|

Public Attorney’s Office; conflict of interest, C3S22 CPRA

Section 22, Canon III

SECTION 22. Public Attorney’s Office; conflict of interest. – The Public Attorney’s Office is the primary legal aid service office of the government.      In the pursuit of its mandate under its charter, the Public Attorney’s Office shall ensure ready access to its services by the marginalized sectors of society in a manner that takes into consideration the avoidance of potential conflict of interest situations which will leave these marginalized parties unassisted by counsel.
A conflict of interest of any of the lawyers of the Public Attorney’s Office incident to services rendered for the Office shall be imputed only to the said lawyer and the lawyer’s direct supervisor. Such conflict of interest shall not disqualify the rest of the lawyers from the Public Attorney’s Office from representing the affected client, upon full disclosure to the latter and written informed consent. (2023 Code of Professional Responsibility and Accountability or CPRA)

1. Public Attorney’s Office; conflict of interest

Public Attorney’s Office (PAO) – is “the primary legal aid service office of the government.” (CPRA, Section 22, Canon III)

a. Ready access

PAO is required to “ensure ready access to its services by the marginalized sectors of society in a manner that takes into consideration the avoidance of potential conflict of interest situations which will leave these marginalized parties unassisted by counsel” “[i]n the pursuit of its mandate under its charter.”

b. Conflict of interest only with handling lawyers and their direct supervisors

In case of a conflict of interest of any PAO lawyers “incident to services rendered” for PAO, the conflict shall be “imputed only to the said lawyer and the lawyer’s direct supervisor.”

However, the conflict of interest does not disqualify the rest of the PAO lawyers from representing the affected client subject ad conditioned on “full disclosure” to the affected client and “written informed consent.”

1) Full disclosure

PAO lawyers should ensure that they make a full disclosure of the conflict of the interest, from the complete identities of the other, the nature of the engagement, the subject matter, reliefs prayed for, and so on.

2) Written informed consent

PAO lawyers should likewise obtain written consent from the affected clients. The contents therein should be clear, express, and categorical on the conflict of interest, preferably in a language or dialect that the affected clients are familiar with to ensure their full understanding.

Further, the said lawyers should take the time to explain the contents and what it could mean for the affected clients, as well as assurances the their rights and/or interests will be duly protected.

In all, the affected clients should be able to give an informed consent, knowing fully well what they were agreeing to as clearly explained to them.

c. Public Attorney’s Office (PAO) on Section 22

Request of the PAO to Delete Section 22, Canon III of the Proposed CPRA, En Banc, A.M. No. 23-05-05-SC, July 11, 2023, Per Singh, J.:

• This refers to the April 20, 2023 Letter1 of the Chief of the Public Attorney’s Office (PAO), Atty. Persida V. Rueda-Acosta (Atty. Acosta), to Chief Justice Alexander G. Gesmundo (Chief Justice Gesmundo). In the said letter, Atty. Acosta prayed that: [Section 22, Canon III of the CPRA on Conflict of Interest involving PAO, be removed]

• The exclusive authority of the Court to prescribe the standards of conduct that the members of the bar must observe stems from its constitutional mandate to regulate the admission to the practice of law, which necessarily includes the authority to regulate the practice of law itself, under Section 5(5), Article VIII of the Constitution.

• In the exercise of the powers granted to it by the above-quoted provision, the Court adopted the Code of Professional Responsibility (CPR) in 1988. More than 30 years later, the Court promulgated the CPRA, which superseded the CPR. Contrary to Atty. Acosta’s claims, therefore, the Court was exercising a constitutionally vested power when it promulgated the CPRA.

• Out of its 22 Canons and 77 Rules, only one provision of the CPR directly dealt with conflict of interest. Rule 15.03 of the CPR states the general prohibition against the representation of conflicting interests and the exception thereto. It provides that “[a] lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.” However, the CPR does not define what conflict of interest is. The definition of conflict of interest contemplated by the prohibition, as well as the test for the determination of the existence thereof, were provided by jurisprudence. The CPRA has now codified these principles.

• Sec. 13, Canon III of the CPRA provides that “[t]here is conflict of interest when a lawyer represents inconsistent or opposing interests of two or more persons.” It further states that “[t]he test is whether in behalf of one client it is the lawyer’s duty to fight for an issue or claim, but which is his or her duty to oppose for the other client.” The foregoing provisions were based on the Court’s ruling in Mabini Colleges, Inc. v. Atty. Pajarillo,5 wherein the Court, citing its earlier pronouncements, not only discussed the concept of conflict of interest, but also explained the rationale for the prohibition against it:

This rule prohibits a lawyer from representing new clients whose interests oppose those of a former client in any manner, whether or not they are parties in the same action or on totally unrelated cases. Based on the principles of public policy and good taste, this prohibition on representing conflicting interests enjoins lawyers not only to keep inviolate the client’s confidence, but also to avoid the appearance of treachery and double-dealing for only then can litigants be encouraged to entrust their secrets to their lawyers, which is of paramount importance in the administration of justice. In Maturan v. Gonzales, we further explained the rationale for the prohibition:

The reason for the prohibition is found in the relation of attorney and client, which is one of trust and confidence of the highest degree. A lawyer becomes familiar with all the facts connected with his client’s case. He learns from his client the weak points of the action as well as the strong ones. Such knowledge must be considered sacred and guarded with care. No opportunity must be given him to take advantage of the client’s secrets. A lawyer must have the fullest confidence of his client. For if the confidence is abused, the profession will suffer by the loss thereof.

Meanwhile, in Hornilla v. Salunat, we explained the test to determine the existence of conflict of interest:

There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is “whether or not in behalf of one client, it is the lawyer’s duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client.” This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interests if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof. (Emphasis supplied; citations omitted)

• In recognition of the nuanced conflict of interest problems that lawyers face in practice, the CPRA sets forth an extensive set of conflict-of-interest rules, which were partly based on the American Bar Association’s Model Rules of Professional Conduct.

• While only one rule under the CPR deals with the prohibition against conflict of interest, the CPRA devotes 10 sections to the subject, covering the various scenarios where the prohibition may apply. In connection with the status of the relationship between the lawyer and the client, the prohibition against conflict of interest representation is presented under three scenarios involving: (a) prospective clients (Section 17); (b) current clients (Section 14); and former clients (Section 18). The other provisions on conflict of interest pertain to lawyers employed by specific organizations: lawyers joining law firms (Section 15), corporate lawyers (Section 19), lawyers in legal services organizations (Section 20), and government lawyers (Section 21), including the PAO (Section 22).

• The conflict of interest rule pertaining to the PAO states:

Section 22. Public Attorney’s Office; conflict of interest. –The Public Attorney’s Office is the primary legal aid service office of the government. In the pursuit of its mandate under its charter, the Public Attorney’s Office shall ensure ready access to its services by the marginalized sectors of society in a manner that takes into consideration the avoidance of potential conflict of interest situations which will leave these marginalized parties unassisted by counsel.

A conflict of interest of any of the lawyers of the Public Attorney’s Office incident to services rendered for the Office shall be imputed only to the said lawyer and the lawyer’s direct supervisor. Such conflict of interest shall not disqualify the rest of the lawyers from the Public Attorney’s Office from representing the affected client, upon full disclosure to the latter and written informed consent. (Emphasis supplied)

• A similar rule is provided in the case of legal services organizations. Sec. 20, Canon III provides:

Section 20. Legal services organization; conflict of interest. – A legal services organization is any private organization, including a legal aid clinic, partnership, association, or corporation, whose primary purpose is to provide free legal services.

A lawyer-client relationship shall arise only between the client and the handling lawyers of the legal services organization. All the lawyers of the legal services organization who participated in the handling of a legal matter shall be covered by the rule on conflict of interest and confidentiality. (Emphasis supplied)

• The foregoing rules strike a balance between access to justice and the need to preserve the fiduciary relationship between the lawyer and the client. The CPRA recognizes that unlike other clients who can seek legal assistance elsewhere should their counsel of choice be unable to represent them due to a conflict of interest, indigent clients, who go to the PAO and legal aid organizations less out of choice than out of necessity, are left with no legal representation if these entities cannot represent them. On the other hand, indigent clients must also be assured of the loyalty and confidentiality characteristic of attorney-client relationships, which are essential to the administration of justice.

• Limiting the conflict of interest rule to the handling lawyers seeks to guarantee access to legal representation by the poor without compromising the fiduciary relationship between the lawyer and the client. Verily, the Court adopted Sec. 22, Canon III of the CPRA in the exercise not only of its power to regulate the practice of law, but also of its constitutional prerogative to promulgate rules concerning legal assistance to the underprivileged. It is well to note here, that it is the PAO’s principal mandate to provide free legal assistance to indigents.

• Atty. Acosta insists that the PAO should be treated like a regular law firm in the sense that prospective clients approach it “not so much because of their trust and confidence to the individual lawyer but primarily because of their trust and confidence in the entire office.” She contends that when the PAO’s services are engaged, there arises a lawyer-client relationship between the client and the PAO itself, not just with the individual lawyer handling the case. For this reason, she attests that the PAO’s “clients will never agree for their adversaries to be represented by PAO.”’ Otherwise, there would be a conflict-of-interest representation which would intensify the clients’ uncertainty and insecurity as to whether they could obtain justice through their “free” government lawyers.

• Atty. Acosta’s view that the PAO is one law firm is echoed in the Respectful Manifestos10 purportedly executed by various PAO lawyers throughout the country. Except for those executed by the Legal Research Service and the Special and Appealed Cases Service, the Respectful Manifestos all conclude:

•  Sec. 22, Canon III rests on substantial distinction between the PAO and other lawyers

• There is only ONE Public Attorney’s Office with ONE enabling law – Republic Act No. 9406 and ONE Chief Public Attorney. We work on ONE budget with ONE Central Office vindicating ONE Motto, ONE Mission and ONE Vision. We cannot allow any form of tool to be utilized to sow dissension, partisan and contentious quarreling among PAO lawyers in the handling of cases to the detriment of our beloved Public Attorney’s Office. To direct the lawyers of PAO to represent parties with cases involving conflicting interests would only lead to chaos and eventually a frustration of the justice that our clients need – JUSTICE AGAINST POVERTY. (Emphasis and underscoring in the original)

• The CPRA has six canons, none of which is “unity.” The Court finds this an opportune time to remind the PAO of its main purpose under Sec. 14, Chapter 5, Title III, Book IV of Executive Order No. 29212 (EO 292), as amended by Republic Act No. (RA) 9406,13 to”[extend] free legal assistance to indigent persons in criminal, civil, labor, administrative and other quasi­ judicial cases.”

• The PAO’s predecessor, the Citizen’s Legal Assistance Office, finds its origin in the Integrated Reorganization Plan,14 established by Presidential Decree No. 115 and Letter of Implementation No. 4.16 Article XIV, Chapter I, Part XXI, of the Integrated Reorganization Plan reads:

ARTICLE XIV

Citizens Legal Assistance Office

1. There is created a Citizens Legal Assistance Office under the Department of Justice, hereinafter referred to as the Office, which shall be headed by a Chief Citizens Attorney and a Deputy Chief Citizens Attorney.

2. The Office shall have the function of representing, free of charge, indigent persons mentioned in Republic Act No. 6035, or the immediate members of their family, in all civil, administrative and criminal cases where after due investigation interest of justice will be served thereby, except agrarian reform cases which shall be handled by the Bureau of Agrarian Legal Assistance of the Department of Agrarian Reform and such cases as are now handled by the Department of Labor. (Emphasis supplied)

• A reading of these laws points to the clear mandate of the PAO to extend free legal assistance to indigent persons. These laws uniformly refer to “cases,” which traditionally and conceptually mean actual disputes or controversies pending before judicial, quasi-judicial and administrative bodies. Between an indigent accused incarcerated without bail, and a potential victim in the eyes of the PAO, its mandate definitely requires it to render service to the former, and not engage in the solicitation of yet to be filed cases.

• In truth, comparing the PAO to a private law firm readily debunks Atty. Acosta’s claim. First and foremost, the PAO is created by law, while private law firms are established by the agreement of the partners comprising the firm. Second, the PAO is governed by EO 292, as amended by RA 9406, while private law firms are governed by the Civil Code of the Philippines, related laws and their respective by-laws. Third, the PAO primarily caters to indigent clients, while private law firms can choose whomever they want to serve. Fourth and most importantly, private law firms can and may operate for profit, while the PAO should not. In other words, the standards by which the PAO carries its mandate, are totally distinct from those used by private law firms.

• Far from what Atty. Acosta believes (that their clients choose them “because of their trust and confidence in the entire office”), those who approach the PAO choose them solely by reason of their indigency. The Court is not persuaded by the PAO’s submission that Sec. 22, Canon III of the CPRA violates the equal protection clause.

References

Canon III, 2023 Code of Professional Responsibility

Similar Posts