Cruz v.

Mina, 522 SCRA 387

FACTS:
Ferdinand A. Cruz filed before the MeTC a formal Entry of Appearance,
as private prosecutor, in a criminal case for grave threats, where his
father, Mariano Cruz, is the complaining witness. Cruz, describing
himself as a third year law student, justifies his appearance as
private prosecutor on the bases of Section 34 of Rule 138 and the
ruling of the Court in Cantimbuhan v. Judge Cruz, Jr. that a nonlawyer may appear before the inferior courts as an agent or friend of
a party litigant. He also said that his appearance was with the prior
conformity of the public prosecutor and a written authority of Mariano
Cruz appointing him to be his agent in the prosecution of the said
criminal case.
The MeTC denied Cruz permission to appear as private prosecutor on the
ground that Circular No. 19 governing limited law student practice in
conjunction with Rule 138-A (Law Student Practice Rule) should take
precedence over the ruling of the Court laid down in Cantimbuhan.

Cruz filed before the RTC a Petition for Certiorari and Mandamus with
Prayer for Preliminary Injunction and Temporary Restraining Order
against the private respondent and the MeTC. RTC denied the petition.

MeTC and RTC contend that the Law Student Practice Rule (Rule 138-A)
prohibits Cruz, as a law student, from entering his appearance in
behalf of his father in the criminal case without the supervision of
an attorney duly accredited by the law school.

ISSUE:
Whether Cruz may appear before the MeTC as an agent or friend of a
party litigant.

HELD: Yes. Petition granted.

RATIO:
In a Resolution dated June 10, 1997 in Bar Matter No. 730, the Court
En Banc clarified that the application of Rule 138-A is different if
the law student appears before an inferior court, where the issues and
procedure are relatively simple. In inferior courts, a law student may
appear in his personal capacity without the supervision of a lawyer.
Section 34, Rule 138 provides:

Sec. 34. By whom litigation is conducted. - In the

court of a justice of the peace, a party may conduct
his litigation in person, with the aid of an agent or
friend appointed by him for that purpose, or with the
aid of an attorney. In any other court, a party may
conduct his litigation personally or by aid of an
attorney, and his appearance must be either personal
or by a duly authorized member of the bar.
Thus, a law student may appear before an inferior court as an agent or
friend of a party without the supervision of a member of the bar.
There is really no problem as to the application of Section 34 of Rule
138 and Rule 138-A. In the former, the appearance of a non-lawyer, as
an agent or friend of a party litigant, is expressly allowed, while
the latter rule provides for conditions when a law student, not as an
agent or a friend of a party litigant, may appear before the courts.
Cruz expressly anchored his appearance on Rule 138 Sec. 34. The court
a quo must have been confused by the fact that petitioner referred to
himself as a law student in his entry of appearance. Rule 138-A should
not have been used by the courts a quo in denying permission to act as
private prosecutor against petitioner for the simple reason that Rule
138-A is not the basis for the petitioners appearance.

PEOPLE V. SIM BEN, 98. PHIL. 138

FACTS:

TAN VS. BALAJADIA,

FACTS:
Petitioners
alleged
that
respondent
filed
a
criminal case against them with the Office of the City
of Prosecutor for
usurpation
of
authority,
grave
coercion and violation of city tax ordinance due to the
alleged
illegal
collection
of
parking
fees
by
petitioners from respondent. In paragraph 5 of the
complaint-affidavit, respondent asserted that he is a

practicing lawyer based in Baguio City with office

address at Room B-207, 2/F Lopez Building, Session
Road, Baguio City. However, certifications issued by
the Office of the Bar Confidant and the Integrated Bar
of the Philippines showed that respondent has never
been admitted to the Philippine Bar. Hence, petitioners
claim that respondent is liable for indirect contempt
for misrepresenting himself as a lawyer.
In
his
Comment, respondent
avers
that
the
allegation in paragraph 5 of the complaint-affidavit
that he is a practicing lawyer was an honest
mistake. He claims that the secretary of Atty. Paterno
Aquino prepared the subject complaint-affidavit which
was patterned after Atty. Aquinos complaint-affidavit.
It appears that Atty. Aquino had previously filed a
complaint-affidavit against petitioners involving the
same subject matter.
Liza Laconsay, Atty. Aquinos secretary, executed an
affidavit admitting the mistake in the preparation of
the complaint-affidavit. Respondent alleged that he did
not read the complaint-affidavit because he assumed
that the two complaint-affidavits contained the same
allegations with respect to his occupation and office
address. Respondent claims that he had no intention of
misrepresenting himself as a practicing lawyer.
ISSUE:
Whether respondent is liable for indirect contempt.
HELD:
NO.
Section
provides:

3(e),

Rule

71

of

the

Rules

of

Court

Section 3. Indirect contempt to be punished after

charge and hearing. After a charge in writing has been
filed, and an opportunity given to the respondent to
comment thereon within such period as may be fixed by
the court and to be heard by himself or counsel, a
person guilty of any of the following acts may be
punished for indirect contempt:
x x x x

(e) Assuming to be an attorney or an officer

of
a
court,
and
acting
as
such
without
authority;
x x x x.

In
several
cases, we
have
ruled
that
the
unauthorized practice of law by assuming to be an
attorney
and
acting
as
such
without
authority
constitutes indirect contempt which is punishable by
fine or imprisonment or both. The liability for the
unauthorized practice of law under Section 3(e), Rule
71 of the Rules of Court is in the nature of criminal
contempt and the acts are punished because they are an
affront to the dignity and authority of the court, and
obstruct the orderly administration of justice.
In the case at bar, a review of the records
supports respondents claim that he never intended to
project himself as a lawyer to the public. It was a
clear inadvertence on the part of the secretary of Atty
Aquino. The affidavit of Liza Laconsay attesting to the
circumstances that gave rise to the mistake in the
drafting of the complaint-affidavit conforms to the
documentary evidence on record. Taken together, these
circumstances show that the allegation in paragraph 5
of respondents complaint-affidavit was, indeed, the
result of inadvertence.

Further, no evidence was presented to show that

respondent acted as an attorney or that he intended to
practice law. Consequently, he cannot be made liable
for indirect contempt considering his lack of intent to
illegally practice law.
IN RE: DAVID, 93 Phil. 461 (1958)
Respondent David, a member of the 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.
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 report that
respondent, instead of welcoming every opportunity for
hearing, seems to have wanted to avoid it.
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
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.
SANTAYANA VS. ALAMPAY
FACTS:

A verified complaint for disbarment was filed by Jesus

E. Santayana against Atty. Eliseo B. Alampay for
malpractice and violation of the Attorneys Oath.
Santayana alleged in his complaint that respondent
lawyer is a member of the Board of Administrators of the
National
Electrification
Administration
(NEA),
a
government-owned and controlled corporation (GOCC). The
laws provide that NEA shall be represented in all
judicial proceedings by the following legal counsel: (1)
the Office of the Government Corporate Counsel (OGCC);
(2) the Chief or any lawyer of the NEA Legal Division;
and (3) the Office of the Solicitor General (OSG).
Under Memorandum Circular No. 9 issued by the Office of
the President, the GOCCs are barred from hiring private
lawyers or law firms to represent them in law suits and
to handle their legal matters, except in exceptional
circumstances
with
the
written
conformity
of
the
Solicitor General or Government Corporate Counsel. This
conformity shall be with the written concurrence of the
Commission on Audit.
The petitioner further alleged that NEA is tasked with
the implementation of the governments foreign-funded
Rural Electrification Program. One of the components of
this Program is the IPB 80 Project requiring NEA to
purchase, through public bidding, 60,000 pieces of wooden
poles and 20,000 pieces of cross arms to be used in the
rural electric distribution network.
In 1999, NEA conducted a public bidding for the
purchase of poles and cross arms. In December 2000,
Nerwin Industries Corporation (Nerwin) was declared the
lowest bidder. Hence, the NEA Board of Administrators
passed Resolution No. 32 approving the award to Nerwin of
fifty percent (50%) of the IPB 80 project requirements.
However, NEA disqualified Nerwin and instead granted
the
award
to
a
losing
bidder.
Seeking
a
legal

justification for its action, NEA twice asked the opinion

of the OGCC. In both instances, the OGCC pointed out that
NEAs action is in violation of the law.
Respondent,
despite
his
knowledge
that
NEA
is
represented by legal counsel specifically provided by
law, had his law firm Alampay, Gatchalian, Mawis &
Alampay rendered a legal opinion adverse to that of the
OGCC. As a result, NEA nullified the award to Nerwin,
prompting the latter to file with the Regional Trial
Court (RTC), Branch 36, Manila a complaint for specific
performance,
injunction,
and
damages
against
NEA,
docketed as Civil Case No. 01-102000.
Respondents law firm entered its appearance as counsel
for NEA in Civil Case No. 01-10200. Nerwin filed a motion
for the disqualification of respondents law firm as
counsel for NEA. This was opposed by respondent.
RTC issued an Order disqualifying respondents law firm
from appearing as counsel for NEA.
Complainant thus charged respondent with: (1) violation
of Section 20(a) of Rule 138 of the Revised Rules of
Court by usurping for himself and his law firm the
authority of the legal counsel of NEA; (2) malpractice
and violation of Section 27 of Rule 138, by willfully
appearing, without lawful authority, as NEAs counsel on
record in Civil Case No. 01-102000; (3) malpractice by
rendering a legal opinion for NEA without authority; and
(4) violation of the Attorneys Oath by appearing as
counsel for NEA just to delay, injure, and damage the
rights of Nerwin.

Subsequently, the high court issued a Resolution

referring the instant case to the Integrated Bar of the
Philippines
(IBP)
for
investigation,
report,
and
recommendation.

In her Report and Recommendation dated February 24,

2004, IBP Commissioner Milagros V. San Juan found that
respondent violated Canon 1 of the Code of Professional
Responsibility and Rule 1.02 of the same Canon and
recommended that said respondent be reprimanded and
warned.
The IBP Board of Governors passed Resolution adopting
and
approving
the
Report
and
Recommendation
of
Commissioner San Juan.

ISSUE:
W/N the Resolution of the IBP is correct.
HELD: YES.
Section 10, Chapter 3, Title III,
Administrative Code of 1987 provides:

Book

IV

of

the

SEC. 10. Office of the Government Corporate Counsel. The

Office of the Government Corporate Counsel (OGCC) shall
act as the principal law office of all government-owned
or controlled corporations, their subsidiaries, other
corporate offspring and government acquired asset
corporations and shall exercise control and supervision
over all legal departments or divisions maintained
separately and such powers and functions as are now or
may hereafter be provided by law. In the exercise of such
control and supervision, the Government Corporate Counsel
shall promulgate rules and regulations to effectively
implement the objectives of this Office.
The above provision lays down the rule that with
respect to GOCCs, their principal counsel shall be the
OGCC. Corollarily, Section 61 of Presidential Decree No.
269, the charter of the NEA, provides:

SEC. 61. NEA Counsel. The Chief of the legal division or

any other lawyer of the NEA shall represent the same in
all judicial proceedings. It shall be the duty of the
Solicitor General to represent NEA in any judicial
proceedings if, for special reasons, the administrators
shall request his intervention.
Section 61 of the NEA Charter must be construed as an
exception to the provision of the Administrative Code
quoted earlier. This is in accordance with the rule of
statutory construction that where two statutes are of
equal theoretical application to a particular case, the
one designed therefore specially should prevail.
[5]

Pertinent also is Memorandum Circular No. 9 issued by

the Office of the President on August 27, 1998 which
reads:
SEC. 1. All legal matters pertaining to government-owned
or controlled corporations, their subsidiaries, other
corporate offspring and government acquired asset
corporations (GOCCs) shall be exclusively referred to and
handled by the Office of the Government Corporate Counsel
(OGCC).
From all the foregoing legal provisions, it is evident
that
in
all
judicial
proceedings,
NEA
shall
be
represented by the chief or any attorney of its Legal
Division. However, for special reasons and where the NEA
Board of Administrators requests in writing, it shall be
the duty of the Solicitor General to represent NEA. NEA
can hire or employ a private lawyer or law firm only in
exceptional
cases
with
(1)
the
conformity
and
acquiescence in writing of the Solicitor General or the
OGCC; and (2) with the written concurrence of the
Commission on Audit.
We carefully examined Resolution No. 38 dated October
11, 2001 of the NEA Board of Administrators which
respondent claims is the source of his authority to

represent NEA in Civil Case No. 01-102000. Nothing

therein indicates that the written conformity of the
Solicitor General or the OGCC has been obtained nor is
there any written concurrence by the Commission on Audit.
Indeed, Resolution No. 38 is legally infirm. Hence, there
can be no other conclusion than that respondents law
firm, including himself, willfully appeared as counsel
for NEA in the said case without authority to do so.
Pertinent is Section 27, Rule 138 of the Revised Rules of
Court which provides:
SEC. 27. Disbarment or suspension of attorneys by Supreme
Court, grounds therefore. A member of the bar may be
disbarred or suspended from his office as attorney by the
Supreme Court for any deceit, malpractice, or other gross
misconduct in such office, grossly immoral conduct, or by
reason of his conviction of a crime involving moral
turpitude, or for any violation of the oath which is he
is required to take before admission to practice, for a
willful disobedience of any lawful order of a superior
court or for corruptly and willfully appearing as an
attorney for a party to a case without authority to do
so.The practice of soliciting cases at law for the
purpose of gain, either personally or through paid agents
or brokers, constitutes malpractice (Stress supplied).
However, there is no indication in the records that
respondent acted in bad faith. In fact, his law firms
services for NEA were pro bono.
WHEREFORE, Atty. Alampay is hereby FINED for appearing
as an attorney for a party to a case without authority to
do so and WARNED that a repetition of similar infraction
in the future shall be dealt with more severely.

OLAZO vs. JUSTICE TINGA (Ret.)

FACTS:

The complainant filed a sales application covering a

parcel of land situated in Barangay Lower Bicutan in the
Municipality of Taguig. The land was previously part of
Fort Andres Bonifacio that was segregated and declared
open for disposition pursuant to Proclamation No. 2476,
issued on January 7, 1986, and Proclamation No. 172,
issued on October 16, 1987.
To implement Proclamation No. 172, Memorandum No. 119 was
issued by then Executive Secretary Catalino Macaraig,
creating a Committee on Awards whose duty was to study,
evaluate, and make a recommendation on the applications
to purchase the lands declared open for disposition. The
Committee on Awards was headed by the Director of Lands
and the respondent was one of the Committee members, in
his official capacity as the Congressman of Taguig and
Pateros (from 1987 to 1998); the respondents district
includes the areas covered by the proclamations.
Violation of Rule 6.02: In the complaint, the complainant
claimed that the respondent abused his position as
Congressman and as a member of the Committee on Awards
when he unduly interfered with the complainants sales
application because of his personal interest over the
subject land when respondent exerted undue pressure and
influence over the complainants father, Miguel P. Olazo,
for the latter to contest the complainants sales
application and claim the subject land for himself. The
respondent prevailed upon Miguel Olazo to accept, on
various dates, sums of money as payment of the latters
alleged rights over the subject land. The complainant
further claimed that the respondent brokered the transfer
of rights of the subject land between Miguel Olazo and
Joseph Jeffrey Rodriguez, who is the nephew of the
respondents deceased wife. As a result, complainants

sales application was denied. The conveyance of rights to

Joseph Jeffrey Rodriguez and his sales application were
subsequently given due course by the DENR.
Violation of Rule 6.03: The second charge involves
another parcel of land within the proclaimed areas
belonging to Manuel Olazo, the complainants brother. The
respondent persuaded Miguel Olazo to direct Manuel to
convey his rights over the land to Joseph Jeffrey
Rodriguez. As a result of the respondents promptings,
the rights to the land were transferred to Joseph Jeffrey
Rodriguez. In addition, the complainant alleged that the
respondent met with Manuel for the purpose of nullifying
the conveyance of rights over the land to Joseph Jeffrey
Rodriguez. The complainant claimed that the respondent
wanted the rights over the land transferred to one
Rolando Olazo, the Barangay Chairman of Hagonoy, Taguig.
The respondent in this regard executed an Assurance where
he stated that he was the lawyer of Ramon Lee and Joseph
Jeffrey Rodriguez.
Violation of Rule 1.01: The complainant alleged that the
respondent engaged in unlawful conduct considering his
knowledge that Joseph Jeffrey Rodriguez was not a
qualified beneficiary under Memorandum No. 119. Joseph
Jeffrey Rodriguez is not a bona fide resident of the
proclaimed areas and does not qualify for an award. Thus,
the approval of his sales application by the Committee on
Awards amounted to a violation of the objectives of
Proclamation No. 172 and Memorandum No. 119.
The complainant also alleged that the respondent violated
Section 7(b)(2) of the Code of Conduct and Ethical
Standards for Public Officials and Employees or Republic
Act (R.A.) No. 6713 since he engaged in the practice of
law, within the one-year prohibition period, when he

appeared as a lawyer for Ramon Lee and Joseph Jeffrey

Rodriguez before the Committee on Awards.
In his Comment, the respondent claimed that the present
complaint is the third malicious charge filed against him
by the complainant. The first one was submitted before
the Judicial and Bar Council when he was nominated as an
Associate Justice of the Supreme Court; the second
complaint is now pending with the Office of the
Ombudsman, for alleged violation of Section 3(e) and (i)
of R.A. No. 3019, as amended.
ISSUE:
WON respondents actions constitute a breach of the
standard ethical conduct first, while the respondent was
still an elective public official and a member of the
Committee on Awards; and second, when he was no longer a
public official, but a private lawyer who represented a
client before the office he was previously connected
with.
RULING:
Generally, a lawyer who holds a government office may not
be disciplined as a member of the Bar for misconduct in
the discharge of his duties as a government official. He
may be disciplined by this Court as a member of the Bar
only when his misconduct also constitutes a violation of
his oath as a lawyer. After a careful evaluation of the
pleadings filed by both parties and their respective
pieces
of
evidence,
we
resolve
to
dismiss
the
administrative complaint.
Accountability of a government lawyer in public office

The first charge involves a violation of Rule 6.02 of the

Code of Professional Responsibility. It imposes the
following restrictions in the conduct of a government
lawyer: A lawyer in the government service shall not use
his public position to promote or advance his private
interests, nor allow the latter to interfere with his
public duties.
The above provision prohibits a lawyer from using his or
her public position to: (1) promote private interests;
(2) advance private interests; or (3) allow private
interest to interfere with his or her public duties. We
previously held that the restriction extends to all
government lawyers who use their public offices to
promote their private interests.
In Huyssen v. Gutierrez, we defined promotion of private
interest to include soliciting gifts or anything of
monetary value in any transaction requiring the approval
of his or her office, or may be affected by the functions
of his or her office. In Ali v. Bubong, we recognized
that private interest is not limited to direct interest,
but extends to advancing the interest of relatives. We
also ruled that private interest interferes with public
duty when the respondent uses the office and his or her
knowledge of the intricacies of the law to benefit
relatives. In Vitriolo v. Dasig, we found the act of the
respondent (an official of the Commission on Higher
Education)
of
extorting
money
from
persons
with
applications or requests pending before her office to be
a serious breach of Rule 6.02 of the Code of Professional
Responsibility. We reached the same conclusion in
Huyssen, where we found the respondent (an employee of
the Bureau of Immigration and Deportation) liable under
Rule 6.02 of the Code of Professional Responsibility,
based on the evidence showing that he demanded money from

the complainant who had a pending application for visas

before his office. Similarly, in Igoy v. Soriano we found
the respondent (a Court Attorney of this Court) liable
for violating Rule 6.02 of the Code of Professional
Responsibility, after considering the evidence showing
that he demanded and received money from the complainant
who had a pending case before this Court.
Applying these legal precepts to the facts of the case,
we find the absence of any concrete proof that the
respondent abused his position as a Congressman and as a
member of the Committee on Awards in the manner defined
under
Rule
6.02
of
the
Code
of
Professional
Responsibility.
First,
the
records
do
not
clearly
show
if
the
complainants sales application was ever brought before
the Committee on Awards. Complainant filed a sales
application in March 1990 before LMB. By 1996, the
complainants sales application was pending before the
Office of the Regional Director, NCR of the DENR due to
the
conflicting
claims
of
Miguel
Olazo,
and,
subsequently, of Joseph Jeffrey Rodriguez. The records
show that it was only on August 2, 2000 that the Office
of the Regional Director, NCR of the DENR rendered its
decision, or after the term of the respondents elective
public office and membership to the Committee on Awards,
which expired in 1997.These circumstances do not show
that the respondent did in any way promote, advance or
use his private interests in the discharge of his
official duties. Since the sales application was not
brought
before
the
Committee
on
Awards
when
the
respondent was still a member, no sufficient basis exists
to conclude that he used his position to obtain personal
benefits. We note in this regard that the denial of the

complainants sales application over the subject land was

made by the DENR, not by the Committee on Awards.
Second, the complainants allegation that the respondent
orchestrated the efforts to get the subject land does not
specify how the orchestration was undertaken.
Third, the other documents executed by Miguel Olazo, that
the complainant presented to support his claim that the
respondent exerted undue pressure and influence over his
father, do not contain any reference to the alleged
pressure or force exerted by the respondent over Miguel
Olazo. The documents merely showed that the respondent
helped Miguel Olazo in having his farm lots (covered by
the proclaimed areas) surveyed. They also showed that the
respondent merely acted as a witness in the Sinumpaang
Salaysay dated July 17, 1996.
In
turn,
the
respondent
was
able
to
provide
a
satisfactory explanation. The affidavit of Joseph Jeffrey
Rodriguez further corroborated the respondents claim that
the latters involvement was limited to being paid the
loans he gave to Miguel Olazo and Francisca Olazo.
According to Joseph Jeffrey Rodriguez, he and Miguel
Olazo agreed that a portion of the loan would be directly
paid by Joseph Jeffrey Rodriguez to the respondent and
the amount paid would be considered as part of the
purchase price of the subject land.
It also bears stressing that a facial comparison of the
documentary evidence, specifically the dates when the
sums of money were extended by the respondent on February
21, 1995, September 2, 1995 and October 17, 1995, and the
date when the Deed of Conveyance[27] over the subject
land was executed or on October 25, 1995, showed that the
sums of money were extended prior to the transfer of

rights over the subject land. These pieces of evidence

are consistent with the respondents allegation that
Miguel Olazo decided to sell his rights over the subject
land to pay the loans he obtained from the respondent
and, also, to finance his continuing medical treatment.
Private
office

practice

of

law

after

separation

from

public

As proof that the respondent was engaged in an

unauthorized practice of law after his separation from
the government service, the complainant presented the
Sinumpaang Salaysay, dated January 20, 2000, of Manuel
and the document entitled Assurance where the respondent
legally
represented
Ramon
Lee
and
Joseph
Jeffrey
Rodriguez. Nevertheless, the foregoing pieces of evidence
fail to persuade us to conclude that there was a
violation of Rule 6.03 of the Code of Professional
Responsibility.
In Cayetano v. Monsod,[28] we defined the practice of law
as any activity, in and out of court, that requires the
application of law, legal procedure, knowledge, training
and experience. Moreover, we ruled that to engage in the
practice of law is to perform those acts which are
characteristics of the profession; to practice law is to
give notice or render any kind of service, which device
or service requires the use in any degree of legal
knowledge or skill.
Under the circumstances, the foregoing definition should
be correlated with R.A. No. 6713 and Rule 6.03 of the
Code of Professional Responsibility which impose certain
restrictions on government lawyers to engage in private
practice after their separation from the service.
Section 7(b)(2) of R.A. No. 6713 reads:

Section 7. Prohibited Acts and Transactions. In addition

to acts and
omissions
of
public
officials
and
employees
now
prescribed in the Constitution and existing laws, the
following
shall
constitute
prohibited
acts
and
transactions of any public official and employee and are
hereby declared to be unlawful:
x x x x
(b) Outside employment and other activities related
thereto. Public officials and employees during their
incumbency shall not:
x x x x
(2) Engage in the private practice of their profession
unless authorized by the Constitution or law, provided,
that such practice will not conflict or tend to conflict
with their official functions; x x x
These prohibitions shall continue to apply for a period
of one (1) year after resignation, retirement, or
separation from public office, except in the case of
subparagraph
(b)
(2)
above,
but
the
professional
concerned cannot practice his profession in connection
with any matter before the office he used to be with, in
which case the one-year prohibition shall likewise apply.

As a rule, government lawyers are not allowed to engage

in the private practice of their profession during their
incumbency.[29] By way of exception, a government lawyer
can engage in the practice of his or her profession under
the following conditions: first, the private practice is
authorized by the Constitution or by the law; and second,
the practice will not conflict or tend to conflict with

his or her official functions.[30] The last paragraph of

Section 7 provides an exception to the exception. In case
of lawyers separated from the government service who are
covered under subparagraph (b) (2) of Section 7 of R.A.
No. 6713, a one-year prohibition is imposed to practice
law in connection with any matter before the office he
used to be with.
Rule 6.03 of the Code of Professional Responsibility
echoes this restriction and prohibits lawyers, after
leaving the government service, to accept engagement or
employment in connection with any matter in which he had
intervened while in the said service. The keyword in Rule
6.03 of the Code of Professional Responsibility is the
term intervene which we previously interpreted to include
an act of a person who has the power to influence the
proceedings.[31] Otherwise stated, to fall within the
ambit of Rule 6.03 of the Code of Professional
Responsibility,
the
respondent
must
have
accepted
engagement or employment in a matter which, by virtue of
his public office, he had previously exercised power to
influence the outcome of the proceedings.
As the records show, no evidence exists showing that the
respondent
previously
interfered
with
the
sales
application covering Manuels land when the former was
still a member of the Committee on Awards. The
complainant, too, failed to sufficiently establish that
the respondent was engaged in the practice of law. At
face value, the legal service rendered by the respondent
was limited only in the preparation of a single document.
In Borja, Sr. v. Sulyap, Inc.,[32] we specifically
described
private
practice
of
law
as
one
that
contemplates a succession of acts of the same nature
habitually or customarily holding ones self to the public
as a lawyer.

In any event, even granting that respondents act fell

within the definition of practice of law, the available
pieces of evidence are insufficient to show that the
legal representation was made before the Committee on
Awards, or that the Assurance was intended to be
presented
before
it.
These
are
matters
for
the
complainant
to
prove
and
we
cannot
consider
any
uncertainty in this regard against the respondents favor.
Violation of Rule 1.01
Rule 1.01 prohibits a lawyer from engaging in unlawful,
immoral or deceitful conduct. From the above discussion,
we already struck down the complainants allegation that
respondent engaged in an unauthorized practice of law
when he appeared as a lawyer for Ramon Lee and Joseph
Jeffrey Rodriguez before the Committee on Awards.
We find that a similar treatment should be given to the
complainants claim that the respondent violated paragraph
4(1)[33] of Memorandum No. 119 when he encouraged the
sales application of Joseph Jeffrey Rodriguez despite his
knowledge that his nephew was not a qualified applicant.
The matter of Joseph Jeffrey Rodriguezs qualifications to
apply for a sales application over lots covered by the
proclaimed areas has been resolved in the affirmative by
the Secretary of the DENR in the decision dated April 3,
2004,[34] when the DENR gave due course to his sales
application over the subject land. We are, at this point,
bound by this finding.
As pointed out by the respondent, the DENR decision was
affirmed by the Office of the President, the Court of
Appeals[35] and, finally, the Court, per our Minute
Resolution, dated October 11, 2006, in G.R. No. 173453.
In our Resolution, we dismissed the petition for review

on certiorari filed by the complainant after finding,

among others, that no reversible error was committed by
the Court of Appeals in its decision.[36]
All told, considering the serious consequences of the
penalty of disbarment or suspension of a member of the
Bar, the burden rests on the complainant to present
clear, convincing and satisfactory proof for the Court to
exercise its disciplinary powers.[37] The respondent
generally is under no obligation to prove his/her
defense,[38] until the burden shifts to him/her because
of what the complainant has proven. Where no case has in
the first place been proven, nothing has to be rebutted
in defense.[39]
With
this
in
mind,
we
resolve
to
dismiss
the
administrative case against the respondent for the
complainants failure to prove by clear and convincing
evidence that the former committed unethical infractions
warranting the exercise of the Courts disciplinary power.
WHEREFORE,
premises
considered,
we
DISMISS
the
administrative case for violation of Rule 6.02, Rule 6.03
and Rule 1.01 of the Code of Professional Responsibility,
filed against retired Supreme Court Associate Justice
Dante O. Tinga, for lack of merit.
PEOPLE VS. VILLANUEVA
FACTS:
The complainant in the case was represented by City
Attorney Ariston Fule of San Pablo City after securing
permission of the Secretary of Justice. The condition for
his appearance as such was that every time he would
appear at trial of the case he would be considered on
leave of absence and that he would not receive any

payment for his services. Such appearance was questioned

by herein respondents counsel.
ISSUE:
Whether or not Atty. Fule should be allowed to appear on
behalf of the complainant
HELD: The court ruled in the affirmative. The court held
that in appearing as private prosecutor in the case, the
isolated appearance of City Attorney Fule did not
constitute private practice within the meaning and
contemplation of the Rules. 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.
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 customarily and
demanding payment for such services. The appearance as
counsel
on
one
occasion
is
not
conclusive
as
determinative of engagement in the private practice of
law. Essentially, the word private 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 a compensation, as a source of his livelihood
or in consideration of his said services. Furthermore
Atty. Fule was given the permission by his immediate
superior, the Secretary of Justice.
DOY MERCANTILE INC. VS. AMA COMPUTER COLLEGE
FACTS:

RILLORAZA, AFRICA, DE OCAMPO

TELECOMMUNICATIONS, PHILS., INC.

AND

AFRICA

vs.EASTERN

FACTS:
Eastern
Telecommunications,
Phils.,
Inc.
(ETPI)
represented by thelaw firm SAGA, filed with the Regional
Trial court a complaint for the recovery or revenue
shares against PLDT. Atty. Rilloraza, a partner of the
firm, appeared for ETPI.
After ETPI rested its case, it paid SAGA the billed
amount. The latter wasdissolved and the junior partners
formed RADA, which took over as counsel in the casefor
ETPI. ETPI signed a retainer agreement with counsel
wherein it was stated that incases of collection or
judicial action, our attorneys fees shall be 15% of the
amountscollected or the value of the property acquired or
liability saved. The retainer agreementwas terminated in
1988. the next day, RADA filed a notice of attorneys
lien. In its notice,RADA informed the court that there
were negotiations toward a compromise betweenETPI and
PLDT.In 1990, the parties arrived at an amicable
settlement and the same wasentered as a judgment. The
petitioner (RADA) filed a motion for the enforcement of
attorneys lien.
ISSUE:
Is RADA entitled to the awards of attorneys fees they
are claiming?
HELD:
RADA is entitled to attorneys fees but the Supreme Court
remanded thecase to the court of origin for the

determination of the amount of attorneys fees to

whichthe petitioner is entitled.Atty. Rilloraza handled
the case from its inception until ETPI terminated thelaw
firms
services
in
1988.
Petitioners
claim
for
attorneys fees hinges on two grounds:first, the fact
that Atty. Rilloraza personally handled the case when he
was working for SAGA, and second, the retainer agreement.
Whether there is an agreement or not, the courts shall
fix a reasonable compensation which lawyers may receive
for their professional services. A lawyer hasthe right
to be paid for the legal services he has extended to his
client, which compensation must be reasonable. A lawyer
would be entitled to receive what he merits for his
services. Otherwise stated, the amount must be determined
on a quantum meruit basis.
PEREZ VS. SCOTTISH UNION
FACTS:
Petitioner was seeking the payment of attorneys fees in
the criminal case of arson and other cases against
defendant, who had in a written contract, agreed to pay
the same out of the proceeds of a fire insurance policy
issued by defendant insurance company. Defendant Mitre
acknowledged the professional services rendered by Perez
but alleged that the agreement as to the payment of
attorneys fees out of the insurance proceeds was only a
simulation to bar other claims against the said policy.
The CFI of Albay rendered a judgment in favor Perez, from
which Mitre now appeals.
ISSUE:
Whether or not a written contract for services shall be
controlling.

HELD: Yes. Exhibit D should be given its full force and

effect. "A written contract for servicesshall control the
amount to be paid thereof unless found by the court to be
unconscionableor unreasonable." (Rule of Court 127,
section 22.) The arson case required several days of
trial. The gravity of the situation confronted by the
appellant after the rendition of the judgment of the
court of first instance is shown by the fact that he was
sentenced to undergo imprisonment for the period of from
ten to twelve years and to pay an indemnity of P101,115.
That the plaintiff had handled appellant's defense with
competence and success cannot be gainsaid, it being
enough to state that the appellant was acquitted in the
Court of Appeals before which the plaintiff orally
argued, in addition to a 78-page brief which had filed
therein. We are thus not prepared to rule that the amount
of P6,000 is excessive or unjust, especially because said
fee is in a sense contingent upon the acquittal of the
appellant, since no insurance money (P6,000 of which was
ceded to the plaintiff under Exhibit D) was of course
forthcoming if the fire which destroyed the insured
property
could
be
proven
to
have
resulted
from
incendiarism for which the appellant was criminally
liable.

AMALGAMATED LABORERS ASSOCIATION VS. CIR

FACTS:
Amalgamated Laborers Association won a case of unfair
labor practice against Binalbagan Sugar Central Company,
Inc. (Biscom). Upon motion of the complainants, CIR sent
the Chief Examiner to go to Biscom and compute the
backwages. Total net backwages amounted to P79,755.22.
Appeals were made against this decision. In the interim,
Atty. Leonardo C. Fernandez (herein respondent), in the

same case, filed a Notice of Attorneys Lien over the

amount to be awarded. He alleged therein that he had been
the attorney of record for the said case since the
inception of the preliminary hearings of said case up to
the Supreme Court in Appeal, as chief counsel. He claimed
that the labourers have voluntarily agreed to give him as
attorneys fees on contingent basis 25% of the award. He
further averred that this is already a discounted fee out
of the plea of the unions president to reduce it from
30% for them to also satisfy Atty. Jose Ur Carbonell.
Meanwhile, CIR decided the appeals still in favour of the
petitioners and ordered Biscom to deposit the amount
representing 25% of P79,755.22 with the cashier of the
court to be awarded and granted to Atty. Fernandez. Atty.
Carbonell and ALA appealed from the decision contending
that 1) CIR is bereft of jurisdiction to adjudicate
contractual disputes over attorneys fees averring that a
dispute arising from contracts for attorneys fees is not
a labor dispute and is not one among the cases ruled to
be within CIRs authority and to consider such a dispute
to be a mere incident to a case over which CIR may
validly assume jurisdiction is to disregard the special
and limited nature of said courts jurisdiction; 2) the
award of 25% as attorneys fees to Atty. Fernandez is
excessive, unfair
and
illegal.
This
and
a
subsequent
motion
for
reconsideration was denied. Hence, this petition.
ISSUES:
1. Is CIR bereft of jurisdiction over the claim for
attorneys fees?
2. Is 25% of the award a reasonable attorneys fee?
RULING:

1. No. Court may be expressly granted the incidental powers

necessary to effectuate its jurisdiction. In the absence
of such express grant, and in the absence of prohibitive
legislation, it shall also be impliedly granted. In the
case at bench, to direct that the present dispute be
lodged in another court as petitioners advocate would
only result in multiplicity of suits, a situation
abhorred by the rule. Since the court of Industrial
Relations obviously had the jurisdiction over the main
cases, it likewise had jurisdiction to consider and
decide all matters collateral thereto, such as claims for
attorneys fees made by the members of the bar who
appeared therein.
2. Yes. An examination of the record of the case will
readily show that an award of 25% attorneys fees
reasonably compensates the whole legal services rendered
in the case. This must however be shared by petitioner
Atty. Carbonell and respondent Atty. Fernandez. After
all, they are the counsel of record of the complainants.
Though common effort is presumed, the rightful shares of
both must be ascertained. As such, the case has been
remanded to the CIR for the sole determination of shares.

OTHER IMPORTANT POINTS:

Canon 34 of Legal Ethics condemns the arrangement wherein
union presidents should share in
the attorneys fees. No division of fees for legal
services is proper, except with another lawyer,
based upon a division of service and responsibility. The
union president is not the attorney for the labourers. He
may seek compensation only as union president.

A contingent fee contract specifying the percentage of

recovery an attorney is to receive in a suit should be
reasonable under all circumstances of the case, but
should always be subject to the supervision of a court,
as to its reasonableness.