DUTIES

 

a.)  Rule 11.05 Code of Professional Responsibility

 

A lawyer shall submit grievances against a judge to the proper authorities.

 

An administrative complaint is not an appropriate remedy where judicial recourse is still available.

 

A letter complaint was filed with the Office of the Chief Justice charging a member of the CA with having “transacted” in favor of the respondents in a labor case, issued a TRO without conducting a hearing, and without requiring the posting of a bond. The complainants did not file a motion for reconsideration of the resolution issuing the TRO. (Rondain, et al. vs. Associate Justice Eloy R. Bello, etc., A.M. No. CA-05-43, July 8, 2005, citing De Guzman vs. Pamintuan, 405 SCRA 22 [2003]).

 

The judgment or order of a collegiate court, like the CA, whose members reached a collective judgment, cannot be the subject of a charge of misconduct or unethical behavior against a single member of the CA. (Rondain vs. Bello, supra). It cannot prosper if proferred against a solitary member.

 

b.)  Duty as officer of the Court

 

An officer of the court has the duty to uphold the dignity and authority of the courts and to promote confidence in the fair administration of justice. (In Re: Letter dated February 21, 2005 of Atty. Noel S. Sorreda, A.M. No. 05-03-04-SC, July 22, 2005). The lawyer’s first duty is not to his client, but to the administration of justice to which his client’s case is wholly subordinate. His conduct ought to and must be scrupulously observant of law and ethics.

 

Mercado vs. Security Bank Corp.

G.R. No. 160445, February 16, 2005

 

A lawyer was punished for contempt and fined in the amount of P50, 00.00 considering the gravity of his offense. While feigning to be searching for truth on whether Chief Justice Davide indeed exerted “tremendous pressure” to the ponente of a case, he repeatedly hum, hated him and the judiciary in the most loutish and insolent manner. He accused him of doing an “unthinkable”, “ungodly” and “malicious act” of depriving his family of their basic fundamental rights in the protection of their property. He further said, “There is no justice in our courts, the Supreme Court particularly. (See also: In Re: Laurela, 148 SCRA 382).

 

Dalisay vs. Mauricio, Jr.

479 SCRA 307 [2006]

 

c.)  Change of Theory

 

A party should decide early what version he is going to advance – a change of theory in the latter stage of the proceedings is objectionable, because it is contrary to the rules of fair play, justice and due process. If anything has been achieved by the lawyer’s inconsistencies, it is his dishonesty.

 

Balaoing vs. Calderon

A.M. No. RTJ-90-530; Balaoing vs. Maliwanag, A.M. RTJ-676

April 27, 1993

 

A lawyer was disbarred because of penchant for filing administrative charges against judges in whose sala he had pending cases whenever the latter rendered decisions or issued orders adverse to his client.

 

d.)          Delay in the administration of justice

 

Republic vs. Vicente G. Lim

G.R. No. 161656, June 29, 2005

 

The State acquired and used a parcel of land in Cebu, to become the Lahug Airport more than 50 years ago. It has not paid the owner. Yet, the rule is that the title to the property expropriated shall pass from the owner to the expropriator only upon full payment of the just compensation. The State was the one that resorted to a series of remedies to delay the payment. Consequently, it was ruled that if the government fails to pay the just compensation within 5 years from the finality of the judgment in the expropriation proceedings, the owners have the right to recover possession of their property.

 

Equatorial Realty, Inc. vs. Mayfair Theaters, Inc.

G.R. No. 106063, November 21, 1996

 

A person, not a party to a contract may not file an action for annulment because of lack of privity. The appropriate remedy is rescission. (See also: Parañaque Kings Enterprises, Inc. vs. CA, G.R. No. 111538, February 26, 1997).

 

 

 

PCGG vs. SB & LUCIO TAN, ET AL.

G.R. NOS. 151809-12, APRIL 12, 2005

 

            In 1976, General Banking Corp. encountered financial difficulties, that despite various loans or financial support extended to it, it incurred daily over-drawings of its current account with the CB. It failed to recover from its financial woes despite emergency loans extended by the CB, hence, it was declared insolvent by the CB, and ordered its liquidation. A public bidding was conducted and Lucio Tan submitted the highest bid. Subsequently, former Solicitor General Estelito Mendoza filed a petition with the CFI (RTC) of Manila praying for assistance and supervision of the court in the bank’s liquidation.

 

            In 1986, with the EDSA I that toppled the Marcos government, the PCGG was created. In 1987, the PCGG filed with the SB a complaint for reversion, reconveyance, restitution, accounting and damages against Lucio Tan, et al., docketed as Civil Case No. 0005. In connection therewith, the PCGG issued several writs of sequestration on properties allegedly acquired by defendants by taking advantage of their close relationship and influence with Marcos.

 

            Tan, et al. filed petitions for certiorari, prohibition and injunction with the Supreme Court to nullify the writs issued by the PCGG. The cases were referred to the SB and docketed as Civil Case Nos. 0096-0099. The parties were represented by former Solicitor General Mendoza who then resumed his private practice. In 1991, PCGG filed motions to disqualify Mendoza as counsel in Civil Case Nos. 0005 and 0096-0099. The ground relied upon was that he actively intervened in the liquidation of Genbank which was subsequently acquired by Lucio Tan and became Allied Bank. His intervention consisted of advising the CB on the procedure to bring about the Bank’s liquidation and appeared as counsel for the CB in connection with the petition. The motions were based on Rule 6.03 of the Code of Professional Responsibility prohibiting former government lawyers from accepting engagement or employment in connection with any matter in which he intervened while in said service.

 

            On April 22, 1991, the SB issued an order denying the motion to disqualify Mendoza in Civil Case No. 0005 ruling that PCGG failed to prove the existence of an inconsistency between his former function as Solgen and his employment as counsel of Lucio Tan. It ruled that Mendoza did not take a position adverse to that taken on behalf of the CB when he was Solgen and that his appearance was beyond the one-year prohibited period under RA 6713, Sec. 7(b) prohibiting former public officials from practicing their profession in connection with any matter before the office he used to be with within one year from his resignation, retirement or separation from public office.

 

            In connection with Civil Case Nos. 0096-0099, the SB denied the motions citing the same reasons in Civil Case No. 005, hence, a petition for certiorari and prohibition was filed by the PCGG alleging that the SB acted with grave abuse of discretion amounting to lack or excess of jurisdiction in denying the motions to disqualify Mendoza. The core of the issue is whether the intervention of Mendoza was substantial or innocuous. Decide.

 

Held:

            The intervention of Mendoza was not substantial or significant but only innocuous because it merely consisted of drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles of law. The reasons relied upon are the following:

 

1)    The petition in the special proceedings (CC No. 005) was a mere initiatory pleading; hence, he signed it as then Solgen.

 

2)    The record is arid as to the actual participation of Mendoza as it was in slumberville for a long time. The petition merely sought to ask for the assistance of the court in the liquidation of Genbank. The principal role of the court is to assist the CB in determining the claims of creditors. The participation of the Solgen was not that of the usual court litigator protecting the interest of the government. (PCGG vs. SB & Lucio Tan, et al., G.R. Nos. 151809-12, April 12, 2005).

 

Q – Does this case represent adverse interest aspect of Rule 6.03? Explain.

 

Answer: No, because Solgen Mendoza had no adverse interest problem when he acted as Solgen in SP. Proc. 107812 and later as counsel of Mr. Tan in Civil Case No. 0005 and Case Nos. 0096-0099 before the SB.

 

The Congruent interest aspect of Rule 6.03.

 

Q – What does the term “matter” mean in Rule 6.03? Explain.

 

Answer: It is any discreet, isolatable act as well as identifiable transaction or conduct involving a particular transaction and specific party, and not merely an act of drafting, enforcing or interpreting government or agency procedures, regulations, laws or briefing abstract principles of law. (PCGG vs. SB, et al., supra.).

 

Q – PCGG insisted that Mr. Mendoza is disqualified to handle the case because he intervened in the closure of Genbank by advising the CB on how to proceed with said bank’s liquidation and even filed the petition for its liquidation. CB officers conferred with him and furnished him documents to aid him in filing the petition. Are these acts included within the concept of “matter” under Rule 6.03? Explain.

 

Answer: No, because the procedure is given in black and white in RA 265, Section 29.

 

            The matter involved in the liquidation of Genbank is entirely different from the matter involved in the sequestration of the stocks owned by Lucio Tan in Allied Bank. The case does not involve the liquidation of the bank. Whether the shares of stocks of Allied Bank are ill-gotten is far removed from the issue of the liquidation of the Bank. In short, the legality of the liquidation of Genbank is not an issue in the sequestration case; hence, Rule 6.03 cannot apply to Mendoza. (PCGG vs. SB, et al., supra.).

 

Q – What does the term intervention mean? Explain.

 

Answer: There are two meanings of the term. Under the first interpretation, “intervene” includes participation in a proceeding even if the intervention is irrelevant or has no effect or little influence. Under the second interpretation, “intervene” only includes an act of a person who has the power to influence the subject proceedings. The second meaning is more appropriate to give to the word “intervention” under Rule 6.03 of the Code of Professional Responsibility in light of its history. The evils sought to be remedied by the Rule do no exist where the government lawyer does an act which can be considered as innocuous such as “xxx drafting, enforcing or interpreting government or agency procedures, regulations or laws, or briefing abstract principles.

 

            In short, the intervention cannot be insignificant and unsubstantial. The intervention of Mendoza was insignificant and innocuous. He is not therefore, disqualified. (PCGG vs. SB, et al., supra.).

 

Q – Are there any disadvantages if Rule 6.03 would be interpreted strictly so as to disqualify former government lawyers from handling cases where they intervened while in government irrespective of the extent of the intervention? Explain.

 

Answer: Yes, even if it is admitted that the rule is an attempt to upgrade the ethics of lawyers in government. There are however considerations to take into, like:

 

1)    The rule was not interpreted to cause chilling effect on government recruitment of able legal talent. At present, it is difficult for government to match compensation offered by the private sector and it is unlikely that it will be able to do so or to reverse the situation. The observation is not inaccurate that the only card that the government may play to recruit lawyers is have them defer present income in return for the experience and contacts that can later be exchanged for higher income in private practice. Rightly, Judge Kaufman said that the sacrifice of entering government service would be too great for most men to endure should ethical rules prevent them from engaging in the practice of a technical specialty which they devoted years in acquiring and cause the firm with which they become associated to be disqualified. Indeed, “to make government service more difficult to exit can only make it less appealing to enter”.

 

2)    To interpret Rule 6.03 strictly would allow other party litigants as a litigation tactic to harass opposing counsel and deprive a client of the right to choose a competent legal representation. It may be used to bludgeon an opposing counsel.

 

3)    A strict interpretation of the rule would affect the independence of lawyers in government. An individual who has the security of knowing that he/she can find a job upon leaving the government is free to work vigorously and challenge official conduct. An employee who lacks this assurance does not enjoy such freedom. The position of a Solgen should be endowed with a great degree of independence. Any distinction of the independence of the Solgen will have a corrosive effect on the rule of law.

 

The disqualification may deprive him of the right to exercise his profession. It may extend to the members of his law firm. Such former government lawyers may stand in danger of becoming lepers in the legal profession. (PCGG vs. SB, et al., supra.).

 

Q – Should the congruent interest prong of Rule 6.03 of the Code of Professional Responsibility be subjected to prescriptive period or be made retroactive? Explain.

 

Answer: It should not be retroactive. Note that the Rule has not yet been adopted by the IBP when Mendoza was the Solgen, hence, it should not be given retroactive effect.

 

            It should have proscriptive period otherwise, it would be used to bludgeon a lawyer, harass him and results in deprivation of a client of a lawyer of his choice. It may result in having a former government lawyer a leper in the legal profession. (PCGG vs. SB, et al., supra.).

 

Q – State the basic rule in resolving a motion to disqualify a lawyer. Explain.

 

Answer: In evaluating a motion to disqualify a lawyer, courts are not bound by stringent rules. There is room for consideration of the combined effect of a party’s right to counsel of his own choice, an attorney’s interest in representing a client, the financial burden on a client of replacing disqualified counsel, and any tactical abuse underlying a disqualification proceeding. (PCGG vs. SB, et al., supra.).

 

Q – What is the nature of an order denying a motion to disqualify a lawyer? Explain.

 

Answer: An order denying a motion to disqualify counsel is final and, therefore, appealable. The issue of whether or not a lawyer should be disqualified from representing a client is separable from, independent of and collateral to the main issues in a case. In short, it is separable from the merits. Clearly, a petition for certiorari is dismissible. (PCGG vs. SB, et al., supra.).

 

Q – If it is final, then, will res judicata lie to bar similar motions to disqualify a lawyer? Explain.

 

Answer: Yes. To rule otherwise is to encourage the risk of inconsistent judicial rulings on the basis of the same set of facts, and this should not be countenanced. Public policy, judicial orderliness, economy of judicial time and the interest of litigants, as well as the peace and order of society, all require that stability should be accorded judicial rulings and that controversies once decided shall remain in repose, and that there be an end to litigation. (PCGG vs. SB, et al., supra.).

 

Dissenting Opinion of Justice Callejo.

 

Q – It was suggested that the prohibition under Rule 6.03 of the Code of Professional Responsibility is not perpetual but merely lasts for 5 years based on the Civil Code and that the practice of law is a property right protected by the Constitution. Is the contention correct? Explain.

 

Answer: No, otherwise, it would mean that after five years from the termination of the attorney-client relationship, all lawyers would be able to represent an interest in conflict with that of the former client and that they would no longer be bound by the rule on privileged communication.

 

            It bears to emphasize that the law is not trade nor a craft but a profession, a noble profession at that.

 

            The practice of law is a profession, a form of public trust, the performance of which is entrusted only to those who are qualified and who possess good moral character. If the respect of the people in the honor and integrity of the legal profession is to be retained, both lawyers and laymen must recognize and realize that the legal profession is a profession and not a trade, and that the basic ideal of that profession is to render public service and secure justice for those who seek its aid. It is not a business, using bargain counter methods to reap large profits for those who conduct it. From the profession standpoint, it is expressive of three ideals – organization, learning and public service. The gaining of a livelihood is not a professional but a secondary consideration. The professional spirit – the spirit of public service – constantly curbs the urge of that instinct.

 

            The law as a profession proceeds from the basic premise that membership in the bar is a privilege burdened with conditions and carries with it the responsibility to live up to its exacting standards and honored traditions. A person enrolled in its ranks is called upon to aid in the performance of one of the basic purposes of the state – the administration of justice. That the practice of law is a profession explains why lawyers repute and of eminence welcome their designation as counsel de oficio, as an opportunity to manifest to the concept that law is a profession.

 

            The law must be thought of as ignoring commercial standards of success. The lawyer’s conduct is to be measured not by the standards of trade and counting house but by those of his profession. The Code of Professional Responsibility, particularly the ethical rule against advertising or solicitation of professional employment, rests on the fundamental postulate that the practice of law is a noble profession. (PCGG vs. SB, et al., supra.).