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Lawyers in government service; conflict of interest, C3S21 CPRA

Section 21, Canon III

SECTION 21. Lawyers in government service; conflict of interest. –  A lawyer currently serving in the government shall not practice law privately, unless otherwise authorized by the Constitution, the law or applicable Civil Service rules and regulations. If allowed, private practice shall be upon the express authority of the lawyer’s superior, for a stated specified purpose or engagement, and only during an approved leave of absence. However, the lawyer shall not represent an interest adverse to the government. (2023 Code of Professional Responsibility and Accountability or CPRA)

1. Lawyers in government service; conflict of interest

a. No private law practice

Under this section, lawyers in government service are prohibited from private law practice.

[The Supreme Court emphasizes that government lawyers are foremost public servants, and as such, when there is conflict involving one’s private practice of profession, the discharge of a government lawyer’s duties and functions must take precedence. (Cases v. Delani, A.C. No. 10730, A.C. No. 10730, July 28, 2020)

1) Exceptions

The prohibition is subject to the following exceptions:

1) Authorized by the Constitution;

2) Authorized by law or applicable Civil Service rules and regulations; or

3) Authorized by the Code of Conduct for Court Personnel.

Section 7 of R.A. No. 6713 [or the Code of Conduct and Ethical Standards for Public Officials and Employees] generally provides for the prohibited acts and transactions of public officials and employees. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. As an exception, a public official or employee can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict, or tend to conflict, with his or her official functions. (Query of Atty. Silverio-Buffe, En Banc, A.M. No. 08-6-352-RTC, August 19, 2009, Per Brion, J.)

The Section 7 prohibitions continue to apply for a period of one year after the public official or employee’s resignation, retirement, or separation from public office, except for the private practice of profession under subsection (b)(2), which can already be undertaken even within the one-year prohibition period. As an exception to this exception, the one-year prohibited period applies with respect to any matter before the office the public officer or employee used to work with. (Query of Atty. Silverio-Buffe [2009], supra.)

Section of R.A. No. 6713 prohibits public officials and employees from engaging in certain acts or entering into transactions. In particular, paragraph (b)(2) of said provision prohibits the engagement in he private practice of a profession. Such prohibition is grounded on the principle that public office is a public trust, and further serves to “promote the observance and the efficient

use of every moment of the prescribed office hours to serve the public.” (Cases v. Delani [2020], supra.)

The Section 7 prohibitions are predicated on the principle that public office is a public trust; and serve to remove any impropriety, real or imagined, which may occur in government transactions between a former government official or employee and his or her former colleagues, subordinates or superiors. The prohibitions also promote the observance and the efficient use of every moment of the prescribed office hours to serve the public. (Query of Atty. Silverio-Buffe [2009], supra.)

1) Authorized by the Constitution

Under the 1987 Constitution, the following lawyers are prohibited from engaging in private practice:

1) President

2) Vice-President

3) Members of the Cabinet

4) Deputies or Assistants of Members of Cabinet

5) Members of Constitutional Commissions

See: Section 13, Article VII – Executive Department, and Section 2, Article IX – Constitutional Commissions

Under the 1987 Constitution, the following lawyers are prohibited from personally appearing as counsel before any court of justice or before Electoral Tribunals, or quasi-judicial and other administrative bodies:

1) Senator

2) Member of the House of Representative

See: Section 13, Article VI – Legislative Department

2) Authorized by law or applicable Civil Service rules and regulations

R.A. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees

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; or
x 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.

Civil Service Resolution No. 99-1907

SEC. 18. Unless otherwise provided by law, no officer of employee shall engage directly or indirectly in any private business or profession without a written permission from the head of the agency. Provided that this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the government: provided further, that if an employee is granted permission to engage in outside activities, the time devoted outside of office hours should be fixed by the head of the agency so that it will not impair in any way the efficiency of the officer or employee nor pose a conflict or tend to conflict with the official functions. (CSC Resolution No. 99-1907, August 27, 1999)

Civil Service Rules

Section 12. No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of the Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government; Provided, further, That if an employee is granted permission to engage in outside activities, time so devoted outside of office hours should be fixed by the agency to the end that it will not impair in any way the efficiency of the officer or employee: And provided, finally, that no permission is necessary in the case of investments, made by an officer or employee, which do not involve real or apparent conflict between his private interests and public duties, or in any way influence him in the discharge of his duties, and he shall not take part in the management of the enterprise or become an officer of the board of directors. (Rule XVIII, Revised Civil Service Rules)

3) Code of Conduct for Court Personnel

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

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

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

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

(c) That outside employment does not require the practice of law; Provided, however, that court personnel may render services as professor, lecturer, or resource person in law schools, review or continuing education centers or similar institutions;

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

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

Where a conflict of interest exists, may reasonably appear to exist, or where the outside employment reflects adversely on the integrity of the Judiciary, the court personnel shall not accept outside employment… (Query of Atty. Silverio-Buffe [2009], supra.)

In both the above discussed aspect of R.A. No. 6713 and the quoted Canon 3, the practice of law is covered; the practice of law is a practice of profession, while Canon 3 specifically mentions any outside employment requiring the practice of law. In Cayetano v. Monsod,16 we defined the practice of law as any activity, in and out of court, that requires the application of law, legal procedure, knowledge, training and experience. Moreover, we ruled that to engage in the practice of law is to perform those acts which are characteristics of the profession; to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill.17 Under both provisions, a common objective is to avoid any conflict of interest on the part of the employee who may wittingly or unwittingly use confidential information acquired from his employment, or use his or her familiarity with court personnel still with the previous office. (Query of Atty. Silverio-Buffe [2009], supra.)

After separation from the service, Section 5, Canon 3 of the Code of Conduct for Court Personnel ceases to apply as it applies specifically to incumbents, but Section 7 and its subsection (b)(2) of R.A. No. 6713 continue to apply to the extent discussed above. Atty. Buffe’s situation falls under Section 7. (Query of Atty. Silverio-Buffe [2009], supra.)

Query of Atty. Silverio-Buffe, En Banc, A.M. No. 08-6-352-RTC, August 19, 2009, Per Brion, J.:

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

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

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

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

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

• Under the circumstances, we find that her actions merit a penalty of fine of ₱10,000.00, together with a stern warning to deter her from repeating her transgression and committing other acts of professional misconduct. This penalty reflects as well the Court’s sentiments on how seriously the retired, resigned or separated officers and employees of the Judiciary should regard and observe the prohibition against the practice of law with the office that they used to work with.

b. Express authority

Per the current section, if any of the above exceptions apply, and the lawyers are allowed to engage in private law practice, they are required to obtain “the express authority of the lawyer’s superior, for a stated specified purpose or engagement, and only during an approved leave of absence.”

[A] lawyer employed by the government may still engage in limited private practice unless there is total prohibition due to the nature of the government office where he/she is employed, his/her position in government, or other applicable statutes. To be allowed to engage in private practice, a government-employed lawyer must first secure a written permission to appear as counsel in a case pursuant to Civil Service Commission (CSC) Resolution No. 99-1907,61 issued on August 27, 1999. (Cruz v. Brul-Cruz, En Banc, A.C. No. 7121, Per Hernando, J.)

Cases v. Delani, A.C. No. 10730, A.C. No. 10730, July 28, 2020:

• In this case, it is undisputed that Atty. Delani was issued an Authority to Practice Profession on December 2, 2013, by the head of agency, the City Mayor, subject to the condition that “[i]t would not pose a conflict or tend to conflict with his official functions and duties to the City Gvernment.” This authority was granted every year thereafter. Fo this reason, Atty. Delani was authorized to engage in the private practice of his profession at the time he represented Dorothy’s husband.

• But whether such practice will not conflict or tend to conflict with the public official or employee’s official functions, the Court finds the explanation of Atty. Delani lacking in certain respects.

• Dorothy alleges that Atty. Delani entered his appearance as counsel in the following cases: (1) for her accused husband in the criminal case instituted for violation of R.A. No. 9262, or the Anti-Violence Against Women and Their Children Act; and (2) in the proceedings for the judicial declaration of separation of property likewise representing her husband. Likewise, Dorothy points out that Atty. Delani appeared as defense counsel for an accused charged with violating R.A. o. 9165, or the Comprehensive Dangerous Drugs Act of 2002, despite his designation as the Action Officer of the City Anti-Drug Abuse Council. Atty. Delani does not deny this, merely stating in his rejoinder that he has since withdrawn his appearance as counsel for the accused in said criminal case.

• It is apparent that Atty. Delani’ s appearance as counsel for Dorothy’s husband, in either criminal and civil case, does not conflict or tend to conflict with his functions as a City Legal Officer of Surigao City. These cases do not relate, even remotely, to the duties of Atty. Delani as a public officer. However, his representation of the accused in a criminal case involving violations of R.A. No. 9165 is a different matter. Atty. Delani himself made admissions that he is the Action Officer of the City Anti-Drug Abuse Council, which oversees the local government’s program against the proliferation of dangerous drugs. He also admits being part of the Barangay Anti-Drug Abuse

Council, which conducts an information campaign against the use and sale of illegal drugs.

• His representation, therefore, of an accused charged with violating R.A. o. 9165 is hardly consistent with these functions. This constitutes a violation of the explicit condition in the written

permission granted to him for the private practice of his profession. Thus, insofar as his appearance as counsel for said drug cases is concerned, Atty. Delani exceeded the bounds of his authority.

• Notably, the authority granted to Atty. Delani does not fix the amount of time he may utilize in this pursuit. Atty. Delani admits in several of his submissions to the IBP-CBD that his appearances in court are limited to twice a week. He asserts that this does not interfere with, the performance of his duties as City Legal Officer, which required him to work past regular office hours and in certain occasions, during the weekend. Atty. Delani also maintains that he has a private law office, and all court processes, issuances, and correspondence relating to his private practice are addressed to said office.

• While these court appearances are presumably made during regular office hours, the complainant failed to show that the volume of work in Atty. Delani’s private practice has substantially interfered with the discharge of his public functions. Further, the complainant was unable to establish that Atty. Delani devoted much of his time to court hearings thus impairing the performance of his official functions as Ci Legal Officer. There is also no showing that he used

government r sources to cater to his private practice. More importantly, the Court notes that Atty. Delani has already withdrawn his appearance las counsel for the cases in which Dorothy is a party, and for those involving violations of R.A. No. 9165.

b) No representing interest adverse to the government

Even if they are duly authorized and with express authority, government lawyers engaging in private law practice are prohibited from representing “an interest adverse to the government.”

In Javellana v. Department of Interior and Local Government, the petitioner was an incumbent City Councilor or member of the Sangguniang Panlungsod of Bago City. He was a lawyer by profession and had continuously engaged in the practice of law without securing authority from the Regional Director of the Department of Local Government. In 1989, the petitioner acted as counsel for Antonio Javiero and Rolando Catapang and filed a case for Illegal Dismissal and Reinstatement with Damages against Engr. Ernesto C. Divinagracia, City Engineer of Bago City. (Fajardo v. Alvarez, A.C. No. 9018, April 20, 2016, Per Leonen, J.)

Javellana v. DILG, En Banc, G.R. No. 102549, August 10, 1992, Per Griño-Aquino, J.:

• In the first place, complaints against public officers and employees relating or incidental to the performance of their duties are necessarily impressed with public interest for by express constitutional mandate, a public office is a public trust. The complaint for illegal dismissal filed by Javiero and Catapang against City Engineer Divinagracia is in effect a complaint against the City Government of Bago City, their real employer, of which petitioner Javellana is a councilman. Hence, judgment against City Engineer Divinagracia, would actually be a judgment against the City Government. By serving as counsel for the complaining employees and assisting them to prosecute their claims against City Engineer Divinagracia, the petitioner violated Memorandum Circular No. 74-58 (in relation to Section 7[b-2] of RA 6713) prohibiting a government official from engaging in the private practice of his profession, if such practice would represent interests adverse to the government.

• Petitioner’s contention that Section 90 of the Local Government Code of 1991 and DLG Memorandum Circular No. 90-81 violate Article VIII. Section 5 of the Constitution is completely off tangent. Neither the statute nor the circular trenches upon the Supreme Court’s power and authority to prescribe rules on the practice of law. The Local Government Code and DLG Memorandum Circular No. 90-81 simply prescribe rules of conduct for public officials to avoid conflicts of interest between the discharge of their public duties and the private practice of their profession, in those instances where the law allows it.

c. Unauthorized practice

Practice of law has a settled meaning.  It refers to 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.” (Yumol, Jr. v. Ferrer, Sr., A.C. No. 6585, April 21, 2005, Per Chico-Nazario, J.)

Cruz v. Brul-Cruz, En Banc, A.C. No. 7121, March 08, 2022, Per Hernando, J.:

• There is no evidence on record showing that Atty. Gracelda was authorized to engage in private practice and to represent the spouses Cruz and/or Atty. Evelyn in the expropriation proceedings and the petition for issuance of duplicate titles cases. Upon scrutiny, she signed the pleadings, except for the Answer dated January 9, 2001 filed in the expropriation case, relative to the cases in the year 2002.

• Atty. Gracelda did not present any certification or written approval from the Secretary General of the HoR allowing her to engage in private practice during those years. What she merely attached were Memoranda dated March 30, 200164 and March 29, 200465 issued by the Secretary General allowing her to engage in a limited practice of law subject to conditions.

• Thus, the Court could only surmise that Atty. Gracelda did not have the requisite authority to engage in a limited practice of law during the periods she filed the pleadings on behalf of Atty. Evelyn. Undoubtedly, Atty. Gracelda engaged in an unauthorized practice of law in violation not only of the [old CPR] but pertinent laws.

1) Preparing pleadings but not signing

Fajardo v. Alvarez, A.C. No. 9018, April 20, 2016, Per Leonen, J.:

• [Respondent-lawyer] practiced law even if he did not sign any pleading. In the context of this case, his surreptitious actuations reveal illicit intent. Not only did he do unauthorized practice, his acts also show badges of offering to peddle influence in the Office of the Ombudsman.

• By preparing the pleadings of and giving legal advice to complainant, respondent practiced law.

• Under Section 7(b)(2) of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, and Memorandum Circular No. 17, series of 1986, government officials or employees are prohibited from engaging in private practice of their profession unless authorized by their department heads. More importantly, if authorized, the practice of profession must not conflict nor tend to conflict with the official functions of the government official or employee…

In this case, respondent was given written permission by the Head of the National Center for Mental Health, whose authority was designated under Department of Health Administrative Order No. 21, series of 1999.

• However, by assisting and representing complainant in a suit against the Ombudsman and against government in general, respondent put himself in a situation of conflict of interest.

• Respondent’s practice of profession was expressly and impliedly conditioned on the requirement that his practice will not be “in conflict with the interest of the Center and the Philippine government as a whole.”

• There is basic conflict of interest here. Respondent is a public officer, an employee of government. The Office of the Ombudsman is part of government. By appearing against the Office of the Ombudsman, respondent is going against the same employer he swore to serve.

• In addition, the government has a serious interest in the prosecution of erring employees and their corrupt acts. Under the Constitution, “[p]ublic office is a public trust.” The Office of the Ombudsman, as “protectors of the [P]eople,” is mandated to “investigate and prosecute… any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.”

• Thus, a conflict of interest exists when an incumbent government employee represents another government employee or public officer in a case pending before the Office of the Ombudsman. The incumbent officer ultimately goes against government’s mandate under the Constitution to prosecute public officers or employees who have committed acts or omissions that appear to be illegal, unjust, improper, or inefficient. Furthermore, this is consistent with the constitutional directive that “[p]ublic officers and employees must, at all times, be accountable to the [P]eople, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.”

2) Notarial practice

[A]cts of notarization are within the ambit of the “term practice of law,” for which a prior written request and approval… to engage into it are required. (Yumol, Jr. v. Ferrer, Sr. [2005], supra.)

In Abella v. Cruzabra, the respondent was a Deputy Register of Deeds of General Santos City. While serving as an incumbent government employee, the respondent “filed a petition for commission as a notary public and was commissioned . . . without obtaining prior authority from the Secretary of the Department of Justice.” According to the complainant, the respondent had notarized around 3,000 documents. This Court found the respondent guilty of engaging in notarial practice without written authority from the Secretary of Justice. (Fajardo v. Alvarez, A.C. No. 9018, April 20, 2016, Per Leonen, J.)

Abella v. Cruzabra, A.C. No. 5688, June 4, 2009, Per Carpio, J.:

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

Yumol, Jr. v. Ferrer, Sr., A.C. No. 6585, April 21, 2005, Per Chico-Nazario, J.:

• Crystal clear from the foregoing is the fact that private practice of law by CHR lawyers is not a matter of right. Although the Commission allows CHR lawyers to engage in private practice, a written request and approval thereof, with a duly approved leave of absence for that matter are indispensable.  In the case at bar, the record is bereft of any such written request or duly approved leave of absence. No written authority nor approval of the practice and approved leave of absence by the CHR was ever presented by respondent.  Thus, he cannot engage in private practice.

• As to respondent’s act of notarizing documents, records show that he applied for commission as notary public on 14 November 2000, before the Regional Trial Court (RTC) of San Fernando, Pampanga, Branch 42. This was granted by RTC Executive Judge Pedro M. Sunga, Jr., on 01 December 2000. However, the CHR authorized55 respondent to act as notary public only on 29 October 2001. Considering that acts of notarization are within the ambit of the “term practice of law,” for which a prior written request  and approval by the CHR to engage into it are required, the crucial period to be considered is the approval of the CHR on 29 October 2001 and not the approval of the RTC on 04 December 2000.

References

Canon III, 2023 Code of Professional Responsibility

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