Lawyers in Government Service

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Problem Areas in Legal Ethics CASES

Lawyers in Government Service

Effect of Disbarment on Civil Service Eligibility, CSC Resolution No. 02-0520

(Dionisio C. Antiniw) (http://excell.csc.gov.ph/mread02/res-020520.html)

Lingan v. Calubaquib (AC No. 5377) Resolution Third Division June 30, 2014

Abella v. Cruzabra (AC No. 5688) Resolution First Division June 4, 2009 588 SCRA 218

Query of Atty. Karen M. Silverio-Buffe, former Clerk of Court – Branch 81, Romblon, Romblon – on the Prohibition from Engaging in the Private Practice of Law (AM No. 08-6-

352-RTC) Decision En Banc August 19, 2009

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Effect of Disbarment on Civil Service Eligibility, CSC Resolution No. 02-0520 (Dionisio C. Antiniw) (http://excell.csc.gov.ph/mread02/res-020520.html)

ANTINIW, Dionisio C. Re: Legal Opinion; Effect of Disbarment; R.A. No. 1080; First Grade Eligibility x-------------------------------------------------x

RESOLUTION NO. 020520

Dionisio C. Antiniw, Nancamilaran East, Urdaneta City, Pangasinan, appeals the opinion rendered by the Civil Service Commission Urdaneta Field Office that the disbarment of a lawyer does not only prevent him from practicing law but includes the revocation of his BAR Eligibility.

The pertinent portions of the said letter-opinion, provides:

"As provided in the Webster Dictionary, the meaning of disbar is to expel from the bar or the legal profession or deprives a lawyer of legal status or privilege.

" x x x

" . . . this Office opines that a person who is disbarred cannot be appointed to the City Administrator position. He does not meet the requirement of the position."

The appeal of Antiniw reads, in part, as follows:

"We do not contest the definition as quoted. But it is erroneous of her to have deviated from the mandate of the law she was bound to implement or enforce. The law is emphatic and does not need the held of the dictionary. On the contrary, the definition in fact states that it deprives a lawyer of legal status or privilege. The privilege here means the practice of law and not to take away, cancel or revoke the ELIGIBILITY that inherently attaches to or is already vested, upon his passing the bar examinations or his obtaining a Bachelor’s Degree in law because they were acquired thru (sic) merit and prior schooling by the passer.

" x x x

"WHEREFORE . . . it is respectfully prayed that the OPINION of the Honorable Director II, VIOLETA NIPAL MENDOZA, be REVERSED and SET ASIDE and a new ruling be entered, sustaining the PETITIONER that his First Grade Eligibility conferred upon him by operation of Republic Act No. 1080 through his then passing the bar examinations in 1967 be UPHELD, qualifying him to be appointed as City Administrator of the City of Urdaneta or to any position which requires that the Appointee be a ‘First Grade Eligibility.’"

Records show that on October 14, 1974, Constancia Valencia filed a disbarment proceeding (docketed as Administrative Case No. 1391) against then Atty. Dionisio Antiniw for his participation in the forgery of ‘Compraventa Definitiva’ and his subsequent introduction of the said document as evidence for his client. In the case of Valencia vs. Cabanting

1 the Supreme Court found Antiniw guilty of the said offense and disbarred him from the practice of

law.

The pertinent portions of the said case read, as follows:

"It is asserted by Paulino that Atty. Antiniw asked for and received the sum of P200.00 in consideration of his executing the document ‘Compraventa Definitiva’ which would show that Paulino bought the property. This charge, Atty. Anitniw simply denied. It is settled jurisprudence that affirmative testimony is given greater weight than negative testimony . . . When an individual’s integrity is challenged by evidence, it is not enough that he deny the charges against him; he must meet the issue and overcome the evidence for the relator and show proofs that he still maintains the highest degree of morality and integrity which at all time is expected of him.

"Although Paulino was a common farmer who finished only Grade IV, his testimony, even if not corroborated by another witness, deserves credence and can be relied upon. His declaration dwelt on a subject which was so delicate and confidential that it would be difficult to believe the he fabricated his evidence.

"There is a clear preponderant evidence that Atty. Antiniw committed falsification of a deed of sale, and its subsequent introduction in court prejudices his prime duty in the administration of justice as an officer of the court.

" x x x

" . . . Atty. Antiniw failed to live up to the high standards of the law profession.

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"WHEREFORE, judgment is hereby rendered declaring . . . Dionisio Antiniw DISBARRED from the practice of law, and his name is ordered stricken off from the roll of attorneys . . . "

Apparently, Antiniw applied for the position of City Administrator in Urdaneta City. Moreover, the said position requires the appointee to possess a first grade eligibility. Further, Antiniw used his BAR Eligibility in lieu of the required first grade eligibility in accordance with Republic Act No. 1080 (AN ACT DECLARING THE BAR AND BOARD EXAMINATIONS AS CIVIL SERVICE EXAMINATIONS). Since Antiniw was disbarred from the practice of law and does not possess any other eligibility, the said agency requested an opinion from the Civil Service Urdaneta Field Office on whether a lawyer who was disbarred from the practice of law may used his BAR Eligibility in lieu of the required first grade eligibility and may be appointed to the position of City Administrator. On July 5, 2001, the said office answered the query by saying that Antiniw cannot be appointed as City Administrator.

Subsequently in a letter dated July 13, 2001, Antiniw requested the Commission to render an opinion on the same matter. The said letter reads, in part, as follow:

"This is to request for your legal opinion as to the correct interpretation and application of the phrase ‘a first grade civil service eligible or its equivalent’ in relation to the provisions of Section 480 of the Local Government Code setting forth the qualifications of a Provincial or City Administrator

"Among the qualifications of a Provincial or City Administrator . . . (1) he must be a holder of a college degree preferably in public administration, law, or any other related course from a recognized college or university; and (2) a first grade civil service eligible or its equivalent. Membership of (sic) the Bar or practice of law is not one among them, unlike a City or Provincial Legal Officer.

"I understand that passing the bar examinations confers upon the bar passer ‘first grade civil service eligbility’ whether he does not take his oath as a lawyer or he take his oath, but is disbarred from the practice of law.

"Should an applicant for the office of Provincial or City Administrator who is a bar passer but was subsequently disbarred from the ‘practice of law’ be deemed as being DEPRIVED or DIVESTED of his earned eligibility (by his passing the bar examinations) and of his law degree . . ."

Under Section 5 (5), Article VIII of the 1987 Constitution, the Supreme Court has the power to promulgate

rules concerning the admission to the practice of law and the Integrated Bar of the Philippines (IBP). Giving due recognition to this authority, the Commission requested the said Court to render an opinion on the matter in a letter dated August 24, 2001. Moreover as culled from the records, Antiniw also made the same request with the said Court, in a letter dated September 20, 2001. However, in a resolution dated February 12, 2002 the said Court refused to render an advisory opinion on the matter.

The material portions of the said resolution read, as follows:

"The Court can only thus resolve actual controversies brought before it, and it will thus refrain from rendering advisory opinions.

"WHEREFORE, the Court NOTES (a) the letter, dated 24 August 2001, of CSC Assistant Commissioner Jesse Caberoy and (b) letter of 20 September 2001 of Mr. Antiniw, and DIRECTS the Clerk of Court to furnish Assistant Commissioner Caberoy and Mr. Antiniw with a copy of this resolution."

Nevertheless, the Commission by virtue of its power to strengthen the merit and reward system, integrate all human resources development programs for all levels and ranks

2, render opinions and ruling on all personnel and

other Civil Service matters, prescribe all forms for Civil Service examinations and take appropriate action on all appointments and other personnel matters,

3 is obliged to render an opinion on the issue at hand.

The issues to be resolved are the following:

1. Whether the disbarment of a lawyer from the practice of law also divests him of his BAR Eligibility;

2. Whether a disbarred lawyer may be appointed to a position, which requires a first grade eligibility.

Relevant to the first issue is Section 27, Rule 133 of the Revised Rules of Court, which provides:

"SEC. 27. Disbarment or suspension of attorneys by Supreme Court, grounds therefore. – A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience appearing as an attorney for a party to case without authority to do so. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

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Disbarment is the act of the court in withdrawing from an attorney the right to practice law4. A disbarment

proceeding is a quasi-summary proceeding instituted and prosecuted before an appropriate court for the purpose of depriving an attorney of his license to practice his profession by reason of misconduct.

5

The two primary objects of disbarment are:6

1. To compel the attorney to deal fairly and honestly with his clients;

2. To remove from the profession a person whose misconduct has proved him unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney.

In the case of Noriega vs. Sison, 125 SCRA 293 (1983), the Supreme Court defined the purpose of

disbarment, as follows:

"Disbarment is not meant as a punishment depriving him (the disbarred lawyer) of a source of livelihood but is rather intended to protect the administration of justice by requiring that those who exercise this function should be competent, honorable and reliable in order that courts and the public may rightly repose confidence in them."

From the foregoing discussion it can be concluded that the disbarment of a lawyer merely serves to revoke his/her license to practice law. Thus, although the disbarment of a lawyer from the practice of law shall deprive him of all the rights and privileges appurtenant to membership in the Philippine Bar

7 and results in the striking off his name

from the Roll of Attorneys,8 nothing from what has thus far been said indicates that it includes revocation of his BAR

Eligibility.

On the other hand, pertinent to the second issue is Number 1 of Civil Service Commission Resolution No. 143, Series of 1975 which provides:

"1. General civil service eligibilities resulting from examinations given by the Civil Service Commission which require at least four years of college studies shall be appropriate for professional and technical positions in the second level not covered by examinations as required by law, provided that the persons appointed to these positions possess the education, experience, training, and other qualifications required for the positions. The civil service eligibilities shall include First Grade, Career Service (Professional) and Supervisor." (Underlining ours)

Section 1 of Republic Act No. 1080 as amended (AN ACT DECLARING THE BAR OR BOARD EXAMINATIONS AS CIVIL SERVICE EXAMINATIONS) reads, as follows:

"SECTION 1. The bar examinations and the examinations given by the various boards of examiners of the Government are declared as civil service examinations, and shall, for purposes of appointment to positions in the classified service the duties of which involve knowledge of the respective professions, except positions requiring highly specialized knowledge not covered by the ordinary board examinations, be considered as equivalent to the first grade regular examination given by the Bureau of Civil Service if the profession requires at least four years of study in college, and as equivalent to the second grade regular examination if the profession requires less than four years of college study: Provided, however, That such bar or board examination shall be equivalent to the next lower grade of civil service examination when the person is to be employed in a position other than one requiring his professional knowledge: And provided, further, That if under any law, a person is exempted from the examinations given by the various boards of examiners, and a certificate of registration for or admission to the practice of his profession is issued in his favor by the corresponding board of examiners, he shall be deemed for all legal purposes to have passed the required board examinations for the practice of his profession."(Underlining ours)

Also applicable is Number 1, Specialized Eligibilities, Eligibility Requirement of Civil Service Commission Memorandum Circular No. 42, S. 1998 (FRAMEWORK FOR IMPLEMENTATION OF POLICIES ON QUALIFICATION STANDARDS) provides:

"Specialized Eligibilities

"Board/Bar (RA 1080)

"Eligibilities resulting from passing the board/bar examinations shall be required for appointment to positions, the duties of which constitute the practice of a profession regulated by the Philippine Board or Bar laws. These eligibilities shall also be considered for other career service positions in both first and second levels provided that the appointees meet the other requirements of the positions."(Underlining ours)

From the foregoing, it can be concluded that a first grade eligibility is equivalent to a Career Service Professional. Moreover, an eligibility resulting from passing the bar examinations shall also be considered for other career service positions (not involving practice of law) and may be used in lieu of the required first grade eligibility.

Thus, the Supreme Court ruled in the case of David vs. Dancel9 that:

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"Pursuant to Section 1 of Republic Act No. 1080, as amended by Republic Act No. 1844, petitioner, who is a member of the Philippine Bar, is considered a first grade eligible "the duties of which involve knowledge of the respective professions."

Therefore, it is safe to conclude that a disbarred lawyer may still use his BAR Eligibility in lieu of the first grade eligibility in accordance with R.A. No. 1080. In the present case, although the eligibility required for the position of City Administrator (Section 480, Article X, Chapter 3, Title III, Book III of the Local Government Code of 1991)

10 is a

first grade civil service eligibility, since Antiniw still possesses his BAR Eligibility then in accordance with RA 1080, he may still be appointed to the said position under permanent status.

Verily, an applicant who is a member of the bar but was subsequently disbarred and does not possess any other eligibility equivalent to first grade level, may be appointed to the position of City Administrator.

It is noted, however, that since Antiniw was found guilty of Falsification of Public Document then, he may be liable for the administrative offense of Disgraceful, Immoral or Dishonest Conduct Prior to Entering the Service.

11 The

filing of the administrative charge will be at the discretion of the disciplining authority.

WHEREFORE, the Commission hereby rules that the disbarment of a private lawyer from the practice of law does not include the revocation of his BAR Eligibility. Moreover, a disbarred lawyer may still use his BAR Eligibility in lieu of the required eligibility in accordance with Republic Act No. 1080 for employment in the government service, without prejudice to the filing of an administrative charge against him/her for Disgraceful, Immoral or Dishonest Conduct Prior to Entering the Service. Accordingly, the opinion of the Civil Service Commission Urdaneta Field Office is hereby reversed.

Quezon City, April 11, 2002

(Signed) J. WALDEMAR V. VALMORES

Commissioner

(Signed) KARINA CONSTANTINO-DAVID

Chairman

(Signed) JOSE F. ERESTAIN, JR.

Commissioner

Attested by:

(Signed) ARIEL G. RONQUILLO

Director III

1 196 SCRA 302 (1991)

2 Section 3, Article IX-B of the 1987 Constitution

3 Section 12 (5), (8) and (14), Chapter 3, Subtitle A, Title I, Book V of the Administrative Code of 1987

4 Black's Law Dictionary, p. 371

5 Ballantine Dictionary, p. 379

6 Ex Parte Brounsall, 66 C. J. 581

7 LT. Lamberto P. Villaflor vs. Alvin T. Sarita (Administrative Case Number 471 dated June 10, 1999)

8 Ban Hua U. Flores vs. Atty. Enrique S. Chua (Administrative Case Number 4500 dated April 30, 1999)

9 17 SCRA 696 (1966)

10 Republic Act No. 7160

11 Pursuant to Section 52 (C) (7), Rule IV of the Uniform Rules on Administrative Cases in the Civil Service

(Civil Service Commission Resolution No. 99-1936 dated August 31, 1999)

CPS/AGR/pvp/cm12-2002 FPG/KPZ/X3/Y11(D19) Antiniw/O-01-0337

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Lingan v. Calubaquib (AC No. 5377) Resolution Third Division June 30, 2014

THIRD DIVISION

A.C. No. 5377 June 30, 2014

VICTOR C. LINGAN, Complainant,

vs. ATTYS. ROMEO CALUBAQUIB and JIMMY P. BALIGA, Respondents.

R E S O L U T I O N

LEONEN, J.:

This court has the exclusive jurisdiction to regulate the practice of law. When this court orders a lawyer suspended from the practice of law, the lawyer must desist from performing all functions requiring the application of legal knowledge within the period of suspension. This includes desisting from holding a position in government requiring the authority to practice law.

For our resolution is respondent Atty. Jimmy P. Baliga's motion to lift one-year suspension from the practice of law.1

In the resolution2 dated June 15, 2006, this court found Attys. Romeo I. Calubaquib and Jimmy P. Baliga guilty of

violating Rule 1.01, Canon 1 of the Code of Professional Responsibility3 and of the Lawyer's Oath.

4 Respondents

allowed their secretaries to notarize documents in their stead, in violation of Sections 2455 and 246

6 of the Notarial

Law. This court suspended respondents from the practice of law for one year, revoked their notarial commissions, and disqualified them from reappointment as notaries public for two years.

Complainant Victor C. Lingan filed his motion for reconsideration,7 praying that respondents be disbarred, not merely

suspended from the practice of law. In the resolution8 dated September 6, 2006, this court denied complainant

Lingan's motion for reconsideration for lack of merit.

On March 22, 2007, Atty. Baliga, also the Regional Director of the Commission on Human Rights Regional Office for Region II, filed the undated ex parte clarificatory pleading with leave of court.

9

In his ex parte clarificatory pleading, Atty. Baliga alleged that on July 14, 2006, complainant Lingan wrote the Commission on Human Rights. Lingan requested the Commission to investigate Atty. Baliga following the latter's suspension from the practice of law.

After this court had suspended Atty. Baliga from the practice of law, the Commission on Human Rights En Banc issued the resolution

10 dated January 16, 2007, suspending him from his position as Director/Attorney VI of the.

Commission on Human Rights Regional Office for Region II. According to the Commission on Human Rights En Banc, Atty. Baliga's suspension from the practice of law "prevent[ed] [him] from assuming his post [as Regional Director] for want of eligibility in the meantime that his authority to practice law is suspended."

11

Atty. Baliga · argued that he cannot be suspended for acts not connected with his functions as Commission on Human Rights Regional Director. According to Atty. Baliga, his suspension from the practice of law did not include his suspension from public office. He prayed for clarification of this court's resolution dated June 15, 2006 "to prevent further injury and prejudice to [his] rights."

12

This court noted without action Atty. Baliga's ex parte clarificatory pleading as this court does not render advisory opinions.

13

On May 8, 2009, this court received ·a letter from complainant Lingan. In his letter14

dated May 4, 2009, Lingan alleged that Atty. Baliga continued practicing law and discharging his functions as Commission on Human Rights Regional Director, in violation of this court's order of suspension.

Complainant Lingan allegedly received a copy of the Commission on Human Rights En Banc 's resolution suspending Atty. Baliga as Regional Director. On Atty. Baliga's motion, the ommission reconsidered Atty. Baliga's suspension and instead admonished him for "[violating] the conditions of his commission as a notary public."

15According to

complainant Lingan, he was not served a copy of Atty. Baliga's motion for reconsideration.16

Complainant Lingan claimed that the discharge of the functions of a Commission on Human Rights Regional Director necessarily required the practice of law. A Commission on Human Rights Regional Director must be a member of the bar and is designated as Attorney VI. Since this court suspended Atty. Baliga from the practice of law, Atty. Baliga was in effect "a non-lawyer . . . and [was] disqualified to hold the position of [Regional Director] [during the effectivity of the order of suspension]."

17 The Commission on Human Rights, according to complainant Lingan, should have

ordered Atty. Baliga to desist from performing his functions as Regional Director. Complainant Lingan prayed that this court give "favorable attention and action on the matter."

18

http://www.lawphil.net/judjuris/juri2014/jun2014/ac_5377_2014.html#fnt1


















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This court endorsed complainant Lingan's letter to the Office of the Bar Confidant for report and recommendation.19

In its report and recommendation20

dated June 29, 2009, the Office of the Bar Confidant found that the period of suspension of Attys. Calubaquib and Baliga had already lapsed. It recommended that respondents be required to file their respective motions to lift order of suspension with certifications from the Integrated Bar of the Philippines and the Executive Judge of the court where they might appear as counsel and state that they desisted from practicing law during the period of suspension.

On the claim that the Commission on Human Rights allowed Atty. Baliga to perform his functions as Regional Director during the period of suspension, the Office of the Bar Confidant said that the Commission "deliberate[ly] disregard[ed]"

21 this court's order of suspension. According to the Office of the Bar Confidant, the Commission on

Human Rights had no power to "[alter, modify, or set aside any of this court's resolutions] which [have] become final and executory. "

22

Thus, with respect to Atty. Baliga, the Office of the Bar Confidant recommended that this court require him to submit a certification from the Commission on Human Rights stating that he desisted from performing his functions as Regional Director while he was suspended from the practice of law.

23

The Office of the Bar Confidant further recommended that Atty. Baliga and the Commission .on Human Rights be required to comment on complainant Lingan's allegation that Atty. Baliga continued to perform his functions as Regional Director while he was suspended from the practice of law.

On July 17, 2009, Atty. Baliga filed a manifestation,24

arguing that his suspension from the practice of law did not include his suspension from public office. Atty. Baliga said, "[t]o stretch the coverage of [his suspension from the practice of law] to [his] public office would be tantamount to [violating] his constitutional rights [sic] to due process and to the statutory principle in law that what is not included is deemed excluded."

25

In the resolution26

dated September 23, 2009, this court required respondents to file their respective motions to lift order of suspension considering the lapse of the period of suspension. This court further ordered Atty. Baliga and the Commission on Human Rights to comment on complainant Lingari's allegation that Atty. Baliga continued performing his functions as Regional Director while he was suspended from the practice of law. The resolution dated September 23, 2009 provides:

Considering that the period of suspension from the practice of law and disqualification from being commissioned as notary public imposed on respondents have [sic] already elapsed, this Court resolves:

(1) to require both respondents, within ten (10) days from notice, to FILE their respective motions to lift relative to their suspension and disqualification from being commissioned as notary public and SUBMIT certifications from the Integrated Bar of the Philippines and Executive Judge of the Court where they may appear as counsel, stating that respondents have actually ceased and desisted from the practice of law during the entire period of their suspension and disqualification, unless already complied with in the meantime;

(2) to require Atty. Jimmy P. Baliga to SUBMIT a certification from the Commission on Human Rights [CHR] stating that he has been suspended from office and has stopped from the performance of his functions for the period stated in the order of suspension and disqualification, within ten (10) days from notice hereof;

(3) to require respondent Atty. Baliga and the CHR to COMMENT on the allegations of complainant against them, both within ten (10) days from receipt of notice hereof; ...

27 (Emphasis in the original)

In compliance with this court's order, Attys. Calubaquib and Baliga filed their respective motions to lift order of suspension.

28 Atty. Baliga also filed his comment on complainant Lingan's allegation that he continued performing his

functions as Regional Director during his suspension from the practice of law.

In his comment29

dated November 13, 2009, Atty. Baliga alleged that as Regional Director, he "perform[ed], generally, managerial functions,"

30 which did not require the practice of law. These managerial functions allegedly

included ."[supervising] ... the day to day operations of the regional office and its personnel";31

"monitoring progress of investigations conducted by the [Commission on Human Rights] Investigation Unit";

32 "monitoring the

implementation of all other services and assistance programs of the [Commission on Human Rights] by the different units at the regional level";

33 and "[supervising] . . . the budgetary requirement preparation and disbursement of funds

and expenditure of the [Regional Office]."34

The Commission allegedly has its own "legal services unit which takes care of the legal services matters of the [Commission]."

35

Stating that his functions as Regional Director did not require the practice of law, Atty. Baliga claimed thaf he "faithful[ly] [complied] with [this court's resolution suspending him from the practice of law]."

36

The Commission on Human Rights filed its comment37

dated November 27, 2009. It argued that "the penalty imposed upon Atty. Baliga as a member of the bar is separate and distinct from any penalty that may be imposed upon him as




















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a public official for the same acts."38

According to the Commission, Atty. Baliga's suspension from the practice of law is a "bar matter"

39 while the imposition of penalty upon a Commission on Human Rights official "is an entirely different

thing, falling as it does within the exclusive authority of the [Commission as] disciplining body."40

Nevertheless, the Commission manifested that it would defer to this court's resolution of the issue and would "abide by whatever ruling or decision [this court] arrives at on [the] matter. "

41 In reply

42 to Atty. Baliga's comment,

complainant Lingan argued that Atty. Baliga again disobeyed this. court. Atty. Baliga failed to submit a certification from the Commission on Human Rights stating that he was suspended from office and desisted from performing his functions as Regional Director.

As to Atty. Baliga's claim that he did not practice law while he held his position as Regional Director and only performed generally managerial functions, complainant Lingan countered that Atty. Baliga admitted to defying the order of suspension. Atty. Baliga admitted to performing the functions of a "lawyer-manager,"

43 which under the

landmark case of Cayetano v. Monsod44

constituted practice of law. Complainant Lingan reiterated that the position of Regional Director/ Attorney VI requires the officer "to be a lawyer [in] good standing."

45 Moreover, as admitted by

Atty. Baliga, he had supervision and control over Attorneys III, IV, and V. Being a "lawyer-manager," Atty. Baliga practiced law while he held his position as Regional Director.

With respect to Atty. Baliga's claim that he was in good faith in reassuming his position as Regional Director, complainant Lingan countered that if Atty. Baliga were really in good faith, he should have followed the initial resolution of the Commission on Human Rights suspending him from office. Atty. Baliga did not even furnish this court a copy of his motion for reconsideration of the Commission on Human Right's resolution suspending him from office. By "playing ignorant on what is 'practice of law', twisting facts and philosophizing,"

46 complainant Lingan

argued that Atty. Baliga "[no longer has that] moral vitality imperative to the title of an attorney."47

Compfainant Lingan prayed that Atty. Baliga be disbarred.

On February 17, 2010, this court lifted the order of suspension of Atty. Calubaquib.48

He was allowed to resume his practice of law and perform notarial acts subject to compliance with the requirements for issuance of a notarial commission.

On the other hand, this court referred to the Office of the Bar Confidant for evaluation, report, and recommendation Atty. Baliga's motion to lift one-year suspension and the respective comments of Atty. Baliga and the Commission on Human Rights.

49

In its report and recommendation50

dated October 18, 2010, the Office of the Bar Confidant stated that Atty. Baliga "should not [have been] allowed to perform his functions, duties, and responsibilities [as Regional Director] which [required acts constituting] practice .of law."

51 Considering that Atty. Baliga claimed that he did not perform his

functions as Regional Director which required the practice of law, the Office of the Bar Confidant recommended that the Commission on Human Rights be required to comment on this claim. The Office of the Bar Confidant also recommended holding in abeyance the resolution of Atty. Baliga's motion to lift suspension "pending [the Commission on Human Right's filing of comment]."

52

In the resolution53

dated January 12, 2011, this court held in abeyance the resolution of Atty. Baliga's motion to lift one-year suspension. The Commission on Human Rights was ordered to comment on Atty. Baliga's claim that he did not practice law while he held his position as Regional Director.

In its comment54

dated April 6, 2011, the Commission on Human Rights reiterated that the penalty imposed on Atty. Baliga as a member of the bar is separate from the penalty that might be imposed on him as Regional Director. The Commission added that it is "of honest belief that the position of [Regional Director] is managerial and does not [require the practice of law]."

55 It again manifested that it will "abide by whatever ruling or decision [this court] arrives

on [the] matter."56

The issue for our resolution is whether Atty. Baliga's motion to lift order of suspension should be granted.

We find that Atty. Baliga violated this court's order of suspension. We, therefore, suspend him further from the practice of law for six months.

Practice of law is "any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience."

57 It includes "[performing] acts which are characteristics of the [legal] profession"

58 or

"[rendering any kind of] service [which] requires the use in any degree of legal knowledge or skill."59

Work in government that requires the use of legal knowledge is considered practice. of law. In Cayetano v. Monsod,

60 this court cited the deliberations of the 1986 Constitutional Commission and agreed that work rendered by

lawyers in the Commission on Audit requiring "[the use of] legal knowledge or legal talent"61

is practice of law.

The Commission on Human Rights is an independent office created under the Constitution with power to investigate "all forms of human rights violations involving civil and political rights[.]"

62 It is divided into regional offices with each


























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office having primary responsibility to investigate human rights violations in its territorial jurisdiction.63

Each regional office is headed by the Regional Director who is given the position of Attorney VI.

Under the Guidelines and Procedures in the Investigation and Monitoring of Human Rights Violations and Abuses, and the Provision of CHR Assistance,

64 the Regional Director has the following powers and functions:

a. To administer oaths or affirmations with respect to "[Commission on Human Rights] matters;"65

b. To issue mission orders in their respective regional offices;66

c. To conduct preliminary evaluation or initial investigation of human rights complaints in the absence of the legal officer or investigator;

67

d. To conduct dialogues or preliminary conferences among parties and discuss "immediate courses of action and protection remedies and/or possible submission of the matter to an alternative dispute resolution";

68

e. To issue Commission on Human Rights processes, including notices, letter-invitations, orders, or subpoenas within the territorial jurisdiction of the regional office;

69 and

f. To review and approve draft resolutions of human rights cases prepared by the legal officer.70

These powers and functions are characteristics of the legal profession. Oaths and affirmations are usually performed by members of the judiciary and notaries public

71 - officers who are necessarily members of the bar.

72Investigating

human rights complaints are performed primarily by the Commission's legal officer.73

Discussing immediate courses of action and protection remedies and reviewing and approving draft resolutions of human rights cases prepared by the legal officer require the use of extensive legal knowledge.

The exercise of the powers and functions of a Commission on Human Rights Regional Director constitutes practice of law. Thus, the Regional Director must be an attorney - a member of the bar in good standing and authorized to practice law.

74 When the Regional Director loses this authority, such as when he or she is disbarred or suspended

from the practice of law, the Regional Director loses a necessary qualification to the position he or she is holding. The disbarred or suspended lawyer must desist from holding the position of Regional Director.

This court suspended Atty. Baliga from the practice of law for one year on June 15, 2006, "effective immediately."

75From the time Atty. Baliga received the court's order of suspension on July 5, 2006,

76 he has been

without authority to practice law. He lacked a necessary qualification to his position as Commission on Human Rights Regional Director/ Attorney VI. As the Commission on Human Rights correctly resolved in its resolution dated January 16, 2007:

WHEREAS, this suspension under ethical standards, in effect, prevents Atty. Baliga from assuming his post, for want of eligibility in the meantime that his authority to practice law is suspended. This is without prejudice to the investigation to be conducted to the practice of law of Atty. Baliga, which in the case of all Regional Human Rights Directors is not generally allowed by the Commission;

WHEREFORE, in the light of the foregoing, the Commission on Human Rights of the Philippines resolved to put into effect and implement the legal implications of the SC decision by decreeing the suspension of Atty. Jimmy P. Baliga in the discharge of his functions and responsibilities as Director/Attorney VI of CHRP-Region II in Tuguegarao City for the period for which the Supreme Court Resolution is in effect.


In ordering Atty. Baliga suspended from office as Regional Director, the Commission on Human Rights did not violate Atty. Baliga's right to due process. First, he was only suspended after: investigation by the Commission on Human Rights Legal and Investigation Office.

78 Second, the Commission gave Atty. Baliga an opportunity to be heard when

he filed his motion for reconsideration.

Atty. Baliga's performance of generally managerial functions was not supported by the record. It was also immaterial.1âwphi1 He held the position of Commission on Human Rights Regional Director because of his authority to practice law. Without this authority, Atty. Baliga was disqualified to hold that position.

All told, performing the functions of a Commission on Human Rights Regional Director constituted practice of law. Atty. Baliga should have desisted from holding his position as Regional Director.

Under Section 27, Rule 138 of the Rules of Court, willful disobedience to any lawful order of a superior court is a ground for disbarment or suspension from the practice of law:

SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. - A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to

















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a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

In Molina v. Atty. Magat,79

this court suspended further Atty. Ceferino R. Magat from the practice of law for six months for practicing his profession despite this court's previous order of suspension.

We impose the same penalty on Atty. Baliga for holding his position as Regional Director despite lack.of authority to practice law.1âwphi1

We note that the Commission on Human Rights En Banc issued the resolution dated April 13, 2007, reconsidering its first resolution suspending Atty. Baliga as Regional Director/ Attorney VI. Instead, the Commission admonished Atty. Baliga and sternly warned him that repeating the same offense will cause his dismissal from the service. The resolution with CHR (III) No. A2007-045 dated April 13, 2007 reads:

In his Motion for Reconsideration dated March 15, 2007, respondent Atty. Jimmy P. Baliga prays before the Honorable Commission to recall and annul his suspension as Regional Director/ Attorney VI of the Commission on Human Rights - Regional Office No. II, per 16 January 2007 Commission en Banc Resolution CHR (III) No. A2007-013.

The grounds relied upon the motion are not sufficient to convince the Commission that Atty. Jimmy P. Baliga is totally blameless and should not suffer the appropriate penalty for breach of the Code of Professional Responsibility and his Lawyer's oath.

The Commission, in the exercise of its authority to discipline, is concerned with the transgression by Atty. Baliga of his oath of office as government employee. As records have it, the Commission granted Atty. Baliga authority to secure a commission as a notary public. With this, he is mandated to act as a notary public in accordance with the rules and regulations, to include the conditions expressly set forth by the Commission.

With the findings clearly enunciated in the Supreme Court resolution in SC Administrative Case No. 5277 dated 15 June 2006, the Commission cannot close its eyes to the act of Atty. Baliga that is clearly repugnant to the conduct of an officer reposed with public trust.

This is enough just cause to have this piece of word, short of being enraged, and censure Atty. Baliga for having contravened the conditions of his commission as a notary public. What was granted to Atty. Baliga is merely a privilege, the exercise of which requires such high esteem to be in equal footing with the constitutional mandate of the Commission. Clearly, Atty. Baliga should keep in mind that the Commission exacts commensurate solicitude from whatever privilege the Commission grants of every official and employee.

The Commission notes that by now Atty. Baliga is serving the one year suspension imposed on him pursuant to the Supreme Court resolution. The Commission believes that the further suspension of Atty. Baliga from the office may be too harsh in the meantime that the Supreme Court penalty is being served. This Commission is prevailed upon that the admonition of Atty. Baliga as above expressed is sufficient to complete the cycle of penalizing an erring public officer.

WHEREFORE, the Commission hereby modifies its ruling in Resolution CHR (III) No. A2007-013 and imposes the penalty of admonition with a stem warning that a repetition of the same will merit a penalty of dismissal from the service.


The Commission on Human Rights erred in issuing the resolution dated April 13, 2007. This resolution caused Atty. Baliga to reassume his position as Regional Director/ Attorney VI despite lack of authority to practice law.

We remind the Commission on Human Rights that we have the exclusive jurisdiction to regulate the practice of law.

81 The Commission cannot, by mere resolutions and .other issuances, modify or defy this court's orders of

suspension from the practice of law. Although the Commission on Human Rights has the power to appoint its officers and employees,

82 it can only retain those with the necessary qualifications in the positions they are holding.

As for Atty. Baliga, we remind him that the practice of law is a "privilege burdened with conditions."83

To enjoy the privileges of practicing law, lawyers must "[adhere] to the rigid standards of mental fitness, [maintain] the highest degree of morality[,] and [faithfully comply] with the rules of [the] legal profession."

84

WHEREFORE, we further SUSPEND Atty. Jimmy P. Baliga from the practice of law for six ( 6) months. Atty. Baliga shall serve a total of one (1) year and six (6) months of suspension from the practice of law, effective upon service on Atty. Baliga of a copy of this resolution.

SERVE copies of this resolution to the Integrated Bar of the Philippines, the Office of the Bar Confidant, and the Commission on Human Rights.

SO ORDERED.







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Abella v. Cruzabra (AC No. 5688) Resolution First Division June 4, 2009 588 SCRA 218

F I R ST D I V I S I O N

FELIPE E. ABELLA, Complainant, - versus- ATTY. ASTERIA E. CRUZABRA, Respondent.

A.C. No. 5688

Promulgated: June 4, 2009

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

R E S O L U T I O N

CARPIO, J.:

Felipe E. Abella (complainant) filed a complaint for violation of Canon 1 of the Code of Professional Responsibility and Section 7(b)(2) of Republic Act No. 6713

[1] (RA 6713) or the Code of Conduct and Ethical

Standards for Public Officials and Employees against Atty. Asteria E. Cruzabra (respondent). In his affidavit-complaint

[2] dated 8 May 2002, complainant charged respondent with engaging in private practice while employed in

the government service.

Complainant alleged that respondent was admitted to the Philippine Bar on 30 May 1986 and was appointed as Deputy Register of Deeds of General Santos City on 11 August 1987.

[3] Complainant asserted that as Deputy

Register of Deeds, respondent filed a petition for commission as a notary public and was commissioned on 29 February 1988 without obtaining prior authority from the Secretary of the Department of Justice (DOJ).

[4] Complainant

claimed that respondent has notarized some 3,000 documents.[5]

Complainant pointed out that respondent only stopped notarizing documents when she was reprimanded by the Chief of the Investigation Division of the Land Registration Authority.

[6]

Complainant contended that respondent could not justify her act by pretending to be in good faith because even non-lawyers are not excused from ignorance of the law. Complainant branded as incredible respondent’s claim that she was merely motivated by public service in notarizing 3,000 documents. Complainant pointed out that respondent spent money to buy the Notarial Register Books and spent hours going over the documents subscribed before her, thereby prejudicing her efficiency and performance as Deputy Register of Deeds. Complainant believed that even if respondent had obtained authority from the DOJ, respondent would still be guilty of violating Section 7(b)(2) of RA 6713 because her practice as a notary public conflicts with her official functions.

[7]

In her Comment, respondent admitted that she was a notary public from 29 February 1988 to 31 December 1989.

[8] Respondent stated that she was authorized by her superior, the Register of Deeds, to act as a notary public.

Respondent pointed out that the Register of Deeds, Atty. Pelagio T. Tolosa, also subscribed petitions and documents that were required to be registered.

[9] Respondent explained that the Register of Deeds imposed the following

conditions for her application as a notary public:

x x x

4. That the application for commission was on the condition that respondent cannot charge fees for documents required by the Office to be presented and under oath.

[10]

Respondent contended that when she filed her petition for commission as a notary public, the requirement of approval from the DOJ Secretary was still the subject of a pending query by one of the Registrars and this fact was not known to respondent.

[11] Respondent maintained that she had no intention to violate any rule of law. Respondent,

as a new lawyer relying on the competence of her superior, admitted that an honest mistake may have been committed but such mistake was committed without willfulness, malice or corruption.

[12]

Respondent argued that she was not engaged in illegal practice as a notary public because she was duly commissioned by the court.

[13] Respondent denied that she violated Section 7(b)(2) of RA 6713 because she was

authorized by her superior to act as a notary public. Respondent reasoned that her being a notary public complemented her functions as Deputy Register of Deeds because respondent could immediately have documents notarized instead of the registrants going out of the office to look for a notary public. Respondent added that she did not charge fees for the documents required by the office to be presented under oath.

[14]

Respondent insisted that contrary to complainant’s claims, she only notarized 135 documents as certified by the Clerk of Court of the 11

th Judicial Region, General Santos City.

[15]

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In her Report and Recommendation (Report) dated 25 January 2005, Investigating Commissioner Lydia A. Navarro recommended to the IBP Board of Governors the dismissal of the complaint against respondent for lack of merit. The Report reads in part:

However, the fact that she applied for commission as Notary Public without securing the approval of the proper authority although she was allowed to do so by her superior officer, was not her own undoing for having relied on the ample authority of her superior officer, respondent being a neophyte in the law profession for having newly passed the bar a year after at that time.

Records further showed that after having been reprimanded by Atty. Flestado for said mistake which was done in good faith respondent ceased and desisted to perform notarial work since then up to the present as could be gleaned from the Certification issued by Clerk of Court VI Atty. Elmer D. Lastimosa of the 11

th Judicial Region General Santos City; dated December 23,

2004 that 135 documents have been notarized by the respondent from February 29, 1988 to December 31 1989 and there was no record of any notarized documents from January 19, 1990 to December 21, 1991.

[16]

In a Resolution dated 12 March 2005, the IBP Board of Governors, in adopting and approving the Report, dismissed the case for lack of merit.

Complainant claims that in dismissing the complaint for “lack of merit” despite respondent’s admission that she acted as a notary public for two years, the IBP Board of Governors committed a serious error amounting to lack of jurisdiction or authority.

[17]

Section 7(b)(2) of RA 6713 provides:

Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials

and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:

x x x

(b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:

x x x

(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or

x x x

Memorandum Circular No. 17[18]

of the Executive Department allows government employees to engage directly in the private practice of their profession provided there is a written permission from the Department head. It provides:

The authority to grant permission to any official or employee shall be granted by the head of the ministry or agency in accordance with Section 12, Rule XVIII of the Revised Civil Service Rules, which provides:

“Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of Department; Provided, That this prohibition will be absolute in the case

of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government: Provided, further, That if an employee is granted permission to engage in outside activities, the time so devoted outside of office hours should be fixed by the chief of the agency to the end that it will not impair in any way the efficiency of the other officer or employee: And provided, finally, That no permission is necessary in the case of investments, made by an officer or employee, which do not involve any real or apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer or member of the board of directors”,




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Subject to any additional conditions which the head of the office deems necessary in each particular case in the interest of the service, as expressed in the various issuances of the Civil Service Commission. (Boldfacing supplied)

It is clear that when respondent filed her petition for commission as a notary public, she did not obtain a written permission from the Secretary of the DOJ. Respondent’s superior, the Register of Deeds, cannot issue any authorization because he is not the head of the Department. And even assuming that the Register of Deeds authorized her, respondent failed to present any proof of that written permission. Respondent cannot feign ignorance or good faith because respondent filed her petition for commission as a notary public after Memorandum Circular No. 17 was issued in 1986.

In Yumol, Jr. v. Ferrer Sr.,

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Query of Atty. Karen M. Silverio-Buffe, former Clerk of Court – Branch 81, Romblon, Romblon – on the Prohibition from Engaging in the Private Practice of Law (AM No. 08-6-352-RTC) Decision En Banc August 19, 2009

EN BANC

QUERY OF ATTY. KAREN M. SILVERIO-BUFFE, FORMER Clerk of Court – BRANCH 81, ROMBLON, ROMBLON – ON THE PROHIBITION FROM ENGAGING IN THE PRIVATE PRACTICE OF LAW.

A.M. No. 08-6-352-RT

Promulgated: August 19, 2009

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

D E C I S I O N

This administrative matter started as a letter-query dated March 4, 2008 of Atty. Karen M. Silverio-Buffe (Atty. Buffe) addressed to the Office of the Court Administrator, which query the latter referred to the Court for

consideration. In the course of its action on the matter, the Court discovered that the query was beyond pure policy interpretation and referred to the actual situation of Atty. Buffe, and, hence, was a matter that required concrete action on the factual situation presented.

The query, as originally framed, related to Section 7(b)(2) of Republic Act (R.A.) No. 6713, as amended (or

the Code of Conduct and Ethical Standards for Public Officials and Employees). This provision places a limitation on public officials and employees during their incumbency, and those already separated from government employmentfor a period of one (1) year after separation, in engaging in the private practice of their profession.

Section 7(b)(2) of R.A. No. 6713 provides:

SECTION 7. Prohibited Acts and Transactions. – In addition to acts and omissions of

public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:

x x x

(b) Outside employment and other activities related thereto. – Public officials and employees during their incumbency shall not:

x x x

(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or

x x x

These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply.

In her letter-query, Atty. Buffe posed these questions: “Why may an incumbent engage in private practice under (b)(2), assuming the same does not conflict or tend to conflict with his official duties, but a non-incumbent like myself cannot, as is apparently prohibited by the last paragraph of Sec. 7? Why is the former allowed, who is still occupying the very public position that he is liable to exploit, but a non-incumbent like myself – who is no longer in a position of possible abuse/exploitation – cannot?”

[1]

The query arose because Atty. Buffe previously worked as Clerk of Court VI of the Regional Trial Court (RTC), Branch 81 of Romblon; she resigned from her position effective February 1, 2008. Thereafter (and within the

one-year period of prohibition mentioned in the above-quoted provision), she engaged in the private practice of law by appearing as private counsel in several cases before RTC-Branch 81 of Romblon.

Atty. Buffe alleged that Section 7(b)(2) of R.A. No. 6713 gives preferential treatment to an incumbent public employee, who may engage in the private practice of his profession so long as this practice does not conflict or tend to conflict with his official functions. In contrast, a public official or employee who has retired, resigned, or has been

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separated from government service like her, is prohibited from engaging in private practice on any matter before the office where she used to work, for a period of one (1) year from the date of her separation from government employment.

Atty. Buffe further alleged that the intention of the above prohibition is to remove the exercise of clout, influence or privity to insider information, which the incumbent public employee may use in the private practice of his profession. However, this situation did not obtain in her case, since she had already resigned as Clerk of Court of RTC-Branch 18 of Romblon. She advanced the view that she could engage in the private practice of law before RTC-Branch 81 of Romblon, so long as her appearance as legal counsel shall not conflict or tend to conflict with her former duties as former Clerk of Court of that Branch.

Then Deputy Court Administrator (now Court Administrator) Jose P. Perez made the following observations when the matter was referred to him:

The general intent of the law, as defined in its title is “to uphold the time-honored principle of public office being a public trust.” Section 4 thereof provides for the norms of conduct of public officials and employees, among others: (a) commitment to public interest; (b) professionalism; and (c) justness and sincerity. Of particular significance is the statement under professionalism that “[t]hey [public officials and employees] shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.

Thus, it may be well to say that the prohibition was intended to avoid any impropriety or the appearance of impropriety which may occur in any transaction between the retired government employee and his former colleagues, subordinates or superiors brought about by familiarity, moral ascendancy or undue influence, as the case may be.

[2]

Subsequently, in a Minute Resolution dated July 15, 2008, we resolved to refer this case to the Office of the Chief Attorney (OCAT) for evaluation, report and recommendation.

[3] The OCAT took the view that:

The premise of the query is erroneous. She interprets Section 7 (b) (2) as a blanket authority for an incumbent clerk of court to practice law. Clearly, there is a misreading of that provision of law.

[4]

and further observed:

The confusion apparently lies in the use of the term “such practice” after the phrase “provided that.” It may indeed be misinterpreted as modifying the phrase “engage in the private practice of their profession” should be prefatory sentence that public officials “during their incumbency shall not” be disregarded. However, read in its entirety, “such practice” may only refer to practice “authorized by the Constitution or law” or the exception to the prohibition against the practice of profession. The term “law” was intended by the legislature to include “a memorandum or a circular or an administrative order issued pursuant to the authority of law.”

x x x

The interpretation that Section 7 (b) (2) generally prohibits incumbent public officials and

employees from engaging in the practice of law, which is declared therein a prohibited and unlawful act, accords with the constitutional policy on accountability of public officers stated in Article XI of the Constitution …

x x x

The policy thus requires public officials and employees to devote full time public service so that in case of conflict between personal and public interest, the latter should take precedence over the former.

[5][Footnotes omitted]

With respect to lawyers in the judiciary, the OCAT pointed to Section 5, Canon 3 of the Code of Conduct for Court Personnel – the rule that deals with outside employment by an incumbent judicial employee and which limits such outside employment to one that “does not require the practice of law.”

[6] The prohibition to practice law with

respect to any matter where they have intervened while in the government service is reiterated in Rule 6.03, Canon 6 of the Code of Professional Responsibility, which governs the conduct of lawyers in the government service.

[7]

In view of the OCAT findings and recommendations, we issued an En Banc Resolution dated November 11,

2008 directing the Court Administrator to draft and submit to the Court a circular on the practice of profession during employment and within one year from resignation, retirement from or cessation of employment in the Judiciary. We likewise required the Executive Judge of the RTC of Romblon to (i) verify if Atty. Buffe had appeared as counsel during her incumbency as clerk of court and after her resignation in February 2008, and (ii) submit to the Court a report on his verification.

[8]








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In compliance with this our Resolution, Executive Judge Ramiro R. Geronimo of RTC-Branch 81 of Romblon reported the following appearances made by Atty. Buffe:

(1) Civil Case No. V-1564, entitled Oscar Madrigal Moreno, Jr. et al. versus Leonardo M. Macalam, et al. on February 19, 2008, March 4, 2008, April 10, 2008 and July 9, 2008 as counsel for the plaintiffs;

(2) Civil Case No. V-1620, entitled Melchor M. Manal versus Zosimo Malasa, et al., on (sic) February, 2008, as counsel for the plaintiff;

(3) Civil Case No. V-1396, entitled Solomon Y. Mayor versus Jose J. Mayor, on February 21, 2008, as counsel for the plaintiff; and

(4) Civil Case No. V-1639, entitled Philippine National Bank versus Sps. Mariano and Olivia Silverio, on April 11, 2008 and July 9, 2008, as counsel for the defendants.

Atty. Buffe herself was furnished a copy of our November 11, 2008 En Banc Resolution and she filed a

Manifestation (received by the Court on February 2, 2009) acknowledging receipt of our November 11, 2008 Resolution. She likewise stated that her appearances are part of Branch 81 records. As well, she informed the Court that she had previously taken the following judicial remedies in regard to the above query:

1. SCA No. 089119028 (Annex C), filed with Branch 54 of the RTC Manila, which had been dismissed without prejudice on July 23, 2008 (Annex D) – a recourse taken when undersigned was still a private practitioner;

2. SCA No. 08120423 (Annex A), filed with Branch 17 of the RTC of Manila, which had been also dismissed (with or without prejudice) on December 4, 2008 (Annex B) – a recourse taken when undersigned was already a public prosecutor appearing before the same Branch 81, after she took her oath of office as such on August 15, 2008.[Emphasis supplied]

She also made known her intent to elevate the dismissal of the above cases “so that eventually, the Honorable Supreme Court may put to rest the legal issue/s presented in the above petitions which is, why is it that R.A. No. 6713, Sec. 7 (b)(2) and last par. thereof, apparently contains an express prohibition (valid or invalid) on the private practice of undersigned’s law profession, before Branch 81, while on the other hand not containing a similar, express prohibition in regard to undersigned’s practice of profession, before the same court, as a public prosecutor – within the supposedly restricted 1-year period?”

OUR ACTION AND RULING

Preliminary Considerations

As we stated at the outset, this administrative matter confronts us, not merely with the task of determining how the Court will respond to the query, both with respect to the substance and form (as the Court does not give interpretative opinions

[9] but can issue circulars and regulations relating to pleading, practice and procedure in all

courts[10]

and in the exercise of its administrative supervision over all courts and personnel thereof[11]

), but also with the task of responding to admitted violations of Section 7 (b)(2) of R.A. No. 6713 and to multiple recourses on the same subject.

After our directive to the Office of the Court Administrator to issue a circular on the subject of the query for the guidance of all personnel in the Judiciary, we consider this aspect of the present administrative matter a finished task, subject only to confirmatory closure when the OCA reports the completion of the undertaking to us.

Atty. Buffe’s admitted appearance, before the very same branch she served and immediately after her resignation, is a violation that we cannot close our eyes to and that she cannot run away from under the cover of the letter-query she filed and her petition for declaratory relief, whose dismissal she manifested she would pursue up to our level. We note that at the time she filed her letter-query (on March 4, 2008), Atty. Buffe had already appeared before Branch 81 in at least three (3) cases. The terms of Section 7 (b)(2) of R.A. No. 6713 did not deter her in any way and her misgivings about the fairness of the law cannot excuse any resulting violation she committed. In other words, she took the risk of appearing before her own Branch and should suffer the consequences of the risk she took.

Nor can she hide behind the two declaratory relief petitions she filed, both of which were dismissed, and her intent to elevate the dismissal to this Court for resolution. Thefirst, filed before the RTC, Branch 54, Manila, was dismissed on July 23, 2008 because the “court declined to exercise the power to declare rights as prayed for in the petition, as any decision that may be rendered will be inutile and will not generally terminate the uncertainty or controversy.”

[12] The second, filed with the RTC, Branch 17, Manila, was dismissed for being an inappropriate





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remedy after the dismissal ordered by the RTC, Branch 54, Manila, on December 4, 2008.[13]

Under these circumstances, we see nothing to deter us from ruling on Atty. Buffe’s actions, as no actual court case other than the present administrative case, is now actually pending on the issue she raised. On the contrary, we see from Atty. Buffe’s recourse to this Court and the filing of the two declaratory petitions the intent to shop for a favorable answer to her query. We shall duly consider this circumstance in our action on the case.

A last matter to consider before we proceed to the merits of Atty. Buffe’s actions relates to possible objections on procedural due process grounds, as we have not made any formal directive to Atty. Buffe to explain

why she should not be penalized for her appearance before Branch 81 soon after her resignation from that Branch. The essence of due process is the grant of the opportunity to be heard; what it abhors is the lack of the opportunity to be heard.

[14] The records of this case show that Atty. Buffe has been amply heard with respect to her

actions. She was notified, and she even responded to our November 11, 2008 directive for the Executive Judge of the RTC of Romblon to report on Atty. Buffe’s appearances before Branch 81; she expressly manifested that these appearances were part of the Branch records. Her legal positions on these appearances have also been expressed before this Court; first, in her original letter-query, and subsequently, in her Manifestation. Thus, no due process consideration needs to deter us from considering the legal consequences of her appearances in her previous Branch within a year from her resignation.

The Governing Law: Section 7 of R.A. No. 6713

Section 7 of R.A. No. 6713 generally provides for the prohibited acts and transactions of public officials and employees. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. As an exception, a public official or employee can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict, or tend to conflict, with his or her official functions.

The Section 7 prohibitions continue to apply for a period of one year after the public official or employee’s resignation, retirement, or separation from public office, except for the private practice of profession under subsection (b)(2), which can already be undertaken even within the one-year prohibition period. As an exception to this exception, the one-year prohibited period applies with respect to any matter before the office the public officer or employee used to work with.

The Section 7 prohibitions are predicated on the principle that public office is a public trust; and serve to remove any impropriety, real or imagined, which may occur in government transactions between a former government official or employee and his or her former colleagues, subordinates or superiors. The prohibitions also promote the observance and the efficient use of every moment of the prescribed office hours to serve the public.

[15]

Parenthetically, in the case of court employees, Section 7(b)(2) of R.A. No. 6713 is not the only prohibition to contend with; Section 5, Canon 3 of the Code of Conduct for Court Personnel also applies. The latter provision provides the definitive rule on the “outside employment” that an incumbent court official or court employee may undertake in addition to his official duties:

Outside employment may be allowed by the head of office provided it complies with all of the following requirements:

(a) The outside employment is not with a person or entity that practices law before the courts or conducts business with the Judiciary;

(b) The outside employment can be performed outside of normal working hours and is not incompatible with the performance of the court personnel’s duties and responsibilities;

(c) That outside employment does not require the practice of law; Provided, however, that court personnel may render services as professor, lecturer, or resource

person in law schools, review or continuing education centers or similar institutions;

(d) The outside employment does not require or induce the court personnel to disclose confidential information acquired while performing officials duties;

(e) The outside employment shall not be with the legislative or executive branch of government, unless specifically authorized by the Supreme Court.




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Where a conflict of interest exists, may reasonably appear to exist, or where the outside employment reflects adversely on the integrity of the Judiciary, the court personnel shall not accept outside employment. [Emphasis supplied]

In both the above discussed aspect of R.A. No. 6713 and the quoted Canon 3, the practice of law is covered; the practice of law is a practice of profession, while Canon 3 specifically mentions any outside employment requiring the practice of law. In Cayetano v. Monsod,

[16] we defined the practice of law as any

activity, in and out of court, that requires the application of law, legal procedure, knowledge, training and experience. Moreover, we ruled that to engage in the practice of law is to perform those acts which are characteristics of the profession; to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill.

[17] Under both provisions, a common objective

is to avoid any conflict of interest on the part of the employee who may wittingly or unwittingly use confidential information acquired from his employment, or use his or her familiarity with court personnel still with the previous office.

After separation from the service, Section 5, Canon 3 of the Code of Conduct for Court Personnel ceases to apply as it applies specifically to incumbents, but Section 7 and its subsection (b)(2) of R.A. No. 6713 continue to apply to the extent discussed above. Atty. Buffe’s situation falls under Section 7.

Atty. Buffe’s Situation

A distinctive feature of this administrative matter is Atty. Buffe’s admission that she immediately engaged in private practice of law within the one-year period of prohibition stated in Section 7(b)(2) of R.A. No. 6713. We find it noteworthy, too, that she is aware of this provision and only objects to its application to her situation; she perceives it to be unfair that she cannot practice before her old office – Branch 81 – for a year immediately after resignation, as she believes that her only limitation is in matters where a conflict of interest exists between her appearance as counsel and her former duties as Clerk of Court. She believes that Section 7 (b)(2) gives preferential treatment to incumbent public officials and employees as against those already separated from government employment.

Atty. Buffe apparently misreads the law. As the OCAT aptly stated, she interprets Section 7 (b)(2) as a blanket authority for an incumbent clerk of court to practice law. We reiterate what we have explained above, that the general rule under Section 7 (b)(2) is to bar public officials and employees from the practice of their professions; it is unlawful under this general rule for clerks of court to practice their profession. By way of exception, they can practice their profession if the Constitution or the law allows them, but no conflict of interest must exist between their current duties and the practice of their profession. As we also mentioned above, no chance exists for lawyers in the Judiciary to practice their profession, as they are in fact expressly prohibited by Section 5, Canon 3 of the Code of Conduct for Court Personnel from doing so. Under both the general rule and the exceptions, therefore, Atty. Buffe’s basic premise is misplaced.

As we discussed above, a clerk of court can already engage in the practice of law immediately after her separation from the service and without any period limitation that applies to other prohibitions under Section 7 of R.A. No. 6713. The clerk of court’s limitation is that she cannot practice her profession within one year before the office where he or she used to work with. In a comparison between a resigned, retired or separated official or employee, on the one hand, and an incumbent official or employee, on the other, the former has the advantage because the limitation is only with respect to the office he or she used to work with and only for a period of one year. The incumbent cannot practice at all, save only where specifically allowed by the Constitution and the law and only in areas where no conflict of interests exists. This analysis again disproves Atty. Buffe’s basic premises.

A worrisome aspect of Atty. Buffe’s approach to Section 7 (b)(2) is her awareness of the law and her readiness to risk its violation because of the unfairness she perceives in the law. We find it disturbing that she first violated the law before making any inquiry. She also justifies her position by referring to the practice of other government lawyers known to her who, after separation from their judicial employment, immediately engaged in the private practice of law and appeared as private counsels before the RTC branches where they were previously employed. Again we find this a cavalier attitude on Atty. Buffe’s part and, to our mind, only emphasizes her own willful or intentional disregard of Section 7 (b)(2) of R.A. No. 6713.

By acting in a manner that R.A. No. 6713 brands as “unlawful,” Atty. Buffe contravened Rule 1.01 of

Canon 1 of the Code of



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Professional Responsibility, which provides:

CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES

Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

As indicated by the use of the mandatory word “shall,” this provision must be strictly complied with. Atty. Buffe

failed to do this, perhaps not with an evil intent, considering the misgivings she had about Section 7 (b)(2)’s unfairness. Unlawful conduct under Rule 1.01 of Canon 1, however, does not necessarily require the element of criminality, although the Rule is broad enough to include it.

[18] Likewise, the presence of evil intent on the part of

the lawyer is not essential to bring his or her act or omission within the terms of Rule 1.01, when it specifically prohibits lawyers from engaging in unlawful conduct.

[19] Thus, we find Atty. Buffe liable under this quoted Rule.

We also find that Atty. Buffe also failed to live up to her lawyer’s oath and thereby violated Canon 7 of the Code

of Professional Responsibility when she blatantly and unlawfully practised law within the prohibited period by appearing before the RTC Branch she had just left. Canon 7 states:

CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. [Emphasis supplied]

By her open disregard of R.A. No. 6713, she thereby followed the footsteps of the models she cited and wanted to replicate – the former court officials who immediately waded into practice in the very same court they came from. She, like they, disgraced the dignity of the legal profession by openly disobeying and disrespecting the law.

[20] By her irresponsible conduct, she also eroded public confidence in the law and in lawyers.

[21] Her

offense is not in any way mitigated by her transparent attempt to cover up her transgressions by writing the Court a letter-query, which she followed up with unmeritorious petitions for declaratory relief, all of them dealing with the same Section 7 (b)(2) issue, in the hope perhaps that at some point she would find a ruling favorable to her cause. These are acts whose implications do not promote public confidence in the integrity of the legal profession.

[22]

Considering Atty. Buffe’s ready admission of violating Section 7(b)(2), the principle of res ipsa loquitur finds application, making her administratively liable for violation of Rule 1.01 of Canon 1 and Canon 7 of the Code of Professional Responsibility.

[23] In several cases, the Court has disciplined lawyers without further inquiry or resort to

any formal investigation where the facts on record sufficiently provided the basis for the determination of their administrative liability.

In Prudential Bank v. Castro,[24]

the Court disbarred a lawyer without need of any further investigation after

considering his actions based on records showing his unethical misconduct; the misconduct not only cast dishonor on the image of both the Bench and the Bar, but was also inimical to public interest and welfare. In this regard, the Court took judicial notice of several cases handled by the errant lawyer and his cohorts that revealed their modus operandi in circumventing the payment of the proper judicial fees for the astronomical sums they claimed in their

cases.[25]

The Court held that those cases sufficiently provided the basis for the determination of respondents' administrative liability, without need for further inquiry into the matter under the principle of res ipsa loquitur.

[26]

Also on the basis of this principle, we ruled in Richards v. Asoy,[27]

that no evidentiary hearing is required before the respondent may be disciplined for professional misconduct already established by the facts on record.

We applied the principle of res ipsa loquitur once more in In re: Wenceslao Laureta[28]

where we punished a

lawyer for grave professional misconduct solely based on his answer to a show-cause order for contempt and without going into a trial-type hearing. We ruled then that due process is satisfied as long as the opportunity to be heard is given to the person to be disciplined.

[29]

Likewise in Zaldivar v. Gonzales,[30]

the respondent was disciplined and punished for contempt for his slurs

regarding the Court’s alleged partiality, incompetence and lack of integrity on the basis of his answer in a show-cause order for contempt. The Court took note that the respondent did not deny making the negative imputations against the Court through the media and even acknowledged the correctness of his degrading statements. Through a per curiam decision, we justified imposing upon him the penalty of suspension in the following tenor:

The power to punish for contempt of court does not exhaust the scope of disciplinary authority of the Court over lawyers. The disciplinary authority of the Court over members of the Bar is but corollary to the Court's exclusive power of admission to the Bar. A lawyer is not merely a professional but also an officer of the court and as such, he is called upon to share in the task and responsibility of dispensing justice and resolving disputes in society. Any act on his part which visibly tends to obstruct, pervert, or impede and degrade the administration of justice constitutes














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both professional misconduct calling for the exercise of disciplinary action against him, and contumacious conduct warranting application of the contempt power.

[31]

These cases clearly show that the absence of any formal charge against and/or formal investigation of an errant lawyer do not preclude the Court from immediately exercising its disciplining authority, as long as the errant lawyer or judge has been given the opportunity to be heard. As we stated earlier, Atty. Buffe has been afforded the opportunity to be heard on the present matter through her letter-query and Manifestation filed before this Court.

A member of the bar may be penalized, even disbarred or suspended from his office as an attorney, for violation of the lawyer’s oath and/or for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility.

[32] The appropriate penalty on an errant lawyer depends on the exercise of sound judicial

discretion based on the surrounding facts.[33]

In this case, we cannot discern any mitigating factors we can apply, save OCAT’s observation that Atty Buffe’s letter-query may really reflect a misapprehension of the parameters of the prohibition on the practice of the law profession under Section 7 (b) (2) of R.A. No. 6713. Ignorance of the law, however, is no excuse, particularly on a matter as sensitive as practice of the legal profession soon after one’s separation from the service. If Atty. Buffe is correct in the examples she cited, it is time to ring the bell and to blow the whistle signaling that we cannot allow this practice to continue.

As we observed earlier,[34]

Atty. Buffe had no qualms about the simultaneous use of various fora in expressing her misgivings about the perceived unfairness of Section 7 of R.A. 6713. She formally lodged a query with the Office of the Court Administrator, and soon after filed her successive petitions for declaratory relief. Effectively, she exposed these fora to the possibility of embarrassment and confusion through their possibly differing views on the issue she posed. Although this is not strictly the forum-shopping that the Rules of Court prohibit, what she has done is something that we cannot help but consider with disfavor because of the potential damage and embarrassment to the Judiciary that it could have spawned. This is a point against Atty. Buffe that cancels out the leniency we might have exercised because of the OCAT’s observation about her ignorance of and misgivings on the extent of the prohibition after separation from the service.

Under the circumstances, we find that her actions merit a penalty of fine of P10,000.00, together with a stern warning to deter her from repeating her transgression and committing other acts of professional misconduct.

[35] This

penalty reflects as well the Court’s sentiments on how seriously the retired, resigned or separated officers and employees of the Judiciary should regard and observe the prohibition against the practice of law with the office that they used to work with.

WHEREFORE, premises considered, we find Atty. Karen M. Silverio-Buffe GUILTY of professional

misconduct for violating Rule 1.01 of Canon 1 and Canon 7 of the Code of Professional Responsibility. She is hereby FINED in the amount of Ten Thousand Pesos (P10,000.00), and STERNLY WARNED that a repetition of this

violation and the commission of other acts of professional misconduct shall be dealt with more severely.

Let this Decision be noted in Atty. Buffe’s record as a member of the Bar.

SO ORDERED.






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