EN BANC complainant was detained at Changi Prisons in Pursuant to Section 12, Rule 139-B of the Rules of
Singapore. Court, this administrative case was elevated to the
[A.C. No. 5118. September 9, 1999] On September 9, 1994 the complainant was deported IBP Board of Governors for review. The Board in a MARILOU SEBASTIAN, complainant, vs. ATTY. Resolution[5] dated December 4, 1998 resolved to back to the Philippines and respondent fetched her DOROTHEO CALIS, respondent. adopt and approve with amendment the from the airport and brought her to his residence at DECISION 872-A Tres Marias Street, Sampaloc, recommendation of the Commission. The Resolution PER CURIAM: Manila.Respondent took complainants passport with of the Board states: For unlawful, dishonest, immoral or deceitful conduct a promise that he will secure new travel documents RESOLVED to ADOPT and APPROVE, as it is as well as violation of his oath as lawyer, respondent for complainant. Since complainant opted not to hereby ADOPTED and APPROVED, the Report and Atty. Dorotheo Calis faces disbarment. pursue with her travel, she demanded for the return Recommendation of the Investigating Commissioner of her money in the amount of One Hundred Fifty in the above-entitled case, herein made part of this The facts of this administrative case, as found by the Thousand Pesos (P150,000.00). Resolution/Decisions as Annex A; and, finding the Commission on Bar Discipline of the Integrated Bar recommendation fully supported by the evidence on of the Philippines (IBP),[1] in its Report, are as On June 4, 1996, June 18 and July 5, 1996 respondent made partial refunds of P15,000.00; record and the applicable laws and rules, with an follows: amendment that Respondent Atty. Dorotheo Calis P6,000.00; and P5,000.00. Complainant (Marilou Sebastian) alleged that beDISBARRED for having been found guilty of Gross sometime in November, 1992, she was referred to On December 19, 1996 the complainant through Misconduct for engaging in unlawful, dishonest, the respondent who promised to process all counsel, sent a demand letter to respondent for the immoral or deceitful conduct. necessary documents required for complainants trip refund of a remaining balance of One Hundred Fourteen Thousand Pesos (P114,000.00) which was We are now called upon to evaluate, for final action, to the USA for a fee of One Hundred Fifty Thousand the IBP recommendation contained in its Resolution Pesos (P150,000.00). ignored by the respondent. dated December 4, 1998, with its supporting report. On December 1, 1992 the complainant made a Sometime in March 1997 the complainant went to see the respondent, however his wife informed her After examination and careful consideration of the partial payment of the required fee in the amount of records in this case, we find the resolution passed by Twenty Thousand Pesos (P20,000.00), which was that the respondent was in Cebu attending to business matters. the Board of Governors of the IBP in order. We agree received by Ester Calis, wife of the respondent for with the finding of the Commission that the charge of which a receipt was issued. In May 1997 the complainant again tried to see the illegal recruitment was not established because From the period of January 1993 to May 1994 respondent however she found out that the complainant failed to substantiate her allegation on complainant had several conferences with the respondent had transferred to an unknown residence the matter. In fact she did not mention any particular respondent regarding the processing of her travel apparently with intentions to evade responsibility. job or employment promised to her by the documents. To facilitate the processing, respondent Attached to the complaint are the photocopies of respondent. The only service of the respondent demanded an additional amount of Sixty Five receipts for the amount paid by complainant, mentioned by the complainant was that of securing a Thousand Pesos (P65,000.00) and prevailed upon applications for U.S.A. Visa, questions and answers visa for the United States. complainant to resign from her job as stenographer asked during interviews; receipts acknowledging We likewise concur with the IBP Board of Governors with the Commission on Human Rights. partial refunds of fees paid by the complainant in its Resolution, that herein respondent is guilty of On June 20, 1994, to expedite the processing of her together with demand letter for the remaining balance gross misconduct by engaging in unlawful, dishonest, travel documents complainant issued Planters of One Hundred Fourteen Thousand Pesos immoral or deceitful conduct contrary to Canon 1, Development Bank Check No. 12026524 in the (P114,000.00); which was received by the Rule 101 of the Code of Professional amount of Sixty Five Thousand Pesos (P65,000.00) respondent.[2] Responsibility. Respondent deceived the complainant in favor of Atty. D. Calis who issued a receipt. After Despite several notices sent to the respondent by assuring her that he could give her visa and travel receipt of said amount, respondent furnished the requiring an answer to or comment on the complaint, documents; that despite spurious documents nothing complainant copies of Supplemental to U.S. there was no response. Respondent likewise failed to untoward would happen; that he guarantees her Nonimmigrant Visa Application (Of. 156) and a list of attend the scheduled hearings of the case. No arrival in the USA and even promised to refund her questions which would be asked during interviews. appearance whatsoever was made by the the fees and expenses already paid, in case When complainant inquired about her passport, Atty. respondent.[3] As a result of the inexplicable failure, if something went wrong. All for material gain. Calis informed the former that she will be assuming not obdurate refusal of the respondent to comply with Deception and other fraudulent acts by a lawyer are the name Lizette P. Ferrer married to Roberto Ferrer, the orders of the Commission, the investigation disgraceful and dishonorable. They reveal moral employed as sales manager of Matiao Marketing, Inc. against him proceeded ex parte. flaws in a lawyer. They are unacceptable practices. A the complainant was furnished documents to support On September 24, 1998, the Commission on Bar lawyers relationship with others should be her assumed identity. Discipline issued its Report on the case, finding that: characterized by the highest degree of good faith, Realizing that she will be travelling with spurious It appears that the services of the respondent was fairness and candor. This is the essence of the documents, the complainant demanded the return of engaged for the purpose of securing a visa for a lawyers oath. The lawyers oath is not mere facile her money, however she was assured by respondent U.S.A. travel of complainant. There was no mention words, drift and hollow, but a sacred trust that must that there was nothing to worry about for he has been of job placement or employment abroad, hence it is be upheld and keep inviolable.[6] The nature of the engaged in the business for quite sometime; with the not correct to say that the respondent engaged in office of an attorney requires that he should be a promise that her money will be refunded if something illegal recruitment. person of good moral character.[7] This requisite is goes wrong. The alleged proposal of the respondent to secure the not only a condition precedent to admission to the Weeks before her departure respondent demanded U.S.A. visa for the complainant under an assumed practice of law, its continued possession is also for the payment of the required fee which was paid by name was accepted by the complainant which essential for remaining in the practice of law.[8] We complainant, but the corresponding receipt was not negates deceit on the part of the respondent. Noted have sternly warned that any gross misconduct of a given to her. likewise is the partial refunds made by the lawyer, whether in his professional or private respondent of the fees paid by the capacity, puts his moral character in serious doubt as When complainant demanded for her passport, a member of the Bar, and renders him unfit to respondent assured the complainant that it will be complainant. However, the transfer of residence without a forwarding address indicates his attempt to continue in the practice of law.[9] given to her on her departure which was scheduled on September 6, 1994. On said date complainant escape responsibility. It is dismaying to note how respondent so cavalierly was given her passport and visa issued in the name In the light of the foregoing, we find that the jeopardized the life and liberty of complainant when of Lizette P. Ferrer. Complainant left together with respondent is guilty of gross misconduct for violating he made her travel with spurious documents. How Jennyfer Belo and a certain Maribel who were also Canon 1 Rule 1.01 of the Code of Professional often have victims of unscrupulous travel agents and recruits of the respondent. Responsibility which provides that a lawyer shall not illegal recruiters been imprisoned in foreign lands engage in unlawful, dishonest, immoral or deceitful because they were provided fake travel Upon arrival at the Singapore International Airport, documents? Respondent totally disregarded the complainant together with Jennyfer Belo and Maribel conduct. personal safety of the complainant when he sent her were apprehended by the Singapore Airport Officials WHEREFORE, it is respectfully recommended abroad on false assurances. Not only are for carrying spurious travel documents; Complainant that ATTY. DOROTHEO CALIS be SUSPENDED as respondents acts illegal, they are also detestable contacted the respondent through overseas a member of the bar until he fully refunds the fees from the moral point of view. His utter lack of moral telephone call and informed him of by her paid to him by complainant and comply with the order qualms and scruples is a real threat to the Bar and predicament. From September 6 to 9, 1994, of the Commission on Bar Discipline pursuant to Rule the administration of justice. 139-B, Sec. 6 of the Rules of Court.[4] The practice of law is not a right but a privilege friend in San Fernando. Respondent promised to give bestowed by the State on those who show that they the receipt later. Complainant waited patiently February for it 15, 1947. possess, and continue to possess, the qualifications but it was never delivered. After the respondent had required by law for the conferment of such failed to deliver the receipt, complainant became Received from Mr. Briccio S. Henson the sum of privilege.[10] We must stress that membership in the suspicious and inquired from the provincial treasurer eight hundred and forty (P840) pesos to be paid as bar is a privilege burdened with conditions. A lawyer of Pampanga about the matter. Said official gave the follows: has the privilege to practice law only during good information that the taxes were never paid. behavior. He can be deprived of his license for Consequently, complainant requested the respondent P210 -Inheritance tax of th misconduct ascertained and declared by judgment of to refund the money given him for the payment of the court after giving him the opportunity to be said taxes (p. 7, t. s. n., OSG), but he failed to do so. heard.[11] Respondent made several promises to return the P630 -Land taxes for 1945 Here, it is worth noting that the adamant refusal of money which he never complied. Neither had he respondent to comply with the orders of the IBP and done anything to transfer the titles of the land in the Failure on my part to deliver to him the official his total disregard of the summons issued by the IBP name of the heirs of Esteban Henson up to the receipts corresponding to the above mentioned are contemptuous acts reflective of unprofessional present (p. 9, t. s. n.). In view of this failure of the amount, I promise to return to him the whole amount conduct. Thus, we find no hesitation in removing respondent, the complainant was ultimately forced to of P840 not later than April 16, 1947 without any respondent Dorotheo Calis from the Roll of Attorneys pay the taxes out of his own pocket (p. 8, t.s.n.). obligation on his part. for his unethical, unscrupulous and unconscionable Required to answer the complaint formulated by the A separate amount of one hundred and ten (P110) conduct toward complainant. Solicitor General on the basis of his report, pesos and a sack of rice was paid to me for my Lastly, the grant in favor of the complainant for the respondent failed to do so. And despite due notice he expenses and fee. recovery of the P114,000.00 she paid the respondent likewise failed to appear at the hearing before this is in order.[12] Respondent not only unjustifiably Court. Indeed, we note from the Solicitor General's (Sgd.) Atty. FELIX DAVID. refused to return the complainants money upon report that respondent, instead of welcoming every demand, but he stubbornly persisted in holding on to opportunity for hearing, seems to have wanted to Respondent did not care to testify. But through his it, unmindful of the hardship and humiliation suffered avoid it. On this point the report says: unverified answer, he would make it appear that he by the complainant. At the hearing held on May 26, 1948, both parties was entitled to and had been promised a legal fee for WHEREFORE, respondent Dorotheo Calis is hereby appeared and the complainant had testified, the his services and that, as this promise was not DISBARRED and his name is ordered stricken from hearing was set for continuance the following day. complied with, he "saw it fit to withhold said amount the Roll of Attorneys. Let a copy of this Decision be Both parties agreed in the presence of the (the P840 for taxes) until he is paid." This explanation FURNISHED to the IBP and the Bar Confidant to be investigator to postpone said hearing for June 5, is obviously an afterthought and clearly unfounded. spread on the personal records of 1948. On June 5, 1948, complainant appeared, but For the established fact is that respondent at first respondent. Respondent is likewise ordered to pay to respondent did not show up, so to give the made complainant believe that the sum in question the complainant immediately the amount of One respondent a chance, the investigator postponed the had already been applied by him to the payment of Hundred Fourteen Thousand (P114,000.00) Pesos continuation of the hearing to June 17. Both parties taxes, and, as testified to by complainant, for the little representing the amount he collected from her. were duly subpoenaed (attached to the records). On that respondent was able to do in connection with the June 15th, respondent sent a letter (attached to the case entrusted to him, he has already received his SO ORDERED. records) to Assistant Solicitor General Ruperto fee as shown by the above-copied receipt. The Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Kapunan, asking that the hearing be postponed to conclusion is therefore irresistible that respondent Quisumbing, Purisima, Pardo, Buena, Gonzaga- June 25, 1948. According to the request, both parties misappropriated the money of his client. This makes Reyes, and Ynares-Santiago, JJ., concur. were again duly subpoenaed for June 25, 1948 him guilty of unprofessional conduct. Davide, Jr., C.J., and Panganiban, J., on official (attached to the record). In the subpoena sent to In view of the gravity of the misconduct committed, leave. respondent, his attention was invited to Rule 127, the respondent Felix P. David is hereby ordered Xxxxxxxxxxx section 28, of the Rules of Court, which provides that suspended from the practice of law for a period of if he fails to appear and answer the charge, the five years from the date this decision become final, Republic of the Philippines Solicitor in charge will proceed to hear the case ex SUPREME COURT without prejudice to a more severe action if the sum parte. In spite of this, on the morning of June 25, he misappropriated is not refunded within one month Manila again sent another letter (attached to the records) to from the same date. EN BANC Assistant Solicitor General Kapunan, asking that the hearing be transferred to July 7, or 8, 1948. In order Moran, C. J., Ozaeta, Feria, Bengzon, Padilla, A.M. No. 35 September 30, 1949 that the respondent be given all the chances to Tuason, Montemayor, and Torres, JJ., concur. In re Attorney FELIX P. DAVID, petitioner. defend himself, his request was granted. In the Xxxxxxxxxxx Felix P. David in his own behalf. subpoena sent him setting the hearing for July 8, Republic of the Philippines Office of the Solicitor General Felix Angelo Bautista 1948, as requested, the following remark was stated: SUPREME COURT and Solicitor Estrella Abad Santos for the Failure on your part to appear will cause the Manila Government. investigator to proceed with the investigation and to EN BANC REYES, J.: file the corresponding recommendation to the G.R. No. L-12426 February 16, 1959 The respondent, Felix P. David, a member of a Supreme Court. No further postponement will be Philippine Bar, is charged with the malpractice for entertained. PHILIPPINE LAWYER'S ASSOCIATION, petitioner, misappropriating funds entrusted to him by his client, vs. It is worthwhile mentioning that every time the case CELEDONIO AGRAVA, in his capacity as Director of the complainant Briccio S. Henson. Respondent was set for hearing the complainant made his having answered denying the charge, the complaint the Philippines Patent Office, respondent. appearance. was referred to the Solicitor General for investigation. Arturo A. Alafriz for petitioner. After the investigation the Solicitor General rendered On the morning of July 8, 1948, both parties Office of the Solicitor General Ambrosio Padilla and his report finding the respondent guilty of professional appeared; respondent made a formal request in Solicitor Pacifico P. de Castro for respondent. misconduct and recommending disciplinary action. person to the investigator asking that the hearing be postponed to 2 o'clock p.m. of the same day. Out of MONTEMAYOR, J.: The Solicitor General reports the following facts to have been conclusively established: consideration to him, even to the discomfiture of This is the petition filed by the Philippine Lawyer's complainant, respondent's request was again Association for prohibition and injunction against . . . that on February 15, 1947, respondent obtained granted. But contrary to his assurance, the Celedonio Agrava, in his capacity as Director of the P840 from his client Briccio Henson to be applied to respondent again failed to appear. Philippines Patent Office. the payment of inheritance and real estate taxes due from the estate of Esteban Henson for 1945, 1946 There is no question that respondent received from On may 27, 1957, respondent Director issued a and 1947 (p. 3, t. s. n.), for which he signed a receipt complainant the sum of P840 for the specific purpose circular announcing that he had scheduled for June (Annex 'A'; p. 3, t. s. n.). On several occasions, of applying the same to the payment of taxes due 27, 1957 an examination for the purpose of complainant asked the respondent to show him the from the estate which he was engaged to settle. The determining who are qualified to practice as patent official tax receipt evidencing the payment of said receipt which he issued for said amount as well as for attorneys before the Philippines Patent Office, the taxes, to which the latter answered that he had the sum of P110 and a sack of rice paid to him for his said examination to cover patent law and already paid them, but the receipts were left with his expenses and fee reads as follows: . . . jurisprudence and the rules of practice before said office. According to the circular, members of the such actions and proceedings on behalf of clients belongs to the true and actual inventor, his heirs, Philippine Bar, engineers and other persons with before judges and courts, and in addition, conveying. legal representatives or assigns. Section 25 and 26 sufficient scientific and technical training are qualified In general, alladvice to clients, and all action taken for refer to connection of any mistake in a patent. to take the said examination. It would appear that them in matters connected with the law corporation Section 28 enumerates the grounds for cancellation heretofore, respondent Director has been holding services, assessment and condemnation services of a patent; that although any person may apply for similar examinations. contemplating an appearance before a judicial body, such cancellation, under Section 29, the Solicitor It is the contention of the petitioner Philippine the foreclosure of a mortgage, enforcement of a General is authorized to petition for the cancellation Lawyer's Association that one who has passed the creditor's claim in bankruptcy and insolvency of a patent. Section 30 mentions the requirements of bar examinations and is licensed by the Supreme proceedings, and conducting proceedings in a petition for cancellation. Section 31 and 32 provide Court to practice law in the Philippines and who is in attachment, and in matters of estate and for a notice of hearing of the petition for cancellation good standing, is duly qualified to practice before the guardianship have been held to constitute law of the patent by the Director of Patents in case the Philippines Patent Office, and that consequently, the practice as do the preparation and drafting of legal said cancellation is warranted. Under Section 34, at cat of the respondent Director requiring members of instruments, where the work done involves the any time after the expiration of three years from the the Philippine Bar in good standing to take and pass determination by the trained legal mind of the legal day the patent was granted, any person patent on an examination given by the Patent Office as a effect of facts and conditions. (5 Am. Jur. p. 262, several grounds, such as, if the patented invention is condition precedent to their being allowed to practice 263). (Emphasis supplied). not being worked in the Philippines on a commercial before said office, such as representing applicants in Practice of law under modern conditions consists in scale, or if the demand for the patented article in the the preparation and prosecution of applications for no small part of work performed outside of any court Philippines on a commercial scale, or if the demand patent, is in excess of his jurisdiction and is in and having no immediate relation to proceedings in for the patented article in the Philippines is not being violation of the law. court. It embraces conveyancing, the giving of legal met to an adequate extent and reasonable terms, or advice on a large variety of subjects, and the if by reason of the patentee's refusal to grant a In his answer, respondent Director, through the preparation and execution of legal instruments license on reasonable terms or by reason of the Solicitor General, maintains that the prosecution of covering an extensive field of business and trust condition attached by him to the license, purchase or patent cases "does not involve entirely or purely the relations and other affairs. Although these use of the patented article or working of the patented practice of law but includes the application of transactions may have no direct connection with process or machine of production, the establishment scientific and technical knowledge and training, so court proceedings, they are always subject to of a new trade or industry in the Philippines is much so that, as a matter of actual practice, the become involved in litigation. They require in many prevented; or if the patent or invention relates to food prosecution of patent cases may be handled not only aspects a high degree of legal skill, a wide or medicine or is necessary to public health or public by lawyers, but also engineers and other persons experience with men and affairs, and great capacity safety. All these things involve the applications of with sufficient scientific and technical training who for adaptation to difficult and complex situations. laws, legal principles, practice and procedure. They pass the prescribed examinations as given by the These customary functions of an attorney or call for legal knowledge, training and experience for Patent Office; . . . that the Rules of Court do not counselor at law bear an intimate relation to the which a member of the bar has been prepared. prohibit the Patent Office, or any other quasi-judicial body from requiring further condition or qualification administration of justice by the courts. No valid In support of the proposition that much of the from those who would wish to handle cases before distinction, so far as concerns the question set forth business and many of the act, orders and decisions the Patent Office which, as stated in the preceding in the order, can be drawn between that part which of the Patent Director involve questions of law or a paragraph, requires more of an application of involves advice and drafting of instruments in his reasonable and correct evaluation of facts, the very scientific and technical knowledge than the mere office. It is of importance to the welfare of the public Patent Law, Republic Act No. 165, Section 61, application of provisions of law; . . . that the action that these manifold customary functions be provides that: taken by the respondent is in accordance with performed by persons possessed of adequate . . . . The applicant for a patent or for the registration Republic Act No. 165, otherwise known as the Patent learning and skill, of sound moral character, and of a design, any party to a proceeding to cancel a Law of the Philippines, which similar to the United acting at all times under the heavy trust obligations to patent or to obtain a compulsory license, and any States Patent Law, in accordance with which the clients which rests upon all attorneys. (Moran, party to any other proceeding in the Office may United States Patent Office has also prescribed a Comments on the Rules of Court, Vol. 3 (1953 ed.), appeal to the Supreme Court from any final order or similar examination as that prescribed by respondent. p. 665-666, citing In re Opinion of the Justices decision of the director. ... (Mass.), 194 N.E. 313, quoted in Rhode Is. Bar In other words, the appeal is taken to this Tribunal. If Assoc. vs. Automobile Service Assoc. (R. I. ) 179 A. Respondent further contends that just as the Patent the transaction of business in the Patent Office and 139, 144). (Emphasis ours). law of the United States of America authorizes the the acts, orders and decisions of the Patent Director Commissioner of Patents to prescribe examinations In our opinion, the practice of law includes such involved exclusively or mostly technical and scientific to determine as to who practice before the United appearance before the Patent Office, the knowledge and training, then logically, the appeal States Patent Office, the respondent, is similarly representation of applicants, oppositors, and other should be taken not to a court or judicial body, but authorized to do so by our Patent Law, Republic Act persons, and the prosecution of their applications for rather to a board of scientists, engineers or technical No. 165. patent, their oppositions thereto, or the enforcement men, which is not the case. of their rights in patent cases. In the first place, Although as already stated, the Director of Patents, in Another aspect of the question involves the although the transaction of business in the Patent the past, would appear to have been holding tests or consideration of the nature of the functions and acts Office involves the use and application of technical examinations the passing of which was imposed as a of the Head of the Patent Office. and scientific knowledge and training, still, all such required qualification to practice before the Patent . . . . The Commissioner, in issuing or withholding business has to be rendered in accordance with the Office, to our knowledge, this is the first time that the patents, in reissues, interferences, and extensions, Patent Law, as well as other laws, including the right of the Director of Patents to do so, specially as exercises quasi-judicial functions. Patents are public Rules and Regulations promulgated by the Patent regards members of the bar, has been questioned records, and it is the duty of the Commissioner to Office in accordance with law. Not only this, but formally, or otherwise put in issue. And we have give authenticated copies to any person, on payment practice before the Patent Office involves the given it careful thought and consideration. of the legal fees. (40 Am. Jur. 537). (Emphasis interpretation and application of other laws and legal The Supreme Court has the exclusive and principles, as well as the existence of facts to be supplied). constitutional power with respect to admission to the established in accordance with the law of evidence . . . . The Commissioner has the only original practice of law in the Philippines1 and to any member and procedure. For instance: Section 8 of our Patent initiatory jurisdiction that exists up to the granting and of the Philippine Bar in good standing may practice Law provides that an invention shall not be delivering of a patent, and it is his duty to decide law anywhere and before any entity, whether judicial patentable if it is contrary to public order or morals, or whether the patent is new and whether it is the or quasi-judicial or administrative, in the Philippines. to public health or welfare. Section 9 says that an proper subject of a patent; and his action in awarding Naturally, the question arises as to whether or not invention shall not be considered new or patentable if or refusing a patent is a judicial function. In passing appearance before the patent Office and the it was known or used by others in the Philippines on an application the commissioner should decide preparation and the prosecution of patent before the invention thereof by the inventor named in not only questions of law, but also questions of fact, applications, etc., constitutes or is included in the any printed publication in the Philippines or any as whether there has been a prior public use or sale practice of law. foreign country more than one year before the of the article invented. . . . (60 C.J.S. 460). (Emphasis The practice of law is not limited to the conduct of application for a patent therefor, or if it had been in supplied). cases or litigation in court; it embraces the public use or on sale in the Philippines for more than The Director of Patents, exercising as he does preparation of pleadings and other papers incident to one year before the application for the patent judicial or quasi-judicial functions, it is reasonable to actions and social proceedings, the management of therefor. Section 10 provides that the right to patent hold that a member of the bar, because of his legal knowledge and training, should be allowed to practice representatives of applicants or other persons, that code. We understand that rules and regulations have before the Patent Office, without further examination they shall show they are of good moral character and been promulgated not only for the Bureau of or other qualification. Of course, the Director of in good repute, are possessed of the necessary Customs and Internal Revenue, but also for other Patents, if he deems it advisable or necessary, may qualifications to enable them to render to applicants bureaus of the Government, to govern the transaction require that members of the bar practising before him or other persons valuable service, and are likewise to of business in and to enforce the law for said enlist the assistance of technical men and scientist in competent to advise and assist applicants or other bureaus. the preparation of papers and documents, such as, persons in the presentation or prosecution of their Were we to allow the Patent Office, in the absence of the drawing or technical description of an invention or applications or other business before the Office. The an express and clear provision of law giving the machine sought to be patented, in the same way that Commissioner of Patents may, after notice and necessary sanction, to require lawyers to submit to a lawyer filing an application for the registration of a opportunity for a hearing, suspend or exclude, either and pass on examination prescribed by it before they parcel of land on behalf of his clients, is required to generally or in any particular case from further are allowed to practice before said Patent Office, submit a plan and technical description of said land, practice before his office any person, agent or then there would be no reason why other bureaus prepared by a licensed surveyor. attorney shown to be incompetent or disreputable, or specially the Bureau of Internal Revenue and But respondent Director claims that he is expressly guilty of gross misconduct, or who refuses to comply Customs, where the business in the same area are authorized by the law to require persons desiring to with the said rules and regulations, or who shall, with more or less complicated, such as the presentation of practice or to do business before him to submit an intent to defraud in any matter, deceive, mislead, or books of accounts, balance sheets, etc., examination, even if they are already members of the threaten any applicant or prospective applicant, or assessments exemptions, depreciation, these as bar. He contends that our Patent Law, Republic Act other person having immediate or prospective regards the Bureau of Internal Revenue, and the No. 165, is patterned after the United States Patent applicant, or other person having immediate or classification of goods, imposition of customs duties, Law; and of the United States Patent Office in Patent prospective business before the office, by word, seizures, confiscation, etc., as regards the Bureau of Cases prescribes an examination similar to that circular, letter, or by advertising. The reasons for any Customs, may not also require that any lawyer which he (respondent) has prescribed and such suspension or exclusion shall be duly recorded. practising before them or otherwise transacting scheduled. He invites our attention to the following The action of the Commissioner may be reviewed business with them on behalf of clients, shall first provisions of said Rules of Practice: upon the petition of the person so refused recognition pass an examination to qualify. or so suspended by the district court of the United Registration of attorneys and agents. A register of In conclusion, we hold that under the present law, States for the District of Columbia under such an attorneys and a register agents are kept in the members of the Philippine Bar authorized by this conditions and upon such proceedings as the said Patent Office on which are entered the names of all Tribunal to practice law, and in good standing, may court may by its rules determine. (Emphasis persons recognized as entitled to represent practice their profession before the Patent Office, for supplied) applicants before the Patent Office in the preparation the reason that much of the business in said office and prosecution of applicants for patent. Registration Respondent Director concludes that Section 78 of involves the interpretation and determination of the in the Patent Office under the provisions of these Republic Act No. 165 being similar to the provisions scope and application of the Patent Law and other rules shall only entitle the person registered to of law just reproduced, then he is authorized to laws applicable, as well as the presentation of practice before the Patent Office. prescribe the rules and regulations requiring that evidence to establish facts involved; that part of the persons desiring to practice before him should submit functions of the Patent director are judicial or quasi- (a) Attorney at law. Any attorney at law in good to and pass an examination. We reproduce said judicial, so much so that appeals from his orders and standing admitted to practice before any United Section 78, Republic Act No. 165, for purposes of decisions are, under the law, taken to the Supreme States Court or the highest court of any State or comparison: Court. Territory of the United States who fulfills the requirements and complied with the provisions of SEC. 78. Rules and regulations. The Director For the foregoing reasons, the petition for prohibition these rules may be admitted to practice before the subject to the approval of the Secretary of Justice, is granted and the respondent Director is hereby Patent Office and have his name entered on the shall promulgate the necessary rules and regulations, prohibited from requiring members of the Philippine register of attorneys. not inconsistent with law, for the conduct of all Bar to submit to an examination or tests and pass the business in the Patent Office. same before being permitted to appear and practice xxx xxx xxx The above provisions of Section 78 certainly and by before the Patent Office. No costs. (c) Requirement for registration. No person will be far, are different from the provisions of the United Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista admitted to practice and register unless he shall States Patent Law as regards authority to hold Angelo, Labrador, Concepcion, Reyes, J.B.L. and apply to the Commissioner of Patents in writing on a examinations to determine the qualifications of those Endencia, JJ., concur. prescribed form supplied by the Commissioner and allowed to practice before the Patent Office. While furnish all requested information and material; and Xxxxxxxxxxxx the U.S. Patent Law authorizes the Commissioner of shall establish to the satisfaction of the Republic of the Philippines Patents to require attorneys to show that they Commissioner that he is of good moral character and SUPREME COURT possess the necessary qualifications and of good repute and possessed of the legal and Manila competence to render valuable service to and advise scientific and technical qualifications necessary to and assist their clients in patent cases, which SECOND DIVISION enable him to render applicants for patent valuable showing may take the form of a test or examination to G.R. No. 100113 September 3, 1991 service, and is otherwise competent to advise and be held by the Commissioner, our Patent Law, assist him in the presentation and prosecution of their RENATO CAYETANO, petitioner, Section 78, is silent on this important point. Our application before the Patent Office. In order that the vs. attention has not been called to any express Commissioner may determine whether a person CHRISTIAN MONSOD, HON. JOVITO R. provision of our Patent Law, giving such authority to seeking to have his name placed upon either of the SALONGA, COMMISSION ON APPOINTMENT, and determine the qualifications of persons allowed to registers has the qualifications specified, satisfactory HON. GUILLERMO CARAGUE, in his capacity as practice before the Patent Office. proof of good moral character and repute, and of Secretary of Budget and Management, respondents. sufficient basic training in scientific and technical Section 551 of the Revised Administrative Code authorizes every chief of bureau to prescribe forms Renato L. Cayetano for and in his own behalf. matters must be submitted and an examination which is held from time to time must be taken and passed. and make regulations or general orders not Sabina E. Acut, Jr. and Mylene Garcia-Albano co- The taking of an examination may be waived in the inconsistent with law, to secure the harmonious and counsel for petitioner. case of any person who has served for three years in efficient administration of his branch of the service the examining corps of the Patent Office. and to carry into full effect the laws relating to matters PARAS, J.:p within the jurisdiction of his bureau. Section 608 of Respondent states that the promulgation of the Rules We are faced here with a controversy of far-reaching Republic Act 1937, known as the Tariff and Customs of Practice of the United States Patent Office in proportions. While ostensibly only legal issues are Code of the Philippines, provides that the Patent Cases is authorized by the United States involved, the Court's decision in this case would Commissioner of Customs shall, subject to the Patent Law itself, which reads as follows: indubitably have a profound effect on the political approval of the Department Head, makes all rules The Commissioner of Patents, subject to the and regulations necessary to enforce the provisions aspect of our national existence. approval of the Secretary of Commerce may of said code. Section 338 of the National Internal The 1987 Constitution provides in Section 1 (1), prescribe rules and regulations governing Revenue Code, Commonwealth Act No. 466 as Article IX-C: the recognition of agents, attorneys, or other persons amended, states that the Secretary of Finance, upon There shall be a Commission on Elections composed representing applicants or other parties before his recommendation of the Collector of Internal Revenue, of a Chairman and six Commissioners who shall be office, and may require of such persons, agents, shall promulgate all needful rules and regulations for natural-born citizens of the Philippines and, at the or attorneys, before being recognized as the effective enforcement of the provisions of the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have before a judicial body, the foreclosure of a mortgage, am quoting from the provision "who have been been candidates for any elective position in the enforcement of a creditor's claim in bankruptcy and engaged in the practice of law for at least ten years". immediately preceding -elections. However, a insolvency proceedings, and conducting proceedings To avoid any misunderstanding which would result in majority thereof, including the Chairman, shall be in attachment, and in matters of estate and excluding members of the Bar who are now members of the Philippine Bar who have been guardianship have been held to constitute law employed in the COA or Commission on Audit, we engaged in the practice of law for at least ten years. practice, as do the preparation and drafting of legal would like to make the clarification that this provision (Emphasis supplied) instruments, where the work done involves the on qualifications regarding members of the Bar does The aforequoted provision is patterned after Section determination by the trained legal mind of the legal not necessarily refer or involve actual practice of law l(l), Article XII-C of the 1973 Constitution which effect of facts and conditions. (5 Am. Jr. p. 262, 263). outside the COA We have to interpret this to mean similarly provides: (Emphasis supplied) that as long as the lawyers who are employed in the There shall be an independent Commission on Practice of law under modem conditions consists in COA are using their legal knowledge or legal talent in Elections composed of a Chairman and eight no small part of work performed outside of any court their respective work within COA, then they are Commissioners who shall be natural-born citizens of and having no immediate relation to proceedings in qualified to be considered for appointment as the Philippines and, at the time of their appointment, court. It embraces conveyancing, the giving of legal members or commissioners, even chairman, of the at least thirty-five years of age and holders of a advice on a large variety of subjects, and the Commission on Audit. college degree. However, a majority thereof, preparation and execution of legal instruments This has been discussed by the Committee on including the Chairman, shall be members of the covering an extensive field of business and trust Constitutional Commissions and Agencies and we Philippine Bar who have been engaged in the relations and other affairs. Although these deem it important to take it up on the floor so that this practice of law for at least ten years.' (Emphasis transactions may have no direct connection with interpretation may be made available whenever this supplied) court proceedings, they are always subject to provision on the qualifications as regards members of become involved in litigation. They require in many the Philippine Bar engaging in the practice of law for Regrettably, however, there seems to be no aspects a high degree of legal skill, a wide at least ten years is taken up. jurisprudence as to what constitutes practice of law experience with men and affairs, and great capacity as a legal qualification to an appointive office. MR. OPLE. Will Commissioner Foz yield to just one for adaptation to difficult and complex situations. Black defines "practice of law" as: question. These customary functions of an attorney or The rendition of services requiring the knowledge and counselor at law bear an intimate relation to the MR. FOZ. Yes, Mr. Presiding Officer. the application of legal principles and technique to administration of justice by the courts. No valid MR. OPLE. Is he, in effect, saying that service in the serve the interest of another with his consent. It is not distinction, so far as concerns the question set forth COA by a lawyer is equivalent to the requirement of a limited to appearing in court, or advising and in the order, can be drawn between that part of the law practice that is set forth in the Article on the assisting in the conduct of litigation, but embraces the work of the lawyer which involves appearance in Commission on Audit? preparation of pleadings, and other papers incident to court and that part which involves advice and drafting MR. FOZ. We must consider the fact that the work of actions and special proceedings, conveyancing, the of instruments in his office. It is of importance to the COA, although it is auditing, will necessarily involve preparation of legal instruments of all kinds, and the welfare of the public that these manifold customary legal work; it will involve legal work. And, therefore, giving of all legal advice to clients. It embraces all functions be performed by persons possessed of lawyers who are employed in COA now would have advice to clients and all actions taken for them in adequate learning and skill, of sound moral the necessary qualifications in accordance with the matters connected with the law. An attorney engages character, and acting at all times under the heavy Provision on qualifications under our provisions on in the practice of law by maintaining an office where trust obligations to clients which rests upon all the Commission on Audit. And, therefore, the answer he is held out to be-an attorney, using a letterhead attorneys. (Moran, Comments on the Rules of Court, is yes. describing himself as an attorney, counseling clients Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode MR. OPLE. Yes. So that the construction given to this in legal matters, negotiating with opposing counsel Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 is that this is equivalent to the practice of law. about pending litigation, and fixing and collecting fees for services rendered by his associate. (Black's Law A. 139,144). (Emphasis ours) MR. FOZ. Yes, Mr. Presiding Officer. Dictionary, 3rd ed.) The University of the Philippines Law Center in MR. OPLE. Thank you. The practice of law is not limited to the conduct of conducting orientation briefing for new lawyers (1974- ... ( Emphasis supplied) cases in court. (Land Title Abstract and Trust Co. v. 1975) listed the dimensions of the practice of law in Section 1(1), Article IX-D of the 1987 Constitution, Dworken,129 Ohio St. 23, 193 N.E. 650) A person is even broader terms as advocacy, counselling and provides, among others, that the Chairman and two also considered to be in the practice of law when he: public service. Commissioners of the Commission on Audit (COA) ... for valuable consideration engages in the business One may be a practicing attorney in following any line should either be certified public accountants with not of advising person, firms, associations or of employment in the profession. If what he does less than ten years of auditing practice, or members corporations as to their rights under the law, or exacts knowledge of the law and is of a kind usual for of the Philippine Bar who have been engaged in appears in a representative capacity as an advocate attorneys engaging in the active practice of their the practice of law for at least ten years. (emphasis in proceedings pending or prospective, before any profession, and he follows some one or more lines of supplied) court, commissioner, referee, board, body, employment such as this he is a practicing attorney Corollary to this is the term "private practitioner" and committee, or commission constituted by law or at law within the meaning of the statute. (Barr v. which is in many ways synonymous with the word authorized to settle controversies and there, in such Cardell, 155 NW 312) "lawyer." Today, although many lawyers do not representative capacity performs any act or acts for Practice of law means any activity, in or out of court, engage in private practice, it is still a fact that the the purpose of obtaining or defending the rights of which requires the application of law, legal majority of lawyers are private practitioners. (Gary their clients under the law. Otherwise stated, one procedure, knowledge, training and experience. "To Munneke, Opportunities in Law Careers [VGM who, in a representative capacity, engages in the engage in the practice of law is to perform those acts Career Horizons: Illinois], [1986], p. 15). business of advising clients as to their rights under which are characteristics of the profession. Generally, the law, or while so engaged performs any act or acts At this point, it might be helpful to define private to practice law is to give notice or render any kind of practice. The term, as commonly understood, means either in court or outside of court for that purpose, is service, which device or service requires the use in engaged in the practice of law. (State ex. rel. "an individual or organization engaged in the any degree of legal knowledge or skill." (111 ALR 23) business of delivering legal services." (Ibid.). Lawyers Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, The following records of the 1986 Constitutional who practice alone are often called "sole 340 Mo. 852) Commission show that it has adopted a liberal practitioners." Groups of lawyers are called "firms." This Court in the case of Philippine Lawyers interpretation of the term "practice of law." The firm is usually a partnership and members of the Association v.Agrava, (105 Phil. 173,176-177) stated: firm are the partners. Some firms may be organized MR. FOZ. Before we suspend the session, may I The practice of law is not limited to the conduct of make a manifestation which I forgot to do during our as professional corporations and the members called cases or litigation in court; it embraces the review of the provisions on the Commission on Audit. shareholders. In either case, the members of the firm preparation of pleadings and other papers incident to May I be allowed to make a very brief statement? are the experienced attorneys. In most firms, there actions and special proceedings, the management of are younger or more inexperienced salaried THE PRESIDING OFFICER (Mr. Jamir). such actions and proceedings on behalf of clients attorneyscalled "associates." (Ibid.). before judges and courts, and in addition, conveying. The Commissioner will please proceed. The test that defines law practice by looking to In general, all advice to clients, and all action taken MR. FOZ. This has to do with the qualifications of the traditional areas of law practice is essentially for them in mattersconnected with the members of the Commission on Audit. Among others, tautologous, unhelpful defining the practice of law as law incorporation services, assessment and the qualifications provided for by Section I is that that which lawyers do. (Charles W. Wolfram, Modern condemnation services contemplating an appearance "They must be Members of the Philippine Bar" I Legal Ethics [West Publishing Co.: Minnesota, 1986], In several issues of the Business Star, a business in-house counsel only for certain matters. Other p. 593). The practice of law is defined as the daily, herein below quoted are emerging trends in corporation have a staff large enough to handle most performance of any acts . . . in or out of court, corporate law practice, a departure from the legal problems in-house. commonly understood to be the practice of law. traditional concept of practice of law. A corporate lawyer, for all intents and purposes, is a (State Bar Ass'n v. Connecticut Bank & Trust Co., We are experiencing today what truly may be called a lawyer who handles the legal affairs of a corporation. 145 Conn. 222, 140 A.2d 863, 870 [1958] revolutionary transformation in corporate law His areas of concern or jurisdiction may include, inter [quoting Grievance Comm. v. Payne, 128 Conn. 325, practice. Lawyers and other professional groups, in alia: corporate legal research, tax laws research, 22 A.2d 623, 626 [1941]). Because lawyers perform particular those members participating in various acting out as corporate secretary (in board meetings), almost every function known in the commercial and legal-policy decisional contexts, are finding that appearances in both courts and other adjudicatory governmental realm, such a definition would understanding the major emerging trends in agencies (including the Securities and Exchange obviously be too global to be workable.(Wolfram, op. corporation law is indispensable to intelligent Commission), and in other capacities which require cit.). decision-making. an ability to deal with the law. The appearance of a lawyer in litigation in behalf of a Constructive adjustment to major corporate problems At any rate, a corporate lawyer may assume client is at once the most publicly familiar role for of today requires an accurate understanding of the responsibilities other than the legal affairs of the lawyers as well as an uncommon role for the average nature and implications of the corporate law research business of the corporation he is representing. These lawyer. Most lawyers spend little time in courtrooms, function accompanied by an accelerating rate of include such matters as determining policy and and a large percentage spend their entire practice information accumulation. The recognition of the becoming involved in management. ( Emphasis without litigating a case. (Ibid., p. 593). Nonetheless, need for such improved corporate legal policy supplied.) many lawyers do continue to litigate and the litigating formulation, particularly "model-making" and In a big company, for example, one may have a lawyer's role colors much of both the public image "contingency planning," has impressed upon us the feeling of being isolated from the action, or not and the self perception of the legal profession. (Ibid.). inadequacy of traditional procedures in many understanding how one's work actually fits into the In this regard thus, the dominance of litigation in the decisional contexts. work of the orgarnization. This can be frustrating to public mind reflects history, not reality. (Ibid.). Why is In a complex legal problem the mass of information to someone who needs to see the results of his work this so? Recall that the late Alexander SyCip, a be processed, the sorting and weighing of significant first hand. In short, a corporate lawyer is sometimes corporate lawyer, once articulated on the importance conditional factors, the appraisal of major trends, the offered this fortune to be more closely involved in the of a lawyer as a business counselor in this wise: necessity of estimating the consequences of given running of the business. "Even today, there are still uninformed laymen whose courses of action, and the need for fast decision and Moreover, a corporate lawyer's services may concept of an attorney is one who principally tries response in situations of acute danger have sometimes be engaged by a multinational corporation cases before the courts. The members of the bench prompted the use of sophisticated concepts of (MNC). Some large MNCs provide one of the few and bar and the informed laymen such as information flow theory, operational analysis, opportunities available to corporate lawyers to enter businessmen, know that in most developed societies automatic data processing, and electronic computing the international law field. After all, international law is today, substantially more legal work is transacted in equipment. Understandably, an improved decisional practiced in a relatively small number of companies law offices than in the courtrooms. General structure must stress the predictive component of the and law firms. Because working in a foreign country practitioners of law who do both litigation and non- policy-making process, wherein a "model", of the is perceived by many as glamorous, tills is an area litigation work also know that in most cases they find decisional context or a segment thereof is developed coveted by corporate lawyers. In most cases, themselves spending more time doing what [is] to test projected alternative courses of action in terms however, the overseas jobs go to experienced loosely desccribe[d] as business counseling than in of futuristic effects flowing therefrom. attorneys while the younger attorneys do their trying cases. The business lawyer has been Although members of the legal profession are "international practice" in law libraries. (Business described as the planner, the diagnostician and the regularly engaged in predicting and projecting the Star, "Corporate Law Practice," May 25,1990, p. 4). trial lawyer, the surgeon. I[t] need not [be] stress[ed] trends of the law, the subject of corporate finance law This brings us to the inevitable, i.e., the role of the that in law, as in medicine, surgery should be avoided has received relatively little organized and formalized lawyer in the realm of finance. To borrow the lines of where internal medicine can be effective." (Business attention in the philosophy of advancing corporate Harvard-educated lawyer Bruce Wassertein, to wit: Star, "Corporate Finance Law," Jan. 11, 1989, p. 4). legal education. Nonetheless, a cross-disciplinary "A bad lawyer is one who fails to spot problems, a In the course of a working day the average general approach to legal research has become a vital good lawyer is one who perceives the difficulties, and practitioner wig engage in a number of legal tasks, necessity. the excellent lawyer is one who surmounts them." each involving different legal doctrines, legal skills, Certainly, the general orientation for productive (Business Star, "Corporate Finance Law," Jan. 11, legal processes, legal institutions, clients, and other contributions by those trained primarily in the law can 1989, p. 4). interested parties. Even the increasing numbers of be improved through an early introduction to multi- Today, the study of corporate law practice direly lawyers in specialized practice wig usually perform at variable decisional context and the various needs a "shot in the arm," so to speak. No longer are least some legal services outside their specialty. And approaches for handling such problems. Lawyers, we talking of the traditional law teaching method of even within a narrow specialty such as tax practice, a particularly with either a master's or doctorate degree confining the subject study to the Corporation Code lawyer will shift from one legal task or role such as in business administration or management, and the Securities Code but an incursion as well into advice-giving to an importantly different one such as functioning at the legal policy level of decision- the intertwining modern management issues. representing a client before an administrative agency. making now have some appreciation for the concepts (Wolfram, supra, p. 687). Such corporate legal management issues deal and analytical techniques of other professions which By no means will most of this work involve litigation, primarily with three (3) types of learning: (1) are currently engaged in similar types of complex unless the lawyer is one of the relatively rare types acquisition of insights into current advances which decision-making. a litigator who specializes in this work to the are of particular significance to the corporate counsel; Truth to tell, many situations involving corporate (2) an introduction to usable disciplinary skins exclusion of much else. Instead, the work will require finance problems would require the services of an applicable to a corporate counsel's management the lawyer to have mastered the full range of astute attorney because of the complex legal responsibilities; and (3) a devotion to the organization traditional lawyer skills of client counselling, advice- implications that arise from each and every and management of the legal function itself. giving, document drafting, and negotiation. And necessary step in securing and maintaining the increasingly lawyers find that the new skills of These three subject areas may be thought of as business issue raised. (Business Star, "Corporate evaluation and mediation are both effective for many intersecting circles, with a shared area linking them. Finance Law," Jan. 11, 1989, p. 4). clients and a source of employment. (Ibid.). Otherwise known as "intersecting managerial In our litigation-prone country, a corporate lawyer is jurisprudence," it forms a unifying theme for the Most lawyers will engage in non-litigation legal work assiduously referred to as the "abogado de corporate counsel's total learning. or in litigation work that is constrained in very campanilla." He is the "big-time" lawyer, earning big important ways, at least theoretically, so as to Some current advances in behavior and policy money and with a clientele composed of the tycoons remove from it some of the salient features of sciences affect the counsel's role. For that matter, the and magnates of business and industry. adversarial litigation. Of these special roles, the most corporate lawyer reviews the globalization process, prominent is that of prosecutor. In some lawyers' Despite the growing number of corporate lawyers, including the resulting strategic repositioning that the work the constraints are imposed both by the nature many people could not explain what it is that a firms he provides counsel for are required to make, of the client and by the way in which the lawyer is corporate lawyer does. For one, the number of and the need to think about a corporation's; strategy organized into a social unit to perform that work. The attorneys employed by a single corporation will vary at multiple levels. The salience of the nation-state is most common of these roles are those of corporate with the size and type of the corporation. Many being reduced as firms deal both with global practice and government legal service. (Ibid.). smaller and some large corporations farm out all their multinational entities and simultaneously with sub- legal problems to private law firms. Many others have national governmental units. Firms increasingly collaborate not only with public entities but with each [Be this as it may,] the organization and management its inception in 1972-73. He has also been paying his other often with those who are competitors in other of the legal function, concern three pointed areas of professional license fees as lawyer for more than ten arenas. consideration, thus: years. (p. 124, Rollo) Also, the nature of the lawyer's participation in Preventive Lawyering. Planning by lawyers requires After graduating from the College of Law (U.P.) and decision-making within the corporation is rapidly special skills that comprise a major part of the having hurdled the bar, Atty. Monsod worked in the changing. The modem corporate lawyer has gained a general counsel's responsibilities. They differ from law office of his father. During his stint in the World new role as a stakeholder in some cases those of remedial law. Preventive lawyering is Bank Group (1963-1970), Monsod worked as an participating in the organization and operations of concerned with minimizing the risks of legal trouble operations officer for about two years in Costa Rica governance through participation on boards and and maximizing legal rights for such legal entities at and Panama, which involved getting acquainted with other decision-making roles. Often these new that time when transactional or similar facts are being the laws of member-countries negotiating loans and patterns develop alongside existing legal institutions considered and made. coordinating legal, economic, and project work of the and laws are perceived as barriers. These trends are Managerial Jurisprudence. This is the framework Bank. Upon returning to the Philippines in 1970, he complicated as corporations organize for global within which are undertaken those activities of the worked with the Meralco Group, served as chief operations. ( Emphasis supplied) firm to which legal consequences attach. It needs to executive officer of an investment bank and The practising lawyer of today is familiar as well with be directly supportive of this nation's evolving subsequently of a business conglomerate, and since governmental policies toward the promotion and economic and organizational fabric as firms change 1986, has rendered services to various companies as management of technology. New collaborative to stay competitive in a global, interdependent a legal and economic consultant or chief executive arrangements for promoting specific technologies or environment. The practice and theory of "law" is not officer. As former Secretary-General (1986) and competitiveness more generally require approaches adequate today to facilitate the relationships needed National Chairman (1987) of NAMFREL. Monsod's from industry that differ from older, more adversarial in trying to make a global economy work. work involved being knowledgeable in election law. relationships and traditional forms of seeking to He appeared for NAMFREL in its accreditation Organization and Functioning of the Corporate influence governmental policies. And there are hearings before the Comelec. In the field of Counsel's Office. The general counsel has emerged lessons to be learned from other countries. In advocacy, Monsod, in his personal capacity and as in the last decade as one of the most vibrant subsets Europe, Esprit, Eureka and Race are examples of former Co-Chairman of the Bishops Businessmen's of the legal profession. The corporate counsel hear collaborative efforts between governmental and Conference for Human Development, has worked responsibility for key aspects of the firm's strategic business Japan's MITI is world famous. (Emphasis with the under privileged sectors, such as the farmer issues, including structuring its global operations, supplied) and urban poor groups, in initiating, lobbying for and managing improved relationships with an increasingly engaging in affirmative action for the agrarian reform Following the concept of boundary spanning, the diversified body of employees, managing expanded law and lately the urban land reform bill. Monsod also office of the Corporate Counsel comprises a distinct liability exposure, creating new and varied made use of his legal knowledge as a member of the group within the managerial structure of all kinds of interactions with public decision-makers, coping Davide Commission, a quast judicial body, which organizations. Effectiveness of both long-term and internally with more complex make or by decisions. conducted numerous hearings (1990) and as a temporary groups within organizations has been This whole exercise drives home the thesis that member of the Constitutional Commission (1986- found to be related to indentifiable factors in the knowing corporate law is not enough to make one a 1987), and Chairman of its Committee on group-context interaction such as the groups actively good general corporate counsel nor to give him a full Accountability of Public Officers, for which he was revising their knowledge of the environment sense of how the legal system shapes corporate cited by the President of the Commission, Justice coordinating work with outsiders, promoting team activities. And even if the corporate lawyer's aim is Cecilia Muoz-Palma for "innumerable amendments achievements within the organization. In general, not the understand all of the law's effects on to reconcile government functions with individual such external activities are better predictors of team corporate activities, he must, at the very least, also freedoms and public accountability and the party-list performance than internal group processes. gain a working knowledge of the management issues system for the House of Representative. (pp. 128- In a crisis situation, the legal managerial capabilities if only to be able to grasp not only the basic legal 129 Rollo) ( Emphasis supplied) of the corporate lawyer vis-a-vis the managerial "constitution' or makeup of the modem corporation. Just a word about the work of a negotiating team of mettle of corporations are challenged. Current "Business Star", "The Corporate Counsel," April 10, which Atty. Monsod used to be a member. research is seeking ways both to anticipate effective 1991, p. 4). managerial procedures and to understand In a loan agreement, for instance, a negotiating panel The challenge for lawyers (both of the bar and the relationships of financial liability and insurance acts as a team, and which is adequately constituted bench) is to have more than a passing knowledge of considerations. (Emphasis supplied) to meet the various contingencies that arise during a financial law affecting each aspect of their work. Yet, negotiation. Besides top officials of the Borrower Regarding the skills to apply by the corporate many would admit to ignorance of vast tracts of the concerned, there are the legal officer (such as the counsel, three factors are apropos: financial law territory. What transpires next is a legal counsel), the finance manager, and First System Dynamics. The field of systems dilemma of professional security: Will the lawyer an operations officer (such as an official involved in dynamics has been found an effective tool for new admit ignorance and risk opprobrium?; or will he feign negotiating the contracts) who comprise the managerial thinking regarding both planning and understanding and risk exposure? (Business Star, members of the team. (Guillermo V. Soliven, "Loan pressing immediate problems. An understanding of "Corporate Finance law," Jan. 11, 1989, p. 4). Negotiating Strategies for Developing Country the role of feedback loops, inventory levels, and rates Respondent Christian Monsod was nominated by Borrowers," Staff Paper No. 2, Central Bank of the of flow, enable users to simulate all sorts of President Corazon C. Aquino to the position of Philippines, Manila, 1982, p. 11). (Emphasis systematic problems physical, economic, Chairman of the COMELEC in a letter received by supplied) managerial, social, and psychological. New the Secretariat of the Commission on Appointments After a fashion, the loan agreement is like a country's programming techniques now make the system on April 25, 1991. Petitioner opposed the nomination Constitution; it lays down the law as far as the loan dynamics principles more accessible to managers because allegedly Monsod does not possess the transaction is concerned. Thus, the meat of any Loan including corporate counsels. (Emphasis supplied) required qualification of having been engaged in the Agreement can be compartmentalized into five (5) Second Decision Analysis. This enables users to practice of law for at least ten years. fundamental parts: (1) business terms; (2) borrower's make better decisions involving complexity and On June 5, 1991, the Commission on Appointments representation; (3) conditions of closing; (4) uncertainty. In the context of a law department, it can confirmed the nomination of Monsod as Chairman of covenants; and (5) events of default. (Ibid., p. 13). be used to appraise the settlement value of litigation, the COMELEC. On June 18, 1991, he took his oath In the same vein, lawyers play an important role in aid in negotiation settlement, and minimize the cost of office. On the same day, he assumed office as any debt restructuring program. For aside from and risk involved in managing a portfolio of cases. Chairman of the COMELEC. performing the tasks of legislative drafting and legal (Emphasis supplied) Challenging the validity of the confirmation by the advising, they score national development policies as Third Modeling for Negotiation Management. Commission on Appointments of Monsod's key factors in maintaining their countries' sovereignty. Computer-based models can be used directly by nomination, petitioner as a citizen and taxpayer, filed (Condensed from the work paper, entitled "Wanted: parties and mediators in all lands of negotiations. All the instant petition for certiorari and Prohibition Development Lawyers for Developing Nations," integrated set of such tools provide coherent and praying that said confirmation and the consequent submitted by L. Michael Hager, regional legal adviser effective negotiation support, including hands-on on appointment of Monsod as Chairman of the of the United States Agency for International instruction in these techniques. A simulation case of Commission on Elections be declared null and void. Development, during the Session on Law for the an international joint venture may be used to illustrate Atty. Christian Monsod is a member of the Philippine Development of Nations at the Abidjan World the point. Bar, having passed the bar examinations of 1960 Conference in Ivory Coast, sponsored by the World with a grade of 86-55%. He has been a dues paying Peace Through Law Center on August 26-31, 1973). member of the Integrated Bar of the Philippines since ( Emphasis supplied) Loan concessions and compromises, perhaps even appointee should possess the qualifications required of a grave abuse of discretion amounting to lack or more so than purely renegotiation policies, demand by law. ( Emphasis supplied) excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). expertise in the law of contracts, in legislation and The appointing process in a regular appointment as Thus, only where such grave abuse of discretion is agreement drafting and in renegotiation. Necessarily, in the case at bar, consists of four (4) stages: (1) clearly shown shall the Court interfere with the a sovereign lawyer may work with an international nomination; (2) confirmation by the Commission on Commission's judgment. In the instant case, there is business specialist or an economist in the formulation Appointments; (3) issuance of a commission (in the no occasion for the exercise of the Court's corrective of a model loan agreement. Debt restructuring Philippines, upon submission by the Commission on power, since no abuse, much less a grave abuse of contract agreements contain such a mixture of Appointments of its certificate of confirmation, the discretion, that would amount to lack or excess of technical language that they should be carefully President issues the permanent appointment; and (4) jurisdiction and would warrant the issuance of the drafted and signed only with the advise of competent acceptance e.g., oath-taking, posting of bond, etc. . . writs prayed, for has been clearly shown. counsel in conjunction with the guidance of adequate . (Lacson v. Romero, No. L-3081, October 14, 1949; Additionally, consider the following: technical support personnel. (See International Law Gonzales, Law on Public Officers, p. 200) (1) If the Commission on Appointments rejects a Aspects of the Philippine External Debts, an The power of the Commission on Appointments to nominee by the President, may the Supreme Court unpublished dissertation, U.S.T. Graduate School of give its consent to the nomination of Monsod as reverse the Commission, and thus in Law, 1987, p. 321). ( Emphasis supplied) Chairman of the Commission on Elections is effect confirm the appointment? Clearly, the answer A critical aspect of sovereign debt mandated by Section 1(2) Sub-Article C, Article IX of is in the negative. restructuring/contract construction is the set of terms the Constitution which provides: (2) In the same vein, may the Court reject the and conditions which determines the contractual The Chairman and the Commisioners shall be nominee, whom the Commission has confirmed? The remedies for a failure to perform one or more appointed by the President with the consent of the answer is likewise clear. elements of the contract. A good agreement must not Commission on Appointments for a term of seven (3) If the United States Senate (which is the only define the responsibilities of both parties, but years without reappointment. Of those first appointed, confirming body in the U.S. Congress) decides must also state the recourse open to either party three Members shall hold office for seven years, two to confirma Presidential nominee, it would be when the other fails to discharge an obligation. For a Members for five years, and the last Members for incredible that the U.S. Supreme Court would compleat debt restructuring represents a devotion to three years, without reappointment. Appointment to still reverse the U.S. Senate. that principle which in the ultimate analysis issine qua any vacancy shall be only for the unexpired term of non for foreign loan agreements-an adherence to the Finally, one significant legal maxim is: the predecessor. In no case shall any Member be rule of law in domestic and international affairs of We must interpret not by the letter that killeth, but by appointed or designated in a temporary or acting whose kind U.S. Supreme Court Justice Oliver the spirit that giveth life. capacity. Wendell Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, Anent Justice Teodoro Padilla's separate opinion, Take this hypothetical case of Samson and Delilah. men learn that bustle and bush are not the equal of suffice it to say that his definition of the practice of Once, the procurator of Judea asked Delilah (who quiet genius and serene mastery." (See Ricardo J. law is the traditional or stereotyped notion of law was Samson's beloved) for help in capturing Romulo, "The Role of Lawyers in Foreign practice, as distinguished from the modern concept of Samson. Delilah agreed on condition that Investments," Integrated Bar of the Philippine the practice of law, which modern connotation No blade shall touch his skin; Journal, Vol. 15, Nos. 3 and 4, Third and Fourth is exactly what was intended by the eminent framers No blood shall flow from his veins. Quarters, 1977, p. 265). of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual law When Samson (his long hair cut by Delilah) was Interpreted in the light of the various definitions of the captured, the procurator placed an iron rod burning practice, perhaps practised two or three times a week term Practice of law". particularly the modern concept white-hot two or three inches away from in front of and would outlaw say, law practice once or twice a of law practice, and taking into consideration the Samson's eyes. This blinded the man. Upon hearing year for ten consecutive years. Clearly, this is far liberal construction intended by the framers of the of what had happened to her beloved, Delilah was from the constitutional intent. Constitution, Atty. Monsod's past work experiences beside herself with anger, and fuming with righteous as a lawyer-economist, a lawyer-manager, a lawyer- Upon the other hand, the separate opinion of Justice fury, accused the procurator of reneging on his word. entrepreneur of industry, a lawyer-negotiator of Isagani Cruz states that in my written opinion, I made The procurator calmly replied: "Did any blade touch contracts, and a lawyer-legislator of both the rich and use of a definition of law practice which really means his skin? Did any blood flow from his veins?" The the poor verily more than satisfy the constitutional nothing because the definition says that law practice " procurator was clearly relying on the letter, not the requirement that he has been engaged in the . . . is what people ordinarily mean by the practice of spirit of the agreement. practice of law for at least ten years. law." True I cited the definition but only by way of sarcasm as evident from my statement that the In view of the foregoing, this petition is hereby Besides in the leading case of Luego v. Civil Service DISMISSED. definition of law practice by "traditional areas of law Commission, 143 SCRA 327, the Court said: SO ORDERED. practice is essentially tautologous" or defining a Appointment is an essentially discretionary phrase by means of the phrase itself that is being Fernan, C.J., Grio-Aquino and Medialdea, JJ., power and must be performed by the officer in which defined. concur. it is vested according to his best lights, the only Justice Cruz goes on to say in substance that since Feliciano, J., I certify that he voted to dismiss the condition being that the appointee should possess the law covers almost all situations, most individuals, petition. (Fernan, C.J.) the qualifications required by law. If he does, then the in making use of the law, or in advising others on Sarmiento, J., is on leave. appointment cannot be faulted on the ground that what the law means, are actually practicing law. In there are others better qualified who should have Regalado, and Davide, Jr., J., took no part. that sense, perhaps, but we should not lose sight of been preferred. This is a political question involving the fact that Mr. Monsod is a lawyer, a member of the considerations of wisdom which only the appointing Philippine Bar, who has been practising law for over authority can decide. (emphasis supplied) ten years. This is different from the acts of persons No less emphatic was the Court in the case of practising law, without first becoming lawyers. (Central Bank v. Civil Service Commission, 171 Separate Opinions Justice Cruz also says that the Supreme Court can SCRA 744) where it stated: even disqualify an elected President of the It is well-settled that when the appointee is qualified, Philippines, say, on the ground that he lacks one or NARVASA, J., concurring: as in this case, and all the other legal requirements more qualifications. This matter, I greatly doubt. For I concur with the decision of the majority written by are satisfied, the Commission has no alternative but one thing, how can an action or petition be brought Mr. Justice Paras, albeit only in the result; it does not to attest to the appointment in accordance with the against the President? And even assuming that he is appear to me that there has been an adequate Civil Service Law. The Commission has no authority indeed disqualified, how can the action be showing that the challenged determination by the to revoke an appointment on the ground that another entertained since he is the incumbent President? Commission on Appointments-that the appointment person is more qualified for a particular position. It We now proceed: of respondent Monsod as Chairman of the also has no authority to direct the appointment of a The Commission on the basis of evidence submitted Commission on Elections should, on the basis of his substitute of its choice. To do so would be an doling the public hearings on Monsod's confirmation, stated qualifications and after due assessment encroachment on the discretion vested upon the implicitly determined that he possessed the thereof, be confirmed-was attended by error so gross appointing authority. An appointment is essentially necessary qualifications as required by law. The as to amount to grave abuse of discretion and within the discretionary power of whomsoever it is judgment rendered by the Commission in the consequently merits nullification by this Court in vested, subject to the only condition that the exercise of such an acknowledged power is beyond accordance with the second paragraph of Section 1, judicial interference except only upon a clear showing Article VIII of the Constitution. I therefore vote to payment for such services (State vs. Bryan, 4 S.E. HABITUALLY for at least ten (10) years prior to his DENY the petition. 522, 98 N.C. 644,647.) ... (emphasis supplied). appointment as COMELEC Chairman. It is worth mentioning that the respondent While it may be granted that he performed tasks and PADILLA, J., dissenting: Commission on Appointments in a Memorandum it activities which could be latitudinarianly considered prepared, enumerated several factors determinative activities peculiar to the practice of law, like the The records of this case will show that when the of whether a particular activity constitutes "practice of drafting of legal documents and the rendering of legal Court first deliberated on the Petition at bar, I voted law." It states: opinion or advice, such were isolated transactions or not only to require the respondents to comment on 1. Habituality. The term "practice of law" implies activities which do not qualify his past endeavors as the Petition, but I was the sole vote for the issuance customarily or habitually holding one's self out to the "practice of law." To become engaged in the practice of a temporary restraining order to enjoin respondent public as a lawyer (People vs. Villanueva, 14 SCRA of law, there must be a continuity, or a succession of Monsod from assuming the position of COMELEC 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) acts. As observed by the Solicitor General in People Chairman, while the Court deliberated on his such as when one sends a circular announcing the vs. Villanueva: 4 constitutional qualification for the office. My purpose in voting for a TRO was to prevent the inconvenience establishment of a law office for the general practice Essentially, the word private practice of law implies and even embarrassment to all parties concerned of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one that one must have presented himself to be in were the Court to finally decide for respondent takes the oath of office as a lawyer before a notary theactive and continued practice of the legal Monsod's disqualification. Moreover, a reading of the public, and files a manifestation with the Supreme profession and that his professional services are Petition then in relation to established jurisprudence Court informing it of his intention to practice law in all available to the public for a compensation, as a already showed prima facie that respondent Monsod courts in the country (People v. De Luna, 102 Phil. source of his livelihood or in consideration of his said did not possess the needed qualification, that is, he 968). services. had not engaged in the practice of law for at least ten Practice is more than an isolated appearance for it ACCORDINGLY, my vote is to GRANT the petition (10) years prior to his appointment as COMELEC consists in frequent or customary action, a and to declare respondent Monsod as not qualified Chairman. succession of acts of the same kind. In other words, it for the position of COMELEC Chairman for not After considering carefully respondent Monsod's is a habitual exercise (People v. Villanueva, 14 SCRA having engaged in the practice of law for at least ten comment, I am even more convinced that the 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864). (10) years prior to his appointment to such position. constitutional requirement of "practice of law for at 2. Compensation. Practice of law implies that one CRUZ, J., dissenting: least ten (10) years" has not been met. must have presented himself to be in the active and I am sincerely impressed by the ponencia of my The procedural barriers interposed by respondents continued practice of the legal profession and that his brother Paras but find I must dissent just the same. deserve scant consideration because, ultimately, the professional services are available to the public for There are certain points on which I must differ with core issue to be resolved in this petition is the proper compensation, as a service of his livelihood or in him while of course respecting hisviewpoint. construal of the constitutional provision requiring a consideration of his said services. (People v. To begin with, I do not think we are inhibited from majority of the membership of COMELEC, including Villanueva, supra). Hence, charging for services such examining the qualifications of the respondent simply the Chairman thereof to "have been engaged in the as preparation of documents involving the use of because his nomination has been confirmed by the practice of law for at least ten (10) years." (Art. IX(C), legal knowledge and skill is within the term "practice Commission on Appointments. In my view, this is not Section 1(1), 1987 Constitution). Questions involving of law" (Ernani Pao, Bar Reviewer in Legal and a political question that we are barred from resolving. the construction of constitutional provisions are best Judicial Ethics, 1988 ed., p. 8 citing People v. Determination of the appointee's credentials is made left to judicial resolution. As declared in Angara v. People's Stockyards State Bank, 176 N.B. 901) and, on the basis of the established facts, not the Electoral Commission, (63 Phil. 139) "upon the one who renders an opinion as to the proper discretion of that body. Even if it were, the exercise of judicial department is thrown the solemn and interpretation of a statute, and receives pay for it, is that discretion would still be subject to our review. inescapable obligation of interpreting the Constitution to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 In Luego, which is cited in the ponencia, what was and defining constitutional boundaries." N.Y.S. 462) If compensation is expected, all advice to involved was the discretion of the appointing authority The Constitution has imposed clear and specific tochoose between two claimants to the same office clients and all action taken for them in matters standards for a COMELEC Chairman. Among these who both possessed the required qualifications. It connected with the law; are practicing law. (Elwood are that he must have been "engaged in the practice was that kind of discretion that we said could not be Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359) of law for at least ten (10) years." It is the bounden reviewed. duty of this Court to ensure that such standard is met 3. Application of law legal principle practice or procedure which calls for legal knowledge, training If a person elected by no less than the sovereign and complied with. and experience is within the term "practice of law". people may be ousted by this Court for lack of the What constitutes practice of law? As commonly required qualifications, I see no reason why we (Martin supra) understood, "practice" refers to the actual cannot disqualified an appointee simply because he performance or application of knowledge as 4. Attorney-client relationship. Engaging in the has passed the Commission on Appointments. distinguished from mere possession of knowledge; it practice of law presupposes the existence of lawyer- client relationship. Hence, where a lawyer undertakes Even the President of the Philippines may be connotes an active, habitual,repeated or customary an activity which requires knowledge of law but declared ineligible by this Court in an appropriate action. 1 To "practice" law, or any profession for that involves no attorney-client relationship, such as proceeding notwithstanding that he has been found matter, means, to exercise or pursue an employment teaching law or writing law books or articles, he acceptable by no less than the enfranchised citizenry. or profession actively, habitually, cannot be said to be engaged in the practice of his The reason is that what we would be examining is not repeatedly or customarily. profession or a lawyer (Agpalo, Legal Ethics, 1989 the wisdom of his election but whether or not he was Therefore, a doctor of medicine who is employed and qualified to be elected in the first place. ed., p. 30). 3 is habitually performing the tasks of a nursing aide, The above-enumerated factors would, I believe, be Coming now to the qualifications of the private cannot be said to be in the "practice of medicine." A useful aids in determining whether or not respondent respondent, I fear that the ponencia may have been certified public accountant who works as a clerk, Monsod meets the constitutional qualification of too sweeping in its definition of the phrase "practice cannot be said to practice his profession as an practice of law for at least ten (10) years at the time of law" as to render the qualification practically accountant. In the same way, a lawyer who is of his appointment as COMELEC Chairman. toothless. From the numerous activities accepted as employed as a business executive or a corporate embraced in the term, I have the uncomfortable manager, other than as head or attorney of a Legal The following relevant questions may be asked: feeling that one does not even have to be a lawyer to Department of a corporation or a governmental 1. Did respondent Monsod perform any of the tasks be engaged in the practice of law as long as his agency, cannot be said to be in the practice of law. which are peculiar to the practice of law? activities involve the application of some law, As aptly held by this Court in the case of People vs. 2. Did respondent perform such tasks customarily or however peripherally. The stock broker and the Villanueva: 2 habitually? insurance adjuster and the realtor could come under Practice is more than an isolated appearance for it 3. Assuming that he performed any of such tasks the definition as they deal with or give advice on consists in frequent or customary actions, a habitually, did he do so HABITUALLY FOR AT matters that are likely "to become involved in succession of acts of the same kind. In other words, it LEAST TEN (10) YEARS prior to his appointment as litigation." is frequent habitual exercise (State vs- Cotner, 127, COMELEC Chairman? The lawyer is considered engaged in the practice of p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law law even if his main occupation is another business Given the employment or job history of respondent to fall within the prohibition of statute has been and he interprets and applies some law only as an Monsod as appears from the records, I am interpreted as customarily or habitually holding one's incident of such business. That covers every persuaded that if ever he did perform any of the tasks self out to the public as a lawyer and demanding company organized under the Corporation Code and which constitute the practice of law, he did not do so regulated by the SEC under P.D. 902-A. Considering There are two key factors that make our task difficult. Philippine Petroleum Corporation, Philippine Electric the ramifications of the modern society, there is First is our reviewing the work of a constitutional Corporation hardly any activity that is not affected by some law or Commission on Appointments whose duty is 4. 1973-1976: Yujuico Group President, Fil-Capital government regulation the businessman must know precisely to look into the qualifications of persons Development Corporation and affiliated companies about and observe. In fact, again going by the appointed to high office. Even if the Commission errs, 5. 1976-1978: Finaciera Manila Chief Executive definition, a lawyer does not even have to be part of a we have no power to set aside error. We can look Officer business concern to be considered a practitioner. He only into grave abuse of discretion or whimsically and can be so deemed when, on his own, he rents a arbitrariness. Second is our belief that Mr. Monsod 6. 1978-1986: Guevent Group of Companies Chief house or buys a car or consults a doctor as these possesses superior qualifications in terms of Executive Officer acts involve his knowledge and application of the executive ability, proficiency in management, 7. 1986-1987: Philippine Constitutional Commission laws regulating such transactions. If he operates a educational background, experience in international Member public utility vehicle as his main source of livelihood, banking and finance, and instant recognition by the 8. 1989-1991: The Fact-Finding Commission on the he would still be deemed engaged in the practice of public. His integrity and competence are not December 1989 Coup Attempt Member law because he must obey the Public Service Act questioned by the petitioner. What is before us is and the rules and regulations of the Energy compliance with a specific requirement written into 9. Presently: Chairman of the Board and Chief Regulatory Board. the Constitution. Executive Officer of the following companies: The ponencia quotes an American decision defining Inspite of my high regard for Mr. Monsod, I cannot a. ACE Container Philippines, Inc. the practice of law as the "performance of any acts ... shirk my constitutional duty. He has never engaged in b. Dataprep, Philippines in or out of court, commonly understood to be the the practice of law for even one year. He is a member c. Philippine SUNsystems Products, Inc. practice of law," which tells us absolutely nothing. of the bar but to say that he has practiced law is d. Semirara Coal Corporation The decision goes on to say that "because lawyers stretching the term beyond rational limits. perform almost every function known in the e. CBL Timber Corporation A person may have passed the bar examinations. But commercial and governmental realm, such a if he has not dedicated his life to the law, if he has not Member of the Board of the Following: definition would obviously be too global to be engaged in an activity where membership in the bar a. Engineering Construction Corporation of the workable." is a requirement I fail to see how he can claim to Philippines The effect of the definition given in the ponencia is to have been engaged in the practice of law. b. First Philippine Energy Corporation consider virtually every lawyer to be engaged in the Engaging in the practice of law is a qualification not c. First Philippine Holdings Corporation practice of law even if he does not earn his living, or only for COMELEC chairman but also for at least part of it, as a lawyer. It is enough that his d. First Philippine Industrial Corporation appointment to the Supreme Court and all lower activities are incidentally (even if only remotely) courts. What kind of Judges or Justices will we have e. Graphic Atelier connected with some law, ordinance, or regulation. if there main occupation is selling real estate, f. Manila Electric Company The possible exception is the lawyer whose income is managing a business corporation, serving in fact- g. Philippine Commercial Capital, Inc. derived from teaching ballroom dancing or escorting finding committee, working in media, or operating a wrinkled ladies with pubescent pretensions. h. Philippine Electric Corporation farm with no active involvement in the law, whether in The respondent's credentials are impressive, to be Government or private practice, except that in one i. Tarlac Reforestation and Environment Enterprises sure, but they do not persuade me that he has been joyful moment in the distant past, they happened to j. Tolong Aquaculture Corporation engaged in the practice of law for ten years as pass the bar examinations? k. Visayan Aquaculture Corporation required by the Constitution. It is conceded that he The Constitution uses the phrase "engaged in the l. Guimaras Aquaculture Corporation (Rollo, pp. 21- has been engaged in business and finance, in which practice of law for at least ten years." The deliberate 22) areas he has distinguished himself, but as an choice of words shows that the practice envisioned is executive and economist and not as a practicing There is nothing in the above bio-data which even active and regular, not isolated, occasional, lawyer. The plain fact is that he has occupied the remotely indicates that respondent Monsod has accidental, intermittent, incidental, seasonal, or various positions listed in his resume by virtue of his given the lawenough attention or a certain degree of extemporaneous. To be "engaged" in an activity for experience and prestige as a businessman and not commitment and participation as would support in all ten years requires committed participation in as an attorney-at-law whose principal attention is sincerity and candor the claim of having engaged in something which is the result of one's decisive focused on the law. Even if it be argued that he was its practice for at least ten years. Instead of working choice. It means that one is occupied and involved in acting as a lawyer when he lobbied in Congress for as a lawyer, he has lawyers working for him. Instead the enterprise; one is obliged or pledged to carry it agrarian and urban reform, served in the NAMFREL of giving receiving that legal advice of legal services, out with intent and attention during the ten-year and the Constitutional Commission (together with he was the oneadvice and those services as an period. non-lawyers like farmers and priests) and was a executive but not as a lawyer. I agree with the petitioner that based on the bio-data member of the Davide Commission, he has not The deliberations before the Commission on submitted by respondent Monsod to the Commission proved that his activities in these capacities extended Appointments show an effort to equate "engaged in on Appointments, the latter has not been engaged in over the prescribed 10-year period of actual practice the practice of law" with the use of legal knowledge in the practice of law for at least ten years. In fact, if of the law. He is doubtless eminently qualified for various fields of endeavor such as commerce, appears that Mr. Monsod has never practiced law many other positions worthy of his abundant talents industry, civic work, blue ribbon investigations, except for an alleged one year period after passing but not as Chairman of the Commission on Elections. agrarian reform, etc. where such knowledge would be the bar examinations when he worked in his father's I have much admiration for respondent Monsod, no helpful. law firm. Even then his law practice must have been less than for Mr. Justice Paras, but I must regretfully extremely limited because he was also working for I regret that I cannot join in playing fast and loose vote to grant the petition. M.A. and Ph. D. degrees in Economics at the with a term, which even an ordinary layman accepts GUTIERREZ, JR., J., dissenting: University of Pennsylvania during that period. How as having a familiar and customary well-defined could he practice law in the United States while not a meaning. Every resident of this country who has When this petition was filed, there was hope that member of the Bar there? reached the age of discernment has to know, follow, engaging in the practice of law as a qualification for or apply the law at various times in his life. Legal public office would be settled one way or another in The professional life of the respondent follows: knowledge is useful if not necessary for the business fairly definitive terms. Unfortunately, this was not the 1.15.1. Respondent Monsod's activities since his executive, legislator, mayor, barangay captain, result. passing the Bar examinations in 1961 consist of the teacher, policeman, farmer, fisherman, market Of the fourteen (14) member Court, 5 are of the view following: vendor, and student to name only a few. And yet, can that Mr. Christian Monsod engaged in the practice of 1. 1961-1963: M.A. in Economics (Ph. D. candidate), these people honestly assert that as such, they are law (with one of these 5 leaving his vote behind while University of Pennsylvania engaged in the practice of law? on official leave but not expressing his clear stand on 2. 1963-1970: World Bank Group Economist, The Constitution requires having been "engaged in the matter); 4 categorically stating that he did not Industry Department; Operations, Latin American the practice of law for at least ten years." It is not practice law; 2 voting in the result because there was Department; Division Chief, South Asia and Middle satisfied with having been "a member of the no error so gross as to amount to grave abuse of East, International Finance Corporation Philippine bar for at least ten years." discretion; one of official leave with no instructions left behind on how he viewed the issue; and 2 not 3. 1970-1973: Meralco Group Executive of various Some American courts have defined the practice of taking part in the deliberations and the decision. companies, i.e., Meralco Securities Corporation, law, as follows: The practice of law involves not only appearance in attorney at law, says Webster, is an officer of a court Commission may possess the background, court in connection with litigation but also services of law, legally qualified to prosecute and defend competence, integrity, and dedication, to qualify for rendered out of court, and it includes the giving of actions in such court on the retainerof clients. "The such high offices as President, Vice-President, advice or the rendering of any services requiring the principal duties of an attorney are (1) to be true to the Senator, Congressman or Governor but the use of legal skill or knowledge, such as preparing a court and to his client; (2) to manage the business of Constitution in prescribing the specific qualification of will, contract or other instrument, the legal effect of his client with care, skill, and integrity; (3) to keep his having engaged in the practice of law for at least ten which, under the facts and conditions involved, must client informed as to the state of his business; (4) to (10) years for the position of COMELEC Chairman be carefully determined.People ex rel. Chicago Bar keep his secrets confided to him as such. ... His has ordered that he may not be confirmed for that Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People rights are to be justly compensated for his services." office. The Constitution charges the public ex rel. Illinois State Bar Ass'n v. People's Stock Yards Bouv. Law Dict. tit. "Attorney." The transitive verb respondents no less than this Court to obey its State Bank, 344 Ill. 462,176 N.E. 901, and cases "practice," as defined by Webster, means 'to do or mandate. cited. perform frequently, customarily, or habitually; to I, therefore, believe that the Commission on It would be difficult, if not impossible to lay down a perform by a succession of acts, as, to practice Appointments committed grave abuse of discretion in formula or definition of what constitutes the practice gaming, ... to carry on in practice, or repeated action; confirming the nomination of respondent Monsod as of law. "Practicing law" has been defined as to apply, as a theory, to real life; to exercise, as a Chairman of the COMELEC. "Practicing as an attorney or counselor at law profession, trade, art. etc.; as, to practice law or I vote to GRANT the petition. according to the laws and customs of our courts, is medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied) Bidin, J., dissent the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of In this jurisdiction, we have ruled that the practice of such advice or rendition of such service requires the law denotes frequency or a succession of acts. Thus, Separate Opinions use of any degree of legal knowledge or skill." we stated in the case of People v. Villanueva (14 NARVASA, J., concurring: Without adopting that definition, we referred to it as SCRA 109 [1965]): being substantially correct in People ex rel. Illinois I concur with the decision of the majority written by xxx xxx xxx Mr. Justice Paras, albeit only in the result; it does not State Bar Ass'n v. People's Stock Yards State Bank, ... Practice is more than an isolated appearance, for it appear to me that there has been an adequate 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. consists in frequent or customary actions, a showing that the challenged determination by the 2d 773, 776) succession of acts of the same kind. In other words, it Commission on Appointments-that the appointment For one's actions to come within the purview is frequent habitual exercise (State v. Cotner, 127, p. of respondent Monsod as Chairman of the of practice of law they should not only be activities 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to Commission on Elections should, on the basis of his peculiar to the work of a lawyer, they should also be fall within the prohibition of statute has been stated qualifications and after due assessment performed, habitually, frequently or customarily, to interpreted as customarily or habitually holding one's thereof, be confirmed-was attended by error so gross wit: self out to the public, as a lawyer and demanding as to amount to grave abuse of discretion and xxx xxx xxx payment for such services. ... . (at p. 112) consequently merits nullification by this Court in Respondent's answers to questions propounded to It is to be noted that the Commission on Appointment accordance with the second paragraph of Section 1, him were rather evasive. He was asked whether or itself recognizes habituality as a required component Article VIII of the Constitution. I therefore vote to not he ever prepared contracts for the parties in real- of the meaning of practice of law in a Memorandum DENY the petition. estate transactions where he was not the procuring prepared and issued by it, to wit: Melencio-Herrera, J., concur. agent. He answered: "Very seldom." In answer to the l. Habituality. The term 'practice of law' implies PADILLA, J., dissenting: question as to how many times he had prepared customarilyor habitually holding one's self out to the contracts for the parties during the twenty-one years The records of this case will show that when the public as a lawyer (People v. Villanueva, 14 SCRA Court first deliberated on the Petition at bar, I voted of his business, he said: "I have no Idea." When 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) asked if it would be more than half a dozen times his not only to require the respondents to comment on such as when one sends a circular announcing the the Petition, but I was the sole vote for the issuance answer was I suppose. Asked if he did not recall establishment of a law office for the general practice making the statement to several parties that he had of a temporary restraining order to enjoin respondent of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one Monsod from assuming the position of COMELEC prepared contracts in a large number of instances, he takes the oath of office as a lawyer before a notary answered: "I don't recall exactly what was said." Chairman, while the Court deliberated on his public, and files a manifestation with the Supreme constitutional qualification for the office. My purpose When asked if he did not remember saying that he Court informing it of his intention to practice law in all had made a practice of preparing deeds, mortgages in voting for a TRO was to prevent the inconvenience courts in the country (People v. De Luna, 102 Phil. and even embarrassment to all parties concerned and contracts and charging a fee to the parties 968). therefor in instances where he was not the broker in were the Court to finally decide for respondent Practice is more than an isolated appearance, for it Monsod's disqualification. Moreover, a reading of the the deal, he answered: "Well, I don't believe so, that consists in frequent or customary action, a Petition then in relation to established jurisprudence is not a practice." Pressed further for an answer as to succession of acts of the same kind. In other words, it already showed prima facie that respondent Monsod his practice in preparing contracts and deeds for is a habitual exercise (People v. Villanueva, 14 SCRA did not possess the needed qualification, that is, he parties where he was not the broker, he finally 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." had not engaged in the practice of law for at least ten answered: "I have done about everything that is on (Rollo, p. 115) (10) years prior to his appointment as COMELEC the books as far as real estate is concerned." xxx xxx xxx Chairman. xxx xxx xxx While the career as a businessman of respondent After considering carefully respondent Monsod's Respondent takes the position that because he is a comment, I am even more convinced that the Monsod may have profited from his legal knowledge, real-estate broker he has a lawful right to do any constitutional requirement of "practice of law for at the use of such legal knowledge is incidental and legal work in connection with real-estate transactions, least ten (10) years" has not been met. consists of isolated activities which do not fall under especially in drawing of real-estate contracts, deeds, the denomination of practice of law. Admission to the The procedural barriers interposed by respondents mortgages, notes and the like. There is no doubt but practice of law was not required for membership in deserve scant consideration because, ultimately, the that he has engaged in these practices over the the Constitutional Commission or in the Fact-Finding core issue to be resolved in this petition is the proper years and has charged for his services in that Commission on the 1989 Coup Attempt. Any specific construal of the constitutional provision requiring a connection. ... (People v. Schafer, 87 N.E. 2d 773) legal activities which may have been assigned to Mr. majority of the membership of COMELEC, including xxx xxx xxx Monsod while a member may be likened to isolated the Chairman thereof to "have been engaged in the ... An attorney, in the most general sense, is a person transactions of foreign corporations in the Philippines practice of law for at least ten (10) years." (Art. IX(C), designated or employed by another to act in his which do not categorize the foreign corporations as Section 1(1), 1987 Constitution). Questions involving stead; an agent; more especially, one of a class of doing business in the Philippines. As in the practice the construction of constitutional provisions are best persons authorized to appear and act for suitors or of law, doing business also should be active and left to judicial resolution. As declared in Angara v. defendants in legal proceedings. Strictly, these continuous. Isolated business transactions or Electoral Commission, (63 Phil. 139) "upon the professional persons are attorneys at law, and non- occasional, incidental and casual transactions are not judicial department is thrown the solemn and professional agents are properly styled "attorney's in within the context of doing business. This was our inescapable obligation of interpreting the Constitution fact;" but the single word is much used as meaning ruling in the case of Antam Consolidated, Inc. v. and defining constitutional boundaries." an attorney at law. A person may be an attorney in Court of appeals, 143 SCRA 288 [1986]). The Constitution has imposed clear and specific facto for another, without being an attorney at law. Respondent Monsod, corporate executive, civic standards for a COMELEC Chairman. Among these Abb. Law Dict. "Attorney." A public attorney, or leader, and member of the Constitutional are that he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden 3. Application of law legal principle practice or was that kind of discretion that we said could not be duty of this Court to ensure that such standard is met procedure which calls for legal knowledge, training reviewed. and complied with. and experience is within the term "practice of law". If a person elected by no less than the sovereign What constitutes practice of law? As commonly (Martin supra) people may be ousted by this Court for lack of the understood, "practice" refers to the actual 4. Attorney-client relationship. Engaging in the required qualifications, I see no reason why we performance or application of knowledge as practice of law presupposes the existence of lawyer- cannot disqualified an appointee simply because he distinguished from mere possession of knowledge; it client relationship. Hence, where a lawyer undertakes has passed the Commission on Appointments. connotes an active, habitual,repeated or customary an activity which requires knowledge of law but Even the President of the Philippines may be action. 1 To "practice" law, or any profession for that involves no attorney-client relationship, such as declared ineligible by this Court in an appropriate matter, means, to exercise or pursue an employment teaching law or writing law books or articles, he proceeding notwithstanding that he has been found or profession actively, habitually, cannot be said to be engaged in the practice of his acceptable by no less than the enfranchised citizenry. repeatedly or customarily. profession or a lawyer (Agpalo, Legal Ethics, 1989 The reason is that what we would be examining is not Therefore, a doctor of medicine who is employed and ed., p. 30). 3 the wisdom of his election but whether or not he was is habitually performing the tasks of a nursing aide, The above-enumerated factors would, I believe, be qualified to be elected in the first place. cannot be said to be in the "practice of medicine." A useful aids in determining whether or not respondent Coming now to the qualifications of the private certified public accountant who works as a clerk, Monsod meets the constitutional qualification of respondent, I fear that the ponencia may have been cannot be said to practice his profession as an practice of law for at least ten (10) years at the time too sweeping in its definition of the phrase "practice accountant. In the same way, a lawyer who is of his appointment as COMELEC Chairman. of law" as to render the qualification practically employed as a business executive or a corporate The following relevant questions may be asked: toothless. From the numerous activities accepted as manager, other than as head or attorney of a Legal embraced in the term, I have the uncomfortable 1. Did respondent Monsod perform any of the tasks Department of a corporation or a governmental feeling that one does not even have to be a lawyer to which are peculiar to the practice of law? agency, cannot be said to be in the practice of law. be engaged in the practice of law as long as his 2. Did respondent perform such tasks customarily or As aptly held by this Court in the case of People vs. activities involve the application of some law, habitually? Villanueva: 2 however peripherally. The stock broker and the 3. Assuming that he performed any of such tasks insurance adjuster and the realtor could come under Practice is more than an isolated appearance for it habitually, did he do so HABITUALLY FOR AT the definition as they deal with or give advice on consists in frequent or customary actions, a LEAST TEN (10) YEARS prior to his appointment as matters that are likely "to become involved in succession of acts of the same kind. In other words, it COMELEC Chairman? litigation." is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law Given the employment or job history of respondent The lawyer is considered engaged in the practice of to fall within the prohibition of statute has been Monsod as appears from the records, I am law even if his main occupation is another business interpreted as customarily or habitually holding one's persuaded that if ever he did perform any of the tasks and he interprets and applies some law only as an self out to the public as a lawyer and demanding which constitute the practice of law, he did not do so incident of such business. That covers every payment for such services (State vs. Bryan, 4 S.E. HABITUALLY for at least ten (10) years prior to his company organized under the Corporation Code and 522, 98 N.C. 644,647.) ... (emphasis supplied). appointment as COMELEC Chairman. regulated by the SEC under P.D. 902-A. Considering It is worth mentioning that the respondent While it may be granted that he performed tasks and the ramifications of the modern society, there is Commission on Appointments in a Memorandum it activities which could be latitudinarianly considered hardly any activity that is not affected by some law or prepared, enumerated several factors determinative activities peculiar to the practice of law, like the government regulation the businessman must know of whether a particular activity constitutes "practice of drafting of legal documents and the rendering of legal about and observe. In fact, again going by the law." It states: opinion or advice, such were isolated transactions or definition, a lawyer does not even have to be part of a activities which do not qualify his past endeavors as business concern to be considered a practitioner. He 1. Habituality. The term "practice of law" implies "practice of law." To become engaged in the practice can be so deemed when, on his own, he rents a customarily or habitually holding one's self out to the of law, there must be a continuity, or a succession of house or buys a car or consults a doctor as these public as a lawyer (People vs. Villanueva, 14 SCRA acts. As observed by the Solicitor General in People acts involve his knowledge and application of the 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) vs. Villanueva: 4 laws regulating such transactions. If he operates a such as when one sends a circular announcing the Essentially, the word private practice of law implies public utility vehicle as his main source of livelihood, establishment of a law office for the general practice that one must have presented himself to be in he would still be deemed engaged in the practice of of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one theactive and continued practice of the legal law because he must obey the Public Service Act takes the oath of office as a lawyer before a notary profession and that his professional services are and the rules and regulations of the Energy public, and files a manifestation with the Supreme available to the public for a compensation, as a Regulatory Board. Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. source of his livelihood or in consideration of his said The ponencia quotes an American decision defining 968). services. the practice of law as the "performance of any acts . . ACCORDINGLY, my vote is to GRANT the petition . in or out of court, commonly understood to be the Practice is more than an isolated appearance for it and to declare respondent Monsod as not qualified practice of law," which tells us absolutely nothing. consists in frequent or customary action, a for the position of COMELEC Chairman for not The decision goes on to say that "because lawyers succession of acts of the same kind. In other words, it having engaged in the practice of law for at least ten perform almost every function known in the is a habitual exercise (People v. Villanueva, 14 SCRA (10) years prior to his appointment to such position. commercial and governmental realm, such a 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864). definition would obviously be too global to be 2. Compensation. Practice of law implies that one CRUZ, J., dissenting: workable." must have presented himself to be in the active and I am sincerely impressed by the ponencia of my The effect of the definition given in the ponencia is to continued practice of the legal profession and that his brother Paras but find I must dissent just the same. consider virtually every lawyer to be engaged in the professional services are available to the public for There are certain points on which I must differ with practice of law even if he does not earn his living, or compensation, as a service of his livelihood or in him while of course respecting hisviewpoint. at least part of it, as a lawyer. It is enough that his consideration of his said services. (People v. To begin with, I do not think we are inhibited from activities are incidentally (even if only remotely) Villanueva, supra). Hence, charging for services such examining the qualifications of the respondent simply connected with some law, ordinance, or regulation. as preparation of documents involving the use of because his nomination has been confirmed by the The possible exception is the lawyer whose income is legal knowledge and skill is within the term "practice Commission on Appointments. In my view, this is not derived from teaching ballroom dancing or escorting of law" (Ernani Pao, Bar Reviewer in Legal and a political question that we are barred from resolving. wrinkled ladies with pubescent pretensions. Judicial Ethics, 1988 ed., p. 8 citing People v. Determination of the appointee's credentials is made People's Stockyards State Bank, 176 N.B. 901) and, The respondent's credentials are impressive, to be on the basis of the established facts, not the sure, but they do not persuade me that he has been one who renders an opinion as to the proper discretion of that body. Even if it were, the exercise of interpretation of a statute, and receives pay for it, is engaged in the practice of law for ten years as that discretion would still be subject to our review. required by the Constitution. It is conceded that he to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290 In Luego, which is cited in the ponencia, what was has been engaged in business and finance, in which N.Y.S. 462) If compensation is expected, all advice to involved was the discretion of the appointing authority areas he has distinguished himself, but as an clients and all action taken for them in matters tochoose between two claimants to the same office executive and economist and not as a practicing connected with the law; are practicing law. (Elwood who both possessed the required qualifications. It lawyer. The plain fact is that he has occupied the Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359) various positions listed in his resume by virtue of his experience and prestige as a businessman and not something which is the result of one's decisive as a lawyer, he has lawyers working for him. Instead as an attorney-at-law whose principal attention is choice. It means that one is occupied and involved in of giving receiving that legal advice of legal services, focused on the law. Even if it be argued that he was the enterprise; one is obliged or pledged to carry it he was the oneadvice and those services as an acting as a lawyer when he lobbied in Congress for out with intent and attention during the ten-year executive but not as a lawyer. agrarian and urban reform, served in the NAMFREL period. The deliberations before the Commission on and the Constitutional Commission (together with I agree with the petitioner that based on the bio-data Appointments show an effort to equate "engaged in non-lawyers like farmers and priests) and was a submitted by respondent Monsod to the Commission the practice of law" with the use of legal knowledge in member of the Davide Commission, he has not on Appointments, the latter has not been engaged in various fields of endeavor such as commerce, proved that his activities in these capacities extended the practice of law for at least ten years. In fact, if industry, civic work, blue ribbon investigations, over the prescribed 10-year period of actual practice appears that Mr. Monsod has never practiced law agrarian reform, etc. where such knowledge would be of the law. He is doubtless eminently qualified for except for an alleged one year period after passing helpful. many other positions worthy of his abundant talents the bar examinations when he worked in his father's I regret that I cannot join in playing fast and loose but not as Chairman of the Commission on Elections. law firm. Even then his law practice must have been with a term, which even an ordinary layman accepts I have much admiration for respondent Monsod, no extremely limited because he was also working for as having a familiar and customary well-defined less than for Mr. Justice Paras, but I must regretfully M.A. and Ph. D. degrees in Economics at the meaning. Every resident of this country who has vote to grant the petition. University of Pennsylvania during that period. How reached the age of discernment has to know, follow, GUTIERREZ, JR., J., dissenting: could he practice law in the United States while not a or apply the law at various times in his life. Legal member of the Bar there? knowledge is useful if not necessary for the business When this petition was filed, there was hope that engaging in the practice of law as a qualification for The professional life of the respondent follows: executive, legislator, mayor, barangay captain, public office would be settled one way or another in 1.15.1. Respondent Monsod's activities since his teacher, policeman, farmer, fisherman, market fairly definitive terms. Unfortunately, this was not the passing the Bar examinations in 1961 consist of the vendor, and student to name only a few. And yet, can result. following: these people honestly assert that as such, they are engaged in the practice of law? Of the fourteen (14) member Court, 5 are of the view 1. 1961-1963: M.A. in Economics (Ph. D. candidate), that Mr. Christian Monsod engaged in the practice of University of Pennsylvania The Constitution requires having been "engaged in law (with one of these 5 leaving his vote behind while the practice of law for at least ten years." It is not 2. 1963-1970: World Bank Group Economist, on official leave but not expressing his clear stand on satisfied with having been "a member of the Industry Department; Operations, Latin American the matter); 4 categorically stating that he did not Philippine bar for at least ten years." Department; Division Chief, South Asia and Middle practice law; 2 voting in the result because there was East, International Finance Corporation Some American courts have defined the practice of no error so gross as to amount to grave abuse of law, as follows: 3. 1970-1973: Meralco Group Executive of various discretion; one of official leave with no instructions The practice of law involves not only appearance in companies, i.e., Meralco Securities Corporation, left behind on how he viewed the issue; and 2 not court in connection with litigation but also services Philippine Petroleum Corporation, Philippine Electric taking part in the deliberations and the decision. rendered out of court, and it includes the giving of Corporation There are two key factors that make our task difficult. advice or the rendering of any services requiring the 4. 1973-1976: Yujuico Group President, Fil-Capital First is our reviewing the work of a constitutional use of legal skill or knowledge, such as preparing a Development Corporation and affiliated companies Commission on Appointments whose duty is will, contract or other instrument, the legal effect of precisely to look into the qualifications of persons 5. 1976-1978: Finaciera Manila Chief Executive which, under the facts and conditions involved, must appointed to high office. Even if the Commission errs, Officer be carefully determined.People ex rel. Chicago Bar we have no power to set aside error. We can look 6. 1978-1986: Guevent Group of Companies Chief Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People only into grave abuse of discretion or whimsically and Executive Officer ex rel. Illinois State Bar Ass'n v. People's Stock Yards arbitrariness. Second is our belief that Mr. Monsod 7. 1986-1987: Philippine Constitutional Commission State Bank, 344 Ill. 462,176 N.E. 901, and cases possesses superior qualifications in terms of Member cited. executive ability, proficiency in management, It would be difficult, if not impossible to lay down a educational background, experience in international 8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member formula or definition of what constitutes the practice banking and finance, and instant recognition by the of law. "Practicing law" has been defined as public. His integrity and competence are not 9. Presently: Chairman of the Board and Chief "Practicing as an attorney or counselor at law questioned by the petitioner. What is before us is Executive Officer of the following companies: according to the laws and customs of our courts, is compliance with a specific requirement written into a. ACE Container Philippines, Inc. the giving of advice or rendition of any sort of service the Constitution. b. Dataprep, Philippines by any person, firm or corporation when the giving of Inspite of my high regard for Mr. Monsod, I cannot c. Philippine SUNsystems Products, Inc. such advice or rendition of such service requires the shirk my constitutional duty. He has never engaged in use of any degree of legal knowledge or skill." the practice of law for even one year. He is a member d. Semirara Coal Corporation Without adopting that definition, we referred to it as of the bar but to say that he has practiced law is e. CBL Timber Corporation being substantially correct in People ex rel. Illinois stretching the term beyond rational limits. Member of the Board of the Following: State Bar Ass'n v. People's Stock Yards State Bank, A person may have passed the bar examinations. But a. Engineering Construction Corporation of the 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. if he has not dedicated his life to the law, if he has not Philippines 2d 773, 776) engaged in an activity where membership in the bar b. First Philippine Energy Corporation For one's actions to come within the purview is a requirement I fail to see how he can claim to of practice of law they should not only be activities have been engaged in the practice of law. c. First Philippine Holdings Corporation peculiar to the work of a lawyer, they should also be Engaging in the practice of law is a qualification not d. First Philippine Industrial Corporation performed, habitually, frequently or customarily, to only for COMELEC chairman but also for e. Graphic Atelier wit: appointment to the Supreme Court and all lower f. Manila Electric Company xxx xxx xxx courts. What kind of Judges or Justices will we have Respondent's answers to questions propounded to g. Philippine Commercial Capital, Inc. if there main occupation is selling real estate, him were rather evasive. He was asked whether or managing a business corporation, serving in fact- h. Philippine Electric Corporation not he ever prepared contracts for the parties in real- finding committee, working in media, or operating a i. Tarlac Reforestation and Environment Enterprises estate transactions where he was not the procuring farm with no active involvement in the law, whether in j. Tolong Aquaculture Corporation agent. He answered: "Very seldom." In answer to the Government or private practice, except that in one question as to how many times he had prepared k. Visayan Aquaculture Corporation joyful moment in the distant past, they happened to contracts for the parties during the twenty-one years pass the bar examinations? l. Guimaras Aquaculture Corporation (Rollo, pp. 21- of his business, he said: "I have no Idea." When 22) The Constitution uses the phrase "engaged in the asked if it would be more than half a dozen times his practice of law for at least ten years." The deliberate There is nothing in the above bio-data which even answer was I suppose. Asked if he did not recall choice of words shows that the practice envisioned is remotely indicates that respondent Monsod has making the statement to several parties that he had active and regular, not isolated, occasional, given the lawenough attention or a certain degree of prepared contracts in a large number of instances, he accidental, intermittent, incidental, seasonal, or commitment and participation as would support in all answered: "I don't recall exactly what was said." extemporaneous. To be "engaged" in an activity for sincerity and candor the claim of having engaged in When asked if he did not remember saying that he ten years requires committed participation in its practice for at least ten years. Instead of working had made a practice of preparing deeds, mortgages and contracts and charging a fee to the parties courts in the country (People v. De Luna, 102 Phil. Info on DIVORCE. ABSENCE. therefor in instances where he was not the broker in 968). ANNULMENT. VISA. the deal, he answered: "Well, I don't believe so, that Practice is more than an isolated appearance, for it THE Please call: 521-0767 LEGAL 5217232, is not a practice." Pressed further for an answer as to consists in frequent or customary action, a 5222041 CLINIC, INC. 8:30 am 6:00 pm 7-Flr. his practice in preparing contracts and deeds for succession of acts of the same kind. In other words, it Victoria Bldg., UN Ave., Mla. parties where he was not the broker, he finally is a habitual exercise (People v. Villanueva, 14 SCRA Annex B answered: "I have done about everything that is on 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." the books as far as real estate is concerned." GUAM DIVORCE. (Rollo, p. 115) xxx xxx xxx DON PARKINSON xxx xxx xxx Respondent takes the position that because he is a an Attorney in Guam, is giving FREE BOOKS on While the career as a businessman of respondent real-estate broker he has a lawful right to do any Guam Divorce through The Legal Clinic beginning Monsod may have profited from his legal knowledge, legal work in connection with real-estate transactions, Monday to Friday during office hours. the use of such legal knowledge is incidental and especially in drawing of real-estate contracts, deeds, consists of isolated activities which do not fall under Guam divorce. Annulment of Marriage. Immigration mortgages, notes and the like. There is no doubt but the denomination of practice of law. Admission to the Problems, Visa Ext. Quota/Non-quota Res. & Special that he has engaged in these practices over the practice of law was not required for membership in Retiree's Visa. Declaration of Absence. Remarriage years and has charged for his services in that the Constitutional Commission or in the Fact-Finding to Filipina Fiancees. Adoption. Investment in the Phil. connection. ... (People v. Schafer, 87 N.E. 2d 773) Commission on the 1989 Coup Attempt. Any specific US/Foreign Visa for Filipina Spouse/Children. Call xxx xxx xxx legal activities which may have been assigned to Mr. Marivic. ... An attorney, in the most general sense, is a person Monsod while a member may be likened to isolated THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, designated or employed by another to act in his transactions of foreign corporations in the Philippines Manila nr. US Embassy CLINIC, INC. 1 Tel. 521- stead; an agent; more especially, one of a class of which do not categorize the foreign corporations as 7232; 521-7251; 522-2041; 521-0767 persons authorized to appear and act for suitors or doing business in the Philippines. As in the practice It is the submission of petitioner that the defendants in legal proceedings. Strictly, these of law, doing business also should be active and advertisements above reproduced are champterous, professional persons are attorneys at law, and non- continuous. Isolated business transactions or unethical, demeaning of the law profession, and professional agents are properly styled "attorney's in occasional, incidental and casual transactions are not destructive of the confidence of the community in the fact;" but the single word is much used as meaning within the context of doing business. This was our integrity of the members of the bar and that, as a an attorney at law. A person may be an attorney in ruling in the case of Antam Consolidated, Inc. v. member of the legal profession, he is ashamed and facto for another, without being an attorney at law. Court of appeals, 143 SCRA 288 [1986]). offended by the said advertisements, hence the Abb. Law Dict. "Attorney." A public attorney, or Respondent Monsod, corporate executive, civic reliefs sought in his petition as hereinbefore quoted. attorney at law, says Webster, is an officer of a court leader, and member of the Constitutional In its answer to the petition, respondent admits the of law, legally qualified to prosecute and defend Commission may possess the background, fact of publication of said advertisement at its actions in such court on the retainerof clients. "The competence, integrity, and dedication, to qualify for instance, but claims that it is not engaged in the principal duties of an attorney are (1) to be true to the such high offices as President, Vice-President, practice of law but in the rendering of "legal support court and to his client; (2) to manage the business of Senator, Congressman or Governor but the services" through paralegals with the use of modern his client with care, skill, and integrity; (3) to keep his Constitution in prescribing the specific qualification of computers and electronic machines. Respondent client informed as to the state of his business; (4) to having engaged in the practice of law for at least ten further argues that assuming that the services keep his secrets confided to him as such. ... His (10) years for the position of COMELEC Chairman advertised are legal services, the act of advertising rights are to be justly compensated for his services." has ordered that he may not be confirmed for that these services should be allowed supposedly Bouv. Law Dict. tit. "Attorney." The transitive verb office. The Constitution charges the public in the light of the case of John R. Bates and Van "practice," as defined by Webster, means 'to do or respondents no less than this Court to obey its O'Steen vs. State Bar of Arizona, 2 reportedly perform frequently, customarily, or habitually; to mandate. decided by the United States Supreme Court on June perform by a succession of acts, as, to practice I, therefore, believe that the Commission on 7, 1977. gaming, ... to carry on in practice, or repeated action; Appointments committed grave abuse of discretion in to apply, as a theory, to real life; to exercise, as a Considering the critical implications on the legal confirming the nomination of respondent Monsod as profession of the issues raised herein, we required profession, trade, art. etc.; as, to practice law or Chairman of the COMELEC. medicine,' etc...." (State v. Bryan, S.E. 522, 523; the (1) Integrated Bar of the Philippines (IBP), (2) I vote to GRANT the petition. Philippine Bar Association (PBA), (3) Philippine Emphasis supplied) Bidin, J., dissent Lawyers' Association (PLA), (4) U.P. Womens In this jurisdiction, we have ruled that the practice of Lawyers' Circle (WILOCI), (5) Women Lawyers law denotes frequency or a succession of acts. Thus, Xxxxxxxxxxxxxx Association of the Philippines (WLAP), and (6) we stated in the case of People v. Villanueva (14 Republic of the Philippines Federacion International de Abogadas (FIDA) to SCRA 109 [1965]): SUPREME COURT submit their respective position papers on the xxx xxx xxx Manila controversy and, thereafter, their memoranda. 3 The ... Practice is more than an isolated appearance, for it EN BANC said bar associations readily responded and consists in frequent or customary actions, a extended their valuable services and cooperation of succession of acts of the same kind. In other words, it which this Court takes note with appreciation and Bar Matter No. 553 June 17, 1993 is frequent habitual exercise (State v. Cotner, 127, p. gratitude. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to MAURICIO C. ULEP, petitioner, The main issues posed for resolution before the fall within the prohibition of statute has been vs. Court are whether or not the services offered by interpreted as customarily or habitually holding one's THE LEGAL CLINIC, INC., respondent. respondent, The Legal Clinic, Inc., as advertised by it self out to the public, as a lawyer and demanding R E SO L U T I O N constitutes practice of law and, in either case, payment for such services. ... . (at p. 112) whether the same can properly be the subject of the It is to be noted that the Commission on Appointment REGALADO, J.: advertisements herein complained of. itself recognizes habituality as a required component Petitioner prays this Court "to order the respondent to Before proceeding with an in-depth analysis of the of the meaning of practice of law in a Memorandum cease and desist from issuing advertisements similar merits of this case, we deem it proper and prepared and issued by it, to wit: to or of the same tenor as that of annexes "A" and "B" enlightening to present hereunder excerpts from the l. Habituality. The term 'practice of law' implies (of said petition) and to perpetually prohibit persons respective position papers adopted by the customarilyor habitually holding one's self out to the or entities from making advertisements pertaining to aforementioned bar associations and the memoranda public as a lawyer (People v. Villanueva, 14 SCRA the exercise of the law profession other than those submitted by them on the issues involved in this bar 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) allowed by law." matter. such as when one sends a circular announcing the The advertisements complained of by herein 1. Integrated Bar of the Philippines: establishment of a law office for the general practice petitioner are as follows: xxx xxx xxx of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as a lawyer before a notary Annex A Notwithstanding the subtle manner by which public, and files a manifestation with the Supreme SECRET MARRIAGE? respondent endeavored to distinguish the two Court informing it of his intention to practice law in all P560.00 for a valid marriage. terms,i.e., "legal support services" vis-a-vis "legal services", common sense would readily dictate that the same are essentially without substantial only one instance when a foreign divorce is that respondent should be prohibited from further distinction. For who could deny that document recognized, and that is: performing or offering some of the services it search, evidence gathering, assistance to layman in Article 26. . . . presently offers, or, at the very least, from offering need of basic institutional services from government such services to the public in general. Where a marriage between a Filipino citizen and a or non-government agencies like birth, marriage, The IBP is aware of the fact that providing foreigner is validly celebrated and a divorce is property, or business registration, obtaining computerized legal research, electronic data thereafter validly obtained abroad by the alien spouse documents like clearance, passports, local or foreign gathering, storage and retrieval, standardized legal capacitating him or her to remarry, the Filipino visas, constitutes practice of law? forms, investigators for gathering of evidence, and spouse shall have capacity to remarry under xxx xxx xxx Philippine Law. like services will greatly benefit the legal profession The Integrated Bar of the Philippines (IBP) does not and should not be stifled but instead encouraged. It must not be forgotten, too, that the Family Code wish to make issue with respondent's foreign However, when the conduct of such business by non- (defines) a marriage as follows: citations. Suffice it to state that the IBP has made its members of the Bar encroaches upon the practice of Article 1. Marriage is special contract of permanent law, there can be no choice but to prohibit such position manifest, to wit, that it strongly opposes the union between a man and woman entered into business. view espoused by respondent (to the effect that today accordance with law for the establishment of conjugal it is alright to advertise one's legal services). Admittedly, many of the services involved in the case and family life. It is the foundation of the family and The IBP accordingly declares in no uncertain terms at bar can be better performed by specialists in other an inviolable social institution whose nature, its opposition to respondent's act of establishing a fields, such as computer experts, who by reason of consequences, and incidents are governed by law "legal clinic" and of concomitantly advertising the their having devoted time and effort exclusively to and not subject to stipulation, except that marriage same through newspaper publications. such field cannot fulfill the exacting requirements for settlements may fix the property relation during the admission to the Bar. To prohibit them from The IBP would therefore invoke the administrative marriage within the limits provided by this Code. "encroaching" upon the legal profession will deny the supervision of this Honorable Court to perpetually By simply reading the questioned advertisements, it profession of the great benefits and advantages of restrain respondent from undertaking highly unethical is obvious that the message being conveyed is that modern technology. Indeed, a lawyer using a activities in the field of law practice as Filipinos can avoid the legal consequences of a computer will be doing better than a lawyer using a aforedescribed. 4 marriage celebrated in accordance with our law, by typewriter, even if both are (equal) in skill. xxx xxx xxx simply going to Guam for a divorce. This is not only Both the Bench and the Bar, however, should be A. The use of the name "The Legal Clinic, Inc." gives misleading, but encourages, or serves to induce, careful not to allow or tolerate the illegal practice of the impression that respondent corporation is being violation of Philippine law. At the very least, this can law in any form, not only for the protection of operated by lawyers and that it renders legal be considered "the dark side" of legal practice, where members of the Bar but also, and more importantly, services. certain defects in Philippine laws are exploited for the for the protection of the public. Technological sake of profit. At worst, this is outright malpractice. While the respondent repeatedly denies that it offers development in the profession may be encouraged legal services to the public, the advertisements in Rule 1.02. A lawyer shall not counsel or abet without tolerating, but instead ensuring prevention of question give the impression that respondent is activities aimed at defiance of the law or at lessening illegal practice. offering legal services. The Petition in fact simply confidence in the legal system. There might be nothing objectionable if respondent is assumes this to be so, as earlier mentioned, In addition, it may also be relevant to point out that allowed to perform all of its services, but only if such apparently because this (is) the effect that the advertisements such as that shown in Annex "A" of services are made available exclusively to members advertisements have on the reading public. the Petition, which contains a cartoon of a motor of the Bench and Bar. Respondent would then be The impression created by the advertisements in vehicle with the words "Just Married" on its bumper offering technical assistance, not legal services. question can be traced, first of all, to the very name and seems to address those planning a "secret Alternatively, the more difficult task of carefully being used by respondent "The Legal Clinic, Inc." marriage," if not suggesting a "secret marriage," distinguishing between which service may be offered Such a name, it is respectfully submitted connotes makes light of the "special contract of permanent to the public in general and which should be made the rendering of legal services for legal problems, just union," the inviolable social institution," which is how available exclusively to members of the Bar may be like a medical clinic connotes medical services for the Family Code describes marriage, obviously to undertaken. This, however, may require further medical problems. More importantly, the term "Legal emphasize its sanctity and inviolability. Worse, this proceedings because of the factual considerations Clinic" connotes lawyers, as the term medical clinic particular advertisement appears to encourage involved. connotes doctors. marriages celebrated in secrecy, which is suggestive It must be emphasized, however, that some of of immoral publication of applications for a marriage Furthermore, the respondent's name, as published in respondent's services ought to be prohibited outright, license. the advertisements subject of the present case, such as acts which tend to suggest or induce appears with (the) scale(s) of justice, which all the If the article "Rx for Legal Problems" is to be celebration abroad of marriages which are bigamous more reinforces the impression that it is being reviewed, it can readily be concluded that the above or otherwise illegal and void under Philippine law. operated by members of the bar and that it offers impressions one may gather from the advertisements While respondent may not be prohibited from simply legal services. In addition, the advertisements in in question are accurate. The Sharon Cuneta-Gabby disseminating information regarding such matters, it question appear with a picture and name of a person Concepcion example alone confirms what the must be required to include, in the information given, being represented as a lawyer from Guam, and this advertisements suggest. Here it can be seen that a disclaimer that it is not authorized to practice law, practically removes whatever doubt may still remain criminal acts are being encouraged or committed that certain course of action may be illegal under as to the nature of the service or services being (a bigamous marriage in Hong Kong or Las Vegas) Philippine law, that it is not authorized or capable of offered. with impunity simply because the jurisdiction of rendering a legal opinion, that a lawyer should be Philippine courts does not extend to the place where consulted before deciding on which course of action It thus becomes irrelevant whether respondent is the crime is committed. to take, and that it cannot recommend any particular merely offering "legal support services" as claimed by it, or whether it offers legal services as any lawyer Even if it be assumed, arguendo, (that) the "legal lawyer without subjecting itself to possible sanctions actively engaged in law practice does. And it support services" respondent offers do not constitute for illegal practice of law. becomes unnecessary to make a distinction between legal services as commonly understood, the If respondent is allowed to advertise, advertising "legal services" and "legal support services," as the advertisements in question give the impression that should be directed exclusively at members of the Bar, respondent would have it. The advertisements in respondent corporation is being operated by lawyers with a clear and unmistakable disclaimer that it is not question leave no room for doubt in the minds of the and that it offers legal services, as earlier discussed. authorized to practice law or perform legal services. reading public that legal services are being offered by Thus, the only logical consequence is that, in the The benefits of being assisted by paralegals cannot lawyers, whether true or not. eyes of an ordinary newspaper reader, members of be ignored. But nobody should be allowed to the bar themselves are encouraging or inducing the B. The advertisements in question are meant to represent himself as a "paralegal" for profit, without performance of acts which are contrary to law, induce the performance of acts contrary to law, such term being clearly defined by rule or regulation, morals, good customs and the public good, thereby morals, public order and public policy. and without any adequate and effective means of destroying and demeaning the integrity of the Bar. It may be conceded that, as the respondent claims, regulating his activities. Also, law practice in a xxx xxx xxx corporate form may prove to be advantageous to the the advertisements in question are only meant to inform the general public of the services being It is respectfully submitted that respondent should be legal profession, but before allowance of such offered by it. Said advertisements, however, enjoined from causing the publication of the practice may be considered, the corporation's Article emphasize to Guam divorce, and any law student advertisements in question, or any other of Incorporation and By-laws must conform to each ought to know that under the Family Code, there is advertisements similar thereto. It is also submitted and every provision of the Code of Professional As advertised, it offers the general public its advisory Annexes "A" and "B" of the petition are clearly Responsibility and the Rules of Court. 5 services on Persons and Family Relations Law, advertisements to solicit cases for the purpose of 2. Philippine Bar Association: particularly regarding foreign divorces, annulment of gain which, as provided for under the above cited marriages, secret marriages, absence and adoption; law, (are) illegal and against the Code of Professional xxx xxx xxx. Immigration Laws, particularly on visa related Responsibility of lawyers in this country. Respondent asserts that it "is not engaged in the problems, immigration problems; the Investments Annex "A" of the petition is not only illegal in that it is practice of law but engaged in giving legal support Law of the Philippines and such other related laws. an advertisement to solicit cases, but it is illegal in services to lawyers and laymen, through experienced Its advertised services unmistakably require the that in bold letters it announces that the Legal Clinic, paralegals, with the use of modern computers and application of the aforesaid law, the legal principles Inc., could work out/cause the celebration of a secret electronic machines" (pars. 2 and 3, Comment). This and procedures related thereto, the legal advices marriage which is not only illegal but immoral in this is absurd. Unquestionably, respondent's acts of based thereon and which activities call for legal country. While it is advertised that one has to go to holding out itself to the public under the trade name training, knowledge and experience. said agency and pay P560 for a valid marriage it is "The Legal Clinic, Inc.," and soliciting employment for Applying the test laid down by the Court in the certainly fooling the public for valid marriages in the its enumerated services fall within the realm of a aforecited Agrava Case, the activities of respondent Philippines are solemnized only by officers practice which thus yields itself to the regulatory fall squarely and are embraced in what lawyers and authorized to do so under the law. And to employ an powers of the Supreme Court. For respondent to say laymen equally term as "the practice of law." 7 agency for said purpose of contracting marriage is that it is merely engaged in paralegal work is to not necessary. stretch credulity. Respondent's own commercial 4. U.P. Women Lawyers' Circle: advertisement which announces a certain Atty. Don No amount of reasoning that in the USA, Canada and In resolving, the issues before this Honorable Court, Parkinson to be handling the fields of law belies its other countries the trend is towards allowing lawyers paramount consideration should be given to the pretense. From all indications, respondent "The Legal to advertise their special skills to enable people to protection of the general public from the danger of Clinic, Inc." is offering and rendering legal obtain from qualified practitioners legal services for being exploited by unqualified persons or entities who services through its reserve of lawyers. It has been their particular needs can justify the use of may be engaged in the practice of law. held that the practice of law is not limited to the advertisements such as are the subject matter of the At present, becoming a lawyer requires one to take a petition, for one (cannot) justify an illegal act even by conduct of cases in court, but includes drawing of rigorous four-year course of study on top of a four- whatever merit the illegal act may serve. The law has deeds, incorporation, rendering opinions, and year bachelor of arts or sciences course and then to yet to be amended so that such act could become advising clients as to their legal right and then take take and pass the bar examinations. Only then, is a justifiable. them to an attorney and ask the latter to look after lawyer qualified to practice law. their case in court See Martin, Legal and Judicial We submit further that these advertisements that Ethics, 1984 ed., p. 39). While the use of a paralegal is sanctioned in many seem to project that secret marriages and divorce are jurisdiction as an aid to the administration of justice, possible in this country for a fee, when in fact it is not It is apt to recall that only natural persons can engage there are in those jurisdictions, courses of study so, are highly reprehensible. in the practice of law, and such limitation cannot be and/or standards which would qualify these evaded by a corporation employing competent It would encourage people to consult this clinic about paralegals to deal with the general public as such. lawyers to practice for it. Obviously, this is the how they could go about having a secret marriage While it may now be the opportune time to establish scheme or device by which respondent "The Legal here, when it cannot nor should ever be attempted, these courses of study and/or standards, the fact Clinic, Inc." holds out itself to the public and solicits and seek advice on divorce, where in this country remains that at present, these do not exist in the employment of its legal services. It is an odious there is none, except under the Code of Muslim Philippines. In the meantime, this Honorable Court vehicle for deception, especially so when the public Personal Laws in the Philippines. It is also against may decide to make measures to protect the general cannot ventilate any grievance good morals and is deceitful because it falsely public from being exploited by those who may be for malpractice against the business conduit. represents to the public to be able to do that which by dealing with the general public in the guise of being Precisely, the limitation of practice of law to persons our laws cannot be done (and) by our Code of Morals "paralegals" without being qualified to do so. who have been duly admitted as members of the Bar should not be done. (Sec. 1, Rule 138, Revised Rules of Court) is to In the same manner, the general public should also In the case (of) In re Taguda, 53 Phil. 37, the subject the members to the discipline of the Supreme be protected from the dangers which may be brought Supreme Court held that solicitation for clients by an Court. Although respondent uses its business name, about by advertising of legal services. While it attorney by circulars of advertisements, is the persons and the lawyers who act for it are subject appears that lawyers are prohibited under the present unprofessional, and offenses of this character justify to court discipline. The practice of law is not a Code of Professional Responsibility from advertising, permanent elimination from the Bar. 10 profession open to all who wish to engage in it nor it appears in the instant case that legal services are being advertised not by lawyers but by an entity 6. Federacion Internacional de Abogados: can it be assigned to another (See 5 Am. Jur. 270). It is a personal right limited to persons who have staffed by "paralegals." Clearly, measures should be xxx xxx xxx qualified themselves under the law. It follows that not taken to protect the general public from falling prey to 1.7 That entities admittedly not engaged in the only respondent but also all the persons who are those who advertise legal services without being practice of law, such as management consultancy acting for respondent are the persons engaged in qualified to offer such services. 8 firms or travel agencies, whether run by lawyers or unethical law practice. 6 A perusal of the questioned advertisements of not, perform the services rendered by Respondent 3. Philippine Lawyers' Association: Respondent, however, seems to give the impression does not necessarily lead to the conclusion that that information regarding validity of marriages, Respondent is not unlawfully practicing law. In the The Philippine Lawyers' Association's position, in divorce, annulment of marriage, immigration, visa same vein, however, the fact that the business of answer to the issues stated herein, are wit: extensions, declaration of absence, adoption and respondent (assuming it can be engaged in 1. The Legal Clinic is engaged in the practice of law; foreign investment, which are in essence, legal independently of the practice of law) involves 2. Such practice is unauthorized; matters , will be given to them if they avail of its knowledge of the law does not necessarily make 3. The advertisements complained of are not only services. The Respondent's name The Legal respondent guilty of unlawful practice of law. unethical, but also misleading and patently immoral; Clinic, Inc. does not help matters. It gives the . . . . Of necessity, no one . . . . acting as a consultant and impression again that Respondent will or can cure can render effective service unless he is familiar with the legal problems brought to them. Assuming that such statutes and regulations. He must be careful not 4. The Honorable Supreme Court has the power to Respondent is, as claimed, staffed purely by to suggest a course of conduct which the law forbids. supress and punish the Legal Clinic and its corporate paralegals, it also gives the misleading impression It seems . . . .clear that (the consultant's) knowledge officers for its unauthorized practice of law and for its that there are lawyers involved in The Legal Clinic, of the law, and his use of that knowledge as a factor unethical, misleading and immoral advertising. Inc., as there are doctors in any medical clinic, when in determining what measures he shall recommend, xxx xxx xxx only "paralegals" are involved in The Legal Clinic, do not constitute the practice of law . . . . It is not only Respondent posits that is it not engaged in the Inc. presumed that all men know the law, but it is a fact practice of law. It claims that it merely renders "legal Respondent's allegations are further belied by the that most men have considerable acquaintance with support services" to answers, litigants and the very admissions of its President and majority broad features of the law . . . . Our knowledge of the general public as enunciated in the Primary Purpose stockholder, Atty. Nogales, who gave an insight on law accurate or inaccurate moulds our conduct Clause of its Article(s) of Incorporation. (See pages 2 the structure and main purpose of Respondent not only when we are acting for ourselves, but when to 5 of Respondent's Comment). But its advertised corporation in the aforementioned "Starweek" we are serving others. Bankers, liquor dealers and services, as enumerated above, clearly and article." 9 laymen generally possess rather precise knowledge convincingly show that it is indeed engaged in law of the laws touching their particular business or 5. Women Lawyer's Association of the Philippines: practice, albeit outside of court. profession. A good example is the architect, who must be familiar with zoning, building and fire depends on a disputed right-of-way and the principal problem of the client, and give legal advice. Such prevention codes, factory and tenement house role of the negotiator is to assess the probable would constitute unauthorized practice of law. statutes, and who draws plans and specification in outcome of the dispute and persuade the opposite It cannot be claimed that the publication of a legal harmony with the law. This is not practicing law. party to the same opinion, then it may be that only a text which publication of a legal text which purports to But suppose the architect, asked by his client to omit lawyer can accept the assignment. Or if a say what the law is amount to legal practice. And the a fire tower, replies that it is required by the statute. controversy between an employer and his men grows mere fact that the principles or rules stated in the text Or the industrial relations expert cites, in support of from differing interpretations of a contract, or of a may be accepted by a particular reader as a solution some measure that he recommends, a decision of statute, it is quite likely that defendant should not to his problem does not affect this. . . . . Apparently it the National Labor Relations Board. Are they handle it. But I need not reach a definite conclusion is urged that the conjoining of these two, that is, the practicing law? In my opinion, they are not, provided here, since the situation is not presented by the text and the forms, with advice as to how the forms no separate fee is charged for the legal advice or proofs. should be filled out, constitutes the unlawful practice information, and the legal question is subordinate and Defendant also appears to represent the employer of law. But that is the situation with many approved incidental to a major non-legal problem. before administrative agencies of the federal and accepted texts. Dacey's book is sold to the public It is largely a matter of degree and of custom. government, especially before trial examiners of the at large. There is no personal contact or relationship National Labor Relations Board. An agency of the with a particular individual. Nor does there exist that If it were usual for one intending to erect a building on federal government, acting by virtue of an authority relation of confidence and trust so necessary to the his land to engage a lawyer to advise him and the granted by the Congress, may regulate the status of attorney and client. THIS IS THE architect in respect to the building code and the like, representation of parties before such agency. The ESSENTIAL OF LEGAL PRACTICE THE then an architect who performed this function would State of New Jersey is without power to interfere with REPRESENTATION AND ADVISING OF A probably be considered to be trespassing on territory such determination or to forbid representation before PARTICULAR PERSON IN A PARTICULAR reserved for licensed attorneys. Likewise, if the the agency by one whom the agency admits. The SITUATION. At most the book assumes to offer industrial relations field had been pre-empted by rules of the National Labor Relations Board give to a general advice on common problems, and does not lawyers, or custom placed a lawyer always at the party the right to appear in person, or by counsel, or purport to give personal advice on a specific problem elbow of the lay personnel man. But this is not the by other representative. Rules and Regulations, peculiar to a designated or readily identified person. case. The most important body of the industrial September 11th, 1946, S. 203.31. 'Counsel' here Similarly the defendant's publication does not purport relations experts are the officers and business agents means a licensed attorney, and ther representative' to give personal advice on a specific problem peculiar of the labor unions and few of them are lawyers. one not a lawyer. In this phase of his work, defendant to a designated or readily identified person in a Among the larger corporate employers, it has been may lawfully do whatever the Labor Board allows, particular situation in their publication and sale of the practice for some years to delegate special even arguing questions purely legal. (Auerbacher v. the kits, such publication and sale did not constitutes responsibility in employee matters to a management Wood, 53 A. 2d 800, cited in Statsky, Introduction to the unlawful practice of law . . . . There being no legal group chosen for their practical knowledge and skill in Paralegalism [1974], at pp. 154-156.). impediment under the statute to the sale of the kit, such matter, and without regard to legal thinking or 1.8 From the foregoing, it can be said that a person there was no proper basis for the injunction against lack of it. More recently, consultants like the engaged in a lawful calling (which may involve defendant maintaining an office for the purpose of defendants have the same service that the larger knowledge of the law) is not engaged in the practice selling to persons seeking a divorce, separation, employers get from their own specialized staff. of law provided that: annulment or separation agreement any printed The handling of industrial relations is growing into a material or writings relating to matrimonial law or the recognized profession for which appropriate courses (a) The legal question is subordinate and incidental to prohibition in the memorandum of modification of the are offered by our leading universities. The court a major non-legal problem;. judgment against defendant having an interest in any should be very cautious about declaring [that] a (b) The services performed are not customarily publishing house publishing his manuscript on widespread, well-established method of conducting reserved to members of the bar; . divorce and against his having any personal contact business is unlawful, or that the considerable class of (c) No separate fee is charged for the legal advice or with any prospective purchaser. The record does fully men who customarily perform a certain function have information. support, however, the finding that for the change of no right to do so, or that the technical education given $75 or $100 for the kit, the defendant gave legal All these must be considered in relation to the work by our schools cannot be used by the graduates in advice in the course of personal contacts concerning for any particular client as a whole. their business. particular problems which might arise in the 1.9. If the person involved is both lawyer and non- preparation and presentation of the purchaser's In determining whether a man is practicing law, we lawyer, the Code of Professional Responsibility asserted matrimonial cause of action or pursuit of should consider his work for any particular client or succintly states the rule of conduct: other legal remedies and assistance in the customer, as a whole. I can imagine defendant being engaged primarily to advise as to the law defining his Rule 15.08 A lawyer who is engaged in another preparation of necessary documents (The injunction client's obligations to his employees, to guide his profession or occupation concurrently with the therefore sought to) enjoin conduct constituting the client's obligations to his employees, to guide his practice of law shall make clear to his client whether practice of law, particularly with reference to the client along the path charted by law. This, of course, he is acting as a lawyer or in another capacity. giving of advice and counsel by the defendant would be the practice of the law. But such is not the 1.10. In the present case. the Legal Clinic appears to relating to specific problems of particular individuals fact in the case before me. Defendant's primarily render wedding services (See Annex "A" Petition). in connection with a divorce, separation, annulment efforts are along economic and psychological lines. Services on routine, straightforward marriages, like of separation agreement sought and should be The law only provides the frame within which he must securing a marriage license, and making affirmed. (State v. Winder, 348, NYS 2D 270 [1973], work, just as the zoning code limits the kind of arrangements with a priest or a judge, may not cited in Statsky, supra at p. 101.). building the limits the kind of building the architect constitute practice of law. However, if the problem is 1.12. Respondent, of course, states that its services may plan. The incidental legal advice or information as complicated as that described in "Rx for Legal are "strictly non-diagnostic, non-advisory. "It is not defendant may give, does not transform his activities Problems" on the Sharon Cuneta-Gabby controverted, however, that if the services "involve into the practice of law. Let me add that if, even as a Concepcion-Richard Gomez case, then what may be giving legal advice or counselling," such would minor feature of his work, he performed services involved is actually the practice of law. If a non- constitute practice of law (Comment, par. 6.2). It is in which are customarily reserved to members of the lawyer, such as the Legal Clinic, renders such this light that FIDA submits that a factual inquiry may bar, he would be practicing law. For instance, if as services then it is engaged in the unauthorized be necessary for the judicious disposition of this part of a welfare program, he drew employees' wills. practice of law. case. Another branch of defendant's work is the 1.11. The Legal Clinic also appears to give xxx xxx xxx representations of the employer in the adjustment of information on divorce, absence, annulment of 2.10. Annex "A" may be ethically objectionable in that grievances and in collective bargaining, with or marriage and visas (See Annexes "A" and "B" it can give the impression (or perpetuate the wrong without a mediator. This is not per se the practice of Petition). Purely giving informational materials may notion) that there is a secret marriage. With all the law. Anyone may use an agent for negotiations and not constitute of law. The business is similar to that of solemnities, formalities and other requisites of may select an agent particularly skilled in the subject a bookstore where the customer buys materials on marriages (See Articles 2, et seq., Family Code), no under discussion, and the person appointed is free to the subject and determines on the subject and Philippine marriage can be secret. accept the employment whether or not he is a determines by himself what courses of action to take. member of the bar. Here, however, there may be an 2.11. Annex "B" may likewise be ethically It is not entirely improbable, however, that aside from objectionable. The second paragraph thereof (which exception where the business turns on a question of purely giving information, the Legal Clinic's law. Most real estate sales are negotiated by brokers is not necessarily related to the first paragraph) fails paralegals may apply the law to the particular to state the limitation that only "paralegal services?" who are not lawyers. But if the value of the land or "legal support services", and not legal services, representative capacity, performs any act or acts for Legal support services basically consists of giving are available." 11 the purpose of obtaining or defending the rights of ready information by trained paralegals to laymen A prefatory discussion on the meaning of the phrase their clients under the law. Otherwise stated, one and lawyers, which are strictly non-diagnostic, non- "practice of law" becomes exigent for the proper who, in a representative capacity, engages in the advisory, through the extensive use of computers and determination of the issues raised by the petition at business of advising clients as to their rights under modern information technology in the gathering, bar. On this score, we note that the clause "practice the law, or while so engaged performs any act or acts processing, storage, transmission and reproduction of law" has long been the subject of judicial either in court or outside of court for that purpose, is of information and communication, such as construction and interpretation. The courts have laid engaged in the practice of law. (State ex. rel. computerized legal research; encoding and down general principles and doctrines explaining the Mckittrick v. C.S. Dudley and Co., 102 S. W. 2d 895, reproduction of documents and pleadings prepared meaning and scope of the term, some of which we 340 Mo. 852). by laymen or lawyers; document search; evidence now take into account. This Court, in the case of Philippines Lawyers gathering; locating parties or witnesses to a case; Association v. Agrava (105 Phil. 173, 176- fact finding investigations; and assistance to laymen Practice of law means any activity, in or out of court, 177),stated: in need of basic institutional services from which requires the application of law, legal government or non-government agencies, like birth, procedures, knowledge, training and experience. To The practice of law is not limited to the conduct of marriage, property, or business registrations; engage in the practice of law is to perform those acts cases or litigation in court; it embraces the educational or employment records or certifications, which are characteristic of the profession. Generally, preparation of pleadings and other papers incident to obtaining documentation like clearances, passports, to practice law is to give advice or render any kind of actions and special proceedings, the management of local or foreign visas; giving information about laws of service that involves legal knowledge or skill. 12 such actions and proceedings on behalf of clients other countries that they may find useful, like foreign The practice of law is not limited to the conduct of before judges and courts, and in addition, conveying. divorce, marriage or adoption laws that they can avail cases in court. It includes legal advice and counsel, In general, all advice to clients, and all action taken of preparatory to emigration to the foreign country, and the preparation of legal instruments and contract for them in matters connected with the law and other matters that do not involve representation by which legal rights are secured, although such incorporation services, assessment and of clients in court; designing and installing computer matter may or may not be pending in a court. 13 condemnation services contemplating an appearance systems, programs, or software for the efficient before a judicial body, the foreclosure of a mortgage, In the practice of his profession, a licensed attorney management of law offices, corporate legal enforcement of a creditor's claim in bankruptcy and at law generally engages in three principal types of departments, courts and other entities engaged in insolvency proceedings, and conducting proceedings professional activity: legal advice and instructions to dispensing or administering legal services. 20 in attachment, and in matters or estate and clients to inform them of their rights and obligations, While some of the services being offered by guardianship have been held to constitute law preparation for clients of documents requiring respondent corporation merely involve mechanical practice, as do the preparation and drafting of legal knowledge of legal principles not possessed by and technical knowhow, such as the installation of instruments, where the work done involves the ordinary layman, and appearance for clients before computer systems and programs for the efficient determination by the trained legal mind of the legal public tribunals which possess power and authority to management of law offices, or the computerization of effect of facts and conditions. (5 Am. Jr. p. 262, 263). determine rights of life, liberty, and property research aids and materials, these will not suffice to according to law, in order to assist in proper Practice of law under modern conditions consists in justify an exception to the general rule. interpretation and enforcement of law. 14 no small part of work performed outside of any court and having no immediate relation to proceedings in What is palpably clear is that respondent corporation When a person participates in the a trial and gives out legal information to laymen and lawyers. Its court. It embraces conveyancing, the giving of legal advertises himself as a lawyer, he is in the practice of contention that such function is non-advisory and advice on a large variety of subjects and the law. 15 One who confers with clients, advises them non-diagnostic is more apparent than real. In preparation and execution of legal instruments as to their legal rights and then takes the business to providing information, for example, about foreign laws covering an extensive field of business and trust an attorney and asks the latter to look after the case on marriage, divorce and adoption, it strains the relations and other affairs. Although these in court, is also practicing law. 16 Giving advice for credulity of this Court that all the respondent transactions may have no direct connection with compensation regarding the legal status and rights of corporation will simply do is look for the law, furnish a court proceedings, they are always subject to another and the conduct with respect thereto copy thereof to the client, and stop there as if it were become involved in litigation. They require in many constitutes a practice of law. 17 One who renders an merely a bookstore. With its attorneys and so called aspects a high degree of legal skill, a wide opinion as to the proper interpretation of a statute, paralegals, it will necessarily have to explain to the experience with men and affairs, and great capacity and receives pay for it, is, to that extent, practicing client the intricacies of the law and advise him or her for adaptation to difficult and complex situations. law. 18 on the proper course of action to be taken as may be These customary functions of an attorney or In the recent case of Cayetano vs. Monsod, 19 after counselor at law bear an intimate relation to the provided for by said law. That is what its citing the doctrines in several cases, we laid down administration of justice by the courts. No valid advertisements represent and for the which services the test to determine whether certain acts constitute distinction, so far as concerns the question set forth it will consequently charge and be paid. That activity "practice of law," thus: in the order, can be drawn between that part of the falls squarely within the jurisprudential definition of Black defines "practice of law" as: work of the lawyer which involves appearance in "practice of law." Such a conclusion will not be court and that part which involves advice and drafting altered by the fact that respondent corporation does The rendition of services requiring the knowledge and not represent clients in court since law practice, as the application of legal principles and technique to of instruments in his office. It is of importance to the welfare of the public that these manifold customary the weight of authority holds, is not limited merely serve the interest of another with his consent. It is not giving legal advice, contract drafting and so forth. limited to appearing in court, or advising and functions be performed by persons possessed of assisting in the conduct of litigation, but embraces the adequate learning and skill, of sound moral The aforesaid conclusion is further strengthened by preparation of pleadings, and other papers incident to character, and acting at all times under the heavy an article published in the January 13, 1991 issue of actions and special proceedings, conveyancing, the trust obligations to clients which rests upon all the Starweek/The Sunday Magazine of the preparation of legal instruments of all kinds, and the attorneys. (Moran, Comments on the Rules o Court, Philippines Star, entitled "Rx for Legal Problems," giving of all legal advice to clients. It embraces all Vol. 3 [1973 ed.], pp. 665-666, citing In Re Opinion of where an insight into the structure, main purpose and advice to clients and all actions taken for them in the Justices [Mass], 194 N. E. 313, quoted in Rhode operations of respondent corporation was given by its matters connected with the law. Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 197 own "proprietor," Atty. Rogelio P. Nogales: A. 139, 144). This is the kind of business that is transacted The practice of law is not limited to the conduct of cases on court.(Land Title Abstract and Trust Co. v. The practice of law, therefore, covers a wide range of everyday at The Legal Clinic, with offices on the Dworken , 129 Ohio St. 23, 193N. E. 650). A person activities in and out of court. Applying the seventh floor of the Victoria Building along U. N. is also considered to be in the practice of law when aforementioned criteria to the case at bar, we agree Avenue in Manila. No matter what the client's he: with the perceptive findings and observations of the problem, and even if it is as complicated as the aforestated bar associations that the activities of Cuneta-Concepcion domestic situation, Atty. Nogales . . . . for valuable consideration engages in the respondent, as advertised, constitute "practice of and his staff of lawyers, who, like doctors are business of advising person, firms, associations or law." "specialists" in various fields can take care of it. The corporations as to their right under the law, or Legal Clinic, Inc. has specialists in taxation and appears in a representative capacity as an advocate The contention of respondent that it merely offers legal support services can neither be seriously criminal law, medico-legal problems, labor, litigation, in proceedings, pending or prospective, before any and family law. These specialist are backed up by a court, commissioner, referee, board, body, considered nor sustained. Said proposition is belied by respondent's own description of the services it has battery of paralegals, counsellors and attorneys. committee, or commission constituted by law or authorized to settle controversies and there, in such been offering, to wit: Atty. Nogales set up The Legal Clinic in 1984. Inspired by the trend in the medical field toward specialization, it caters to clients who cannot afford business except for members of the bar who have should not resort to indirect advertisements for the services of the big law firms. complied with all the conditions required by statute professional employment, such as furnishing or The Legal Clinic has regular and walk-in clients. and the rules of court. Only those persons are inspiring newspaper comments, or procuring his "when they come, we start by analyzing the problem. allowed to practice law who, by reason of attainments photograph to be published in connection with That's what doctors do also. They ask you how you previously acquired through education and study, causes in which the lawyer has been or is engaged contracted what's bothering you, they take your have been recognized by the courts as possessing or concerning the manner of their conduct, the temperature, they observe you for the symptoms and profound knowledge of legal science entitling them to magnitude of the interest involved, the importance of so on. That's how we operate, too. And once the advise, counsel with, protect, or defend the rights the lawyer's position, and all other like self- problem has been categorized, then it's referred to claims, or liabilities of their clients, with respect to the laudation. 36 one of our specialists. construction, interpretation, operation and effect of The standards of the legal profession condemn the law. 26 The justification for excluding from the lawyer's advertisement of his talents. A lawyer There are cases which do not, in medical terms, practice of law those not admitted to the bar is found, cannot, without violating the ethics of his profession. require surgery or follow-up treatment. These The not in the protection of the bar from competition, but advertise his talents or skill as in a manner similar to Legal Clinic disposes of in a matter of minutes. in the protection of the public from being advised and a merchant advertising his goods. 37 The "Things like preparing a simple deed of sale or an represented in legal matters by incompetent and prescription against advertising of legal services or affidavit of loss can be taken care of by our staff or, if unreliable persons over whom the judicial department solicitation of legal business rests on the fundamental this were a hospital the residents or the interns. We can exercise little control. 27 postulate that the that the practice of law is a can take care of these matters on a while you wait basis. Again, kung baga sa hospital, out-patient, hindi We have to necessarily and definitely reject profession. Thus, in the case of The Director of kailangang ma-confine. It's just like a common cold or respondent's position that the concept in the United Religious Affairs. vs. Estanislao R. Bayot 38 an diarrhea," explains Atty. Nogales. States of paralegals as an occupation separate from advertisement, similar to those of respondent which the law profession be adopted in this jurisdiction. are involved in the present proceeding,39 was held to Those cases which requires more extensive Whatever may be its merits, respondent cannot but constitute improper advertising or solicitation. "treatment" are dealt with accordingly. "If you had a be aware that this should first be a matter for judicial The pertinent part of the decision therein reads: rich relative who died and named you her sole heir, rules or legislative action, and not of unilateral and you stand to inherit millions of pesos of property, It is undeniable that the advertisement in question adoption as it has done. we would refer you to a specialist in taxation. There was a flagrant violation by the respondent of the would be real estate taxes and arrears which would Paralegals in the United States are trained ethics of his profession, it being a brazen solicitation need to be put in order, and your relative is even professionals. As admitted by respondent, there are of business from the public. Section 25 of Rule 127 taxed by the state for the right to transfer her schools and universities there which offer studies and expressly provides among other things that "the property, and only a specialist in taxation would be degrees in paralegal education, while there are none practice of soliciting cases at law for the purpose of properly trained to deal with the problem. Now, if in the Philippines.28 As the concept of the gain, either personally or thru paid agents or brokers, there were other heirs contesting your rich relatives "paralegals" or "legal assistant" evolved in the United constitutes malpractice." It is highly unethical for an will, then you would need a litigator, who knows how States, standards and guidelines also evolved to attorney to advertise his talents or skill as a merchant to arrange the problem for presentation in court, and protect the general public. One of the major advertises his wares. Law is a profession and not a gather evidence to support the case. 21 standards or guidelines was developed by the trade. The lawyer degrades himself and his American Bar Association which set up Guidelines for profession who stoops to and adopts the practices of That fact that the corporation employs paralegals to the Approval of Legal Assistant Education Programs mercantilism by advertising his services or offering carry out its services is not controlling. What is (1973). Legislation has even been proposed to certify them to the public. As a member of the bar, he defiles important is that it is engaged in the practice of law legal assistants. There are also associations of the temple of justice with mercenary activities as the by virtue of the nature of the services it renders which paralegals in the United States with their own code of money-changers of old defiled the temple of thereby brings it within the ambit of the statutory professional ethics, such as the National Association Jehovah. "The most worthy and effective prohibitions against the advertisements which it has of Legal Assistants, Inc. and the American Paralegal advertisement possible, even for a young lawyer, . . . caused to be published and are now assailed in this Association.29 . is the establishment of a well-merited reputation for proceeding. In the Philippines, we still have a restricted concept professional capacity and fidelity to trust. This cannot Further, as correctly and appropriately pointed out by and limited acceptance of what may be considered be forced but must be the outcome of character and the U.P. WILOCI, said reported facts sufficiently as paralegal service. As pointed out by FIDA, some conduct." (Canon 27, Code of Ethics.). establish that the main purpose of respondent is to persons not duly licensed to practice law are or have We repeat, the canon of the profession tell us that the serve as a one-stop-shop of sorts for various legal been allowed limited representation in behalf of best advertising possible for a lawyer is a well- problems wherein a client may avail of legal services another or to render legal services, but such merited reputation for professional capacity and from simple documentation to complex litigation and allowable services are limited in scope and extent by fidelity to trust, which must be earned as the outcome corporate undertakings. Most of these services are the law, rules or regulations granting permission of character and conduct. Good and efficient service undoubtedly beyond the domain of paralegals, but therefor. 30 to a client as well as to the community has a way of rather, are exclusive functions of lawyers engaged in the practice of law. 22 Accordingly, we have adopted the American judicial publicizing itself and catching public attention. That policy that, in the absence of constitutional or publicity is a normal by-product of effective service It should be noted that in our jurisdiction the services statutory authority, a person who has not been which is right and proper. A good and reputable being offered by private respondent which constitute admitted as an attorney cannot practice law for the lawyer needs no artificial stimulus to generate it and practice of law cannot be performed by paralegals. proper administration of justice cannot be hindered to magnify his success. He easily sees the difference Only a person duly admitted as a member of the bar, by the unwarranted intrusion of an unauthorized and between a normal by-product of able service and the or hereafter admitted as such in accordance with the unskilled person into the practice of law. 31 That unwholesome result of propaganda. 40 provisions of the Rules of Court, and who is in good policy should continue to be one of encouraging Of course, not all types of advertising or solicitation and regular standing, is entitled to practice law. 23 persons who are unsure of their legal rights and are prohibited. The canons of the profession Public policy requires that the practice of law be remedies to seek legal assistance only from persons enumerate exceptions to the rule against advertising limited to those individuals found duly qualified in licensed to practice law in the state. 32 or solicitation and define the extent to which they may education and character. The permissive right Anent the issue on the validity of the questioned be undertaken. The exceptions are of two broad conferred on the lawyers is an individual and limited advertisements, the Code of Professional categories, namely, those which are expressly privilege subject to withdrawal if he fails to maintain Responsibility provides that a lawyer in making allowed and those which are necessarily implied from proper standards of moral and professional conduct. known his legal services shall use only true, honest, the restrictions. 41 The purpose is to protect the public, the court, the fair, dignified and objective information or statement The first of such exceptions is the publication in client and the bar from the incompetence or of facts. 33 He is not supposed to use or permit the reputable law lists, in a manner consistent with the dishonesty of those unlicensed to practice law and use of any false, fraudulent, misleading, deceptive, standards of conduct imposed by the canons, of brief not subject to the disciplinary control of the court. 24 undignified, self-laudatory or unfair statement or biographical and informative data. "Such data must The same rule is observed in the american claim regarding his qualifications or legal not be misleading and may include only a statement jurisdiction wherefrom respondent would wish to draw services. 34 Nor shall he pay or give something of of the lawyer's name and the names of his support for his thesis. The doctrines there also stress value to representatives of the mass media in professional associates; addresses, telephone that the practice of law is limited to those who meet anticipation of, or in return for, publicity to attract legal numbers, cable addresses; branches of law the requirements for, and have been admitted to, the business. 35 Prior to the adoption of the code of practiced; date and place of birth and admission to bar, and various statutes or rules specifically so Professional Responsibility, the Canons of the bar; schools attended with dates of graduation, provide. 25 The practice of law is not a lawful Professional Ethics had also warned that lawyers degrees and other educational distinction; public or the publication of advertisements of the kind used by Generally, to engage in the practice is to do any quasi-public offices; posts of honor; legal respondent would only serve to aggravate what is of those acts which are characteristic of the legal authorships; legal teaching positions; membership already a deteriorating public opinion of the legal profession (In re: David, 93 Phil. 46). It covers any and offices in bar associations and committees profession whose integrity has consistently been activity, in or out of court, which requires the thereof, in legal and scientific societies and legal under attack lately by media and the community in application of law, legal principles, practice or fraternities; the fact of listings in other reputable law general. At this point in time, it is of utmost procedure and calls for legal knowledge, training and lists; the names and addresses of references; and, importance in the face of such negative, even if experience (PLA vs. Agrava, 105 Phil. 173). with their written consent, the names of clients unfair, criticisms at times, to adopt and maintain that regularly represented." 42 level of professional conduct which is beyond Cayetano vs. Monsod, 201 SCRA 210 The law list must be a reputable law list published reproach, and to exert all efforts to regain the high primarily for that purpose; it cannot be a mere esteem formerly accorded to the legal profession. supplemental feature of a paper, magazine, trade In sum, it is undoubtedly a misbehavior on the part of ***Practice of Law means any activity in or out of journal or periodical which is published principally for the lawyer, subject to disciplinary action, to advertise court which requires the application of law, legal other purposes. For that reason, a lawyer may not his services except in allowable instances 48 or to aid procedure, knowledge, training and experience. To properly publish his brief biographical and informative a layman in the unauthorized practice of engage in the practice of law is to perform those acts data in a daily paper, magazine, trade journal or law. 49 Considering that Atty. Rogelio P. Nogales, which are characteristics of the legal society program. Nor may a lawyer permit his name who is the prime incorporator, major stockholder and profession. Generally, to practice law is to give notice to be published in a law list the conduct, proprietor of The Legal Clinic, Inc. is a member of the or render any kind of service, which devise or service management or contents of which are calculated or Philippine Bar, he is hereby reprimanded, with a requires the use, in any degree, of legal knowledge likely to deceive or injure the public or the bar, or to warning that a repetition of the same or similar acts or skill. lower the dignity or standing of the profession. 43 which are involved in this proceeding will be dealt The use of an ordinary simple professional card is with more severely. People vs. Villanueva, 14 SCRA 111 also permitted. The card may contain only a While we deem it necessary that the question as to statement of his name, the name of the law firm the legality or illegality of the purpose/s for which the which he is connected with, address, telephone Legal Clinic, Inc. was created should be passed upon ***Strictly speaking, the word practice of law implies number and special branch of law practiced. The and determined, we are constrained to refrain from the customary or habitual holding of oneself to the publication of a simple announcement of the opening lapsing into an obiter on that aspect since it is clearly public as a lawyer and demanding compensation for of a law firm or of changes in the partnership, not within the adjudicative parameters of the present his services. associates, firm name or office address, being for the proceeding which is merely administrative in nature. convenience of the profession, is not objectionable. It is, of course, imperative that this matter be ***Private practice in more than an isolated He may likewise have his name listed in a telephone promptly determined, albeit in a different proceeding appearance for it consist of frequent customary directory but not under a designation of special and forum, since, under the present state of our law actions, a succession of acts of the same kind. branch of law. 44 and jurisprudence, a corporation cannot be organized An isolated appearance may, however, amount to Verily, taking into consideration the nature and for or engage in the practice of law in this country. practice in relation to the rule prohibiting some contents of the advertisements for which respondent This interdiction, just like the rule against unethical persons from engaging in the exercise of the legal is being taken to task, which even includes a advertising, cannot be subverted by employing some profession. quotation of the fees charged by said respondent so-called paralegals supposedly rendering the corporation for services rendered, we find and so alleged support services. hold that the same definitely do not and conclusively The remedy for the apparent breach of this cannot fall under any of the above-mentioned prohibition by respondent is the concern and province exceptions. of the Solicitor General who can institute the Ulep vs. Legal Clinic Inc. 223 SCRA 378 (1993) The ruling in the case of Bates, et al. vs. State Bar of corresponding quo warranto action, 50 after due Arizona, 45 which is repeatedly invoked and ascertainment of the factual background and basis ***In the practice of his profession, a licensed constitutes the justification relied upon by for the grant of respondent's corporate charter, in attorney-at-law generally engages in three principal respondent, is obviously not applicable to the case at light of the putative misuse thereof. That spin-off from types of professional activities: bar. Foremost is the fact that the disciplinary rule the instant bar matter is referred to the Solicitor General for such action as may be necessary under 1. legal advice and instructions to clients to inform involved in said case explicitly allows a lawyer, as an them of their rights and obligations exception to the prohibition against advertisements the circumstances. by lawyers, to publish a statement of legal fees for an ACCORDINGLY, the Court Resolved to RESTRAIN 2. preparation for clients of documents requiring initial consultation or the availability upon request of a and ENJOIN herein respondent, The Legal Clinic, knowledge of legal principles not possessed by written schedule of fees or an estimate of the fee to Inc., from issuing or causing the publication or ordinary layman; and be charged for the specific services. No such dissemination of any advertisement in any form which 3. appearance for clients before public tribunals exception is provided for, expressly or impliedly, is of the same or similar tenor and purpose as which possess power and authority to determine whether in our former Canons of Professional Ethics Annexes "A" and "B" of this petition, and from rights of life, liberty and property according to law, in or the present Code of Professional Responsibility. conducting, directly or indirectly, any activity, order to assist in the proper interpretation and Besides, even the disciplinary rule in the Bates case operation or transaction proscribed by law or the enforcement of law. contains a proviso that the exceptions stated therein Code of Professional Ethics as indicated herein. Let are "not applicable in any state unless and until it is copies of this resolution be furnished the Integrated ***Essential criteria enumerated by the C.A. as implemented by such authority in that state." 46 This Bar of the Philippines, the Office of the Bar Confidant determinative of engaging in the practice of law: goes to show that an exception to the general rule, and the Office of the Solicitor General for appropriate such as that being invoked by herein respondent, can action in accordance herewith. be made only if and when the canons expressly Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio- 1)Habituality provide for such an exception. Otherwise, the Aquino, Davide, Jr., Romero, Nocon, Bellosillo, Melo 2)Compensation prohibition stands, as in the case at bar. and Quiason, JJ., concur 3)Application of law, legal principle, practice, or It bears mention that in a survey conducted by the Xxxxxxxxxxx procedure American Bar Association after the decision in Bates, PRACTICE OF LAW 4)Attorney-Client relationship on the attitude of the public about lawyers after viewing television commercials, it was found that public opinion dropped significantly 47 with respect to Rule 138, Section 1. Who may practice law - Non-Lawyers authorized to appear in court: these characteristics of lawyers: Any person heretofore duly admitted as a member of Trustworthy from 71% to 14% the bar, or hereafter admitted as such in accordance 1. In cases before the MTC, a party may conduct Professional from 71% to 14% with the provisions of this rule, and who is in good his case or litigation in person, with the aid of an Honest from 65% to 14% and regular standing, is entitled to practice law. agent or friend appointed by him for that Dignified from 45% to 14% purpose (Sec. 34, Rule 138, RRC). Secondly, it is our firm belief that with the present Concept of the Practice of Law situation of our legal and judicial systems, to allow Before any other court, a party may conduct his Restrictions in the Practice of Law of Members of the litigation personally (Ibid) President, Vice-President, members of the cabinet, Legislature their deputies and assistants, (Art. VIII Sec. 15, 1987 In a criminal case before the MTC in a locality where Constitution). No senator or member of the House of a duly licensed member of the Bar is not available, Representatives may personally appear as counsel the judge may appoint a non-lawyer who is Chairmen and Members of the Constitutional before any courts of justice or before the Electoral resident of the province, and Commissions (Art. IX-A, Sec. 2, 1987 Constitution). Tribunals, or quasi-judicial and other administration bodies xxx(Art. VI, Sec. 14, 1987 Constitution). of good repute for probity and ability to aid the accused in his defense (Rule 116, Sec. 7, RRC) Ombudsman and his deputies (Art. IX, Sec. 8 A senior law student, who is enrolled in a recognized (2nd par.), 1987 Constitution). A lawyer-member of the legislature is only law schools clinical education program approved by prohibited from appearing as counsel before any the Supreme Court may appear before any court court of justice, electoral tribunals or quasi-judicial All governors, city and municipal mayors (R.A. No. and administrative bodies without compensation, to represent indigent clients 7160, Sec. 90). accepted by the Legal Clinic of the law school. The student shall be under the direct supervision and The word appearance includes not only arguing control of an IBP member duly accredited by the law Those who, by special law, are prohibited from a case before any such body but also filing a school. engaging in the practice of their legal profession pleading in behalf of a client as by simply filing a Under the Labor Code, non-lawyers may appear formal motion, plea or answer. (Ramos vs. Manalac, before the NLRC or any Labor Arbiter, if (1) they 89 PHIL. 270) represent themselves, or if (2) they represent their Q. Can a civil service employee engage in the organization or members thereof (Art. 222, PO442, private practice of law? Neither can he allow his name to appear in such as amended). pleading by itself or as part of firm name under the Under the Cadastral Act, a non-lawyer can represent A. A civil service officer or employee whose duty signature of another qualified lawyer because the a claimant before the Cadastral Court (Act No. 2259, or responsibility does not require his entire signature of an agent amounts to signing of a non- Sec. 9). time to be at the disposal of the government qualified senator or congressman, the office of an Any person appointed to appear for the government may not engage in private practice of law attorney being originally an agency, and because he of the Phil. in accordance with law (Sec. 33 Rule without the written permit from the head of the will, by such act, be appearing in court or quasi- 138). department concerned. However, government judicial or administrative body in violation of the Limitations of Appearance of non-lawyers officials who by express mandate of the law constitutional restriction. He cannot do indirectly are prohibited from practicing law may not, what the Constitution prohibits directly. (In re: David 1. He should confine his work to non-adversary even with the consent of the department head, 93 PHIL. 461) contentions. engage in the practice of law. If so authorized by the department head, he may, in an isolated He should not undertake purely legal work, such as case, act as counsel for a relative or close the examination or cross-examination of witnesses, family friend. Restrictions in the practice of law of members of the or the presentation of evidence. A government official forbidden to Sanngunian Services should not be habitually rendered. practice law may be held criminally liable for doing so. An officer or employee of the civil Under the Local Government Code (R.A. 7180, Sec. Should not charge or collect attorneys fees (PAFLU service who, as a lawyer, engages in the 90), Sanggunian members may practice their vs. Binalbagan Isabela Sugar Co. 42 SCRA 302 private practice of law without a written permit professions provided that if they are members of the from the department head concerned may be Bar, they shall not: Q. A and B who are law students entered their held administratively liable therefor. appear as counsel before any court in any civil case appearances before the Municipal Court as wherein a local government unit or any unit, agency, private prosecutors in a criminal case. This or instrumentality of the government is the adverse was disallowed by the trial judge. Is this Q. The City of Manila hired the services of Atty. party; correct? Bautista of the ABC Law Offices to represent it in case pending before the RTC. Can Atty. appear as counsel in any criminal case wherein an Bautista validly represent it? officer or employee of the national or local A. NO. A non-lawyer may appear as a friend of government is accused of an offense committed in the party before the Municipal Courts under relation to his office; Section 34, Rule 138 Rules of Court; he may A. NO. A local government unit could not hire a collect any fee for their appearance in administrative make such appearances either as defense private attorney to represent. The provisions of proceedings involving the local government unit of counsel or private prosecutor under the control Sec. 1683 complemented by Sec. 3 of the which he is an official; and and supervision of the fiscal. The permission of Local Autonomy Law, is clear in providing that use property and personnel of the Government the fiscal is not necessary for the appearance only the provincial prosecutor and the except when the Sanggunian member concerned is of a private prosecutor, although if he so municipal attorney can represent a province or defending the interest of the government. wishes, the fiscal may disallow participation in municipality. The provision is mandatory. The the trial by handling the case municipalitys authority to employ a private personally. (Catimbuhan, et al. vs. Hon. Cruz, lawyer is expressly limited only to situations Restrictions in the practice of law of members of the G.R. No. 51813-14, Nov.29, 1983) where the provincial prosecutor is disqualified Judiciary to represent it, as when he represents that Public Officials who cannot engage in the private province against a municipality. practice of law in the Philippines: Under RA 910, Sec. 1, as amended, a retired justice or judge receiving a pension from the government, Public Officials with Restrictions in the Practice of cannot act as counsel in any civil case in which the 1. Judges and other officials as employees of the Government, or any of its subdivision or agencies in Law: Superior Court (Rule 148, Sec. 35, RRC). the adverse party or in criminal case wherein an officer or employee of the Government is accused of Senators and members of the House of an offense in relation to his office. Officials and employees of the OSG (Ibid). Representatives Remedies Against Unauthorized Practice Members of the Sanggunian Petition for Injunction Government prosecutors (Peo v. Villanueva, 14 Retired Justice or judge Declaratory Relief SCRA 109). Civil service officers or employees without permit Contempt of Court - if permitted by their department head should only be from their respective department heads (Noriega vs. in isolated cases Disqualification and complaints for disbarment Sison 125 SCRA 293) involving relatives or close family friends Criminal complaint for estafa who falsely represented to be an attorney to the damage party
Alawi vs. Alauya, A.M. SDC-97-2-P, February 24,
1997 Q. Are persons who pass the Sharia Bar members of the Philippine Bar?
A. Persons who pass the Sharia Bar are not full-
fledged members of the Philippine Bar, hence may only practice before the Sharia courts. They are also not entitled to use the title attorney as such is reserved to those who, having obtained the necessary degree in the study of law and successfully taken the Bar Examinations, have been admitted to the Integrated Bar of the Philippines and remain members thereof in good standing
Q. Does scrivening constitute practice of law?
A. NO. Scrivening or the filling of blanks in a
standard or stereotyped forms which involves pure clerical work without need for any legal interpretation. This is not practice of law.
In re: Joaquin, 241 SCRA 405
Appearance in propia persona is appearance in court by a non-lawyer for himself without the assistance of a member of the Bar. This is sometimes referred to as pro se practice
While pro se practice is allowed, it is not
advisable to do so. Court proceedings are full of technical pitfalls that may entrap a person unschooled in substantive and procedural law.