EN BANC
Singapore.
[A.C. No. 5118. September 9, 1999]
MARILOU SEBASTIAN, complainant, vs. ATTY.
DOROTHEO CALIS, respondent.
DECISION
PER CURIAM:
For unlawful, dishonest, immoral or deceitful conduct
as well as violation of his oath as lawyer, respondent
Atty. Dorotheo Calis faces disbarment.
The facts of this administrative case, as found by the
Commission on Bar Discipline of the Integrated Bar
of the Philippines (IBP),[1] in its Report, are as
follows:
Complainant (Marilou Sebastian) alleged that
sometime in November, 1992, she was referred to
the respondent who promised to process all
necessary documents required for complainants trip
to the USA for a fee of One Hundred Fifty Thousand
Pesos (P150,000.00).
On December 1, 1992 the complainant made a
partial payment of the required fee in the amount of
Twenty Thousand Pesos (P20,000.00), which was
received by Ester Calis, wife of the respondent for
which a receipt was issued.
From the period of January 1993 to May 1994
complainant had several conferences with the
respondent regarding the processing of her travel
documents. To facilitate the processing, respondent
demanded an additional amount of Sixty Five
Thousand Pesos (P65,000.00) and prevailed upon
complainant to resign from her job as stenographer
with the Commission on Human Rights.
On June 20, 1994, to expedite the processing of her
travel documents complainant issued Planters
Development Bank Check No. 12026524 in the
amount of Sixty Five Thousand Pesos (P65,000.00)
in favor of Atty. D. Calis who issued a receipt. After
receipt of said amount, respondent furnished the
complainant copies of Supplemental to U.S.
Nonimmigrant Visa Application (Of. 156) and a list of
questions which would be asked during interviews.
When complainant inquired about her passport, Atty.
Calis informed the former that she will be assuming
the name Lizette P. Ferrer married to Roberto Ferrer,
employed as sales manager of Matiao Marketing, Inc.
the complainant was furnished documents to support
her assumed identity.
Realizing that she will be travelling with spurious
documents, the complainant demanded the return of
her money, however she was assured by respondent
that there was nothing to worry about for he has been
engaged in the business for quite sometime; with the
promise that her money will be refunded if something
goes wrong.
Weeks before her departure respondent demanded
for the payment of the required fee which was paid by
complainant, but the corresponding receipt was not
given to her.
When complainant demanded for her passport,
respondent assured the complainant that it will be
given to her on her departure which was scheduled
on September 6, 1994. On said date complainant
was given her passport and visa issued in the name
of Lizette P. Ferrer. Complainant left together with
Jennyfer Belo and a certain Maribel who were also
recruits of the respondent.
Upon arrival at the Singapore International Airport,
complainant together with Jennyfer Belo and Maribel
were apprehended by the Singapore Airport Officials
for carrying spurious travel documents; Complainant
contacted the respondent through overseas
telephone call and informed him of by her
predicament. From September 6 to 9, 1994,
complainant was detained at Changi Prisons in
Court, this administrative case was elevated to the
On September 9, 1994 the complainant was deported
back to the Philippines and respondent fetched her
from the airport and brought her to his residence at
872-A Tres Marias Street, Sampaloc,
Manila.Respondent took complainants passport with
a promise that he will secure new travel documents
for complainant. Since complainant opted not to
pursue with her travel, she demanded for the return
of her money in the amount of One Hundred Fifty
Thousand Pesos (P150,000.00).
On June 4, 1996, June 18 and July 5, 1996
respondent made partial refunds of P15,000.00;
P6,000.00; and P5,000.00.
On December 19, 1996 the complainant through
counsel, sent a demand letter to respondent for the
refund of a remaining balance of One Hundred
Fourteen Thousand Pesos (P114,000.00) which was
ignored by the respondent.
Sometime in March 1997 the complainant went to
see the respondent, however his wife informed her
that the respondent was in Cebu attending to
business matters.
In May 1997 the complainant again tried to see the
respondent however she found out that the
respondent had transferred to an unknown residence
apparently with intentions to evade responsibility.
Attached to the complaint are the photocopies of
receipts for the amount paid by complainant,
applications for U.S.A. Visa, questions and answers
asked during interviews; receipts acknowledging
partial refunds of fees paid by the complainant
together with demand letter for the remaining balance
of One Hundred Fourteen Thousand Pesos
(P114,000.00); which was received by the
respondent.[2]
Despite several notices sent to the respondent
requiring an answer to or comment on the complaint,
there was no response. Respondent likewise failed to
attend the scheduled hearings of the case. No
appearance whatsoever was made by the
respondent.[3] As a result of the inexplicable failure, if
not obdurate refusal of the respondent to comply with
the orders of the Commission, the investigation
against him proceeded ex parte.
On September 24, 1998, the Commission on Bar
Discipline issued its Report on the case, finding that:
It appears that the services of the respondent was
engaged for the purpose of securing a visa for a
U.S.A. travel of complainant. There was no mention
of job placement or employment abroad, hence it is
not correct to say that the respondent engaged in
illegal recruitment.
The alleged proposal of the respondent to secure the
U.S.A. visa for the complainant under an assumed
name was accepted by the complainant which
negates deceit on the part of the respondent. Noted
likewise is the partial refunds made by the
respondent of the fees paid by the
complainant. However, the transfer of residence
without a forwarding address indicates his attempt to
escape responsibility.
In the light of the foregoing, we find that the
respondent is guilty of gross misconduct for violating
Canon 1 Rule 1.01 of the Code of Professional
Responsibility which provides that a lawyer shall not
engage in unlawful, dishonest, immoral or deceitful
conduct.
WHEREFORE, it is respectfully recommended
that ATTY. DOROTHEO CALIS be SUSPENDED as
a member of the bar until he fully refunds the fees
paid to him by complainant and comply with the order
of the Commission on Bar Discipline pursuant to Rule
139-B, Sec. 6 of the Rules of Court.[4]
Pursuant to Section 12, Rule 139-B of the Rules of
IBP Board of Governors for review. The Board in a
Resolution[5] dated December 4, 1998 resolved to
adopt and approve with amendment the
recommendation of the Commission. The Resolution
of the Board states:
RESOLVED to ADOPT and APPROVE, as it is
hereby ADOPTED and APPROVED, the Report and
Recommendation of the Investigating Commissioner
in the above-entitled case, herein made part of this
Resolution/Decisions as Annex A; and, finding the
recommendation fully supported by the evidence on
record and the applicable laws and rules, with an
amendment that Respondent Atty. Dorotheo Calis
beDISBARRED for having been found guilty of Gross
Misconduct for engaging in unlawful, dishonest,
immoral or deceitful conduct.
We are now called upon to evaluate, for final action,
the IBP recommendation contained in its Resolution
dated December 4, 1998, with its supporting report.
After examination and careful consideration of the
records in this case, we find the resolution passed by
the Board of Governors of the IBP in order. We agree
with the finding of the Commission that the charge of
illegal recruitment was not established because
complainant failed to substantiate her allegation on
the matter. In fact she did not mention any particular
job or employment promised to her by the
respondent. The only service of the respondent
mentioned by the complainant was that of securing a
visa for the United States.
We likewise concur with the IBP Board of Governors
in its Resolution, that herein respondent is guilty of
gross misconduct by engaging in unlawful, dishonest,
immoral or deceitful conduct contrary to Canon 1,
Rule 101 of the Code of Professional
Responsibility. Respondent deceived the complainant
by assuring her that he could give her visa and travel
documents; that despite spurious documents nothing
untoward would happen; that he guarantees her
arrival in the USA and even promised to refund her
the fees and expenses already paid, in case
something went wrong. All for material gain.
Deception and other fraudulent acts by a lawyer are
disgraceful and dishonorable. They reveal moral
flaws in a lawyer. They are unacceptable practices. A
lawyers relationship with others should be
characterized by the highest degree of good faith,
fairness and candor. This is the essence of the
lawyers oath. The lawyers oath is not mere facile
words, drift and hollow, but a sacred trust that must
be upheld and keep inviolable.[6] The nature of the
office of an attorney requires that he should be a
person of good moral character.[7] This requisite is
not only a condition precedent to admission to the
practice of law, its continued possession is also
essential for remaining in the practice of law.[8] We
have sternly warned that any gross misconduct of a
lawyer, whether in his professional or private
capacity, puts his moral character in serious doubt as
a member of the Bar, and renders him unfit to
continue in the practice of law.[9]
It is dismaying to note how respondent so cavalierly
jeopardized the life and liberty of complainant when
he made her travel with spurious documents. How
often have victims of unscrupulous travel agents and
illegal recruiters been imprisoned in foreign lands
because they were provided fake travel
documents? Respondent totally disregarded the
personal safety of the complainant when he sent her
abroad on false assurances. Not only are
respondents acts illegal, they are also detestable
from the moral point of view. His utter lack of moral
qualms and scruples is a real threat to the Bar and
the administration of justice.
The practice of law is not a right but a privilege
bestowed by the State on those who show that they
possess, and continue to possess, the qualifications
required by law for the conferment of such
privilege.[10] We must stress that membership in the
bar is a privilege burdened with conditions. A lawyer
has the privilege to practice law only during good
behavior. He can be deprived of his license for
misconduct ascertained and declared by judgment of
the court after giving him the opportunity to be
heard.[11]
Here, it is worth noting that the adamant refusal of
respondent to comply with the orders of the IBP and
his total disregard of the summons issued by the IBP
are contemptuous acts reflective of unprofessional
conduct. Thus, we find no hesitation in removing
respondent Dorotheo Calis from the Roll of Attorneys
for his unethical, unscrupulous and unconscionable
conduct toward complainant.
Lastly, the grant in favor of the complainant for the
recovery of the P114,000.00 she paid the respondent
is in order.[12] Respondent not only unjustifiably
refused to return the complainants money upon
demand, but he stubbornly persisted in holding on to
it, unmindful of the hardship and humiliation suffered
by the complainant.
WHEREFORE, respondent Dorotheo Calis is hereby
DISBARRED and his name is ordered stricken from
the Roll of Attorneys. Let a copy of this Decision be
FURNISHED to the IBP and the Bar Confidant to be
spread on the personal records of
respondent. Respondent is likewise ordered to pay to
the complainant immediately the amount of One
Hundred Fourteen Thousand (P114,000.00) Pesos
representing the amount he collected from her.
SO ORDERED.
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-
Reyes, and Ynares-Santiago, JJ., concur.
Davide, Jr., C.J., and Panganiban, J., on official
leave.
Xxxxxxxxxxx
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 35 September 30, 1949
In re Attorney FELIX P. DAVID, petitioner.
Felix P. David in his own behalf.
Office of the Solicitor General Felix Angelo Bautista
and Solicitor Estrella Abad Santos for the
Government.
REYES, J.:
The respondent, Felix P. David, a member of a
Philippine Bar, is charged with the malpractice for
misappropriating funds entrusted to him by his client,
the complainant Briccio S. Henson. Respondent
having answered denying the charge, the complaint
was referred to the Solicitor General for investigation.
After the investigation the Solicitor General rendered
his report finding the respondent guilty of professional
misconduct and recommending disciplinary action.
The Solicitor General reports the following facts to
have been conclusively established:
. . . that on February 15, 1947, respondent obtained
P840 from his client Briccio Henson to be applied to
the payment of inheritance and real estate taxes due
from the estate of Esteban Henson for 1945, 1946
and 1947 (p. 3, t. s. n.), for which he signed a receipt
(Annex 'A'; p. 3, t. s. n.). On several occasions,
complainant asked the respondent to show him the
official tax receipt evidencing the payment of said
taxes, to which the latter answered that he had
already paid them, but the receipts were left with his
friend in San Fernando. Respondent promised to give
the receipt later. Complainant waited patiently February
for it
but it was never delivered. After the respondent had
failed to deliver the receipt, complainant became
suspicious and inquired from the provincial treasurer
of Pampanga about the matter. Said official gave the
information that the taxes were never paid.
Consequently, complainant requested the respondent
to refund the money given him for the payment of
said taxes (p. 7, t. s. n., OSG), but he failed to do so.
Respondent made several promises to return the
money which he never complied. Neither had he
done anything to transfer the titles of the land in the
name of the heirs of Esteban Henson up to the
present (p. 9, t. s. n.). In view of this failure of the
respondent, the complainant was ultimately forced to
pay the taxes out of his own pocket (p. 8, t.s.n.).
Required to answer the complaint formulated by the
Solicitor General on the basis of his report,
respondent failed to do so. And despite due notice he
likewise failed to appear at the hearing before this
Court. Indeed, we note from the Solicitor General's (Sgd.) Atty. FELIX DAVID.
report that respondent, instead of welcoming every
opportunity for hearing, seems to have wanted to
avoid it. On this point the report says:
At the hearing held on May 26, 1948, both parties
appeared and the complainant had testified, the
hearing was set for continuance the following day.
Both parties agreed in the presence of the
investigator to postpone said hearing for June 5,
1948. On June 5, 1948, complainant appeared, but
respondent did not show up, so to give the
respondent a chance, the investigator postponed the
continuation of the hearing to June 17. Both parties
were duly subpoenaed (attached to the records). On
June 15th, respondent sent a letter (attached to the
records) to Assistant Solicitor General Ruperto
Kapunan, asking that the hearing be postponed to
June 25, 1948. According to the request, both parties
were again duly subpoenaed for June 25, 1948
(attached to the record). In the subpoena sent to
respondent, his attention was invited to Rule 127,
section 28, of the Rules of Court, which provides that
if he fails to appear and answer the charge, the
Solicitor in charge will proceed to hear the case ex
parte. In spite of this, on the morning of June 25, he
again sent another letter (attached to the records) to
Assistant Solicitor General Kapunan, asking that the
hearing be transferred to July 7, or 8, 1948. In order
that the respondent be given all the chances to
defend himself, his request was granted. In the
subpoena sent him setting the hearing for July 8,
1948, as requested, the following remark was stated:
Failure on your part to appear will cause the
investigator to proceed with the investigation and to
file the corresponding recommendation to the
Supreme Court. No further postponement will be
entertained.
It is worthwhile mentioning that every time the case
was set for hearing the complainant made his
appearance.
On the morning of July 8, 1948, both parties
appeared; respondent made a formal request in
person to the investigator asking that the hearing be
postponed to 2 o'clock p.m. of the same day. Out of
consideration to him, even to the discomfiture of
complainant, respondent's request was again
granted. But contrary to his assurance, the
respondent again failed to appear.
There is no question that respondent received from
complainant the sum of P840 for the specific purpose
of applying the same to the payment of taxes due
from the estate which he was engaged to settle. The
receipt which he issued for said amount as well as for
the sum of P110 and a sack of rice paid to him for his
expenses and fee reads as follows: . . .
15, 1947.
Received from Mr. Briccio S. Henson the sum of
eight hundred and forty (P840) pesos to be paid as
follows:
P210 -Inheritance tax of th
P630 -Land taxes for 1945
Failure on my part to deliver to him the official
receipts corresponding to the above mentioned
amount, I promise to return to him the whole amount
of P840 not later than April 16, 1947 without any
obligation on his part.
A separate amount of one hundred and ten (P110)
pesos and a sack of rice was paid to me for my
expenses and fee.
Respondent did not care to testify. But through his
unverified answer, he would make it appear that he
was entitled to and had been promised a legal fee for
his services and that, as this promise was not
complied with, he "saw it fit to withhold said amount
(the P840 for taxes) until he is paid." This explanation
is obviously an afterthought and clearly unfounded.
For the established fact is that respondent at first
made complainant believe that the sum in question
had already been applied by him to the payment of
taxes, and, as testified to by complainant, for the little
that respondent was able to do in connection with the
case entrusted to him, he has already received his
fee as shown by the above-copied receipt. The
conclusion is therefore irresistible that respondent
misappropriated the money of his client. This makes
him guilty of unprofessional conduct.
In view of the gravity of the misconduct committed,
the respondent Felix P. David is hereby ordered
suspended from the practice of law for a period of
five years from the date this decision become final,
without prejudice to a more severe action if the sum
misappropriated is not refunded within one month
from the same date.
Moran, C. J., Ozaeta, Feria, Bengzon, Padilla,
Tuason, Montemayor, and Torres, JJ., concur.
Xxxxxxxxxxx
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12426 February 16, 1959
PHILIPPINE LAWYER'S ASSOCIATION, petitioner,
vs.
CELEDONIO AGRAVA, in his capacity as Director of
the Philippines Patent Office, respondent.
Arturo A. Alafriz for petitioner.
Office of the Solicitor General Ambrosio Padilla and
Solicitor Pacifico P. de Castro for respondent.
MONTEMAYOR, J.:
This is the petition filed by the Philippine Lawyer's
Association for prohibition and injunction against
Celedonio Agrava, in his capacity as Director of the
Philippines Patent Office.
On may 27, 1957, respondent Director issued a
circular announcing that he had scheduled for June
27, 1957 an examination for the purpose of
determining who are qualified to practice as patent
attorneys before the Philippines Patent Office, the
said examination to cover patent law and
jurisprudence and the rules of practice before said
office. According to the circular, members of the
Philippine Bar, engineers and other persons with
sufficient scientific and technical training are qualified
to take the said examination. It would appear that
heretofore, respondent Director has been holding
similar examinations.
It is the contention of the petitioner Philippine
Lawyer's Association that one who has passed the
bar examinations and is licensed by the Supreme
Court to practice law in the Philippines and who is in
good standing, is duly qualified to practice before the
Philippines Patent Office, and that consequently, the
cat of the respondent Director requiring members of
the Philippine Bar in good standing to take and pass
an examination given by the Patent Office as a
condition precedent to their being allowed to practice
before said office, such as representing applicants in
the preparation and prosecution of applications for
patent, is in excess of his jurisdiction and is in
violation of the law.
In his answer, respondent Director, through the
Solicitor General, maintains that the prosecution of
patent cases "does not involve entirely or purely the
practice of law but includes the application of
scientific and technical knowledge and training, so
much so that, as a matter of actual practice, the
prosecution of patent cases may be handled not only
by lawyers, but also engineers and other persons
with sufficient scientific and technical training who
pass the prescribed examinations as given by the
Patent Office; . . . that the Rules of Court do not
prohibit the Patent Office, or any other quasi-judicial
body from requiring further condition or qualification
from those who would wish to handle cases before
the Patent Office which, as stated in the preceding
paragraph, requires more of an application of
scientific and technical knowledge than the mere
application of provisions of law; . . . that the action
taken by the respondent is in accordance with
Republic Act No. 165, otherwise known as the Patent
Law of the Philippines, which similar to the United
States Patent Law, in accordance with which the
United States Patent Office has also prescribed a
similar examination as that prescribed by respondent.
...
Respondent further contends that just as the Patent
law of the United States of America authorizes the
Commissioner of Patents to prescribe examinations
to determine as to who practice before the United
States Patent Office, the respondent, is similarly
authorized to do so by our Patent Law, Republic Act
No. 165.
Although as already stated, the Director of Patents, in
the past, would appear to have been holding tests or
examinations the passing of which was imposed as a
required qualification to practice before the Patent
Office, to our knowledge, this is the first time that the
right of the Director of Patents to do so, specially as
regards members of the bar, has been questioned
formally, or otherwise put in issue. And we have
given it careful thought and consideration.
The Supreme Court has the exclusive and
constitutional power with respect to admission to the
practice of law in the Philippines1 and to any member
of the Philippine Bar in good standing may practice
law anywhere and before any entity, whether judicial
or quasi-judicial or administrative, in the Philippines.
Naturally, the question arises as to whether or not
appearance before the patent Office and the
preparation and the prosecution of patent
applications, etc., constitutes or is included in the
practice of law.
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 social proceedings, the management of
such actions and proceedings on behalf of clients
before judges and courts, and in addition, conveying.
In general, alladvice to clients, and all action taken for
them in matters connected with the law corporation
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). (Emphasis supplied).
Practice of law under modern conditions consists in
no small part of work performed outside of any court
and having no immediate relation to proceedings in
court. It embraces conveyancing, the giving of legal
advice on a large variety of subjects, and the
preparation and execution of legal instruments
covering an extensive field of business and trust
relations and other affairs. Although these
transactions may have no direct connection with
court proceedings, they are always subject to
become involved in litigation. They require in many
aspects a high degree of legal skill, a wide
experience with men and affairs, and great capacity
for adaptation to difficult and complex situations.
These customary functions of an attorney or
counselor at law bear an intimate relation to the
administration of justice by the courts. No valid
distinction, so far as concerns the question set forth
in the order, can be drawn between that part which
involves advice and drafting of instruments in his
office. It is of importance to the welfare of the public
that these manifold customary functions be
performed by persons possessed of adequate
learning and skill, of sound moral character, and
acting at all times under the heavy trust obligations to
clients which rests upon all attorneys. (Moran,
Comments on the Rules of Court, Vol. 3 (1953 ed.),
p. 665-666, citing In re Opinion of the Justices
(Mass.), 194 N.E. 313, quoted in Rhode Is. Bar
Assoc. vs. Automobile Service Assoc. (R. I. ) 179 A.
139, 144). (Emphasis ours).
In our opinion, the practice of law includes such
appearance before the Patent Office, the
representation of applicants, oppositors, and other
persons, and the prosecution of their applications for
patent, their oppositions thereto, or the enforcement
of their rights in patent cases. In the first place,
although the transaction of business in the Patent
Office involves the use and application of technical
and scientific knowledge and training, still, all such
business has to be rendered in accordance with the
Patent Law, as well as other laws, including the
Rules and Regulations promulgated by the Patent
Office in accordance with law. Not only this, but
practice before the Patent Office involves the
interpretation and application of other laws and legal
principles, as well as the existence of facts to be
established in accordance with the law of evidence
and procedure. For instance: Section 8 of our Patent
Law provides that an invention shall not be
patentable if it is contrary to public order or morals, or
to public health or welfare. Section 9 says that an
invention shall not be considered new or patentable if
it was known or used by others in the Philippines
before the invention thereof by the inventor named in
any printed publication in the Philippines or any
foreign country more than one year before the
application for a patent therefor, or if it had been in
public use or on sale in the Philippines for more than
one year before the application for the patent
therefor. Section 10 provides that the right to patent
belongs to the true and actual inventor, his heirs,
legal representatives or assigns. Section 25 and 26
refer to connection of any mistake in a patent.
Section 28 enumerates the grounds for cancellation
of a patent; that although any person may apply for
such cancellation, under Section 29, the Solicitor
General is authorized to petition for the cancellation
of a patent. Section 30 mentions the requirements of
a petition for cancellation. Section 31 and 32 provide
for a notice of hearing of the petition for cancellation
of the patent by the Director of Patents in case the
said cancellation is warranted. Under Section 34, at
any time after the expiration of three years from the
day the patent was granted, any person patent on
several grounds, such as, if the patented invention is
not being worked in the Philippines on a commercial
scale, or if the demand for the patented article in the
Philippines on a commercial scale, or if the demand
for the patented article in the Philippines is not being
met to an adequate extent and reasonable terms, or
if by reason of the patentee's refusal to grant a
license on reasonable terms or by reason of the
condition attached by him to the license, purchase or
use of the patented article or working of the patented
process or machine of production, the establishment
of a new trade or industry in the Philippines is
prevented; or if the patent or invention relates to food
or medicine or is necessary to public health or public
safety. All these things involve the applications of
laws, legal principles, practice and procedure. They
call for legal knowledge, training and experience for
which a member of the bar has been prepared.
In support of the proposition that much of the
business and many of the act, orders and decisions
of the Patent Director involve questions of law or a
reasonable and correct evaluation of facts, the very
Patent Law, Republic Act No. 165, Section 61,
provides that:
. . . . The applicant for a patent or for the registration
of a design, any party to a proceeding to cancel a
patent or to obtain a compulsory license, and any
party to any other proceeding in the Office may
appeal to the Supreme Court from any final order or
decision of the director.
In other words, the appeal is taken to this Tribunal. If
the transaction of business in the Patent Office and
the acts, orders and decisions of the Patent Director
involved exclusively or mostly technical and scientific
knowledge and training, then logically, the appeal
should be taken not to a court or judicial body, but
rather to a board of scientists, engineers or technical
men, which is not the case.
Another aspect of the question involves the
consideration of the nature of the functions and acts
of the Head of the Patent Office.
. . . . The Commissioner, in issuing or withholding
patents, in reissues, interferences, and extensions,
exercises quasi-judicial functions. Patents are public
records, and it is the duty of the Commissioner to
give authenticated copies to any person, on payment
of the legal fees. (40 Am. Jur. 537). (Emphasis
supplied).
. . . . The Commissioner has the only original
initiatory jurisdiction that exists up to the granting and
delivering of a patent, and it is his duty to decide
whether the patent is new and whether it is the
proper subject of a patent; and his action in awarding
or refusing a patent is a judicial function. In passing
on an application the commissioner should decide
not only questions of law, but also questions of fact,
as whether there has been a prior public use or sale
of the article invented. . . . (60 C.J.S. 460). (Emphasis
supplied).
The Director of Patents, exercising as he does
judicial or quasi-judicial functions, it is reasonable to
hold that a member of the bar, because of his legal
knowledge and training, should be allowed to practice
before the Patent Office, without further examination
or other qualification. Of course, the Director of
Patents, if he deems it advisable or necessary, may
require that members of the bar practising before him
enlist the assistance of technical men and scientist in
the preparation of papers and documents, such as,
the drawing or technical description of an invention or
machine sought to be patented, in the same way that
a lawyer filing an application for the registration of a
parcel of land on behalf of his clients, is required to
submit a plan and technical description of said land,
prepared by a licensed surveyor.
But respondent Director claims that he is expressly
authorized by the law to require persons desiring to
practice or to do business before him to submit an
examination, even if they are already members of the
bar. He contends that our Patent Law, Republic Act
No. 165, is patterned after the United States Patent
Law; and of the United States Patent Office in Patent
Cases prescribes an examination similar to that
which he (respondent) has prescribed and
scheduled. He invites our attention to the following
provisions of said Rules of Practice:
Registration of attorneys and agents. A register of
an attorneys and a register agents are kept in the
Patent Office on which are entered the names of all
persons recognized as entitled to represent
applicants before the Patent Office in the preparation
and prosecution of applicants for patent. Registration
in the Patent Office under the provisions of these
rules shall only entitle the person registered to
practice before the Patent Office.
(a) Attorney at law. Any attorney at law in good
standing admitted to practice before any United
States Court or the highest court of any State or
Territory of the United States who fulfills the
requirements and complied with the provisions of
these rules may be admitted to practice before the
Patent Office and have his name entered on the
register of attorneys.
xxx xxx xxx
(c) Requirement for registration. No person will be
admitted to practice and register unless he shall
apply to the Commissioner of Patents in writing on a
prescribed form supplied by the Commissioner and
furnish all requested information and material; and
shall establish to the satisfaction of the
Commissioner that he is of good moral character and
of good repute and possessed of the legal and
scientific and technical qualifications necessary to
enable him to render applicants for patent valuable
service, and is otherwise competent to advise and
assist him in the presentation and prosecution of their
application before the Patent Office. In order that the
Commissioner may determine whether a person
seeking to have his name placed upon either of the
registers has the qualifications specified, satisfactory
proof of good moral character and repute, and of
sufficient basic training in scientific and technical
matters must be submitted and an examination which
is held from time to time must be taken and passed.
The taking of an examination may be waived in the
case of any person who has served for three years in
the examining corps of the Patent Office.
Respondent states that the promulgation of the Rules
of Practice of the United States Patent Office in
Patent Cases is authorized by the United States
Patent Law itself, which reads as follows:
The Commissioner of Patents, subject to the
approval of the Secretary of Commerce may
prescribe rules and regulations governing
the recognition of agents, attorneys, or other persons
representing applicants or other parties before his
office, and may require of such persons, agents,
or attorneys, before being recognized as
representatives of applicants or other persons, that
they shall show they are of good moral character and
in good repute, are possessed of the necessary
qualifications to enable them to render to applicants
or other persons valuable service, and are likewise to
competent to advise and assist applicants or other
persons in the presentation or prosecution of their
applications or other business before the Office. The
Commissioner of Patents may, after notice and
opportunity for a hearing, suspend or exclude, either
generally or in any particular case from further
practice before his office any person, agent or
attorney shown to be incompetent or disreputable, or
guilty of gross misconduct, or who refuses to comply
with the said rules and regulations, or who shall, with
intent to defraud in any matter, deceive, mislead, or
threaten any applicant or prospective applicant, or
other person having immediate or prospective
applicant, or other person having immediate or
prospective business before the office, by word,
circular, letter, or by advertising. The reasons for any
such suspension or exclusion shall be duly recorded.
The action of the Commissioner may be reviewed
upon the petition of the person so refused recognition
or so suspended by the district court of the United
States for the District of Columbia under such
conditions and upon such proceedings as the said
court may by its rules determine. (Emphasis
supplied)
Respondent Director concludes that Section 78 of
Republic Act No. 165 being similar to the provisions
of law just reproduced, then he is authorized to
prescribe the rules and regulations requiring that
persons desiring to practice before him should submit
to and pass an examination. We reproduce said
Section 78, Republic Act No. 165, for purposes of
comparison:
SEC. 78. Rules and regulations. The Director
subject to the approval of the Secretary of Justice,
shall promulgate the necessary rules and regulations,
not inconsistent with law, for the conduct of all
business in the Patent Office.
The above provisions of Section 78 certainly and by
far, are different from the provisions of the United
States Patent Law as regards authority to hold
examinations to determine the qualifications of those
allowed to practice before the Patent Office. While
the U.S. Patent Law authorizes the Commissioner of
Patents to require attorneys to show that they
possess the necessary qualifications and
competence to render valuable service to and advise
and assist their clients in patent cases, which
showing may take the form of a test or examination to
be held by the Commissioner, our Patent Law,
Section 78, is silent on this important point. Our
attention has not been called to any express
provision of our Patent Law, giving such authority to
determine the qualifications of persons allowed to
practice before the Patent Office.
Section 551 of the Revised Administrative Code
authorizes every chief of bureau to prescribe forms
and make regulations or general orders not
inconsistent with law, to secure the harmonious and
efficient administration of his branch of the service
and to carry into full effect the laws relating to matters
within the jurisdiction of his bureau. Section 608 of
Republic Act 1937, known as the Tariff and Customs
Code of the Philippines, provides that the
Commissioner of Customs shall, subject to the
approval of the Department Head, makes all rules
and regulations necessary to enforce the provisions
of said code. Section 338 of the National Internal
Revenue Code, Commonwealth Act No. 466 as
amended, states that the Secretary of Finance, upon
recommendation of the Collector of Internal Revenue,
shall promulgate all needful rules and regulations for
the effective enforcement of the provisions of the
code. We understand that rules and regulations have
been promulgated not only for the Bureau of
Customs and Internal Revenue, but also for other
bureaus of the Government, to govern the transaction
of business in and to enforce the law for said
bureaus.
Were we to allow the Patent Office, in the absence of
an express and clear provision of law giving the
necessary sanction, to require lawyers to submit to
and pass on examination prescribed by it before they
are allowed to practice before said Patent Office,
then there would be no reason why other bureaus
specially the Bureau of Internal Revenue and
Customs, where the business in the same area are
more or less complicated, such as the presentation of
books of accounts, balance sheets, etc.,
assessments exemptions, depreciation, these as
regards the Bureau of Internal Revenue, and the
classification of goods, imposition of customs duties,
seizures, confiscation, etc., as regards the Bureau of
Customs, may not also require that any lawyer
practising before them or otherwise transacting
business with them on behalf of clients, shall first
pass an examination to qualify.
In conclusion, we hold that under the present law,
members of the Philippine Bar authorized by this
Tribunal to practice law, and in good standing, may
practice their profession before the Patent Office, for
the reason that much of the business in said office
involves the interpretation and determination of the
scope and application of the Patent Law and other
laws applicable, as well as the presentation of
evidence to establish facts involved; that part of the
functions of the Patent director are judicial or quasi-
judicial, so much so that appeals from his orders and
decisions are, under the law, taken to the Supreme
Court.
For the foregoing reasons, the petition for prohibition
is granted and the respondent Director is hereby
prohibited from requiring members of the Philippine
Bar to submit to an examination or tests and pass the
same before being permitted to appear and practice
before the Patent Office. No costs.
Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista
Angelo, Labrador, Concepcion, Reyes, J.B.L. and
Endencia, JJ., concur.
Xxxxxxxxxxxx
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R.
SALONGA, COMMISSION ON APPOINTMENT, and
HON. GUILLERMO CARAGUE, in his capacity as
Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-
counsel for petitioner.
PARAS, J.:p
We are faced here with a controversy of far-reaching
proportions. While ostensibly only legal issues are
involved, the Court's decision in this case would
indubitably have a profound effect on the political
aspect of our national existence.
The 1987 Constitution provides in Section 1 (1),
Article IX-C:
There shall be a Commission on Elections composed
of a Chairman and six Commissioners who shall be
natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of
age, holders of a college degree, and must not have
been candidates for any elective position in the
immediately preceding -elections. However, a
majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been
engaged in the practice of law for at least ten years.
(Emphasis supplied)
The aforequoted provision is patterned after Section
l(l), Article XII-C of the 1973 Constitution which
similarly provides:
There shall be an independent Commission on
Elections composed of a Chairman and eight
Commissioners who shall be natural-born citizens of
the Philippines and, at the time of their appointment,
at least thirty-five years of age and holders of a
college degree. However, a majority thereof,
including the Chairman, shall be members of the
Philippine Bar who have been engaged in the
practice of law for at least ten years.' (Emphasis
supplied)
Regrettably, however, there seems to be no
jurisprudence as to what constitutes practice of law
as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and
the application of legal principles and technique to
serve the interest of another with his consent. It is not
limited to appearing in court, or advising and
assisting in the conduct of litigation, but embraces the
preparation of pleadings, and other papers incident to
actions and special proceedings, conveyancing, the
preparation of legal instruments of all kinds, and the
giving of all legal advice to clients. It embraces all
advice to clients and all actions taken for them in
matters connected with the law. An attorney engages
in the practice of law by maintaining an office where
he is held out to be-an attorney, using a letterhead
describing himself as an attorney, counseling clients
in legal matters, negotiating with opposing counsel
about pending litigation, and fixing and collecting fees
for services rendered by his associate. (Black's Law
Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of
cases in court. (Land Title Abstract and Trust Co. v.
Dworken,129 Ohio St. 23, 193 N.E. 650) A person is
also considered to be in the practice of law when he:
... for valuable consideration engages in the business
of advising person, firms, associations or
corporations as to their rights under the law, or
appears in a representative capacity as an advocate
in proceedings pending or prospective, before any
court, commissioner, referee, board, body,
committee, or commission constituted by law or
authorized to settle controversies and there, in such
representative capacity performs any act or acts for
the purpose of obtaining or defending the rights of
their clients under the law. Otherwise stated, one
who, in a representative capacity, engages in the
business of advising clients as to their rights under
the law, or while so engaged performs any act or acts
either in court or outside of court for that purpose, is
engaged in the practice of law. (State ex. rel.
Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895,
340 Mo. 852)
This Court in the case of Philippine Lawyers
Association v.Agrava, (105 Phil. 173,176-177) stated:
The practice of law is not limited to the conduct of
cases or litigation in court; it embraces the
preparation of pleadings and other papers incident to
actions and special proceedings, the management of
such actions and proceedings on behalf of clients
before judges and courts, and in addition, conveying.
In general, all advice to clients, and all action taken
for them in mattersconnected 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, citing In re Opinion of
the Justices [Mass.], 194 N.E. 313, quoted in Rhode
Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179
A. 139,144). (Emphasis ours)
The University of the Philippines Law Center in
conducting orientation briefing for new lawyers (1974-
1975) listed the dimensions of the practice of law in
even broader terms as advocacy, counselling and
public service.
One may be a practicing attorney in following any line
of employment in the profession. If what he does
exacts knowledge of the law and is of a kind usual for
attorneys engaging in the active practice of their
profession, and he follows some one or more lines of
employment such as this he is a practicing attorney
at law within the meaning of the statute. (Barr v.
Cardell, 155 NW 312)
Practice of law means any activity, in or out of court,
which requires the application of law, legal
procedure, knowledge, training and experience. "To
engage in the practice of law is to perform those acts
which are characteristics of the profession. Generally,
to practice law is to give notice or render any kind of
service, which device or service requires the use in
any degree of legal knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional
Commission show that it has adopted a liberal
interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I
make a manifestation which I forgot to do during our
review of the provisions on the Commission on Audit.
May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the
members of the Commission on Audit. Among others,
the qualifications provided for by Section I is that
"They must be Members of the Philippine Bar" I
am quoting from the provision "who have been
engaged in the practice of law for at least ten years".
To avoid any misunderstanding which would result in
excluding members of the Bar who are now
employed in the COA or Commission on Audit, we
would like to make the clarification that this provision
on qualifications regarding members of the Bar does
not necessarily refer or involve actual practice of law
outside the COA We have to interpret this to mean
that as long as the lawyers who are employed in the
COA are using their legal knowledge or legal talent in
their respective work within COA, then they are
qualified to be considered for appointment as
members or commissioners, even chairman, of the
Commission on Audit.
This has been discussed by the Committee on
Constitutional Commissions and Agencies and we
deem it important to take it up on the floor so that this
interpretation may be made available whenever this
provision on the qualifications as regards members of
the Philippine Bar engaging in the practice of law for
at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one
question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the
COA by a lawyer is equivalent to the requirement of a
law practice that is set forth in the Article on the
Commission on Audit?
MR. FOZ. We must consider the fact that the work of
COA, although it is auditing, will necessarily involve
legal work; it will involve legal work. And, therefore,
lawyers who are employed in COA now would have
the necessary qualifications in accordance with the
Provision on qualifications under our provisions on
the Commission on Audit. And, therefore, the answer
is yes.
MR. OPLE. Yes. So that the construction given to this
is that this is equivalent to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution,
provides, among others, that the Chairman and two
Commissioners of the Commission on Audit (COA)
should either be certified public accountants with not
less than ten years of auditing practice, or members
of the Philippine Bar who have been engaged in
the practice of law for at least ten years. (emphasis
supplied)
Corollary to this is the term "private practitioner" and
which is in many ways synonymous with the word
"lawyer." Today, although many lawyers do not
engage in private practice, it is still a fact that the
majority of lawyers are private practitioners. (Gary
Munneke, Opportunities in Law Careers [VGM
Career Horizons: Illinois], [1986], p. 15).
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
acquisition of insights into current advances which
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)
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 Muoz-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 issine 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 confirma Presidential nominee, it would be
incredible that the U.S. Supreme Court would
still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by
the spirit that giveth life.
Take this hypothetical case of Samson and Delilah.
Once, the procurator of Judea asked Delilah (who
was Samson's beloved) for help in capturing
Samson. Delilah agreed on condition that
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was
captured, the procurator placed an iron rod burning
white-hot two or three inches away from in front of
Samson's eyes. This blinded the man. Upon hearing
of what had happened to her beloved, Delilah was
beside herself with anger, and fuming with righteous
fury, accused the procurator of reneging on his word.
The procurator calmly replied: "Did any blade touch
his skin? Did any blood flow from his veins?" The
procurator was clearly relying on the letter, not the
spirit of the agreement.
In view of the foregoing, this petition is hereby
DISMISSED.
SO ORDERED.
Fernan, C.J., Grio-Aquino and Medialdea, JJ.,
concur.
Feliciano, J., I certify that he voted to dismiss the
petition. (Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.
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. 1 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: 2
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" (Ernani Pao, 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
tochoose between 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:
xxx xxx xxx
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."
xxx xxx xxx
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)
xxx xxx xxx
... 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]):
xxx xxx xxx
... 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)
xxx xxx xxx
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.
I vote to GRANT the petition.
Bidin, J., dissent
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.
Melencio-Herrera, J., concur.
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. 1 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: 2
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" (Ernani Pao, 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
tochoose between 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:
xxx xxx xxx
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."
xxx xxx xxx
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)
xxx xxx xxx
... 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]):
xxx xxx xxx
... 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)
xxx xxx xxx
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.
I vote to GRANT the petition.
Bidin, J., dissent
Xxxxxxxxxxxxxx
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
Bar Matter No. 553 June 17, 1993
MAURICIO C. ULEP, petitioner,
vs.
THE LEGAL CLINIC, INC., respondent.
R E SO L U T I O N
REGALADO, J.:
Petitioner prays this Court "to order the respondent to
cease and desist from issuing advertisements similar
to or of the same tenor as that of annexes "A" and "B"
(of said petition) and to perpetually prohibit persons
or entities from making advertisements pertaining to
the exercise of the law profession other than those
allowed by law."
The advertisements complained of by herein
petitioner are as follows:
Annex A
SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE. ABSENCE.
ANNULMENT. VISA.
THE Please call: 521-0767 LEGAL 5217232,
5222041 CLINIC, INC. 8:30 am 6:00 pm 7-Flr.
Victoria Bldg., UN Ave., Mla.
Annex B
GUAM DIVORCE.
DON PARKINSON
an Attorney in Guam, is giving FREE BOOKS on
Guam Divorce through The Legal Clinic beginning
Monday to Friday during office hours.
Guam divorce. Annulment of Marriage. Immigration
Problems, Visa Ext. Quota/Non-quota Res. & Special
Retiree's Visa. Declaration of Absence. Remarriage
to Filipina Fiancees. Adoption. Investment in the Phil.
US/Foreign Visa for Filipina Spouse/Children. Call
Marivic.
THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita,
Manila nr. US Embassy CLINIC, INC. 1 Tel. 521-
7232; 521-7251; 522-2041; 521-0767
It is the submission of petitioner that the
advertisements above reproduced are champterous,
unethical, demeaning of the law profession, and
destructive of the confidence of the community in the
integrity of the members of the bar and that, as a
member of the legal profession, he is ashamed and
offended by the said advertisements, hence the
reliefs sought in his petition as hereinbefore quoted.
In its answer to the petition, respondent admits the
fact of publication of said advertisement at its
instance, but claims that it is not engaged in the
practice of law but in the rendering of "legal support
services" through paralegals with the use of modern
computers and electronic machines. Respondent
further argues that assuming that the services
advertised are legal services, the act of advertising
these services should be allowed supposedly
in the light of the case of John R. Bates and Van
O'Steen vs. State Bar of Arizona, 2 reportedly
decided by the United States Supreme Court on June
7, 1977.
Considering the critical implications on the legal
profession of the issues raised herein, we required
the (1) Integrated Bar of the Philippines (IBP), (2)
Philippine Bar Association (PBA), (3) Philippine
Lawyers' Association (PLA), (4) U.P. Womens
Lawyers' Circle (WILOCI), (5) Women Lawyers
Association of the Philippines (WLAP), and (6)
Federacion International de Abogadas (FIDA) to
submit their respective position papers on the
controversy and, thereafter, their memoranda. 3 The
said bar associations readily responded and
extended their valuable services and cooperation of
which this Court takes note with appreciation and
gratitude.
The main issues posed for resolution before the
Court are whether or not the services offered by
respondent, The Legal Clinic, Inc., as advertised by it
constitutes practice of law and, in either case,
whether the same can properly be the subject of the
advertisements herein complained of.
Before proceeding with an in-depth analysis of the
merits of this case, we deem it proper and
enlightening to present hereunder excerpts from the
respective position papers adopted by the
aforementioned bar associations and the memoranda
submitted by them on the issues involved in this bar
matter.
1. Integrated Bar of the Philippines:
xxx xxx xxx
Notwithstanding the subtle manner by which
respondent endeavored to distinguish the two
terms,i.e., "legal support services" vis-a-vis "legal
services", common sense would readily dictate that
the same are essentially without substantial
distinction. For who could deny that document
search, evidence gathering, assistance to layman in
need of basic institutional services from government
or non-government agencies like birth, marriage,
property, or business registration, obtaining
documents like clearance, passports, local or foreign
visas, constitutes practice of law?
xxx xxx xxx
The Integrated Bar of the Philippines (IBP) does not
wish to make issue with respondent's foreign
citations. Suffice it to state that the IBP has made its
position manifest, to wit, that it strongly opposes the
view espoused by respondent (to the effect that today
it is alright to advertise one's legal services).
The IBP accordingly declares in no uncertain terms
its opposition to respondent's act of establishing a
"legal clinic" and of concomitantly advertising the
same through newspaper publications.
The IBP would therefore invoke the administrative
supervision of this Honorable Court to perpetually
restrain respondent from undertaking highly unethical
activities in the field of law practice as
aforedescribed. 4
xxx xxx xxx
A. The use of the name "The Legal Clinic, Inc." gives
the impression that respondent corporation is being
operated by lawyers and that it renders legal
services.
While the respondent repeatedly denies that it offers
legal services to the public, the advertisements in
question give the impression that respondent is
offering legal services. The Petition in fact simply
assumes this to be so, as earlier mentioned,
apparently because this (is) the effect that the
advertisements have on the reading public.
The impression created by the advertisements in
question can be traced, first of all, to the very name
being used by respondent "The Legal Clinic, Inc."
Such a name, it is respectfully submitted connotes
the rendering of legal services for legal problems, just
like a medical clinic connotes medical services for
medical problems. More importantly, the term "Legal
Clinic" connotes lawyers, as the term medical clinic
connotes doctors.
Furthermore, the respondent's name, as published in
the advertisements subject of the present case,
appears with (the) scale(s) of justice, which all the
more reinforces the impression that it is being
operated by members of the bar and that it offers
legal services. In addition, the advertisements in
question appear with a picture and name of a person
being represented as a lawyer from Guam, and this
practically removes whatever doubt may still remain
as to the nature of the service or services being
offered.
It thus becomes irrelevant whether respondent is
merely offering "legal support services" as claimed by
it, or whether it offers legal services as any lawyer
actively engaged in law practice does. And it
becomes unnecessary to make a distinction between
"legal services" and "legal support services," as the
respondent would have it. The advertisements in
question leave no room for doubt in the minds of the
reading public that legal services are being offered by
lawyers, whether true or not.
B. The advertisements in question are meant to
induce the performance of acts contrary to law,
morals, public order and public policy.
It may be conceded that, as the respondent claims,
the advertisements in question are only meant to
inform the general public of the services being
offered by it. Said advertisements, however,
emphasize to Guam divorce, and any law student
ought to know that under the Family Code, there is
only one instance when a foreign divorce is
recognized, and that is:
Article 26. . . .
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under
Philippine Law.
It must not be forgotten, too, that the Family Code
(defines) a marriage as follows:
Article 1. Marriage is special contract of permanent
union between a man and woman entered into
accordance with law for the establishment of conjugal
and family life. It is the foundation of the family and
an inviolable social institution whose nature,
consequences, and incidents are governed by law
and not subject to stipulation, except that marriage
settlements may fix the property relation during the
marriage within the limits provided by this Code.
By simply reading the questioned advertisements, it
is obvious that the message being conveyed is that
Filipinos can avoid the legal consequences of a
marriage celebrated in accordance with our law, by
simply going to Guam for a divorce. This is not only
misleading, but encourages, or serves to induce,
violation of Philippine law. At the very least, this can
be considered "the dark side" of legal practice, where
certain defects in Philippine laws are exploited for the
sake of profit. At worst, this is outright malpractice.
Rule 1.02. A lawyer shall not counsel or abet
activities aimed at defiance of the law or at lessening
confidence in the legal system.
In addition, it may also be relevant to point out that
advertisements such as that shown in Annex "A" of
the Petition, which contains a cartoon of a motor
vehicle with the words "Just Married" on its bumper
and seems to address those planning a "secret
marriage," if not suggesting a "secret marriage,"
makes light of the "special contract of permanent
union," the inviolable social institution," which is how
the Family Code describes marriage, obviously to
emphasize its sanctity and inviolability. Worse, this
particular advertisement appears to encourage
marriages celebrated in secrecy, which is suggestive
of immoral publication of applications for a marriage
license.
If the article "Rx for Legal Problems" is to be
reviewed, it can readily be concluded that the above
impressions one may gather from the advertisements
in question are accurate. The Sharon Cuneta-Gabby
Concepcion example alone confirms what the
advertisements suggest. Here it can be seen that
criminal acts are being encouraged or committed
(a bigamous marriage in Hong Kong or Las Vegas)
with impunity simply because the jurisdiction of
Philippine courts does not extend to the place where
the crime is committed.
Even if it be assumed, arguendo, (that) the "legal
support services" respondent offers do not constitute
legal services as commonly understood, the
advertisements in question give the impression that
respondent corporation is being operated by lawyers
and that it offers legal services, as earlier discussed.
Thus, the only logical consequence is that, in the
eyes of an ordinary newspaper reader, members of
the bar themselves are encouraging or inducing the
performance of acts which are contrary to law,
morals, good customs and the public good, thereby
destroying and demeaning the integrity of the Bar.
xxx xxx xxx
It is respectfully submitted that respondent should be
enjoined from causing the publication of the
advertisements in question, or any other
advertisements similar thereto. It is also submitted
that respondent should be prohibited from further
performing or offering some of the services it
presently offers, or, at the very least, from offering
such services to the public in general.
The IBP is aware of the fact that providing
computerized legal research, electronic data
gathering, storage and retrieval, standardized legal
forms, investigators for gathering of evidence, and
like services will greatly benefit the legal profession
and should not be stifled but instead encouraged.
However, when the conduct of such business by non-
members of the Bar encroaches upon the practice of
law, there can be no choice but to prohibit such
business.
Admittedly, many of the services involved in the case
at bar can be better performed by specialists in other
fields, such as computer experts, who by reason of
their having devoted time and effort exclusively to
such field cannot fulfill the exacting requirements for
admission to the Bar. To prohibit them from
"encroaching" upon the legal profession will deny the
profession of the great benefits and advantages of
modern technology. Indeed, a lawyer using a
computer will be doing better than a lawyer using a
typewriter, even if both are (equal) in skill.
Both the Bench and the Bar, however, should be
careful not to allow or tolerate the illegal practice of
law in any form, not only for the protection of
members of the Bar but also, and more importantly,
for the protection of the public. Technological
development in the profession may be encouraged
without tolerating, but instead ensuring prevention of
illegal practice.
There might be nothing objectionable if respondent is
allowed to perform all of its services, but only if such
services are made available exclusively to members
of the Bench and Bar. Respondent would then be
offering technical assistance, not legal services.
Alternatively, the more difficult task of carefully
distinguishing between which service may be offered
to the public in general and which should be made
available exclusively to members of the Bar may be
undertaken. This, however, may require further
proceedings because of the factual considerations
involved.
It must be emphasized, however, that some of
respondent's services ought to be prohibited outright,
such as acts which tend to suggest or induce
celebration abroad of marriages which are bigamous
or otherwise illegal and void under Philippine law.
While respondent may not be prohibited from simply
disseminating information regarding such matters, it
must be required to include, in the information given,
a disclaimer that it is not authorized to practice law,
that certain course of action may be illegal under
Philippine law, that it is not authorized or capable of
rendering a legal opinion, that a lawyer should be
consulted before deciding on which course of action
to take, and that it cannot recommend any particular
lawyer without subjecting itself to possible sanctions
for illegal practice of law.
If respondent is allowed to advertise, advertising
should be directed exclusively at members of the Bar,
with a clear and unmistakable disclaimer that it is not
authorized to practice law or perform legal services.
The benefits of being assisted by paralegals cannot
be ignored. But nobody should be allowed to
represent himself as a "paralegal" for profit, without
such term being clearly defined by rule or regulation,
and without any adequate and effective means of
regulating his activities. Also, law practice in a
corporate form may prove to be advantageous to the
legal profession, but before allowance of such
practice may be considered, the corporation's Article
of Incorporation and By-laws must conform to each
and every provision of the Code of Professional
Responsibility and the Rules of Court. 5
2. Philippine Bar Association:
xxx xxx xxx.
Respondent asserts that it "is not engaged in the
practice of law but engaged in giving legal support
services to lawyers and laymen, through experienced
paralegals, with the use of modern computers and
electronic machines" (pars. 2 and 3, Comment). This
is absurd. Unquestionably, respondent's acts of
holding out itself to the public under the trade name
"The Legal Clinic, Inc.," and soliciting employment for
its enumerated services fall within the realm of a
practice which thus yields itself to the regulatory
powers of the Supreme Court. For respondent to say
that it is merely engaged in paralegal work is to
stretch credulity. Respondent's own commercial
advertisement which announces a certain Atty. Don
Parkinson to be handling the fields of law belies its
pretense. From all indications, respondent "The Legal
Clinic, Inc." is offering and rendering legal
services through its reserve of lawyers. It has been
held that the practice of law is not limited to the
conduct of cases in court, but includes drawing of
deeds, incorporation, rendering opinions, and
advising clients as to their legal right and then take
them to an attorney and ask the latter to look after
their case in court See Martin, Legal and Judicial
Ethics, 1984 ed., p. 39).
It is apt to recall that only natural persons can engage
in the practice of law, and such limitation cannot be
evaded by a corporation employing competent
lawyers to practice for it. Obviously, this is the
scheme or device by which respondent "The Legal
Clinic, Inc." holds out itself to the public and solicits
employment of its legal services. It is an odious
vehicle for deception, especially so when the public
cannot ventilate any grievance
for malpractice against the business conduit.
Precisely, the limitation of practice of law to persons
who have been duly admitted as members of the Bar
(Sec. 1, Rule 138, Revised Rules of Court) is to
subject the members to the discipline of the Supreme
Court. Although respondent uses its business name,
the persons and the lawyers who act for it are subject
to court discipline. The practice of law is not a
profession open to all who wish to engage in it nor
can it be assigned to another (See 5 Am. Jur. 270). It
is a personal right limited to persons who have
qualified themselves under the law. It follows that not
only respondent but also all the persons who are
acting for respondent are the persons engaged in
unethical law practice. 6
3. Philippine Lawyers' Association:
The Philippine Lawyers' Association's position, in
answer to the issues stated herein, are wit:
1. The Legal Clinic is engaged in the practice of law;
2. Such practice is unauthorized;
3. The advertisements complained of are not only
unethical, but also misleading and patently immoral;
and
4. The Honorable Supreme Court has the power to
supress and punish the Legal Clinic and its corporate
officers for its unauthorized practice of law and for its
unethical, misleading and immoral advertising.
xxx xxx xxx
Respondent posits that is it not engaged in the
practice of law. It claims that it merely renders "legal
support services" to answers, litigants and the
general public as enunciated in the Primary Purpose
Clause of its Article(s) of Incorporation. (See pages 2
to 5 of Respondent's Comment). But its advertised
services, as enumerated above, clearly and
convincingly show that it is indeed engaged in law
practice, albeit outside of court.
As advertised, it offers the general public its advisory
services on Persons and Family Relations Law,
particularly regarding foreign divorces, annulment of
marriages, secret marriages, absence and adoption;
Immigration Laws, particularly on visa related
problems, immigration problems; the Investments
Law of the Philippines and such other related laws.
Its advertised services unmistakably require the
application of the aforesaid law, the legal principles
and procedures related thereto, the legal advices
based thereon and which activities call for legal
training, knowledge and experience.
Applying the test laid down by the Court in the
aforecited Agrava Case, the activities of respondent
fall squarely and are embraced in what lawyers and
laymen equally term as "the practice of law." 7
4. U.P. Women Lawyers' Circle:
In resolving, the issues before this Honorable Court,
paramount consideration should be given to the
protection of the general public from the danger of
being exploited by unqualified persons or entities who
may be engaged in the practice of law.
At present, becoming a lawyer requires one to take a
rigorous four-year course of study on top of a four-
year bachelor of arts or sciences course and then to
take and pass the bar examinations. Only then, is a
lawyer qualified to practice law.
While the use of a paralegal is sanctioned in many
jurisdiction as an aid to the administration of justice,
there are in those jurisdictions, courses of study
and/or standards which would qualify these
paralegals to deal with the general public as such.
While it may now be the opportune time to establish
these courses of study and/or standards, the fact
remains that at present, these do not exist in the
Philippines. In the meantime, this Honorable Court
may decide to make measures to protect the general
public from being exploited by those who may be
dealing with the general public in the guise of being
"paralegals" without being qualified to do so.
In the same manner, the general public should also
be protected from the dangers which may be brought
about by advertising of legal services. While it
appears that lawyers are prohibited under the present
Code of Professional Responsibility from advertising,
it appears in the instant case that legal services are
being advertised not by lawyers but by an entity
staffed by "paralegals." Clearly, measures should be
taken to protect the general public from falling prey to
those who advertise legal services without being
qualified to offer such services. 8
A perusal of the questioned advertisements of
Respondent, however, seems to give the impression
that information regarding validity of marriages,
divorce, annulment of marriage, immigration, visa
extensions, declaration of absence, adoption and
foreign investment, which are in essence, legal
matters , will be given to them if they avail of its
services. The Respondent's name The Legal
Clinic, Inc. does not help matters. It gives the
impression again that Respondent will or can cure
the legal problems brought to them. Assuming that
Respondent is, as claimed, staffed purely by
paralegals, it also gives the misleading impression
that there are lawyers involved in The Legal Clinic,
Inc., as there are doctors in any medical clinic, when
only "paralegals" are involved in The Legal Clinic,
Inc.
Respondent's allegations are further belied by the
very admissions of its President and majority
stockholder, Atty. Nogales, who gave an insight on
the structure and main purpose of Respondent
corporation in the aforementioned "Starweek"
article." 9
5. Women Lawyer's Association of the Philippines:
Annexes "A" and "B" of the petition are clearly
advertisements to solicit cases for the purpose of
gain which, as provided for under the above cited
law, (are) illegal and against the Code of Professional
Responsibility of lawyers in this country.
Annex "A" of the petition is not only illegal in that it is
an advertisement to solicit cases, but it is illegal in
that in bold letters it announces that the Legal Clinic,
Inc., could work out/cause the celebration of a secret
marriage which is not only illegal but immoral in this
country. While it is advertised that one has to go to
said agency and pay P560 for a valid marriage it is
certainly fooling the public for valid marriages in the
Philippines are solemnized only by officers
authorized to do so under the law. And to employ an
agency for said purpose of contracting marriage is
not necessary.
No amount of reasoning that in the USA, Canada and
other countries the trend is towards allowing lawyers
to advertise their special skills to enable people to
obtain from qualified practitioners legal services for
their particular needs can justify the use of
advertisements such as are the subject matter of the
petition, for one (cannot) justify an illegal act even by
whatever merit the illegal act may serve. The law has
yet to be amended so that such act could become
justifiable.
We submit further that these advertisements that
seem to project that secret marriages and divorce are
possible in this country for a fee, when in fact it is not
so, are highly reprehensible.
It would encourage people to consult this clinic about
how they could go about having a secret marriage
here, when it cannot nor should ever be attempted,
and seek advice on divorce, where in this country
there is none, except under the Code of Muslim
Personal Laws in the Philippines. It is also against
good morals and is deceitful because it falsely
represents to the public to be able to do that which by
our laws cannot be done (and) by our Code of Morals
should not be done.
In the case (of) In re Taguda, 53 Phil. 37, the
Supreme Court held that solicitation for clients by an
attorney by circulars of advertisements, is
unprofessional, and offenses of this character justify
permanent elimination from the Bar. 10
6. Federacion Internacional de Abogados:
xxx xxx xxx
1.7 That entities admittedly not engaged in the
practice of law, such as management consultancy
firms or travel agencies, whether run by lawyers or
not, perform the services rendered by Respondent
does not necessarily lead to the conclusion that
Respondent is not unlawfully practicing law. In the
same vein, however, the fact that the business of
respondent (assuming it can be engaged in
independently of the practice of law) involves
knowledge of the law does not necessarily make
respondent guilty of unlawful practice of law.
. . . . Of necessity, no one . . . . acting as a consultant
can render effective service unless he is familiar with
such statutes and regulations. He must be careful not
to suggest a course of conduct which the law forbids.
It seems . . . .clear that (the consultant's) knowledge
of the law, and his use of that knowledge as a factor
in determining what measures he shall recommend,
do not constitute the practice of law . . . . It is not only
presumed that all men know the law, but it is a fact
that most men have considerable acquaintance with
broad features of the law . . . . Our knowledge of the
law accurate or inaccurate moulds our conduct
not only when we are acting for ourselves, but when
we are serving others. Bankers, liquor dealers and
laymen generally possess rather precise knowledge
of the laws touching their particular business or
profession. A good example is the architect, who
must be familiar with zoning, building and fire
prevention codes, factory and tenement house
statutes, and who draws plans and specification in
harmony with the law. This is not practicing law.
But suppose the architect, asked by his client to omit
a fire tower, replies that it is required by the statute.
Or the industrial relations expert cites, in support of
some measure that he recommends, a decision of
the National Labor Relations Board. Are they
practicing law? In my opinion, they are not, provided
no separate fee is charged for the legal advice or
information, and the legal question is subordinate and
incidental to a major non-legal problem.
It is largely a matter of degree and of custom.
If it were usual for one intending to erect a building on
his land to engage a lawyer to advise him and the
architect in respect to the building code and the like,
then an architect who performed this function would
probably be considered to be trespassing on territory
reserved for licensed attorneys. Likewise, if the
industrial relations field had been pre-empted by
lawyers, or custom placed a lawyer always at the
elbow of the lay personnel man. But this is not the
case. The most important body of the industrial
relations experts are the officers and business agents
of the labor unions and few of them are lawyers.
Among the larger corporate employers, it has been
the practice for some years to delegate special
responsibility in employee matters to a management
group chosen for their practical knowledge and skill in
such matter, and without regard to legal thinking or
lack of it. More recently, consultants like the
defendants have the same service that the larger
employers get from their own specialized staff.
The handling of industrial relations is growing into a
recognized profession for which appropriate courses
are offered by our leading universities. The court
should be very cautious about declaring [that] a
widespread, well-established method of conducting
business is unlawful, or that the considerable class of
men who customarily perform a certain function have
no right to do so, or that the technical education given
by our schools cannot be used by the graduates in
their business.
In determining whether a man is practicing law, we
should consider his work for any particular client or
customer, as a whole. I can imagine defendant being
engaged primarily to advise as to the law defining his
client's obligations to his employees, to guide his
client's obligations to his employees, to guide his
client along the path charted by law. This, of course,
would be the practice of the law. But such is not the
fact in the case before me. Defendant's primarily
efforts are along economic and psychological lines.
The law only provides the frame within which he must
work, just as the zoning code limits the kind of
building the limits the kind of building the architect
may plan. The incidental legal advice or information
defendant may give, does not transform his activities
into the practice of law. Let me add that if, even as a
minor feature of his work, he performed services
which are customarily reserved to members of the
bar, he would be practicing law. For instance, if as
part of a welfare program, he drew employees' wills.
Another branch of defendant's work is the
representations of the employer in the adjustment of
grievances and in collective bargaining, with or
without a mediator. This is not per se the practice of
law. Anyone may use an agent for negotiations and
may select an agent particularly skilled in the subject
under discussion, and the person appointed is free to
accept the employment whether or not he is a
member of the bar. Here, however, there may be an
exception where the business turns on a question of
law. Most real estate sales are negotiated by brokers
who are not lawyers. But if the value of the land
depends on a disputed right-of-way and the principal
role of the negotiator is to assess the probable
outcome of the dispute and persuade the opposite
party to the same opinion, then it may be that only a
lawyer can accept the assignment. Or if a
controversy between an employer and his men grows
from differing interpretations of a contract, or of a
statute, it is quite likely that defendant should not
handle it. But I need not reach a definite conclusion
here, since the situation is not presented by the
proofs.
Defendant also appears to represent the employer
before administrative agencies of the federal
government, especially before trial examiners of the
National Labor Relations Board. An agency of the
federal government, acting by virtue of an authority
granted by the Congress, may regulate the
representation of parties before such agency. The
State of New Jersey is without power to interfere with
such determination or to forbid representation before
the agency by one whom the agency admits. The
rules of the National Labor Relations Board give to a
party the right to appear in person, or by counsel, or
by other representative. Rules and Regulations,
September 11th, 1946, S. 203.31. 'Counsel' here
means a licensed attorney, and ther representative'
one not a lawyer. In this phase of his work, defendant
may lawfully do whatever the Labor Board allows,
even arguing questions purely legal. (Auerbacher v.
Wood, 53 A. 2d 800, cited in Statsky, Introduction to
Paralegalism [1974], at pp. 154-156.).
1.8 From the foregoing, it can be said that a person
engaged in a lawful calling (which may involve
knowledge of the law) is not engaged in the practice
of law provided that:
(a) The legal question is subordinate and incidental to
a major non-legal problem;.
(b) The services performed are not customarily
reserved to members of the bar; .
(c) No separate fee is charged for the legal advice or
information.
All these must be considered in relation to the work
for any particular client as a whole.
1.9. If the person involved is both lawyer and non-
lawyer, the Code of Professional Responsibility
succintly states the rule of conduct:
Rule 15.08 A lawyer who is engaged in another
profession or occupation concurrently with the
practice of law shall make clear to his client whether
he is acting as a lawyer or in another capacity.
1.10. In the present case. the Legal Clinic appears to
render wedding services (See Annex "A" Petition).
Services on routine, straightforward marriages, like
securing a marriage license, and making
arrangements with a priest or a judge, may not
constitute practice of law. However, if the problem is
as complicated as that described in "Rx for Legal
Problems" on the Sharon Cuneta-Gabby
Concepcion-Richard Gomez case, then what may be
involved is actually the practice of law. If a non-
lawyer, such as the Legal Clinic, renders such
services then it is engaged in the unauthorized
practice of law.
1.11. The Legal Clinic also appears to give
information on divorce, absence, annulment of
marriage and visas (See Annexes "A" and "B"
Petition). Purely giving informational materials may
not constitute of law. The business is similar to that of
a bookstore where the customer buys materials on
the subject and determines on the subject and
determines by himself what courses of action to take.
It is not entirely improbable, however, that aside from
purely giving information, the Legal Clinic's
paralegals may apply the law to the particular
problem of the client, and give legal advice. Such
would constitute unauthorized practice of law.
It cannot be claimed that the publication of a legal
text which publication of a legal text which purports to
say what the law is amount to legal practice. And the
mere fact that the principles or rules stated in the text
may be accepted by a particular reader as a solution
to his problem does not affect this. . . . . Apparently it
is urged that the conjoining of these two, that is, the
text and the forms, with advice as to how the forms
should be filled out, constitutes the unlawful practice
of law. But that is the situation with many approved
and accepted texts. Dacey's book is sold to the public
at large. There is no personal contact or relationship
with a particular individual. Nor does there exist that
relation of confidence and trust so necessary to the
status of attorney and client. THIS IS THE
ESSENTIAL OF LEGAL PRACTICE THE
REPRESENTATION AND ADVISING OF A
PARTICULAR PERSON IN A PARTICULAR
SITUATION. At most the book assumes to offer
general advice on common problems, and does not
purport to give personal advice on a specific problem
peculiar to a designated or readily identified person.
Similarly the defendant's publication does not purport
to give personal advice on a specific problem peculiar
to a designated or readily identified person in a
particular situation in their publication and sale of
the kits, such publication and sale did not constitutes
the unlawful practice of law . . . . There being no legal
impediment under the statute to the sale of the kit,
there was no proper basis for the injunction against
defendant maintaining an office for the purpose of
selling to persons seeking a divorce, separation,
annulment or separation agreement any printed
material or writings relating to matrimonial law or the
prohibition in the memorandum of modification of the
judgment against defendant having an interest in any
publishing house publishing his manuscript on
divorce and against his having any personal contact
with any prospective purchaser. The record does fully
support, however, the finding that for the change of
$75 or $100 for the kit, the defendant gave legal
advice in the course of personal contacts concerning
particular problems which might arise in the
preparation and presentation of the purchaser's
asserted matrimonial cause of action or pursuit of
other legal remedies and assistance in the
preparation of necessary documents (The injunction
therefore sought to) enjoin conduct constituting the
practice of law, particularly with reference to the
giving of advice and counsel by the defendant
relating to specific problems of particular individuals
in connection with a divorce, separation, annulment
of separation agreement sought and should be
affirmed. (State v. Winder, 348, NYS 2D 270 [1973],
cited in Statsky, supra at p. 101.).
1.12. Respondent, of course, states that its services
are "strictly non-diagnostic, non-advisory. "It is not
controverted, however, that if the services "involve
giving legal advice or counselling," such would
constitute practice of law (Comment, par. 6.2). It is in
this light that FIDA submits that a factual inquiry may
be necessary for the judicious disposition of this
case.
xxx xxx xxx
2.10. Annex "A" may be ethically objectionable in that
it can give the impression (or perpetuate the wrong
notion) that there is a secret marriage. With all the
solemnities, formalities and other requisites of
marriages (See Articles 2, et seq., Family Code), no
Philippine marriage can be secret.
2.11. Annex "B" may likewise be ethically
objectionable. The second paragraph thereof (which
is not necessarily related to the first paragraph) fails
to state the limitation that only "paralegal services?"
or "legal support services", and not legal services,
are available." 11
A prefatory discussion on the meaning of the phrase
"practice of law" becomes exigent for the proper
determination of the issues raised by the petition at
bar. On this score, we note that the clause "practice
of law" has long been the subject of judicial
construction and interpretation. The courts have laid
down general principles and doctrines explaining the
meaning and scope of the term, some of which we
now take into account.
Practice of law means any activity, in or out of court,
which requires the application of law, legal
procedures, knowledge, training and experience. To
engage in the practice of law is to perform those acts
which are characteristic of the profession. Generally,
to practice law is to give advice or render any kind of
service that involves legal knowledge or skill. 12
The practice of law is not limited to the conduct of
cases in court. It includes legal advice and counsel,
and the preparation of legal instruments and contract
by which legal rights are secured, although such
matter may or may not be pending in a court. 13
In the practice of his profession, a licensed attorney
at law generally engages in three principal types of
professional activity: legal advice and instructions to
clients to inform them of their rights and obligations,
preparation for clients of documents requiring
knowledge of legal principles not possessed by
ordinary layman, and appearance for clients before
public tribunals which possess power and authority to
determine rights of life, liberty, and property
according to law, in order to assist in proper
interpretation and enforcement of law. 14
When a person participates in the a trial and
advertises himself as a lawyer, he is in the practice of
law. 15 One who confers with clients, advises them
as to their legal rights and then takes the business to
an attorney and asks the latter to look after the case
in court, is also practicing law. 16 Giving advice for
compensation regarding the legal status and rights of
another and the conduct with respect thereto
constitutes a practice of law. 17 One who renders an
opinion as to the proper interpretation of a statute,
and receives pay for it, is, to that extent, practicing
law. 18
In the recent case of Cayetano vs. Monsod, 19 after
citing the doctrines in several cases, we laid down
the test to determine whether certain acts constitute
"practice of law," thus:
Black defines "practice of law" as:
The rendition of services requiring the knowledge and
the application of legal principles and technique to
serve the interest of another with his consent. It is not
limited to appearing in court, or advising and
assisting in the conduct of litigation, but embraces the
preparation of pleadings, and other papers incident to
actions and special proceedings, conveyancing, the
preparation of legal instruments of all kinds, and the
giving of all legal advice to clients. It embraces all
advice to clients and all actions taken for them in
matters connected with the law.
The practice of law is not limited to the conduct of
cases on court.(Land Title Abstract and Trust Co. v.
Dworken , 129 Ohio St. 23, 193N. E. 650). A person
is also considered to be in the practice of law when
he:
. . . . for valuable consideration engages in the
business of advising person, firms, associations or
corporations as to their right under the law, or
appears in a representative capacity as an advocate
in proceedings, pending or prospective, before any
court, commissioner, referee, board, body,
committee, or commission constituted by law or
authorized to settle controversies and there, in such
representative capacity, performs any act or acts for
the purpose of obtaining or defending the rights of
their clients under the law. Otherwise stated, one
who, in a representative capacity, engages in the
business of advising clients as to their rights under
the law, or while so engaged performs any act or acts
either in court or outside of court for that purpose, is
engaged in the practice of law. (State ex. rel.
Mckittrick v. C.S. Dudley and Co., 102 S. W. 2d 895,
340 Mo. 852).
This Court, in the case of Philippines Lawyers
Association v. Agrava (105 Phil. 173, 176-
177),stated:
The practice of law is not limited to the conduct of
cases or litigation in court; it embraces the
preparation of pleadings and other papers incident to
actions and special proceedings, the management of
such actions and proceedings on behalf of clients
before judges and courts, and in addition, conveying.
In general, all advice to clients, and all action taken
for them in matters connected with the law
incorporation services, assessment and
condemnation services contemplating an appearance
before a judicial body, the foreclosure of a mortgage,
enforcement of a creditor's claim in bankruptcy and
insolvency proceedings, and conducting proceedings
in attachment, and in matters or estate and
guardianship have been held to constitute law
practice, as do the preparation and drafting of legal
instruments, where the work done involves the
determination by the trained legal mind of the legal
effect of facts and conditions. (5 Am. Jr. p. 262, 263).
Practice of law under modern conditions consists in
no small part of work performed outside of any court
and having no immediate relation to proceedings in
court. It embraces conveyancing, the giving of legal
advice on a large variety of subjects and the
preparation and execution of legal instruments
covering an extensive field of business and trust
relations and other affairs. Although these
transactions may have no direct connection with
court proceedings, they are always subject to
become involved in litigation. They require in many
aspects a high degree of legal skill, a wide
experience with men and affairs, and great capacity
for adaptation to difficult and complex situations.
These customary functions of an attorney or
counselor at law bear an intimate relation to the
administration of justice by the courts. No valid
distinction, so far as concerns the question set forth
in the order, can be drawn between that part of the
work of the lawyer which involves appearance in
court and that part which involves advice and drafting
of instruments in his office. It is of importance to the
welfare of the public that these manifold customary
functions be performed by persons possessed of
adequate learning and skill, of sound moral
character, and acting at all times under the heavy
trust obligations to clients which rests upon all
attorneys. (Moran, Comments on the Rules o Court,
Vol. 3 [1973 ed.], pp. 665-666, citing In Re Opinion of
the Justices [Mass], 194 N. E. 313, quoted in Rhode
Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 197
A. 139, 144).
The practice of law, therefore, covers a wide range of
activities in and out of court. Applying the
aforementioned criteria to the case at bar, we agree
with the perceptive findings and observations of the
aforestated bar associations that the activities of
respondent, as advertised, constitute "practice of
law."
The contention of respondent that it merely offers
legal support services can neither be seriously
considered nor sustained. Said proposition is belied
by respondent's own description of the services it has
been offering, to wit:
Legal support services basically consists of giving
ready information by trained paralegals to laymen
and lawyers, which are strictly non-diagnostic, non-
advisory, through the extensive use of computers and
modern information technology in the gathering,
processing, storage, transmission and reproduction
of information and communication, such as
computerized legal research; encoding and
reproduction of documents and pleadings prepared
by laymen or lawyers; document search; evidence
gathering; locating parties or witnesses to a case;
fact finding investigations; and assistance to laymen
in need of basic institutional services from
government or non-government agencies, like birth,
marriage, property, or business registrations;
educational or employment records or certifications,
obtaining documentation like clearances, passports,
local or foreign visas; giving information about laws of
other countries that they may find useful, like foreign
divorce, marriage or adoption laws that they can avail
of preparatory to emigration to the foreign country,
and other matters that do not involve representation
of clients in court; designing and installing computer
systems, programs, or software for the efficient
management of law offices, corporate legal
departments, courts and other entities engaged in
dispensing or administering legal services. 20
While some of the services being offered by
respondent corporation merely involve mechanical
and technical knowhow, such as the installation of
computer systems and programs for the efficient
management of law offices, or the computerization of
research aids and materials, these will not suffice to
justify an exception to the general rule.
What is palpably clear is that respondent corporation
gives out legal information to laymen and lawyers. Its
contention that such function is non-advisory and
non-diagnostic is more apparent than real. In
providing information, for example, about foreign laws
on marriage, divorce and adoption, it strains the
credulity of this Court that all the respondent
corporation will simply do is look for the law, furnish a
copy thereof to the client, and stop there as if it were
merely a bookstore. With its attorneys and so called
paralegals, it will necessarily have to explain to the
client the intricacies of the law and advise him or her
on the proper course of action to be taken as may be
provided for by said law. That is what its
advertisements represent and for the which services
it will consequently charge and be paid. That activity
falls squarely within the jurisprudential definition of
"practice of law." Such a conclusion will not be
altered by the fact that respondent corporation does
not represent clients in court since law practice, as
the weight of authority holds, is not limited merely
giving legal advice, contract drafting and so forth.
The aforesaid conclusion is further strengthened by
an article published in the January 13, 1991 issue of
the Starweek/The Sunday Magazine of the
Philippines Star, entitled "Rx for Legal Problems,"
where an insight into the structure, main purpose and
operations of respondent corporation was given by its
own "proprietor," Atty. Rogelio P. Nogales:
This is the kind of business that is transacted
everyday at The Legal Clinic, with offices on the
seventh floor of the Victoria Building along U. N.
Avenue in Manila. No matter what the client's
problem, and even if it is as complicated as the
Cuneta-Concepcion domestic situation, Atty. Nogales
and his staff of lawyers, who, like doctors are
"specialists" in various fields can take care of it. The
Legal Clinic, Inc. has specialists in taxation and
criminal law, medico-legal problems, labor, litigation,
and family law. These specialist are backed up by a
battery of paralegals, counsellors and attorneys.
Atty. Nogales set up The Legal Clinic in 1984.
Inspired by the trend in the medical field toward
specialization, it caters to clients who cannot afford
the services of the big law firms.
The Legal Clinic has regular and walk-in clients.
"when they come, we start by analyzing the problem.
That's what doctors do also. They ask you how you
contracted what's bothering you, they take your
temperature, they observe you for the symptoms and
so on. That's how we operate, too. And once the
problem has been categorized, then it's referred to
one of our specialists.
There are cases which do not, in medical terms,
require surgery or follow-up treatment. These The
Legal Clinic disposes of in a matter of minutes.
"Things like preparing a simple deed of sale or an
affidavit of loss can be taken care of by our staff or, if
this were a hospital the residents or the interns. We
can take care of these matters on a while you wait
basis. Again, kung baga sa hospital, out-patient, hindi
kailangang ma-confine. It's just like a common cold or
diarrhea," explains Atty. Nogales.
Those cases which requires more extensive
"treatment" are dealt with accordingly. "If you had a
rich relative who died and named you her sole heir,
and you stand to inherit millions of pesos of property,
we would refer you to a specialist in taxation. There
would be real estate taxes and arrears which would
need to be put in order, and your relative is even
taxed by the state for the right to transfer her
property, and only a specialist in taxation would be
properly trained to deal with the problem. Now, if
there were other heirs contesting your rich relatives
will, then you would need a litigator, who knows how
to arrange the problem for presentation in court, and
gather evidence to support the case. 21
That fact that the corporation employs paralegals to
carry out its services is not controlling. What is
important is that it is engaged in the practice of law
by virtue of the nature of the services it renders which
thereby brings it within the ambit of the statutory
prohibitions against the advertisements which it has
caused to be published and are now assailed in this
proceeding.
Further, as correctly and appropriately pointed out by
the U.P. WILOCI, said reported facts sufficiently
establish that the main purpose of respondent is to
serve as a one-stop-shop of sorts for various legal
problems wherein a client may avail of legal services
from simple documentation to complex litigation and
corporate undertakings. Most of these services are
undoubtedly beyond the domain of paralegals, but
rather, are exclusive functions of lawyers engaged in
the practice of law. 22
It should be noted that in our jurisdiction the services
being offered by private respondent which constitute
practice of law cannot be performed by paralegals.
Only a person duly admitted as a member of the bar,
or hereafter admitted as such in accordance with the
provisions of the Rules of Court, and who is in good
and regular standing, is entitled to practice law. 23
Public policy requires that the practice of law be
limited to those individuals found duly qualified in
education and character. The permissive right
conferred on the lawyers is an individual and limited
privilege subject to withdrawal if he fails to maintain
proper standards of moral and professional conduct.
The purpose is to protect the public, the court, the
client and the bar from the incompetence or
dishonesty of those unlicensed to practice law and
not subject to the disciplinary control of the court. 24
The same rule is observed in the american
jurisdiction wherefrom respondent would wish to draw
support for his thesis. The doctrines there also stress
that the practice of law is limited to those who meet
the requirements for, and have been admitted to, the
bar, and various statutes or rules specifically so
provide. 25 The practice of law is not a lawful
business except for members of the bar who have
complied with all the conditions required by statute
and the rules of court. Only those persons are
allowed to practice law who, by reason of attainments
previously acquired through education and study,
have been recognized by the courts as possessing
profound knowledge of legal science entitling them to
advise, counsel with, protect, or defend the rights
claims, or liabilities of their clients, with respect to the
construction, interpretation, operation and effect of
law. 26 The justification for excluding from the
practice of law those not admitted to the bar is found,
not in the protection of the bar from competition, but
in the protection of the public from being advised and
represented in legal matters by incompetent and
unreliable persons over whom the judicial department
can exercise little control. 27
We have to necessarily and definitely reject
respondent's position that the concept in the United
States of paralegals as an occupation separate from
the law profession be adopted in this jurisdiction.
Whatever may be its merits, respondent cannot but
be aware that this should first be a matter for judicial
rules or legislative action, and not of unilateral
adoption as it has done.
Paralegals in the United States are trained
professionals. As admitted by respondent, there are
schools and universities there which offer studies and
degrees in paralegal education, while there are none
in the Philippines.28 As the concept of the
"paralegals" or "legal assistant" evolved in the United
States, standards and guidelines also evolved to
protect the general public. One of the major
standards or guidelines was developed by the
American Bar Association which set up Guidelines for
the Approval of Legal Assistant Education Programs
(1973). Legislation has even been proposed to certify
legal assistants. There are also associations of
paralegals in the United States with their own code of
professional ethics, such as the National Association
of Legal Assistants, Inc. and the American Paralegal
Association.29
In the Philippines, we still have a restricted concept
and limited acceptance of what may be considered
as paralegal service. As pointed out by FIDA, some
persons not duly licensed to practice law are or have
been allowed limited representation in behalf of
another or to render legal services, but such
allowable services are limited in scope and extent by
the law, rules or regulations granting permission
therefor. 30
Accordingly, we have adopted the American judicial
policy that, in the absence of constitutional or
statutory authority, a person who has not been
admitted as an attorney cannot practice law for the
proper administration of justice cannot be hindered
by the unwarranted intrusion of an unauthorized and
unskilled person into the practice of law. 31 That
policy should continue to be one of encouraging
persons who are unsure of their legal rights and
remedies to seek legal assistance only from persons
licensed to practice law in the state. 32
Anent the issue on the validity of the questioned
advertisements, the Code of Professional
Responsibility provides that a lawyer in making
known his legal services shall use only true, honest,
fair, dignified and objective information or statement
of facts. 33 He is not supposed to use or permit the
use of any false, fraudulent, misleading, deceptive,
undignified, self-laudatory or unfair statement or
claim regarding his qualifications or legal
services. 34 Nor shall he pay or give something of
value to representatives of the mass media in
anticipation of, or in return for, publicity to attract legal
business. 35 Prior to the adoption of the code of
Professional Responsibility, the Canons of
Professional Ethics had also warned that lawyers
should not resort to indirect advertisements for
professional employment, such as furnishing or
inspiring newspaper comments, or procuring his
photograph to be published in connection with
causes in which the lawyer has been or is engaged
or concerning the manner of their conduct, the
magnitude of the interest involved, the importance of
the lawyer's position, and all other like self-
laudation. 36
The standards of the legal profession condemn the
lawyer's advertisement of his talents. A lawyer
cannot, without violating the ethics of his profession.
advertise his talents or skill as in a manner similar to
a merchant advertising his goods. 37 The
prescription against advertising of legal services or
solicitation of legal business rests on the fundamental
postulate that the that the practice of law is a
profession. Thus, in the case of The Director of
Religious Affairs. vs. Estanislao R. Bayot 38 an
advertisement, similar to those of respondent which
are involved in the present proceeding,39 was held to
constitute improper advertising or solicitation.
The pertinent part of the decision therein reads:
It is undeniable that the advertisement in question
was a flagrant violation by the respondent of the
ethics of his profession, it being a brazen solicitation
of business from the public. Section 25 of Rule 127
expressly provides among other things that "the
practice of soliciting cases at law for the purpose of
gain, either personally or thru paid agents or brokers,
constitutes malpractice." It is highly unethical for an
attorney to advertise his talents or skill as a merchant
advertises his wares. Law is a profession and not a
trade. The lawyer degrades himself and his
profession who stoops to and adopts the practices of
mercantilism by advertising his services or offering
them to the public. As a member of the bar, he defiles
the temple of justice with mercenary activities as the
money-changers of old defiled the temple of
Jehovah. "The most worthy and effective
advertisement possible, even for a young lawyer, . . .
. is the establishment of a well-merited reputation for
professional capacity and fidelity to trust. This cannot
be forced but must be the outcome of character and
conduct." (Canon 27, Code of Ethics.).
We repeat, the canon of the profession tell us that the
best advertising possible for a lawyer is a well-
merited reputation for professional capacity and
fidelity to trust, which must be earned as the outcome
of character and conduct. Good and efficient service
to a client as well as to the community has a way of
publicizing itself and catching public attention. That
publicity is a normal by-product of effective service
which is right and proper. A good and reputable
lawyer needs no artificial stimulus to generate it and
to magnify his success. He easily sees the difference
between a normal by-product of able service and the
unwholesome result of propaganda. 40
Of course, not all types of advertising or solicitation
are prohibited. The canons of the profession
enumerate exceptions to the rule against advertising
or solicitation and define the extent to which they may
be undertaken. The exceptions are of two broad
categories, namely, those which are expressly
allowed and those which are necessarily implied from
the restrictions. 41
The first of such exceptions is the publication in
reputable law lists, in a manner consistent with the
standards of conduct imposed by the canons, of brief
biographical and informative data. "Such data must
not be misleading and may include only a statement
of the lawyer's name and the names of his
professional associates; addresses, telephone
numbers, cable addresses; branches of law
practiced; date and place of birth and admission to
the bar; schools attended with dates of graduation,
degrees and other educational distinction; public or
quasi-public offices; posts of honor; legal
authorships; legal teaching positions; membership
and offices in bar associations and committees
thereof, in legal and scientific societies and legal
fraternities; the fact of listings in other reputable law
lists; the names and addresses of references; and,
with their written consent, the names of clients
regularly represented." 42
The law list must be a reputable law list published
primarily for that purpose; it cannot be a mere
supplemental feature of a paper, magazine, trade
journal or periodical which is published principally for
other purposes. For that reason, a lawyer may not
properly publish his brief biographical and informative
data in a daily paper, magazine, trade journal or
society program. Nor may a lawyer permit his name
to be published in a law list the conduct,
management or contents of which are calculated or
likely to deceive or injure the public or the bar, or to
lower the dignity or standing of the profession. 43
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. 44
Verily, taking into consideration the nature and
contents of the advertisements for which respondent
is being taken to task, which even includes a
quotation of the fees charged by said respondent
corporation for services rendered, we find and so
hold that the same definitely do not and conclusively
cannot fall under any of the above-mentioned
exceptions.
The ruling in the case of Bates, et al. vs. State Bar of
Arizona, 45 which is repeatedly invoked and
constitutes the justification relied upon by
respondent, is obviously not applicable to the case at
bar. Foremost is the fact that the disciplinary rule
involved in said case explicitly allows a lawyer, as an
exception to the prohibition against advertisements
by lawyers, to publish a statement of legal fees for an
initial consultation or the availability upon request of a
written schedule of fees or an estimate of the fee to
be charged for the specific services. No such
exception is provided for, expressly or impliedly,
whether in our former Canons of Professional Ethics
or the present Code of Professional Responsibility.
Besides, even the disciplinary rule in the Bates case
contains a proviso that the exceptions stated therein
are "not applicable in any state unless and until it is
implemented by such authority in that state." 46 This
goes to show that an exception to the general rule,
such as that being invoked by herein respondent, can
be made only if and when the canons expressly
provide for such an exception. Otherwise, the
prohibition stands, as in the case at bar.
It bears mention that in a survey conducted by the
American Bar Association after the decision in Bates,
on the attitude of the public about lawyers after
viewing television commercials, it was found that
public opinion dropped significantly 47 with respect to
these characteristics of lawyers:
Trustworthy from 71% to 14%
Professional from 71% to 14%
Honest from 65% to 14%
Dignified from 45% to 14%
Secondly, it is our firm belief that with the present
situation of our legal and judicial systems, to allow
the publication of advertisements of the kind used by
respondent would only serve to aggravate what is
already a deteriorating public opinion of the legal
profession whose integrity has consistently been
under attack lately by media and the community in
general. At this point in time, it is of utmost
importance in the face of such negative, even if
unfair, criticisms at times, to adopt and maintain that
level of professional conduct which is beyond
reproach, and to exert all efforts to regain the high
esteem formerly accorded to the legal profession.
In sum, it is undoubtedly a misbehavior on the part of
the lawyer, subject to disciplinary action, to advertise
his services except in allowable instances 48 or to aid
a layman in the unauthorized practice of
law. 49 Considering that Atty. Rogelio P. Nogales,
who is the prime incorporator, major stockholder and
proprietor of The Legal Clinic, Inc. is a member of the
Philippine Bar, he is hereby reprimanded, with a
warning that a repetition of the same or similar acts
which are involved in this proceeding will be dealt
with more severely.
While we deem it necessary that the question as to
the legality or illegality of the purpose/s for which the
Legal Clinic, Inc. was created should be passed upon
and determined, we are constrained to refrain from
lapsing into an obiter on that aspect since it is clearly
not within the adjudicative parameters of the present
proceeding which is merely administrative in nature.
It is, of course, imperative that this matter be
promptly determined, albeit in a different proceeding
and forum, since, under the present state of our law
and jurisprudence, a corporation cannot be organized
for or engage in the practice of law in this country.
This interdiction, just like the rule against unethical
advertising, cannot be subverted by employing some
so-called paralegals supposedly rendering the
alleged support services.
The remedy for the apparent breach of this
prohibition by respondent is the concern and province
of the Solicitor General who can institute the
corresponding quo warranto action, 50 after due
ascertainment of the factual background and basis
for the grant of respondent's corporate charter, in
light of the putative misuse thereof. That spin-off from
the instant bar matter is referred to the Solicitor
General for such action as may be necessary under
the circumstances.
ACCORDINGLY, the Court Resolved to RESTRAIN
and ENJOIN herein respondent, The Legal Clinic,
Inc., from issuing or causing the publication or
dissemination of any advertisement in any form which
is of the same or similar tenor and purpose as
Annexes "A" and "B" of this petition, and from
conducting, directly or indirectly, any activity,
operation or transaction proscribed by law or the
Code of Professional Ethics as indicated herein. Let
copies of this resolution be furnished the Integrated
Bar of the Philippines, the Office of the Bar Confidant
and the Office of the Solicitor General for appropriate
action in accordance herewith.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-
Aquino, Davide, Jr., Romero, Nocon, Bellosillo, Melo
and Quiason, JJ., concur
Xxxxxxxxxxx
PRACTICE OF LAW
Rule 138, Section 1. Who may practice law -
Any person heretofore duly admitted as a member of
the bar, or hereafter admitted as such in accordance
with the provisions of this rule, and who is in good
and regular standing, is entitled to practice law.
Concept of the Practice of Law
Generally, to engage in the practice is to do any
of those acts which are characteristic of the legal
profession (In re: David, 93 Phil. 46). It covers any
activity, in or out of court, which requires the
application of law, legal principles, practice or
procedure and calls for legal knowledge, training and
experience (PLA vs. Agrava, 105 Phil. 173).
Cayetano vs. Monsod, 201 SCRA 210
***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 legal
profession. Generally, to practice law is to give notice
or render any kind of service, which devise or service
requires the use, in any degree, of legal knowledge
or skill.
People vs. Villanueva, 14 SCRA 111
***Strictly speaking, the word practice of law implies
the customary or habitual holding of oneself to the
public as a lawyer and demanding compensation for
his services.
***Private practice in more than an isolated
appearance for it consist of frequent customary
actions, a succession of acts of the same kind.
An isolated appearance may, however, amount to
practice in relation to the rule prohibiting some
persons from engaging in the exercise of the legal
profession.
Ulep vs. Legal Clinic Inc. 223 SCRA 378 (1993)
***In the practice of his profession, a licensed
attorney-at-law generally engages in three principal
types of professional activities:
1. legal advice and instructions to clients to inform
them of their rights and obligations
2. preparation for clients of documents requiring
knowledge of legal principles not possessed by
ordinary layman; and
3. appearance for clients before public tribunals
which possess power and authority to determine
rights of life, liberty and property according to law, in
order to assist in the proper interpretation and
enforcement of law.
***Essential criteria enumerated by the C.A. as
determinative of engaging in the practice of law:
1)Habituality
2)Compensation
3)Application of law, legal principle, practice, or
procedure
4)Attorney-Client relationship
Non-Lawyers authorized to appear in court:
1. In cases before the MTC, a party may conduct
his case or litigation in person, with the aid of an
agent or friend appointed by him for that
purpose (Sec. 34, Rule 138, RRC).
Before any other court, a party may conduct his
litigation personally (Ibid)
In a criminal case before the MTC in a locality where
a duly licensed member of the Bar is not available,
the judge may appoint a non-lawyer who is
resident of the province, and
of good repute for probity and ability to aid the
accused in his defense (Rule 116, Sec. 7, RRC)
A senior law student, who is enrolled in a recognized
law schools clinical education program approved by
the Supreme Court may appear before any court
without compensation, to represent indigent clients
accepted by the Legal Clinic of the law school. The
student shall be under the direct supervision and
control of an IBP member duly accredited by the law
school.
Under the Labor Code, non-lawyers may appear
before the NLRC or any Labor Arbiter, if (1) they
represent themselves, or if (2) they represent their
organization or members thereof (Art. 222, PO442,
as amended).
Under the Cadastral Act, a non-lawyer can represent
a claimant before the Cadastral Court (Act No. 2259,
Sec. 9).
Any person appointed to appear for the government
of the Phil. in accordance with law (Sec. 33 Rule
138).
Limitations of Appearance of non-lawyers
1. He should confine his work to non-adversary
contentions.
He should not undertake purely legal work, such as
the examination or cross-examination of witnesses,
or the presentation of evidence.
Services should not be habitually rendered.
Should not charge or collect attorneys fees (PAFLU
vs. Binalbagan Isabela Sugar Co. 42 SCRA 302
Q. A and B who are law students entered their
appearances before the Municipal Court as
private prosecutors in a criminal case. This
was disallowed by the trial judge. Is this
correct?
A. NO. A non-lawyer may appear as a friend of
the party before the Municipal Courts under
Section 34, Rule 138 Rules of Court; he may
make such appearances either as defense
counsel or private prosecutor under the control
and supervision of the fiscal. The permission of
the fiscal is not necessary for the appearance
of a private prosecutor, although if he so
wishes, the fiscal may disallow participation in
the trial by handling the case
personally. (Catimbuhan, et al. vs. Hon. Cruz,
G.R. No. 51813-14, Nov.29, 1983)
Public Officials who cannot engage in the private
practice of law in the Philippines:
1. Judges and other officials as employees of the
Superior Court (Rule 148, Sec. 35, RRC).
Officials and employees of the OSG (Ibid).
Government prosecutors (Peo v. Villanueva, 14
SCRA 109).
- if permitted by their department head should only be
in isolated cases
involving relatives or close family friends
President, Vice-President, members of the cabinet,
their deputies and assistants, (Art. VIII Sec. 15, 1987
Constitution).
Chairmen and Members of the Constitutional
Commissions (Art. IX-A, Sec. 2, 1987 Constitution).
Ombudsman and his deputies (Art. IX, Sec. 8
(2nd par.), 1987 Constitution).
prohibited from appearing as counsel before any
All governors, city and municipal mayors (R.A. No.
7160, Sec. 90).
Those who, by special law, are prohibited from
engaging in the practice of their legal profession
Q. Can a civil service employee engage in the
private practice of law?
A. A civil service officer or employee whose duty
or responsibility does not require his entire
time to be at the disposal of the government
may not engage in private practice of law
without the written permit from the head of the
department concerned. However, government
officials who by express mandate of the law
are prohibited from practicing law may not,
even with the consent of the department head,
engage in the practice of law. If so authorized
by the department head, he may, in an isolated
case, act as counsel for a relative or close
family friend.
A government official forbidden to
practice law may be held criminally liable for
doing so. An officer or employee of the civil
service who, as a lawyer, engages in the
private practice of law without a written permit
from the department head concerned may be
held administratively liable therefor.
Q. The City of Manila hired the services of Atty.
Bautista of the ABC Law Offices to represent it
in case pending before the RTC. Can Atty.
Bautista validly represent it?
A. NO. A local government unit could not hire a
private attorney to represent. The provisions of
Sec. 1683 complemented by Sec. 3 of the
Local Autonomy Law, is clear in providing that
only the provincial prosecutor and the
municipal attorney can represent a province or
municipality. The provision is mandatory. The
municipalitys authority to employ a private
lawyer is expressly limited only to situations
where the provincial prosecutor is disqualified
to represent it, as when he represents that
province against a municipality.
Public Officials with Restrictions in the Practice of
Law:
Senators and members of the House of
Representatives
Members of the Sanggunian
Retired Justice or judge
Civil service officers or employees without permit
from their respective department heads (Noriega vs.
Sison 125 SCRA 293)
Restrictions in the Practice of Law of Members of the
Legislature
No senator or member of the House of
Representatives may personally appear as counsel
before any courts of justice or before the Electoral
Tribunals, or quasi-judicial and other administration
bodies xxx(Art. VI, Sec. 14, 1987 Constitution).
A lawyer-member of the legislature is only
court of justice, electoral tribunals or quasi-judicial
and administrative bodies
The word appearance includes not only arguing
a case before any such body but also filing a
pleading in behalf of a client as by simply filing a
formal motion, plea or answer. (Ramos vs. Manalac,
89 PHIL. 270)
Neither can he allow his name to appear in such
pleading by itself or as part of firm name under the
signature of another qualified lawyer because the
signature of an agent amounts to signing of a non-
qualified senator or congressman, the office of an
attorney being originally an agency, and because he
will, by such act, be appearing in court or quasi-
judicial or administrative body in violation of the
constitutional restriction. He cannot do indirectly
what the Constitution prohibits directly. (In re: David
93 PHIL. 461)
Restrictions in the practice of law of members of the
Sanngunian
Under the Local Government Code (R.A. 7180, Sec.
90), Sanggunian members may practice their
professions provided that if they are members of the
Bar, they shall not:
appear as counsel before any court in any civil case
wherein a local government unit or any unit, agency,
or instrumentality of the government is the adverse
party;
appear as counsel in any criminal case wherein an
officer or employee of the national or local
government is accused of an offense committed in
relation to his office;
collect any fee for their appearance in administrative
proceedings involving the local government unit of
which he is an official; and
use property and personnel of the Government
except when the Sanggunian member concerned is
defending the interest of the government.
Restrictions in the practice of law of members of the
Judiciary
Under RA 910, Sec. 1, as amended, a retired justice
or judge receiving a pension from the government,
cannot act as counsel in any civil case in which the
Government, or any of its subdivision or agencies in
the adverse party or in criminal case wherein an
officer or employee of the Government is accused of
an offense in relation to his office.
Remedies Against Unauthorized Practice
Petition for Injunction
Declaratory Relief
Contempt of Court
Disqualification and complaints for disbarment
Criminal complaint for estafa who falsely represented
to be an attorney to the damage party

Alawi vs. Alauya, A.M. SDC-97-2-P, February 24,

1997
Q. Are persons who pass the Sharia Bar
members of the Philippine Bar?

A. Persons who pass the Sharia Bar are not full-

fledged members of the Philippine Bar, hence
may only practice before the Sharia courts.
They are also not entitled to use the title
attorney as such is reserved to those who,
having obtained the necessary degree in the
study of law and successfully taken the Bar
Examinations, have been admitted to the
Integrated Bar of the Philippines and remain
members thereof in good standing

Q. Does scrivening constitute practice of law?

A. NO. Scrivening or the filling of blanks in a

standard or stereotyped forms which involves
pure clerical work without need for any legal
interpretation. This is not practice of law.

In re: Joaquin, 241 SCRA 405

Appearance in propia persona is appearance
in court by a non-lawyer for himself without the
assistance of a member of the Bar. This is
sometimes referred to as pro se practice

While pro se practice is allowed, it is not

advisable to do so. Court proceedings are full of
technical pitfalls that may entrap a person
unschooled in substantive and procedural law.