TO PRESERVE THE PEOPLE’S FAITH AND CONFIDENCE TO THE COURTS.

The core issues raised before the Court are: (1) whether the extraordinary writs of certiorari, prohibition and mandamus under Rule 65 of the 1997 Rules of Court may issue; and (2) whether the respondent court acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it denied the appearance of the petitioner as party litigant and when the judge refused to inhibit herself from trying the case.

This Court’s jurisdiction to issue writs of certiorari, prohibition, mandamus and

injunction is not exclusive; it has concurrent jurisdiction with the RTCs and the Court of

Appeals. This concurrence of jurisdiction is not, however, to be taken as an absolute,

unrestrained freedom to choose the court where the application therefor will be directed. [11] A

becoming regard of the judicial hierarchy most certainly indicates that petitions for the

issuance of extraordinary writs against the RTCs should be filed with the Court of Appeals.[12] The hierarchy of courts is determinative of the appropriate forum for petitions for the

extraordinary writs; and only in exceptional cases and for compelling reasons, or if warranted

by the nature of the issues reviewed, may this Court take cognizance of petitions filed directly

before it.[13]

Considering, however, that this case involves the interpretation of Section 34, Rule

138 and Rule 138-A of the Rules of Court, the Court takes cognizance of herein petition.

Nonetheless, the petitioner is cautioned not to continue his practice of filing directly before this

Court petitions under Rule 65 when the issue raised can be resolved with dispatch by the

Court of Appeals. We will not tolerate litigants who make a mockery of the judicial hierarchy as

it necessarily delays more important concerns before us.

In resolving the second issue, a comparative reading of Rule 138, Section 34 and Rule

138-A is necessary.

Rule 138-A, or the Law Student Practice Rule, provides:

Section 1. Conditions for Student Practice. – A law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school's clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case

before any trial court, tribunal, board or officer, to represent indigent clients accepted by the legal clinic of the law school.

Sec. 2. Appearance. – The appearance of the law student authorized by this rule, shall be under the direct supervision and control of a member of the Integrated Bar of the Philippines duly accredited by the law school. Any and all pleadings, motions, briefs, memoranda or other papers to be filed, must be signed by the supervising attorney for and in behalf of the legal clinic.

The respondent court held that the petitioner could not appear for himself and on his behalf because of his failure to comply with Rule 138-A. In denying petitioner’s appearance, the court a quo tersely finds refuge in the fact that, on December 18, 1986, this Court issued Circular No. 19, which eventually became Rule 138-A, and the failure of Cruz to prove on record that he is enrolled in a recognized school’s clinical legal education program and is under supervision of an attorney duly accredited by the law school.

However, the petitioner insisted that the basis of his appearance was Section

34 of Rule 138, which provides:

Sec. 34. By whom litigation is conducted. - In the court of a justice of the peace, a party may conduct his litigation in person, with 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.

From the clear language of this provision of the Rules, it will have to be conceded that the contention of the petitioner has merit. It recognizes the right of an individual to represent himself in any case to which he is a party. The Rules state that a party may conduct his litigation personally or with the aid of an attorney, and that his appearance must either be personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the course of proceedings from commencement to the termination of the litigation. [14] Considering that a party personally conducting his litigation is restricted to the same rules of

evidence and procedure as those qualified to practice law, [15] petitioner, not being a lawyer himself, runs the risk of falling into the snares and hazards of his own ignorance. Therefore, Cruz as plaintiff, at his own instance, can personally conduct the litigation of Civil Case No. 01-0410. He would then be acting not as a counsel or lawyer, but as a party exercising his right to represent himself.

The trial court must have been misled by the fact that the petitioner is a law student

and must, therefore, be subject to the conditions of the Law Student Practice Rule. It erred in

applying Rule 138-A, when the basis of the petitioner’s claim is Section 34 of Rule 138. The

former rule provides for conditions when a law student may appear in courts, while the latter

rule allows the appearance of a non-lawyer as a party representing himself.

The conclusion of the trial court that Rule 138-A superseded Rule 138 by virtue of

Circular No. 19 is misplaced. The Court never intended to repeal Rule 138 when it released

the guidelines for limited law student practice. In fact, it was intended as an addendum to the

instances when a non-lawyer may appear in courts and was incorporated to the Rules of

Court through Rule 138-A.

It may be relevant to recall that, in respect to the constitutional right of an accused to

be heard by himself and counsel,[16] this Court has held that during the trial, the right to

counsel cannot be waived.[17] The rationale for this ruling was articulated in People v.

Holgado,[18] where we declared that “even the most intelligent or educated man may have no

skill in the science of law, particularly in the rules of procedure, and without counsel, he may

be convicted not because he is guilty but because he does not know how to establish his

innocence.”

The case at bar involves a civil case, with the petitioner as plaintiff therein. The

solicitous concern that the Constitution accords the accused in a criminal prosecution

obviously does not obtain in a civil case. Thus, a party litigant in a civil case, who insists that

he can, without a lawyer’s assistance, effectively undertake the successful pursuit of his claim,

may be given the chance to do so. In this case, petitioner alleges that he is a law student and

impliedly asserts that he has the competence to litigate the case himself. Evidently, he is

aware of the perils incident to this decision.

In addition, it was subsequently clarified in Bar Matter 730, that by virtue of Section

34, Rule 138, a law student may appear as an agent or a friend of a party litigant, without

need of the supervision of a lawyer, before inferior courts. Here, we have a law student who,

as party litigant, wishes to represent himself in court. We should grant his wish.

Additionally, however, petitioner contends that the respondent judge committed

manifest bias and partiality by ruling that there is no valid ground for her voluntary inhibition

despite her alleged negative demeanor during the pre-trial when she said: “Hay naku,

masama ‘yungmarunong pa saHuwes. Ok?” Petitioner avers that by denying his motion, the

respondent judge already manifested conduct indicative of arbitrariness and prejudice,

causing petitioner’s and his co-plaintiff’s loss of faith and confidence in the respondent’s

impartiality.

We do not agree.

It must be noted that because of this incident, the petitioner filed an administrative

case[19] against the respondent for violation of the Canons of Judicial Ethics, which we

dismissed for lack of merit on September 15, 2002. We now adopt the Court’s findings of fact

in the administrative case and rule that there was no grave abuse of discretion on the part of

Judge Mijares when she did not inhibit herself from the trial of the case.

In a Motion for Inhibition, the movant must prove the ground for bias and prejudice

by clear and convincing evidence to disqualify a judge from participating in a particular trial,[20] as voluntary inhibition is primarily a matter of conscience and addressed to the sound

discretion of the judge. The decision on whether she should inhibit herself must be based on

her rational and logical assessment of the circumstances prevailing in the case before her.[21] Absent clear and convincing proof of grave abuse of discretion on the part of the judge, this

Court will rule in favor of the presumption that official duty has been regularly performed.

WHEREFORE, the Petition is PARTIALLY GRANTED. The assailed Resolution and Order of the Regional Trial Court, Branch 108, Pasay City are MODIFIED. Regional Trial Court, Branch 108, Pasay City is DIRECTED to ADMIT the Entry of Appearance of petitioner in Civil Case No. 01-0410 as a party litigant.

A.M. No. RTJ-04-1823 August 28, 2006

ARCELY Y. SANTOSvs.JUDGE UBALDINO A. LACUROM

CARPIO, J.:

The Case

This is an administrative complaint filed by Arcely Y. Santos ("complainant") against Judge Ubaldino A. Lacurom ("respondent judge"), Presiding Judge, Regional Trial Court (RTC) of Cabanatuan City, Branch 29 and Pairing Judge, Branch 30. Complainant charged respondent judge with gross misconduct, grave abuse of judicial authority, gross bias and partiality, and gross violation of the Code of Judicial Ethics.

The Facts

The complaint stemmed from respondent judge’s alleged bias and partiality in favor of one Rogelio R. Santos, Sr. ("Santos"), who had three pending cases1 before respondent judge’s sala, as shown by the following:

1. Respondent judge allowed Santos, a non-lawyer, to appear in court and litigate personally the three cases. Complainant pointed out that Santos was already represented by

counsels2 who have not withdrawn their appearances. Complainant alleged that respondent judge is guilty of gross misconduct and grave abuse of judicial discretion for having allowed a non-lawyer to engage in the practice law.

In Special Proceedings Case No. 516-AF, respondent judge, in an Order 3 dated 28 February 2003, even "appointed" Santos as lead counsel for the petitioners. As early as 26 September 2002, complainant had been questioning the appearance of Santos as "counsel" during the proceedings in court.4 On 11 November 2002, complainant filed a motion to expunge a pleading signed by Santos, claiming that Santos, a non-lawyer, is not allowed to sign pleadings.5 In a Joint Resolution dated 7 February 2003, respondent judge denied complainant’s motion and stated that Santos is qualified to conduct his litigation personally.6 Then on 20 February 2003, complainant filed a motion to reconsider the Joint Resolution and suggested that, since Santos is now representing himself and, at the same time, is being represented by counsel, respondent judge should appoint a member of the Bar as lead counsel.7

On the other hand, complainant alleged that she and the other oppositors were not allowed to address the court directly and respondent judge even compelled them, under the pain of contempt, to secure the services of a lawyer to represent them.

2. Respondent judge always granted, with dispatch, all the pleadings of Santos.

3. Respondent judge had unduly delayed the execution of the 28 April 2000 Court of Appeals’ decision against Santos in Cadastral Case No. 384-AF.

4. Respondent judge denied complainant’s letter-request8 dated 16 March 2001 for respondent judge to inhibit himself from the cases to avoid suspicion of bias, prejudice, conflict of interest and partiality. Complainant alleged that respondent judge used his office to advance and protect the interests of Santos, respondent judge’s "close friend," to the prejudice of complainant and in violation of Canon 29 of the Code of Judicial Conduct (Code).

Complainant pointed out that in an earlier case10 respondent judge inhibited himself because Santos is respondent judge’s "close friend."11

Complainant also added that respondent judge refused to inhibit himself because he was protecting his interest in Villa Benita Subdivision ("subdivision"). Complainant explained that all three cases involved properties in the subdivision12 and that respondent judge is an incorporator,13 a director, an officer and a legal adviser14 of Villa Benita Homeowners Association ("VBHA"). VBHA allegedly filed several cases before the Housing and Land Use Regulatory Board (HLURB) against Fabern’s Inc. and complainant. Complainant asserted that respondent judge had personal knowledge of the facts of the HLURB cases. Complainant added that in refusing to inhibit himself, respondent judge violated Rule 3.12 (a) 15 and Canon 516 of the Code.

In its 1st Indorsement dated 15 May 2003, the Office of the Court Administrator (OCA) required respondent judge to comment on complainant’s allegations and to show cause why he should not be sanctioned as a member of the Bar for violation of Canon 9, Rule 9.01 17 of the Code of Professional Responsibility.

In an Answer dated 27 June 2003, respondent judge offered the following explanations:

1. Respondent judge, citing Section 34, Rule 13818 of the Rules of Court (Rules), admitted that he allowed Santos to litigate personally his cases before the court.

On Special Proceedings Case No. 516-AF, respondent judge explained that he merely "recognized" Santos as lead counsel because his counsel was often absent from the proceedings.19 Respondent judge added that complainant’s counsel did not object to the appointment of Santos as lead counsel, but merely suggested that lead counsel should be a member of the Bar. Respondent judge also added that, if complainant did not agree with respondent judge’s decision on the matter, complainant should have filed a petition for certiorari.

Respondent judge also explained that complainant was allowed to address the court directly, though not at length because complainant was represented by counsel.

2. Respondent judge denied that he always granted the pleadings of Santos.

3. Respondent judge denied that the Court of Appeals’ decision in Cadastral Case No. 384-AF has remained unenforced because of his bias in favor of Santos. Respondent judge stated that he had ordered the implementation of the decision as early as 25 September 2000 20 and issued a writ of execution on 25 October 2002.21

4. Respondent judged stated that he denied complainant’s request to inhibit himself because he can fairly hear and decide the cases.

On respondent judge’s inhibition in Civil Case No. 3074-AF, respondent judge explained that he inhibited himself from the case because Santos was his "close friend," while respondents were not respondent judge’s friends. In these cases, respondent judge pointed out that he was friends with both Santos and the other parties22 to the cases, in effect, "neutralizing" respondent judge’s close friendship with Santos.

Respondent judge explained that Santos became a "close friend" when Santos lent his portable bunker to Dr. Ferdinand Lacurom ("Dr. Lacurom"), respondent judge’s son, during the construction of Dr. Lacurom’s house in the subdivision. Respondent judge also admitted that the officers of Fabern’s Inc. extended a favor to Dr. Lacurom when they facilitated the cementing of the road in front of Dr. Lacurom’s house.23 However, respondent judge denied that he received any favor from Santos.

On the matter of VBHA, respondent judge denied that he had any interest to protect in the subdivision, as respondent judge is not a landowner, or homeowner, or lessee in the subdivision. Respondent judge clarified that Dr. Lacurom is the one who owns property in the subdivision and that respondent judge stayed there only on some occasions. Respondent judge admitted that he is a "nominal" incorporator and adviser of VBHA. 24 Atty. Napoleon Reyes, president of VBHA, requested respondent judge to agree to be an incorporator of VBHA "to lend a bit of prestige to the association." However, respondent judge stated that his only participation in VBHA was to sign the registration documents of VBHA. Respondent judge

clarified that he never attended any of the meetings of VBHA, nor has he any knowledge of any case filed by VBHA before the HLURB.

Respondent judge also stated that if complainant filed the proper motion for inhibition, he would have granted the same.

The OCA’s Report and Recommendation

In its Report dated 21 November 2003, the OCA recommended that the complaint be re-docketed as an administrative matter and that respondent judge be fined P5,000. The OCA found respondent judge administratively liable for recognizing Santos as lead counsel despite the fact that Santos had two counsels of record. The OCA did not find respondent judge liable for the delay in the execution of the decision of the Court of Appeals in Cadastral Case No. 384-AF, as the delay was brought about by the parties themselves. On respondent judge being an incorporator and adviser of VBHA and his refusal to inhibit himself from the cases, the OCA opined that the subject cases are not covered by the rule on mandatory disqualification of judges, hence, respondent judge’s inhibition rested upon his own discretion.

In a Resolution dated 21 January 2004, the Court resolved to docket the case as a regular administrative matter and required the parties to manifest within ten days from notice if they were willing to submit the case for resolution based on the pleadings on record. Respondent judge manifested affirmatively. Complainant filed a memorandum dated 9 August 2004 reiterating her allegations. In turn, respondent judge also submitted a memorandum on 21 August 2004.

Complainant filed the present administrative complaint on 5 May 2003 when respondent judge was still presiding judge of Branch 29 and pairing judge of Branch 30. Respondent judge compulsorily retired on 16 May 2003. However, his retirement does not render this administrative case moot.25

The Court’s Ruling

In administrative proceedings, the complainant has the burden of proving by substantial evidence the allegations in the complaint.26 In this case, complainant failed to prove that respondent judge granted with dispatch all the pleadings of Santos and that respondent judge was responsible for the delay in the execution of the Court of Appeals’ decision in Cadastral Case No. 384-AF. Hence, the Court dismisses this particular charge.

On a Party’s Right to Self Representation

The Rules recognize the right of an individual to represent himself in any case in which he is a party. The Rules state that a party may conduct his litigation personally or by aid of an attorney, and that his appearance must be either personal or by a duly authorized member of the Bar.27 The individual litigant may personally do everything in the progress of the action from commencement to the termination of the litigation.28 A party’s representation on his own behalf is not considered to be a practice of law as "one does not practice law by acting for himself, any more than he practices medicine by rendering first aid to himself."29

Therefore, Santos can conduct the litigation of the cases personally. Santos is not engaged in the practice of law if he represents himself in cases in which he is a party. By conducting the litigation of his own cases, Santos acts not as a counsel or lawyer but as a party exercising his right to represent himself. Certainly, Santos does not become a counsel or lawyer by exercising such right.

The Court, however, notes the use of the disjunctive word "or" under the Rules, signifying disassociation and independence of one thing from each of the other things enumerated,30 to mean that a party must choose between self-representation or being represented by a member of the bar. During the course of the proceedings, a party should not be allowed to shift from one form of representation to another. Otherwise, this would lead to confusion, not only for the other party, but for the court as well. If a party, originally represented by counsel, would later decide to represent himself, the prudent course of action is to dispense with the services of counsel and prosecute or defend the case personally.31

For the orderly administration of justice, respondent judge should not have allowed Santos to litigate personally because Santos was already represented by counsel. Respondent judge should have required Santos to choose between self-representation or being represented by counsel.

Moreover, respondent judge should not have recognized Santos as lead counsel. The "lead counsel" is the lawyer on either side of a litigated action who is charged with the principal management and direction of the party’s case, as distinguished from his collaborating counsels or subordinates.32 In recognizing Santos as "lead counsel", respondent judge made it appear that Santos was a counsel or lawyer when he is not. To repeat, when a party represents himself in his own case, he does so not as a counsel or lawyer but as a party exercising his right of self-representation.

On Respondent Judge’s Inhibition

The Court agrees with the OCA’s finding that respondent judge’s inhibition from the cases was discretionary. The three cases do not fall under the instances covered by the rule on the mandatory disqualification of judges33 and the issue of voluntary inhibition is primarily a matter of conscience and sound discretion on the part of the judge.34

Besides, complainant did not follow the proper procedure for the disqualification of judges. In Constante v. Pimentel,35 the Court ruled that the procedure for disqualification of judges in Section 2, Rule 13736 must be substantially followed.

On Respondent Judge’s Violation of the Code of Judicial Conduct

On respondent judge’s admission that Dr. Lacurom received a favor from the officers of Fabern’s Inc., respondent judge violated Rule 5.0437 of the Code. Fabern’s Inc. is the petitioner in Cadastral Case No. 384-AF, which was then pending before respondent judge’s sala. Respondent judge should have advised Dr. Lacurom not to accept any favor from Fabern’s Inc. or from any of its officers38 or principal stockholders. Judges, as occupants of exalted positions in the administration of justice, must pay a high price for the honor bestowed

on them.39 Their private, as well as their official conduct, must always be free from the appearance of impropriety.40

On respondent judge’s close friendship with Santos, such fact did not render respondent judge guilty of violating any canon of judicial ethics as long as his friendly relations with Santos did not influence his official conduct as a judge in the cases where Santos was a party.41 Complainant failed to present any convincing proof that respondent judge gave any undue privileges in his court to Santos, or that Santos benefited from his personal relations with respondent judge, or that respondent judge used his influence, if any, to favor Santos.

However, it would have been more prudent if respondent judge avoided hearing the cases where Santos was a party because their close friendship could reasonably tend to raise suspicion that respondent judge’s social relationship with Santos would be an element in his determination of the cases of Santos.42 This may erode the trust of the litigants in respondent judge’s impartiality and eventually, undermine the people’s faith in the administration of justice.43 Judges must not only render a just, correct and impartial decision but should do so in such a manner as to be free from any suspicion as to his fairness, impartiality and integrity.44

On the Appropriate Penalty Against Respondent Judge

Respondent judge’s actuations constitute simple misconduct, a less serious charge punishable with (a) suspension from office without salary and other benefits for a period of not less than one month but not more than three months; or (b) fine of more than P10,000 but not exceeding P20,000.45 However, considering that respondent judge had retired compulsorily on 16 May 2003 after twenty-eight years of service in the government and that this is respondent judge’s first offense, the P10,000 withheld from his retirement benefits46 should be forfeited as sufficient penalty for his administrative offense.47

WHEREFORE, the Court finds respondent Judge Ubaldino A. Lacurom GUILTY of simple misconduct andORDERS the FORFEITURE of the P10,000 withheld from his retirement benefits.

[G.R. No. 126625. September 23, 1997]

KANLAON CONSTRUCTION ENTERPRISES CO., INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, 5TH DIVISION, and BENJAMIN RELUYA, JR., EDGARDO GENAYAS, ERNESTO CANETE, PROTACIO ROSALES, NESTOR BENOYA, RODOLFO GONGOB, DARIO BINOYA, BENJAMIN BASMAYOR, ABELARDO SACURA, FLORENCIO SACURA, ISABELO MIRA, NEMESIO LACAR, JOSEPH CABIGKIS, RODRIGO CILLON, VIRGILIO QUIZON, GUARINO EVANGELISTA, ALEJANDRO GATA, BENEDICTO CALAGO, NILO GATA, DIONISIO PERMACIO, JUANITO SALUD, ADOR RIMPO, FELIPE ORAEZ, JULIETO TEJADA, TEOTIMO LACIO, ONOFRE QUIZON, RUDY ALVAREZ,

CRESENCIO FLORES, ALFREDO PERMACIO, CRESENCIO ALVIAR, HERNANI SURILA, DIOSDADO SOLON, CENON ALBURO, ZACARIAS ORTIZ, EUSEBIO BUSTILLO, GREGORIO BAGO, JERRY VARGAS, EDUARDO BUENO, PASCUAL HUDAYA, ROGELIO NIETES, and REYNALDO NIETES, respondents.

D E C I S I O N

PUNO, J.:

In this petition for certiorari, petitioner Kanlaon Construction Enterprises Co., Inc. seeks to annul the decision of respondent National Labor Relations Commission, Fifth Division and remand the cases to the Arbitration Branch for a retrial on the merits.

Petitioner is a domestic corporation engaged in the construction business nationwide with principal office at No. 11 Yakan St., La Vista Subdivision, Quezon City. In 1988, petitioner was contracted by the National Steel Corporation to construct residential houses for its plant employees in Steeltown, Sta. Elena, Iligan City. Private respondents were hired by petitioner as laborers in the project and worked under the supervision of Engineers Paulino Estacio and Mario Dulatre. In 1989, the project neared its completion and petitioner started terminating the services of private respondents and its other employees.

In 1990, private respondents filed separate complaints against petitioner before Sub-Regional Arbitration Branch XII, Iligan City. Numbering forty-one (41) in all, they claimed that petitioner paid them wages below the minimum and sought payment of their salary differentials and thirteenth-month pay. Engineers Estacio and Dulatre were named co-respondents.

Some of the cases were assigned to Labor Arbiter Guardson A. Siao while the others were assigned to Labor Arbiter Nicodemus G. Palangan. Summonses and notices of preliminary conference were issued and served on the two engineers and petitioner through Engineer Estacio. The preliminary conferences before the labor arbiters were attended by Engineers Estacio and Dulatre and private respondents. At the conference of June 11, 1990 before Arbiter Siao, Engineer Estacio admitted petitioner's liability to private respondents and agreed to pay their wage differentials and thirteenth-month pay on June 19, 1990. As a result of this agreement, Engineer Estacio allegedly waived petitioner's right to file its position paper. [1] Private respondents declared that they, too, were dispensing with their position papers and were adopting their complaints as their position paper. [2]

On June 19, 1990, Engineer Estacio appeared but requested for another week to settle the claims. Labor Arbiter Siao denied this request. On June 21, 1990, Arbiter Siao issued an order granting the complaint and directing petitioner to pay private respondents' claims. Arbiter Siao held:

"x x x.

"Considering the length of time that has elapsed since these cases were filed, and what the complainants might think as to how this branch operates and/or conducts its proceedings as they are now restless, this Arbiter has no other alternative or recourse but to order the respondent to pay the claims of the complainants, subject of course to the computation of the Fiscal Examiner II of this Branch pursuant to the oral manifestation of respondent. The

Supreme Court ruled: 'Contracts though orally made are binding on the parties.' (Lao Sok v. Sabaysabay, 138 SCRA 134).

"Similarly, this Branch would present in passing that 'a court cannot decide a case without facts either admitted or agreed upon by the parties or proved by evidence.' (Yu Chin Piao v. Lim Tuaco, 33 Phil. 92; Benedicto v. Yulo, 26 Phil. 160),

"WHEREFORE, premises considered, the respondent is hereby ordered to pay the individual claims of the above-named complainants representing their wage differentials within ten (10) days from receipt of this Order.

"The Fiscal Examiner II of this Branch is likewise hereby ordered to compute the individual claims of the herein complainants.

"SO ORDERED." [3]

On June 29, 1990, ArbiterPalangan issued a similar order, thus:

"When the above-entitled cases were called for hearing on June 19, 1990 at 10:00 a.m. respondent thru their representative manifested that they were willing to pay the claims of the complainants and promised to pay the same on June 28, 1990 at 10:30 a.m.

"However, when these cases were called purposely to materialize the promise of the respondent, the latter failed to appear without any valid reason.

"Considering therefore that the respondent has already admitted the claims of the complainants, we believe that the issues raised herein have become moot and academic.

"WHEREFORE, premises considered, the above-entitled cases are hereby ordered Closed and Terminated, however, the respondent is hereby ordered to pay the complainants their differential pay and 13th-month pay within a period of ten (10) days from receipt hereof based on the employment record on file with the respondent.

"SO ORDERED." [4]

Petitioner appealed to respondent National Labor Relations Commission. It alleged that it was denied due process and that Engineers Estacio and Dulatre had no authority to represent and bind petitioner. Petitioner's appeal was filed by one Atty. Arthur Abundiente.

In a decision dated April 27, 1992, respondent Commission affirmed the orders of the Arbiters.

Petitioner interposed this petition alleging that the decision of respondent Commission was rendered without jurisdiction and in grave abuse of discretion. Petitioner claims that:

"I

"THE QUESTIONED DECISION RENDERED BY THE HONORABLE COMMISSION IS A NULLITY, IT HAVING BEEN ISSUED WITHOUT JURISDICTION;

II

"PUBLIC RESPONDENT NATIONAL LABOR RELATIONS COMMISSION GRAVELY ABUSED ITS DISCRETION IN ARBITRARILY, CAPRICIOUSLY AND WHIMSICALLY MAKING THE FOLLOWING CONCLUSIONS BASED NOT ON FACTS AND EVIDENCE BUT ON SPECULATION, SURMISE AND CONJECTURE:

A. Petitioner was deprived of the constitutional right to due process of law when it was adjudged by the NLRC liable without trial on the merits and without its knowledge;

B. The NLRC erroneously, patently and unreasonably interpreted the principle that the NLRC and its Arbitration Branch are not strictly bound by the rules of evidence;

C. There is no legal nor actual basis in the NLRC's ruling that petitioner is already in estoppel to disclaim the authority of its alleged representatives.

D. The NLRC committed manifest error in relying merely on private respondents unsubstantiated complaints to hold petitioner liable for damages." [5]

In brief, petitioner alleges that the decisions of the labor arbiters and respondent Commission are void for the following reasons: (1) there was no valid service of summons; (2) Engineers Estacio and Dulatre and Atty. Abundiente had no authority to appear and represent petitioner at the hearings before the arbiters and on appeal to respondent Commission; (3) the decisions of the arbiters and respondent Commission are based on unsubstantiated and self-serving evidence and were rendered in violation of petitioner's right to due process.

Service of summons in cases filed before the labor arbiters is governed by Sections 4 and 5 of Rule IV of the New Rules of Procedure of the NLRC. They provide:

"Section 4. Service of Notices and Resolutions.-- (a) Notices or summons and copies of orders, resolutions or decisions shall be served on the parties to the case personally by the bailiff or duly authorized public officer within three (3) days from receipt thereof or by registered mail; Provided that where a party is represented by counsel or authorized representative, service shall be made on such counsel or authorized representative; provided further that in cases of decision and final awards, copies thereof shall be served on both the parties and their counsel; provided finally, that in case where the parties are so numerous, service shall be made on counsel and upon such number of complainants as may be practicable, which shall be considered substantial compliance with Article 224 (a) of the Labor Code, as amended.

"x x x.

"Section 5. Proof and completeness of service.-- The return is prima facie proof of the facts indicated therein. Service by registered mail is complete upon receipt by the addressee or his agent. x xx."

Under the NLRC Rules of Procedure, summons on the respondent shall be served personally or by registered mail on the party himself. If the party is represented by counsel or any other authorized representative or agent, summons shall be served on such person.

It has been established that petitioner is a private domestic corporation with principal address in Quezon City. The complaints against petitioner were filed in Iligan City and summonses therefore served on Engineer Estacio in Iligan City. The question now is whether Engineer Estacio was an agent and authorized representative of petitioner.

To determine the scope or meaning of the term "authorized representative" or "agent" of parties on whom summons may be served, the provisions of the Revised Rules of Court may be resorted to. [6]

Under the Revised Rules of Court, [7] service upon a private domestic corporation or partnership must be made upon its officers, such as the president, manager, secretary, cashier, agent, or any of its directors. These persons are deemed so integrated with the corporation that they know their responsibilities and immediately discern what to do with any legal papers served on them. [8]

In the case at bar, Engineer Estacio, assisted by Engineer Dulatre, managed and supervised the construction project. [9] According to the Solicitor General and private respondents, Engineer Estacio attended to the project in Iligan City and supervised the work of the employees thereat. As manager, he had sufficient responsibility and discretion to realize the importance of the legal papers served on him and to relay the same to the president or other responsible officer of petitioner. Summons for petitioner was therefore validly served on him.

Engineer Estacio's appearance before the labor arbiters and his promise to settle the claims of private respondents is another matter.

The general rule is that only lawyers are allowed to appear before the labor arbiter and respondent Commission in cases before them. The Labor Code and the New Rules of Procedure of the NLRC, nonetheless, lists three (3) exceptions to the rule, viz:

"Section 6. Appearances.-- x x x.

"A non-lawyer may appear before the Commission or any Labor Arbiter only if:

"(a) he represents himself as party to the case;

"(b) he represents the organization or its members, provided that he shall be made to present written proof that he is properly authorized; or

"(c) he is a duly-accredited member of any legal aid office duly recognized by the Department of Justice or the Integrated Bar of the Philippines in cases referred thereto by the latter. x x x." [10]

A non-lawyer may appear before the labor arbiters and the NLRC only if: (a) he represents himself as a party to the case; (b) he represents an organization or its members, with written authorization from them; or (c) he is a duly accredited member of any legal aid office duly recognized by the Department of Justice or the Integrated Bar of the Philippines in cases referred to by the latter. [11]

Engineers Estacio and Dulatre were not lawyers. Neither were they duly-accredited members of a legal aid office. Their appearance before the labor arbiters in their capacity as parties to the cases was authorized under the first exception to the rule. However, their appearance on behalf of petitioner required written proof of authorization. It was incumbent upon the arbiters to ascertain this authority especially since both engineers were named co-respondents in the cases before the arbiters. Absent this authority, whatever statements and declarations Engineer Estacio made before the arbiters could not bind petitioner.

The appearance of Atty. Arthur Abundiente in the cases appealed to respondent Commission did not cure Engineer Estacio's representation. Atty. Abundiente, in the first place, had no authority to appear before the respondent Commission. The appellants' brief he filed was verified by him, not by petitioner. [12] Moreover, respondent Commission did not delve into the merits of Atty. Abundiente's appeal and determine whether Engineer Estacio was duly authorized to make such promise. It dismissed the appeal on the ground that notices were served on petitioner and that the latter was estopped from denying its promise to pay.

Nevertheless, even assuming that Engineer Estacio and Atty. Abundiente were authorized to appear as representatives of petitioner, they could bind the latter only in procedural matters before the arbiters and respondent Commission. Petitioner's liability arose from Engineer Estacio's alleged promise to pay. A promise to pay amounts to an offer to compromise and requires a special power of attorney or the express consent of petitioner. The authority to compromise cannot be lightly presumed and should be duly established by evidence. [13] This is explicit from Section 7 of Rule III of the NLRC Rules of Procedure, viz:

"Section 7. Authority to bind party.-- Attorneys and other representatives of parties shall have authority to bind their clients in all matters of procedure; but they cannot, without a special power of attorney or express consent, enter into a compromise agreement with the opposing party in full or partial discharge of a client's claim."

The promise to pay allegedly made by Engineer Estacio was made at the preliminary conference and constituted an offer to settle the case amicably. The promise to pay could not be presumed to be a single unilateral act, contrary to the claim of the Solicitor General. [14] A defendant's promise to pay and settle the plaintiff's claims ordinarily requires a reciprocal obligation from the plaintiff to withdraw the complaint and discharge the defendant from liability. [15] In effect, the offer to pay was an offer to compromise the cases.

In civil cases, an offer to compromise is not an admission of any liability, and is not admissible in evidence against the offeror. [16] If this rule were otherwise, no attempt to settle litigation could safely be made. [17] Settlement of disputes by way of compromise is an accepted and desirable practice in courts of law and administrative tribunals. [18] In fact, the Labor Code mandates the labor arbiter to exert all efforts to enable the parties to arrive at an amicable settlement of the dispute within his jurisdiction on or before the first hearing. [19]

Clearly, respondent Commission gravely abused its discretion in affirming the decisions of the labor arbiters which were not only based on unauthorized representations, but were also made in violation of petitioner's right to due process.

Section 3 of Rule V of the NLRC Rules of Procedure provides:

"Section 3. Submission of Position Papers/Memorandum.-- Should the parties fail to agree upon an amicable settlement, in whole or in part, during the conferences, the Labor Arbiter shall issue an order stating therein the matters taken up and agreed upon during the conferences and directing the parties to simultaneously file their respective verified position papers.

"x x x."

After petitioner's alleged representative failed to pay the workers' claims as promised, Labor Arbiters Siao and Palangan did not order the parties to file their respective position papers. The arbiters forthwith rendered a decision on the merits without at least requiring private respondents to substantiate their complaints. The parties may have earlier waived their right to file position papers but petitioner's waiver was made by Engineer Estacio on the premise that petitioner shall have paid and settled the claims of private respondents at the scheduled conference. Since petitioner reneged on its "promise," there was a failure to settle the case amicably. This should have prompted the arbiters to order the parties to file their position papers.

Article 221 of the Labor Code mandates that in cases before labor arbiters and respondent Commission, they "shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure, all in the interest of due process." The rule that respondent Commission and the Labor Arbiters are not bound by technical rules of evidence and procedure should not be interpreted so as to dispense with the fundamental and essential right of due process. [20] And this right is satisfied, at the very least, ' when the parties are given the opportunity to submit position papers. [21] Labor Arbiters Siao and Palangan erred in dispensing with this requirement.

Indeed, the labor arbiters and the NLRC must not, at the expense of due process, be the first to arbitrarily disregard specific provisions of the Rules which are precisely intended to assist the parties in obtaining the just, expeditious and inexpensive settlement of labor disputes. [22]

IN VIEW WHEREOF, the petition for certiorari is granted. The decision of the National Labor Relations Commission, Fifth Division, is annulled and set aside and the case is remanded to the Regional Arbitration Branch, Iligan City for further proceedings.

ATTY. EVELYN J. MAGNO vs. ATTY. OLIVIA VELASCO-JACOBA GARCIA, J.:

In her sworn complaint, as endorsed by the President of the Integrated Bar of the

Philippines (IBP), Nueva Ecija Chapter, Atty. Evelyn J. Magno charged Atty. Olivia Velasco-

Jacoba, a member of the same IBP provincial chapter, with willful violation of (a) Section 415

of the Local Government Code (LGC) of 1991 and (b) Canon 4 of the Code of Professional

Responsibility.

This disciplinary case arose out of a disagreement that complainant had with her uncle,

Lorenzo Inos, over a landscaping contract they had entered into. In a bid to have the stand-

off between them settled, complainant addressed a letter, styled “Sumbong”,[1] to

BonifacioAlcantara, barangay captain of Brgy. San Pascual, Talavera, Nueva Ecija. At the

barangay conciliation/confrontation proceedings conducted on January 5, 2003, respondent,

on the strength of a Special Power of Attorney signed by Lorenzo Inos, appeared for the latter,

accompanied by his son, Lorenzito. Complainant’s objection to respondent’s appearance

elicited the response that Lorenzo Inos is entitled to be represented by a lawyer inasmuch as

complainant is herself a lawyer. And as to complainant’s retort that her being a lawyer is

merely coincidental, respondent countered that she is appearing as an attorney-in-fact, not as

counsel, of Lorenzo Inos.

Complainant enumerated specific instances, with supporting documentation, tending to prove that respondent had, in the course of the conciliation proceedings before the Punong Barangay, acted as Inos Lorenzo’s counsel instead of as his attorney-in-fact. This is what complainant said in her complaint: [2]

5. xxx Atty. Olivia Jacoba asked for an ocular inspection of the subject matter of the complaint. A heated argument took place because LorencitoInos said that [complainant’s brother] MelencioMagno, Jr. made alterations in the lagoon …. Afterwards Atty. Olivia Jacoba . . . returned to the barangay hall to have the incident recorded in the barangay blotter.... attached as Annex “A”

6. That on January 12, 2003, … Lorenzo Inos appeared before the hearing also with the assistance of [respondent]. When the minutes of the proceeding (sic) was read, [respondent] averred that the minutes is partial in favor of the complainant because only her statements were recorded for which reason, marginal insertions were made to include what [respondent] wanted to be put on record. She also signed as “saksi” in the minutes ….

7. xxx In a letter (answer to the "sumbong”) sent to the Punong Barangay dated December 22, 2002, she signed representing herself as “Family Legal Counsel of Inos Family”, a copy of the letter is attached as Annex “C” . . . . (Words in bracket added.)

In an Order dated February 17, 2003, Atty. Victor C. Fernandez, IBP Director for Bar

Discipline, directed the respondent to submit, within fifteen (15) days from notice, her answer

to the complaint, otherwise she will be considered as in default. [3]

The case, docketed as CBD No. 03-1061, was assigned to Commissioner Rebecca

Villanueva-Maala, who admitted respondent’s answer notwithstanding her earlier order of

July 15, 2003, declaring respondent in default for failure to file an answer in due time.[4]

In her Answer, respondent alleged that the administrative complaint was filed with the

Office of the Punong Barangay, instead of before the LupongTagapamayapa, and heard

by Punong Barangay BonifacioAlcantara alone, instead of the collegial Lupon or a conciliation

panel known as pangkat. Prescinding from this premise, respondent submits that the

prohibition against a lawyer appearing to assist a client

in katarunganpambarangay proceedings does not apply. Further, she argued that her

appearance was not as a lawyer, but only as an attorney-in-fact.

In her report dated October 6, 2003, [5] Commissioner Maala stated that the “charge of

complainant has been established by clear preponderance of evidence” and, on that basis,

recommended that respondent be suspended from the practice of her profession for a period

of six (6) months. On the other hand, the Board of Governors, IBP Commission on Bar

Discipline, while agreeing with the inculpatory finding of the investigating commissioner,

recommended in its Resolution No. XVI-2003-235,[6] a lighter penalty, to wit:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution/Decision as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, with modification, and considering respondent's actuations was in violation of Section 415 which expressly prohibits the presence and representation by lawyers in the KatarunganPambarangay, Atty. Olivia Velasco-Jacoba is herebyADMONISHED.

This resolution is now before us for confirmation.

Section 415 of the LGC of 1991[7], on the subject KatarungangPambarangay, provides:

Section 415. Appearance of Parties in Person. - In all katarungangpambarangay proceedings, the parties must appear in person without the assistance of the counsel or representative, except for minors and incompetents who may be assisted by their next of kin who are not lawyers.

The above-quoted provision clearly requires the personal appearance of the parties in katarunganpambarangay conciliation proceedings, unassisted by counsel or representative. The rationale behind the personal appearance requirement is to enable the lupon to secure first hand and direct information about the facts and issues, [8] the exception being in cases where minors or incompetents are parties. There can be no quibbling that laymen of goodwill can easily agree to conciliate and settle their disputes between themselves without what sometimes is the unsettling assistance of lawyers whose presence could sometimes obfuscate and confuse issues. [9] Worse still, the participation of lawyers with their penchant to use their analytical skills and legal knowledge tend to prolong instead of expedite settlement of the case.

The prohibition against the presence of a lawyer in a barangay conciliation proceedings

was not, to be sure, lost on respondent. Her defense that the aforequoted Section 415 of the

LGC does not apply since complainant addressed her Sumbong to the barangay captain of

Brgy. San Pascual who thereafter proceeded to hear the same is specious at best. In this

regard, suffice it to state that complainant wrote her Sumbong with the end in view of availing

herself of the benefits of barangay justice. That she addressed her Sumbong to the barangay

captain is really of little moment since the latter chairs the LupongTagapamayapa.[10]

Lest it be overlooked, the prohibition in question applies to all katarungan barangay proceedings. Section 412(a)[11] the LGC of 1991 clearly provides that, as a precondition to filing a complaint in court, the parties shall go through the conciliation process either before the lupon chairman or the lupon or pangkat. As what happened in this case, the punong barangay, as chairman of the LuponTagapamayapa, conducted the conciliation proceedings to resolve the disputes between the two parties.

Given the above perspective, we join the IBP Commission on Bar Discipline in its determination that respondent transgressed the prohibition prescribed in Section 415 of the LGC. However, its recommended penalty of mere admonition must have to be modified. Doubtless, respondent’s conduct tended to undermine the laudable purpose of the katarungan pambarangay system. What compounded matters was when respondent repeatedly ignored complainant’s protestation against her continued appearance in the barangay conciliation proceedings.

WHEREFORE, Atty. Olivia Velasco-Jacoba is hereby FINED in the amount of Five Thousand Pesos (P5,000.00) for willful violation of Section 415 of the Local Government Code of 1991 with WARNING that commission of similar acts of impropriety on her part in the future will be dealt with more severely.

SO ORDERED.