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The Practice of law:

The prohibition and disqualification


for government lawyers

Group 8

AMPATUAN, Datu Muhammad S.


BENDIJO, Alexes Joseph R.
FEGI, Walter P.

Under the tutelage and guidance of:

Atty. Rodel V. Capule, MD.


Subject Professor
PROBLEM AREAS IN LEGAL ETHICS
School Year 2012-2013

The Practice of law:


The prohibition and disqualification
for government lawyers
INTRODUCTION
The law provides under the Rules of Court, Rule 138, Section 1., that any person heretofore duly
admitted as a member of the bar, or hereafter admitted as such in accordance with the provisions
of this rule, and who is in good and regular standing, is entitled to practice law. Generally, to
engage in the practice is to do any of those acts, which are characteristic of the legal
profession (In re: David, 93 Phil. 46). It covers any activity, in or out of court, which requires the
application of law, legal principles, practice or procedure and calls for legal knowledge, training
and experience (PLA vs. Agrava, 105 Phil. 173).

PRACTICE OF LAW
Jurisprudence provides that the practice of law means any activity in or out of court, which
requires the application of law, legal procedure, knowledge, training and experience. To engage
in the practice of law is to perform those acts, which are characteristics of the legal
The Practice of law:
The prohibition and disqualification of government lawyers

profession. Generally, to practice law is to give notice or render any kind of service, which
devise or service requires the use, in any degree, of legal knowledge or skill (Cayetano vs.
Monsod, 201 SCRA 210).
Strictly speaking, the phrase practice of law implies the customary or habitual holding of
oneself to the public as a lawyer and demanding compensation for his services. Furthermore, in
line of this method or practice, comes the term private practice.
The term private practice, is more than an isolated appearance for it consist of frequent
customary actions, a succession of acts of the same kind. An isolated appearance may, however,
amount to practice in relation to the rule prohibiting some persons from engaging in the exercise
of the legal profession. [Ulep vs. Legal Clinic Inc. 223 SCRA 378 (1993)].
The practice of law also frowns upon the act of 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 the practice of his profession, a licensed attorney-at-law generally engages in three principal
types of professional activities: (1) legal advice and instructions to clients to inform them of
their rights and obligations; (2) preparation for clients of documents requiring knowledge of
legal principles not possessed by ordinary layman; and (3) appearance for clients before public
tribunals which possess power and authority to determine rights of life, liberty and property
according to law, in order to assist in the proper interpretation and enforcement of law.
The Supreme Court also held and rules upon the essential criteria enumerated as determinative of
engaging in the practice of law, which would be:
xxx

(1) Habituality;
(2) Compensation;
(3) Application of law, legal principle, practice, or procedure;
(4) Attorney-Client relationship. (Ibid.) xxx
Among those mentioned in the requirements, the most pivotal of them, would be the presence of
an attorney-client relationship, as it is the end result of almost all legal endeavors.

NON-LAWYERS AUTHORIZED TO APPEAR IN COURT


The law also provides for non-lawyers, in selected case and / or circumstance to appear court and
they are as follows:

In cases before the MTC, a party may conduct his case or litigation in person, with the

aid of an agent or friend appointed by him for that purpose (Sec. 34, Rule 138, RRC).
Before any other court, a party may conduct his litigation personally (Ibid).
In a criminal case before the MTC in a locality where a duly licensed member of the Bar
is not available, the judge may appoint a non-lawyer who is a resident of the province,
and of good repute for probity and ability to aid the accused in his defense (Rule 116,

Sec. 7, RRC).
A third year law student, who is enrolled in a recognized law schools clinical education
program approved by the Supreme Court may appear before any court without
compensation, to represent indigent clients accepted by the Legal Clinic of the law
school. The student shall be under the direct supervision and control of an IBP member
duly accredited by the law school.
The Practice of law:
The prohibition and disqualification of government lawyers

Under the Labor Code, non-lawyers may appear before the NLRC or any Labor Arbiter,
if (1) they represent themselves, or if (2) they represent their organization or members

thereof (Art. 222, PO 442, as amended).


Under the Cadastral Act, a non-lawyer can represent a claimant before the Cadastral

Court (Act No. 2259, Sec. 9).


Any person appointed to appear for the government of the Phil. in accordance with
law (Sec. 33 Rule 138).

LIMITATIONS OF APPEARANCE OF NON-LAWYERS


The law provides for the limitations on the appearance of non-lawyers and they are as follows:
1. He should confine his work to non-adversary contentions.
2. He should not undertake purely legal work, such as the examination or cross-examination
of witnesses, or the presentation of evidence.
3. Services should not be habitually rendered.
4. He should not charge or collect attorneys fees (PAFLU vs. Binalbagan Isabela Sugar Co.
42 SCRA 302).
Any person doing otherwise, shall face prosecution, and in some cases, imprisonment.
Illustration:
Q: A and B who are law students entered their appearances before the Municipal
Court as private prosecutors in a criminal case. This was denied and subsequently
prohibited by the trial judge. Is this correct?

A: NO. A non-lawyer may appear as a friend of the party before the Municipal

Courts under Section 34, Rule 138 Rules of Court; he may make such appearances
either as defense counsel or private prosecutor under the control and supervision of
the fiscal. The permission of the fiscal is not necessary for the appearance of a
private prosecutor, although if he so wishes, the fiscal may disallow participation in
the trial by handling the case personally. (Catimbuhan, et al. vs. Hon. Cruz, G.R. No.
51813-14, Nov.29, 1983)

PUBLIC

OFFICIALS WHO CANNOT ENGAGE IN THE PRIVATE

PRACTICE OF LAW IN THE PHILIPPINES


The law also provides for the prohibitions for public official to engage in the practice
of law, and they are as follows:
1. Judges and other officials as employees of the Superior Court (Rule 148, Sec.
35, RRC).
2. Officials and employees of the OSG (Ibid).
3. Government prosecutors (Peo v. Villanueva, 14 SCRA 109), and if permitted
by their department head, such practice should only be in isolated cases
involving relatives or close family friends.
4. President, Vice-President, members of the cabinet, their deputies and
assistants, (Art. VIII Sec. 15, 1987 Constitution).
5. Chairmen and Members of the Constitutional Commissions (Art. IX-A, Sec.
2, 1987 Constitution).
6. Ombudsman and his deputies (Art. IX, Sec. 8 (2nd par.), 1987 Constitution).
7. All governors, city and municipal mayors (R.A. No. 7160, Sec. 90); and
8. Those who, by special law, are prohibited from engaging in the practice of
their legal profession.

The Practice of law:


The prohibition and disqualification of government lawyers

To wit: a civil service officer or employee whose duty or responsibility does not
require his entire time to be at the disposal of the government may not engage in
private practice of law without the written permit from the head of the department
concerned. However, government officials who by express mandate of the law are
prohibited from practicing law may not, even with the consent of the department
head, engage in the practice of law. If so authorized by the department head, he may,
in an isolated case, act as counsel for a relative or close family friend.
A government official forbidden to practice law may be held criminally liable for
doing so. An officer or employee of the civil service who, as a lawyer, engages in the
private practice of law without a written permit from the department head concerned
may be held administratively liable therefor.
On another issue, as it was held in, 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. Such is the reason why it is only a privilege left to a chosen learned
few, also know as lawyers.

RESTRICTIONS IN THE PRACTICE OF LAW AS TO MEMBERS OF THE


LEGISLATURE,
SANGGUNIAN

RETIRED

JUDGES

AND

MEMBERS

OF

THE

The law provides that no senator or member of the House of Representatives, may
personally appear as counsel before any courts of justice or before the Electoral
Tribunals, or quasi-judicial and other administration bodies xxx (Art. VI, Sec. 14,
1987 Constitution). Furthermore, A lawyer-member of the legislature is only
prohibited from appearing as counsel before any court of justice, electoral tribunals
or quasi-judicial and administrative bodies. The word appearance or any word that
is associated with it, includes not only arguing a case before any such body, but also
the filing of pleadings on behalf of a client as by simply filing a formal motion, plea
or answer. (Ramos vs. Manalac, 89 PHIL. 270). Neither can he allow his name to
appear in such pleading by itself or as part of firm name under the signature of
another qualified lawyer because the signature of an agent amounts to signing of a
non-qualified senator or congressman, the office of an attorney being originally an
agency, and because he will, by such act, be appearing in court or quasi-judicial or
administrative body in violation of the constitutional restriction. He cannot do
indirectly what the Constitution prohibits directly. (In re: David 93 PHIL. 461).
The enumeration however is not restricted to the members of the legislature alone,
and it is provided that the following are also prohibited from doing the same:
Xxx (1) Senators and members of the House of Representatives;
(2) Members of the Sanggunian (3) Retired Justice or judge; (4)
Civil service officers or employees without permit from their
respective department heads xxx (Noriega vs. Sison 125 SCRA
293).
The also prohibits retired justices thereof, as provided for under RA 910, AN ACT
The Practice of law:
The prohibition and disqualification of government lawyers

TO PROVIDE FOR THE RETIREMENT OF JUSTICES OF THE SUPREME


COURT AND OF THE COURT OF APPEALS, FOR THE ENFORCEMENT OF
THE PROVISIONS HEREOF BY THE GOVERNMENT SERVICE INSURANCE
SYSTEM, AND TO REPEAL COMMONWEALTH ACT NUMBERED FIVE
HUNDRED AND THIRTY-SIX, as amended, under section 1, that a retired justice
or judge receiving a pension from the government, cannot act as counsel in any civil
case in which the government, or any of its subdivisions or agencies in the adverse
party or in criminal cases, wherein an officer or employee of the government is
accused of an offense in relation to his office.
Any act committed against said prohibitions above, has the following remedies:
1.
2.
3.
4.
5.

Petition for Injunction


Declaratory Relief
Contempt of Court
Disqualification and complaints for disbarment (for practicing lawyers)
Criminal complaint for estafa who falsely represented to be an attorney to the
damage party.

The Law also provides for the limitations for Sanggunian members under the Local
Government Code (R.A. 7180, Sec. 90).
They may practice their professions provided that if they are members of the Bar,
they shall not:
1. Appear as counsel before any court in any civil case wherein a local
government unit or any unit, agency, or instrumentality of the government is
the adverse party;
2. Appear as counsel in any criminal case wherein an officer or employee of the
national or local government is accused of an offense committed in relation to

his office;
3. Collect any fee for their appearance in administrative proceedings involving
the local government unit of which he is an official; and
4. Use property and personnel of the Government except when the Sanggunian
member concerned is defending the interest of the government.
PROHIBITION ON SHARIA BAR PASSERS
The law provided for in the case of Alawi vs. Alauya (A.M. SDC-97-2-P, February
24, 1997), 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.

LAWYERS IN GOVERNMENT; WHEN ALLOWED TO PRACTICE

Herein as follows, is a collection of cases when such government lawyers are


allowed to practice:
In a case the Supreme Court held, that an assemblyman may appear as counsel in the
RTC when the latter is exercising appellate jurisdiction over a case appealed to it
from the Municipal or Municipal Trial Court. (Villegas vs. Legaspi, 113 SCRA 39
(1982));
It was also stated that a Civil Service officer or employee whose duty or
The Practice of law:
The prohibition and disqualification of government lawyers

responsibility does not require his entire time to be at the disposal of the Government
may not engage in the private practice of law without the written permit from the
head of the department concerned, consequently, he may, with such written permit,
exercise his profession as a lawyer (Ramos vs. Rada, 65 SCRA 179 (1975); Zeta vs.
Malinao, 87 SCRA 303 (1978). However, Government officials who, by express
mandate of the law, are prohibited from practicing law, may not, even with the
consent of the department head concerned, engage in the private practice of law; but
if so authorized by the department head, he may, in an isolated case, act as a counsel
for a relative or close family friend. (People vs. Villanueva, 14 SCA 109 (1965);
Noriega vs. Sison, 125 SCRA 293 (1983)
In the case of Felipe e. Abella vs. Atty. Asteria E. Cruzabra, (A.C. No. 5688, June 4,
2009), the Supreme Court found Atty. Asteria E. Cruzabra guilty of engaging in
notarial practice without the written authority from the Secretary of the Department
of Justice, and accordingly it REPRIMANDED her. She was warned that a repetition
of the same or similar act in the future shall merit a more severe sanction.
The Court further held, thus:
1. Section 7(b)(2) of RA 6713 provides:
Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions
of public officials and employees now prescribed in the Constitution and existing
laws, the following shall constitute prohibited acts and transactions of any public
official

and

employee

and

are

hereby

declared

to

be

unlawful:

xxx

(b) Outside employment and other activities related thereto. - Public officials and
employees during their incumbency shall not:
xxx
(2) Engage in the private practice of their profession unless authorized by the
Constitution or law, provided, that such practice will not conflict or tend to
conflict with their official functions; or
xxx
2. Memorandum Circular No. 17 of the Executive Department allows
government employees to engage directly in the private practice of their
profession provided there is a written permission from the Department head. It
provides:

The authority to grant permission to any official or employee shall be granted by


the head of the ministry or agency in accordance with Section 12, Rule XVIII of
the Revised Civil Service Rules, which provides:
Sec. 12. No officer or employee shall engage directly in any private business,
vocation, or profession or be connected with any commercial, credit, agricultural,
or industrial undertaking without a written permission from the head of
Department; Provided, That this prohibition will be absolute in the case of those
The Practice of law:
The prohibition and disqualification of government lawyers

officers and employees whose duties and responsibilities require that their entire
time be at the disposal of the Government: Provided, further, That if an employee
is granted permission to engage in outside activities, the time so devoted outside
of office hours should be fixed by the chief of the agency to the end that it will
not impair in any way the efficiency of the other officer or employee: And
provided, finally, That no permission is necessary in the case of investments,
made by an officer or employee, which do not involve any real or apparent
conflict between his private interests and public duties, or in any way influence
him in the discharge of his duties, and he shall not take part in the management of
the enterprise or become an officer or member of the board of directors,

Subject to any additional conditions which the head of the office deems
necessary in each particular case in the interest of the service, as expressed in the
various issuances of the Civil Service Commission. (ibid.)
It is clear that when respondent filed her petition for commission as a notary
public, she did not obtain a written permission from the Secretary of the DOJ.
Respondents superior, the Register of Deeds, cannot issue any authorization
because he is not the head of the Department. And even assuming that the
Register of Deeds authorized her, respondent failed to present any proof of that
written permission. Respondent cannot feign ignorance or good faith because
respondent filed her petition for commission as a notary public after
Memorandum Circular No. 17 was issued in 1986.
In Muring, Jr. v. Gatcho (A.M. No. CA-05-19-P), the Philippine BAR, suspended

a lawyer for having filed petitions for commission as a notary public while employed
as a court attorney.
Thecourtheld:
Atty. Gatcho should have known that as a government lawyer, he was prohibited
from engaging in notarial practice, or in any form of private legal practice for that
matter. Atty. Gatcho cannot now feign ignorance or good faith, as he did not seek to
exculpate himself by providing an explanation for his error. Atty. Gatchos filing of
the petition for commission, while not an actual engagement in the practice of law,
appears as a furtive attempt to evade the prohibition.

REPORT CONCLUSION
As a general rule, lawyers in the government are not allowed to practice due to a
potential conflict of interest. They may even use their powers as vested in their
respective offices.

Exemptions to the general rule are as follows:


1. When the Constitution of the Philippines provides that, a lawyer member of
the legislature is not absolutely prohibited from personally engaging in the
practice of his profession. He is only prohibited from appearing as counsel
before any court of justice or before the electoral Tribunals or quasi-judicial
and other administrative bodies. (Article VI, Sec. 14; Article VII Sec. 17
The Practice of law:
The prohibition and disqualification of government lawyers

(1935); or, as counsel in the Court of Appeals and in the Supreme Court
except in a civil case wherein the government or any of its instrumentalities
is the adverse party and in a criminal case wherein an officer or employee of
the government is accused of a crime committed in relation to his
office.( Article VIII, Sec. 11 1973 Constitution)
2. When it is specifically provided for in the Civil Service Rules; and

3. When the Supreme Court says so in the cases of Ramos vs. Rada, 65 SCRA
179 (1975); Zeta vs. Malinao, 87 SCRA 303 (1978); People vs. Villanueva,
14 SCA 109 (1965); Noriega vs. Sison, 125 SCRA 293 (1983); Muring, Jr. v.
Gatcho (A.M. No. CA-05-19-P)

4. Any other statute law or jurisprudence, which allows lawyers of the


government to practice law despite the general restriction provided for in the
law.

The Practice of law:


The prohibition and disqualification of government lawyers

Bibliography
Albano, Judge Ed Vincent S. and Albano II, Vincent A., Bar Reviewer in Legal Ethics. Rex
Printing Company, Inc., (2000)
Nachura, Antonio B., Outline : reviewer in political law. Quezon City: s.n., 2005.
Pineda, Ernesto., Legal and Judicial Ethics. Central, (1999)
Rodriguez, Rufus B., The Fundamentals of Legal and Judicial Ethics, Central Professional
Books, Inc. (2004)

Philippine laws:
The !987 Philippine Constitution
The Revised Rules of Civil Service of the Philippines

Online resources:
(www).lawphil.net
(www).inq7.net
(www).chanrobles.com