Bar Matter No. 553 June 17, 1993 Philippine Lawyers' Association (PLA), (4) U.P.
Philippine Lawyers' Association (PLA), (4) U.P. Womens Lawyers' Circle (WILOCI), (5)
MAURICIO C. ULEP, petitioner,
vs.
THE LEGAL CLINIC, INC., respondent.
R E SO L U T I O N
REGALADO, J.:
Petitioner prays this Court "to order the respondent to cease and desist from issuing
advertisements similar to or of the same tenor as that of annexes "A" and "B" (of said petition)
and to perpetually prohibit persons or entities from making advertisements pertaining to the
exercise of the law profession other than those allowed by law."
The advertisements complained of by herein petitioner are as follows:
Annex A
SECRET MARRIAGE?
P560.00 for a valid marriage.
Info on DIVORCE. ABSENCE.
ANNULMENT. VISA.
THE Please call: 521-0767 LEGAL 5217232, 5222041 CLINIC, INC. 8:30 am 6:00 pm 7-Flr.
Victoria Bldg., UN Ave., Mla.
Annex B
GUAM DIVORCE.
DON PARKINSON
an Attorney in Guam, is giving FREE BOOKS on Guam Divorce through The Legal Clinic
beginning Monday to Friday during office hours.
Guam divorce. Annulment of Marriage. Immigration Problems, Visa Ext. Quota/Non-quota Res.
& Special Retiree's Visa. Declaration of Absence. Remarriage to Filipina Fiancees. Adoption.
Investment in the Phil. US/Foreign Visa for Filipina Spouse/Children. Call Marivic.
THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila nr. US Embassy CLINIC, INC.1
Tel. 521-7232; 521-7251; 522-2041; 521-0767
It is the submission of petitioner that the advertisements above reproduced are champterous,
unethical, demeaning of the law profession, and destructive of the confidence of the community
in the integrity of the members of the bar and that, as a member of the legal profession, he is
ashamed and offended by the said advertisements, hence the reliefs sought in his petition as
hereinbefore quoted.
In its answer to the petition, respondent admits the fact of publication of said advertisement at its
instance, but claims that it is not engaged in the practice of law but in the rendering of "legal
support services" through paralegals with the use of modern computers and electronic machines.
Respondent further argues that assuming that the services advertised are legal services, the act of
advertising these services should be allowed supposedly
in the light of the case of John R. Bates and Van O'Steen vs. State Bar of Arizona,2 reportedly
decided by the United States Supreme Court on June 7, 1977.
Considering the critical implications on the legal profession of the issues raised herein, we
required the (1) Integrated Bar of the Philippines (IBP), (2) Philippine Bar Association (PBA), (3)
Women Lawyers Association of the Philippines (WLAP), and (6) Federacion International de
Abogadas (FIDA) to submit their respective position papers on the controversy and, thereafter,
their memoranda. 3 The said bar associations readily responded and extended their valuable
services and cooperation of which this Court takes note with appreciation and gratitude.
The main issues posed for resolution before the Court are whether or not the services offered by
respondent, The Legal Clinic, Inc., as advertised by it constitutes practice of law and, in either
case, whether the same can properly be the subject of the advertisements herein complained of.
Before proceeding with an in-depth analysis of the merits of this case, we deem it proper and
enlightening to present hereunder excerpts from the respective position papers adopted by the
aforementioned bar associations and the memoranda submitted by them on the issues involved in
this bar matter.
1. Integrated Bar of the Philippines:
xxx xxx xxx
Notwithstanding the subtle manner by which respondent endeavored to distinguish the two
terms, i.e., "legal support services" vis-a-vis "legal services", common sense would readily dictate
that the same are essentially without substantial distinction. For who could deny that document
search, evidence gathering, assistance to layman in need of basic institutional services from
government or non-government agencies like birth, marriage, property, or business registration,
obtaining documents like clearance, passports, local or foreign visas, constitutes practice of law?
xxx xxx xxx
The Integrated Bar of the Philippines (IBP) does not wish to make issue with respondent's foreign
citations. Suffice it to state that the IBP has made its position manifest, to wit, that it strongly
opposes the view espoused by respondent (to the effect that today it is alright to advertise one's
legal services).
The IBP accordingly declares in no uncertain terms its opposition to respondent's act of
establishing a "legal clinic" and of concomitantly advertising the same through newspaper
publications.
The IBP would therefore invoke the administrative supervision of this Honorable Court to
perpetually restrain respondent from undertaking highly unethical activities in the field of law
practice as aforedescribed.4
xxx xxx xxx
A. The use of the name "The Legal Clinic, Inc." gives the impression that respondent corporation
is being operated by lawyers and that it renders legal services.
While the respondent repeatedly denies that it offers legal services to the public, the
advertisements in question give the impression that respondent is offering legal services. The
Petition in fact simply assumes this to be so, as earlier mentioned, apparently because this (is) the
effect that the advertisements have on the reading public.
The impression created by the advertisements in question can be traced, first of all, to the very
name being used by respondent "The Legal Clinic, Inc." Such a name, it is respectfully
submitted connotes the rendering of legal services for legal problems, just like a medical clinic
connotes medical services for medical problems. More importantly, the term "Legal Clinic"
connotes lawyers, as the term medical clinic connotes doctors.
Furthermore, the respondent's name, as published in the advertisements subject of the present
case, appears with (the) scale(s) of justice, which all the more reinforces the impression that it is
being operated by members of the bar and that it offers legal services. In addition, the
advertisements in question appear with a picture and name of a person being represented as a
lawyer from Guam, and this practically removes whatever doubt may still remain as to the nature
of the service or services being offered.
It thus becomes irrelevant whether respondent is merely offering "legal support services" as
claimed by it, or whether it offers legal services as any lawyer actively engaged in law practice
does. And it becomes unnecessary to make a distinction between "legal services" and "legal
support services," as the respondent would have it. The advertisements in question leave no room
for doubt in the minds of the reading public that legal services are being offered by lawyers,
whether true or not.
B. The advertisements in question are meant to induce the performance of acts contrary to law,
morals, public order and public policy.
It may be conceded that, as the respondent claims, the advertisements in question are only meant
to inform the general public of the services being offered by it. Said advertisements, however,
emphasize to Guam divorce, and any law student ought to know that under the Family Code,
there is only one instance when a foreign divorce is recognized, and that is:
Article 26. . . .
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine Law.
It must not be forgotten, too, that the Family Code (defines) a marriage as follows:
Article 1. Marriage is special contract of permanent union between a man and woman entered
into accordance with law for the establishment of conjugal and family life. It is the foundation of
the family and an inviolable social institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that marriage settlements may fix the
property relation during the marriage within the limits provided by this Code.
By simply reading the questioned advertisements, it is obvious that the message being conveyed
is that Filipinos can avoid the legal consequences of a marriage celebrated in accordance with our
law, by simply going to Guam for a divorce. This is not only misleading, but encourages, or
serves to induce, violation of Philippine law. At the very least, this can be considered "the dark
side" of legal practice, where certain defects in Philippine laws are exploited for the sake of
profit. At worst, this is outright malpractice.
Rule 1.02. A lawyer shall not counsel or abet activities aimed at defiance of the law or at
lessening confidence in the legal system.
In addition, it may also be relevant to point out that advertisements such as that shown in Annex
"A" of the Petition, which contains a cartoon of a motor vehicle with the words "Just Married" on
its bumper and seems to address those planning a "secret marriage," if not suggesting a "secret
marriage," makes light of the "special contract of permanent union," the inviolable social
institution," which is how the Family Code describes marriage, obviously to emphasize its
sanctity and inviolability. Worse, this particular advertisement appears to encourage marriages
celebrated in secrecy, which is suggestive of immoral publication of applications for a marriage
license.
If the article "Rx for Legal Problems" is to be reviewed, it can readily be concluded that the
above impressions one may gather from the advertisements in question are accurate. The Sharon
Cuneta-Gabby Concepcion example alone confirms what the advertisements suggest. Here it can
be seen that criminal acts are being encouraged or committed
(a bigamous marriage in Hong Kong or Las Vegas) with impunity simply because the jurisdiction
of Philippine courts does not extend to the place where the crime is committed.
Even if it be assumed, arguendo, (that) the "legal support services" respondent offers do not
constitute legal services as commonly understood, the advertisements in question give the
impression that respondent corporation is being operated by lawyers and that it offers legal
services, as earlier discussed. Thus, the only logical consequence is that, in the eyes of an
ordinary newspaper reader, members of the bar themselves are encouraging or inducing the
performance of acts which are contrary to law, morals, good customs and the public good,
thereby destroying and demeaning the integrity of the Bar.
xxx xxx xxx
It is respectfully submitted that respondent should be enjoined from causing the publication of the
advertisements in question, or any other advertisements similar thereto. It is also submitted that
respondent should be prohibited from further performing or offering some of the services it
presently offers, or, at the very least, from offering such services to the public in general.
The IBP is aware of the fact that providing computerized legal research, electronic data gathering,
storage and retrieval, standardized legal forms, investigators for gathering of evidence, and like
services will greatly benefit the legal profession and should not be stifled but instead encouraged.
However, when the conduct of such business by non-members of the Bar encroaches upon the
practice of law, there can be no choice but to prohibit such business.
Admittedly, many of the services involved in the case at bar can be better performed by
specialists in other fields, such as computer experts, who by reason of their having devoted time
and effort exclusively to such field cannot fulfill the exacting requirements for admission to the
Bar. To prohibit them from "encroaching" upon the legal profession will deny the profession of
the great benefits and advantages of modern technology. Indeed, a lawyer using a computer will
be doing better than a lawyer using a typewriter, even if both are (equal) in skill.
Both the Bench and the Bar, however, should be careful not to allow or tolerate the illegal
practice of law in any form, not only for the protection of members of the Bar but also, and more
importantly, for the protection of the public. Technological development in the profession may be
encouraged without tolerating, but instead ensuring prevention of illegal practice.
There might be nothing objectionable if respondent is allowed to perform all of its services, but
only if such services are made available exclusively to members of the Bench and Bar.
Respondent would then be offering technical assistance, not legal services. Alternatively, the
more difficult task of carefully distinguishing between which service may be offered to the public
in general and which should be made available exclusively to members of the Bar may be
undertaken. This, however, may require further proceedings because of the factual considerations
involved.
It must be emphasized, however, that some of respondent's services ought to be prohibited
outright, such as acts which tend to suggest or induce celebration abroad of marriages which are
bigamous or otherwise illegal and void under Philippine law. While respondent may not be
prohibited from simply disseminating information regarding such matters, it must be required to
include, in the information given, a disclaimer that it is not authorized to practice law, that certain
course of action may be illegal under Philippine law, that it is not authorized or capable of
rendering a legal opinion, that a lawyer should be consulted before deciding on which course of
action to take, and that it cannot recommend any particular lawyer without subjecting itself to
possible sanctions for illegal practice of law.
If respondent is allowed to advertise, advertising should be directed exclusively at members of
the Bar, with a clear and unmistakable disclaimer that it is not authorized to practice law or
perform legal services.
The benefits of being assisted by paralegals cannot be ignored. But nobody should be allowed to
represent himself as a "paralegal" for profit, without such term being clearly defined by rule or
regulation, and without any adequate and effective means of regulating his activities. Also, law
practice in a corporate form may prove to be advantageous to the legal profession, but before
allowance of such practice may be considered, the corporation's Article of Incorporation and By-
laws must conform to each and every provision of the Code of Professional Responsibility and
the Rules of Court.5
2. Philippine Bar Association:
xxx xxx xxx.
Respondent asserts that it "is not engaged in the practice of law but engaged in giving legal
support services to lawyers and laymen, through experienced paralegals, with the use of modern
computers and electronic machines" (pars. 2 and 3, Comment). This is absurd. Unquestionably,
respondent's acts of holding out itself to the public under the trade name "The Legal Clinic, Inc.,"
and soliciting employment for its enumerated services fall within the realm of a practice which
thus yields itself to the regulatory powers of the Supreme Court. For respondent to say that it is
merely engaged in paralegal work is to stretch credulity. Respondent's own commercial
advertisement which announces a certain Atty. Don Parkinson to be handling the fields of law
belies its pretense. From all indications, respondent "The Legal Clinic, Inc." is offering and
rendering legal services through its reserve of lawyers. It has been held that the practice of law is
not limited to the conduct of cases in court, but includes drawing of deeds, incorporation,
rendering opinions, and advising clients as to their legal right and then take them to an attorney
and ask the latter to look after their case in court See Martin, Legal and Judicial Ethics, 1984 ed.,
p. 39).
It is apt to recall that only natural persons can engage in the practice of law, and such limitation
cannot be evaded by a corporation employing competent lawyers to practice for it. Obviously,
this is the scheme or device by which respondent "The Legal Clinic, Inc." holds out itself to the
public and solicits employment of its legal services. It is an odious vehicle for deception,
especially so when the public cannot ventilate any grievance for malpractice against the business
conduit. Precisely, the limitation of practice of law to persons who have been duly admitted as
members of the Bar (Sec. 1, Rule 138, Revised Rules of Court) is to subject the members to
the discipline of the Supreme Court. Although respondent uses its business name, the persons and
the lawyers who act for it are subject to court discipline. The practice of law is not a profession
open to all who wish to engage in it nor can it be assigned to another (See 5 Am. Jur. 270). It is
a personal right limited to persons who have qualified themselves under the law. It follows that
not only respondent but also all the persons who are acting for respondent are the persons
engaged in unethical law practice. 6
3. Philippine Lawyers' Association:
The Philippine Lawyers' Association's position, in answer to the issues stated herein, are wit:
1. The Legal Clinic is engaged in the practice of law;
2. Such practice is unauthorized;
3. The advertisements complained of are not only unethical, but also misleading and patently
immoral; and
4. The Honorable Supreme Court has the power to supress and punish the Legal Clinic and its
corporate officers for its unauthorized practice of law and for its unethical, misleading and
immoral advertising.
xxx xxx xxx
Respondent posits that is it not engaged in the practice of law. It claims that it merely renders
"legal support services" to answers, litigants and the general public as enunciated in the Primary
Purpose Clause of its Article(s) of Incorporation. (See pages 2 to 5 of Respondent's Comment).
But its advertised services, as enumerated above, clearly and convincingly show that it is indeed
engaged in law practice, albeit outside of court.
As advertised, it offers the general public its advisory services on Persons and Family Relations
Law, particularly regarding foreign divorces, annulment of marriages, secret marriages, absence
and adoption; Immigration Laws, particularly on visa related problems, immigration problems;
the Investments Law of the Philippines and such other related laws.
Its advertised services unmistakably require the application of the aforesaid law, the legal
principles and procedures related thereto, the legal advices based thereon and which activities call
for legal training, knowledge and experience.
Applying the test laid down by the Court in the aforecited Agrava Case, the activities of
respondent fall squarely and are embraced in what lawyers and laymen equally term as "the
practice of law."7
4. U.P. Women Lawyers' Circle:
In resolving, the issues before this Honorable Court, paramount consideration should be given to
the protection of the general public from the danger of being exploited by unqualified persons or
entities who may be engaged in the practice of law.
At present, becoming a lawyer requires one to take a rigorous four-year course of study on top of
a four-year bachelor of arts or sciences course and then to take and pass the bar examinations.
Only then, is a lawyer qualified to practice law.
While the use of a paralegal is sanctioned in many jurisdiction as an aid to the administration of
justice, there are in those jurisdictions, courses of study and/or standards which would qualify
these paralegals to deal with the general public as such. While it may now be the opportune time
to establish these courses of study and/or standards, the fact remains that at present, these do not
exist in the Philippines. In the meantime, this Honorable Court may decide to make measures to
protect the general public from being exploited by those who may be dealing with the general
public in the guise of being "paralegals" without being qualified to do so.
In the same manner, the general public should also be protected from the dangers which may be
brought about by advertising of legal services. While it appears that lawyers are prohibited under
the present Code of Professional Responsibility from advertising, it appears in the instant case
that legal services are being advertised not by lawyers but by an entity staffed by "paralegals."
Clearly, measures should be taken to protect the general public from falling prey to those who
advertise legal services without being qualified to offer such services. 8
A perusal of the questioned advertisements of Respondent, however, seems to give the
impression that information regarding validity of marriages, divorce, annulment of marriage,
immigration, visa extensions, declaration of absence, adoption and foreign investment, which are
in essence, legal matters , will be given to them if they avail of its services. The Respondent's
name The Legal Clinic, Inc. does not help matters. It gives the impression again that
Respondent will or can cure the legal problems brought to them. Assuming that Respondent is, as
claimed, staffed purely by paralegals, it also gives the misleading impression that there are
lawyers involved in The Legal Clinic, Inc., as there are doctors in any medical clinic, when only
"paralegals" are involved in The Legal Clinic, Inc.
Respondent's allegations are further belied by the very admissions of its President and majority
stockholder, Atty. Nogales, who gave an insight on the structure and main purpose of Respondent
corporation in the aforementioned "Starweek" article."9
5. Women Lawyer's Association of the Philippines:
Annexes "A" and "B" of the petition are clearly advertisements to solicit cases for the purpose of
gain which, as provided for under the above cited law, (are) illegal and against the Code of
Professional Responsibility of lawyers in this country.
Annex "A" of the petition is not only illegal in that it is an advertisement to solicit cases, but it is
illegal in that in bold letters it announces that the Legal Clinic, Inc., could work out/cause the
celebration of a secret marriage which is not only illegal but immoral in this country. While it is
advertised that one has to go to said agency and pay P560 for a valid marriage it is certainly
fooling the public for valid marriages in the Philippines are solemnized only by officers
authorized to do so under the law. And to employ an agency for said purpose of contracting
marriage is not necessary.
No amount of reasoning that in the USA, Canada and other countries the trend is towards
allowing lawyers to advertise their special skills to enable people to obtain from qualified
practitioners legal services for their particular needs can justify the use of advertisements such as
are the subject matter of the petition, for one (cannot) justify an illegal act even by whatever merit
the illegal act may serve. The law has yet to be amended so that such act could become
justifiable.
We submit further that these advertisements that seem to project that secret marriages and divorce
are possible in this country for a fee, when in fact it is not so, are highly reprehensible.
It would encourage people to consult this clinic about how they could go about having a secret
marriage here, when it cannot nor should ever be attempted, and seek advice on divorce, where in
this country there is none, except under the Code of Muslim Personal Laws in the Philippines. It
is also against good morals and is deceitful because it falsely represents to the public to be able to
do that which by our laws cannot be done (and) by our Code of Morals should not be done.
In the case (of) In re Taguda, 53 Phil. 37, the Supreme Court held that solicitation for clients by
an attorney by circulars of advertisements, is unprofessional, and offenses of this character justify
permanent elimination from the Bar. 10
6. Federacion Internacional de Abogados:
xxx xxx xxx
1.7 That entities admittedly not engaged in the practice of law, such as management consultancy
firms or travel agencies, whether run by lawyers or not, perform the services rendered by
Respondent does not necessarily lead to the conclusion that Respondent is not unlawfully
practicing law. In the same vein, however, the fact that the business of respondent (assuming it
can be engaged in independently of the practice of law) involves knowledge of the law does not
necessarily make respondent guilty of unlawful practice of law.
. . . . Of necessity, no one . . . . acting as a consultant can render effective service unless he is
familiar with such statutes and regulations. He must be careful not to suggest a course of conduct
which the law forbids. It seems . . . .clear that (the consultant's) knowledge of the law, and his use
of that knowledge as a factor in determining what measures he shall recommend, do not
constitute the practice of law . . . . It is not only presumed that all men know the law, but it is a
fact that most men have considerable acquaintance with broad features of the law . . . . Our
knowledge of the law accurate or inaccurate moulds our conduct not only when we are
acting for ourselves, but when we are serving others. Bankers, liquor dealers and laymen
generally possess rather precise knowledge of the laws touching their particular business or
profession. A good example is the architect, who must be familiar with zoning, building and fire
prevention codes, factory and tenement house statutes, and who draws plans and specification in
harmony with the law. This is not practicing law.
But suppose the architect, asked by his client to omit a fire tower, replies that it is required by the
statute. Or the industrial relations expert cites, in support of some measure that he recommends, a
decision of the National Labor Relations Board. Are they practicing law? In my opinion, they are
not, provided no separate fee is charged for the legal advice or information, and the legal question
is subordinate and incidental to a major non-legal problem.
It is largely a matter of degree and of custom.
If it were usual for one intending to erect a building on his land to engage a lawyer to advise him
and the architect in respect to the building code and the like, then an architect who performed this
function would probably be considered to be trespassing on territory reserved for licensed
attorneys. Likewise, if the industrial relations field had been pre-empted by lawyers, or custom
placed a lawyer always at the elbow of the lay personnel man. But this is not the case. The most
important body of the industrial relations experts are the officers and business agents of the labor
unions and few of them are lawyers. Among the larger corporate employers, it has been the
practice for some years to delegate special responsibility in employee matters to a management
group chosen for their practical knowledge and skill in such matter, and without regard to legal
thinking or lack of it. More recently, consultants like the defendants have the same service that
the larger employers get from their own specialized staff.
The handling of industrial relations is growing into a recognized profession for which appropriate
courses are offered by our leading universities. The court should be very cautious about declaring
[that] a widespread, well-established method of conducting business is unlawful, or that the
considerable class of men who customarily perform a certain function have no right to do so, or
that the technical education given by our schools cannot be used by the graduates in their
business.
In determining whether a man is practicing law, we should consider his work for any particular
client or customer, as a whole. I can imagine defendant being engaged primarily to advise as to
the law defining his client's obligations to his employees, to guide his client's obligations to his
employees, to guide his client along the path charted by law. This, of course, would be the
practice of the law. But such is not the fact in the case before me. Defendant's primarily efforts
are along economic and psychological lines. The law only provides the frame within which he
must work, just as the zoning code limits the kind of building the limits the kind of building the
architect may plan. The incidental legal advice or information defendant may give, does not
transform his activities into the practice of law. Let me add that if, even as a minor feature of his
work, he performed services which are customarily reserved to members of the bar, he would be
practicing law. For instance, if as part of a welfare program, he drew employees' wills.
Another branch of defendant's work is the representations of the employer in the adjustment of
grievances and in collective bargaining, with or without a mediator. This is not per se the practice
of law. Anyone may use an agent for negotiations and may select an agent particularly skilled in
the subject under discussion, and the person appointed is free to accept the employment whether
or not he is a member of the bar. Here, however, there may be an exception where the business
turns on a question of law. Most real estate sales are negotiated by brokers who are not lawyers.
But if the value of the land depends on a disputed right-of-way and the principal role of the
negotiator is to assess the probable outcome of the dispute and persuade the opposite party to the
same opinion, then it may be that only a lawyer can accept the assignment. Or if a controversy
between an employer and his men grows from differing interpretations of a contract, or of a
statute, it is quite likely that defendant should not handle it. But I need not reach a definite
conclusion here, since the situation is not presented by the proofs.
Defendant also appears to represent the employer before administrative agencies of the federal
government, especially before trial examiners of the National Labor Relations Board. An agency
of the federal government, acting by virtue of an authority granted by the Congress, may regulate
the representation of parties before such agency. The State of New Jersey is without power to
interfere with such determination or to forbid representation before the agency by one whom the
agency admits. The rules of the National Labor Relations Board give to a party the right to appear
in person, or by counsel, or by other representative. Rules and Regulations, September 11th,
1946, S. 203.31. 'Counsel' here means a licensed attorney, and ther representative' one not a
lawyer. In this phase of his work, defendant may lawfully do whatever the Labor Board allows,
even arguing questions purely legal. (Auerbacher v. Wood, 53 A. 2d 800, cited in Statsky,
Introduction to Paralegalism [1974], at pp. 154-156.).
1.8 From the foregoing, it can be said that a person engaged in a lawful calling (which may
involve knowledge of the law) is not engaged in the practice of law provided that:
(a) The legal question is subordinate and incidental to a major non-legal problem;.
(b) The services performed are not customarily reserved to members of the bar; .
(c) No separate fee is charged for the legal advice or information.
All these must be considered in relation to the work for any particular client as a whole.
1.9. If the person involved is both lawyer and non-lawyer, the Code of Professional
Responsibility succintly states the rule of conduct:
Rule 15.08 A lawyer who is engaged in another profession or occupation concurrently with
the practice of law shall make clear to his client whether he is acting as a lawyer or in another
capacity.
1.10. In the present case. the Legal Clinic appears to render wedding services (See Annex "A"
Petition). Services on routine, straightforward marriages, like securing a marriage license, and
making arrangements with a priest or a judge, may not constitute practice of law. However, if the
problem is as complicated as that described in "Rx for Legal Problems" on the Sharon Cuneta-
Gabby Concepcion-Richard Gomez case, then what may be involved is actually the practice of
law. If a non-lawyer, such as the Legal Clinic, renders such services then it is engaged in the
unauthorized practice of law.
1.11. The Legal Clinic also appears to give information on divorce, absence, annulment of
marriage and visas (See Annexes "A" and "B" Petition). Purely giving informational materials
may not constitute of law. The business is similar to that of a bookstore where the customer buys
materials on the subject and determines on the subject and determines by himself what courses of
action to take.
It is not entirely improbable, however, that aside from purely giving information, the Legal
Clinic's paralegals may apply the law to the particular problem of the client, and give legal
advice. Such would constitute unauthorized practice of law.
It cannot be claimed that the publication of a legal text which publication of a legal text which
purports to say what the law is amount to legal practice. And the mere fact that the principles or
rules stated in the text may be accepted by a particular reader as a solution to his problem does
not affect this. . . . . Apparently it is urged that the conjoining of these two, that is, the text and the
forms, with advice as to how the forms should be filled out, constitutes the unlawful practice of
law. But that is the situation with many approved and accepted texts. Dacey's book is sold to the
public at large. There is no personal contact or relationship with a particular individual. Nor
does there exist that relation of confidence and trust so necessary to the status of attorney and
client. THIS IS THE ESSENTIAL OF LEGAL PRACTICE THE REPRESENTATION AND
ADVISING OF A PARTICULAR PERSON IN A PARTICULAR SITUATION. At most the book
assumes to offer general advice on common problems, and does not purport to give personal
advice on a specific problem peculiar to a designated or readily identified person. Similarly the
defendant's publication does not purport to give personal advice on a specific problem peculiar to
a designated or readily identified person in a particular situation in their publication and sale
of the kits, such publication and sale did not constitutes the unlawful practice of law . . . . There
being no legal impediment under the statute to the sale of the kit, there was no proper basis for
the injunction against defendant maintaining an office for the purpose of selling to persons
seeking a divorce, separation, annulment or separation agreement any printed material or writings
relating to matrimonial law or the prohibition in the memorandum of modification of the
judgment against defendant having an interest in any publishing house publishing his manuscript
on divorce and against his having any personal contact with any prospective purchaser. The
record does fully support, however, the finding that for the change of $75 or $100 for the kit, the
defendant gave legal advice in the course of personal contacts concerning particular problems
which might arise in the preparation and presentation of the purchaser's asserted matrimonial
cause of action or pursuit of other legal remedies and assistance in the preparation of necessary
documents (The injunction therefore sought to) enjoin conduct constituting the practice of law,
particularly with reference to the giving of advice and counsel by the defendant relating to
specific problems of particular individuals in connection with a divorce, separation, annulment of
separation agreement sought and should be affirmed. (State v. Winder, 348, NYS 2D 270 [1973],
cited in Statsky, supra at p. 101.).
1.12. Respondent, of course, states that its services are "strictly non-diagnostic, non-advisory. "It
is not controverted, however, that if the services "involve giving legal advice or counselling,"
such would constitute practice of law (Comment, par. 6.2). It is in this light that FIDA submits
that a factual inquiry may be necessary for the judicious disposition of this case.
xxx xxx xxx
2.10. Annex "A" may be ethically objectionable in that it can give the impression (or perpetuate
the wrong notion) that there is a secret marriage. With all the solemnities, formalities and other
requisites of marriages (See Articles 2, et seq., Family Code), no Philippine marriage can be
secret.
2.11. Annex "B" may likewise be ethically objectionable. The second paragraph thereof (which is
not necessarily related to the first paragraph) fails to state the limitation that only "paralegal
services?" or "legal support services", and not legal services, are available." 11
A prefatory discussion on the meaning of the phrase "practice of law" becomes exigent for the
proper determination of the issues raised by the petition at bar. On this score, we note that the
clause "practice of law" has long been the subject of judicial construction and interpretation. The
courts have laid down general principles and doctrines explaining the meaning and scope of the
term, some of which we now take into account.
Practice of law means any activity, in or out of court, which requires the application of law, legal
procedures, knowledge, training and experience. To engage in the practice of law is to perform
those acts which are characteristic of the profession. Generally, to practice law is to give advice
or render any kind of service that involves legal knowledge or skill. 12
The practice of law is not limited to the conduct of cases in court. It includes legal advice and
counsel, and the preparation of legal instruments and contract by which legal rights are secured,
although such matter may or may not be pending in a court. 13
In the practice of his profession, a licensed attorney at law generally engages in three principal
types of professional activity: legal advice and instructions to clients to inform them of their
rights and obligations, preparation for clients of documents requiring knowledge of legal
principles not possessed by ordinary layman, and 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 proper interpretation and enforcement of law. 14
When a person participates in the a trial and advertises himself as a lawyer, he is in the practice of
law. 15 One who confers with clients, advises them as to their legal rights and then takes the
business to an attorney and asks the latter to look after the case in court, is also practicing
law. 16 Giving advice for compensation regarding the legal status and rights of another and the
conduct with respect thereto constitutes a practice of law. 17 One who renders an opinion as to the
proper interpretation of a statute, and receives pay for it, is, to that extent, practicing law. 18
In the recent case of Cayetano vs. Monsod, 19 after citing the doctrines in several cases, we laid
down the test to determine whether certain acts constitute "practice of law," thus:
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal principles and
technique to serve the interest of another with his consent. It is not limited to appearing in court,
or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings,
and other papers incident to actions and special proceedings, conveyancing, the preparation of
legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice
to clients and all actions taken for them in matters connected with the law.
The practice of law is not limited to the conduct of cases on court.(Land Title Abstract and Trust
Co. v. Dworken , 129 Ohio St. 23, 193N. E. 650). A person is also considered to be in the
practice of law when he:
. . . . for valuable consideration engages in the business of advising person, firms, associations or
corporations as to their right under the law, or appears in a representative capacity as an advocate
in proceedings, pending or prospective, before any court, commissioner, referee, board, body,
committee, or commission constituted by law or authorized to settle controversies and there, in
such representative capacity, performs any act or acts for the purpose of obtaining or defending
the rights of their clients under the law. Otherwise stated, one who, in a representative capacity,
engages in the business of advising clients as to their rights under the law, or while so engaged
performs any act or acts either in court or outside of court for that purpose, is engaged in the
practice of law. (State ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S. W. 2d 895, 340 Mo.
852).
This Court, in the case of Philippines Lawyers Association v. Agrava (105 Phil. 173, 176-
177),stated:
The practice of law is not limited to the conduct of cases or litigation in court; it embraces the
preparation of pleadings and other papers incident to actions and special proceedings, the
management of such actions and proceedings on behalf of clients before judges and courts, and in
addition, conveying. In general, all advice to clients, and all action taken for them in matters
connected with the law incorporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement
of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in
attachment, and in matters or estate and guardianship have been held to constitute law practice, as
do the preparation and drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p.
262, 263).
Practice of law under modern conditions consists in no small part of work performed outside of
any court and having no immediate relation to proceedings in court. It embraces conveyancing,
the giving of legal advice on a large variety of subjects and the preparation and execution of legal
instruments covering an extensive field of business and trust relations and other affairs. Although
these transactions may have no direct connection with court proceedings, they are always subject
to become involved in litigation. They require in many aspects a high degree of legal skill, a wide
experience with men and affairs, and great capacity for adaptation to difficult and complex
situations. These customary functions of an attorney or counselor at law bear an intimate relation
to the administration of justice by the courts. No valid distinction, so far as concerns the question
set forth in the order, can be drawn between that part of the work of the lawyer which involves
appearance in court and that part which involves advice and drafting of instruments in his office.
It is of importance to the welfare of the public that these manifold customary functions be
performed by persons possessed of adequate learning and skill, of sound moral character, and
acting at all times under the heavy trust obligations to clients which rests upon all attorneys.
(Moran, Comments on the Rules o Court, Vol. 3 [1973 ed.], pp. 665-666, citing In Re Opinion of
the Justices [Mass], 194 N. E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc.
[R.I.] 197 A. 139, 144).
The practice of law, therefore, covers a wide range of activities in and out of court. Applying the
aforementioned criteria to the case at bar, we agree with the perceptive findings and observations
of the aforestated bar associations that the activities of respondent, as advertised, constitute
"practice of law."
The contention of respondent that it merely offers legal support services can neither be seriously
considered nor sustained. Said proposition is belied by respondent's own description of the
services it has been offering, to wit:
Legal support services basically consists of giving ready information by trained paralegals to
laymen and lawyers, which are strictly non-diagnostic, non-advisory, through the extensive use of
computers and modern information technology in the gathering, processing, storage, transmission
and reproduction of information and communication, such as computerized legal research;
encoding and reproduction of documents and pleadings prepared by laymen or lawyers;
document search; evidence gathering; locating parties or witnesses to a case; fact finding
investigations; and assistance to laymen in need of basic institutional services from government
or non-government agencies, like birth, marriage, property, or business registrations; educational
or employment records or certifications, obtaining documentation like clearances, passports, local
or foreign visas; giving information about laws of other countries that they may find useful, like
foreign divorce, marriage or adoption laws that they can avail of preparatory to emigration to the
foreign country, and other matters that do not involve representation of clients in court; designing
and installing computer systems, programs, or software for the efficient management of law
offices, corporate legal departments, courts and other entities engaged in dispensing or
administering legal services. 20
While some of the services being offered by respondent corporation merely involve mechanical
and technical knowhow, such as the installation of computer systems and programs for the
efficient management of law offices, or the computerization of research aids and materials, these
will not suffice to justify an exception to the general rule.
What is palpably clear is that respondent corporation gives out legal information to laymen and
lawyers. Its contention that such function is non-advisory and non-diagnostic is more apparent
than real. In providing information, for example, about foreign laws on marriage, divorce and
adoption, it strains the credulity of this Court that all the respondent corporation will simply do is
look for the law, furnish a copy thereof to the client, and stop there as if it were merely a
bookstore. With its attorneys and so called paralegals, it will necessarily have to explain to the
client the intricacies of the law and advise him or her on the proper course of action to be taken as
may be provided for by said law. That is what its advertisements represent and for the which
services it will consequently charge and be paid. That activity falls squarely within the
jurisprudential definition of "practice of law." Such a conclusion will not be altered by the fact
that respondent corporation does not represent clients in court since law practice, as the weight of
authority holds, is not limited merely giving legal advice, contract drafting and so forth.
The aforesaid conclusion is further strengthened by an article published in the January 13, 1991
issue of the Starweek/The Sunday Magazine of the Philippines Star, entitled "Rx for Legal
Problems," where an insight into the structure, main purpose and operations of respondent
corporation was given by its own "proprietor," Atty. Rogelio P. Nogales:
This is the kind of business that is transacted everyday at The Legal Clinic, with offices on the
seventh floor of the Victoria Building along U. N. Avenue in Manila. No matter what the client's
problem, and even if it is as complicated as the Cuneta-Concepcion domestic situation, Atty.
Nogales and his staff of lawyers, who, like doctors are "specialists" in various fields can take care
of it. The Legal Clinic, Inc. has specialists in taxation and criminal law, medico-legal problems,
labor, litigation, and family law. These specialist are backed up by a battery of paralegals,
counsellors and attorneys.
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 the services of the big law firms.
The Legal Clinic has regular and walk-in clients. "when they come, we start by analyzing the
problem. That's what doctors do also. They ask you how you contracted what's bothering you,
they take your temperature, they observe you for the symptoms and so on. That's how we operate,
too. And once the problem has been categorized, then it's referred to one of our specialists.
There are cases which do not, in medical terms, require surgery or follow-up treatment. These
The Legal Clinic disposes of in a matter of minutes. "Things like preparing a simple deed of sale
or an affidavit of loss can be taken care of by our staff or, if this were a hospital the residents or
the interns. We can take care of these matters on a while you wait basis. Again, kung baga sa
hospital, out-patient, hindi kailangang ma-confine. It's just like a common cold or diarrhea,"
explains Atty. Nogales.
Those cases which requires more extensive "treatment" are dealt with accordingly. "If you had a
rich relative who died and named you her sole heir, and you stand to inherit millions of pesos of
property, we would refer you to a specialist in taxation. There would be real estate taxes and
arrears which would need to be put in order, and your relative is even taxed by the state for the
right to transfer her property, and only a specialist in taxation would be properly trained to deal
with the problem. Now, if there were other heirs contesting your rich relatives will, then you
would need a litigator, who knows how to arrange the problem for presentation in court, and
gather evidence to support the case. 21
That fact that the corporation employs paralegals to carry out its services is not controlling. What
is important is that it is engaged in the practice of law by virtue of the nature of the services it
renders which thereby brings it within the ambit of the statutory prohibitions against the
advertisements which it has caused to be published and are now assailed in this proceeding.
Further, as correctly and appropriately pointed out by the U.P. WILOCI, said reported facts
sufficiently establish that the main purpose of respondent is to serve as a one-stop-shop of sorts
for various legal problems wherein a client may avail of legal services from simple
documentation to complex litigation and corporate undertakings. Most of these services are
undoubtedly beyond the domain of paralegals, but rather, are exclusive functions of lawyers
engaged in the practice of law. 22
It should be noted that in our jurisdiction the services being offered by private respondent which
constitute practice of law cannot be performed by paralegals. Only a person duly admitted as a
member of the bar, or hereafter admitted as such in accordance with the provisions of the Rules
of Court, and who is in good and regular standing, is entitled to practice law. 23
Public policy requires that the practice of law be limited to those individuals found duly qualified
in education and character. The permissive right conferred on the lawyers is an individual and
limited privilege subject to withdrawal if he fails to maintain proper standards of moral and
professional conduct. The purpose is to protect the public, the court, the client and the bar from
the incompetence or dishonesty of those unlicensed to practice law and not subject to the
disciplinary control of the court. 24
The same rule is observed in the american jurisdiction wherefrom respondent would wish to draw
support for his thesis. The doctrines there also stress that the practice of law is limited to those
who meet the requirements for, and have been admitted to, the bar, and various statutes or rules
specifically so provide. 25 The practice of law is not a lawful business except for members of the
bar who have complied with all the conditions required by statute and the rules of court. Only
those persons are allowed to practice law who, by reason of attainments previously acquired
through education and study, have been recognized by the courts as possessing profound
knowledge of legal science entitling them to advise, counsel with, protect, or defend the rights
claims, or liabilities of their clients, with respect to the construction, interpretation, operation and
effect of law. 26 The justification for excluding from the practice of law those not admitted to the
bar is found, not in the protection of the bar from competition, but in the protection of the public
from being advised and represented in legal matters by incompetent and unreliable persons over
whom the judicial department can exercise little control.27
We have to necessarily and definitely reject respondent's position that the concept in the United
States of paralegals as an occupation separate from the law profession be adopted in this
jurisdiction. Whatever may be its merits, respondent cannot but be aware that this should first be
a matter for judicial rules or legislative action, and not of unilateral adoption as it has done.
Paralegals in the United States are trained professionals. As admitted by respondent, there are
schools and universities there which offer studies and degrees in paralegal education, while there
are none in the Philippines. 28As the concept of the "paralegals" or "legal assistant" evolved in the
United States, standards and guidelines also evolved to protect the general public. One of the
major standards or guidelines was developed by the American Bar Association which set up
Guidelines for the Approval of Legal Assistant Education Programs (1973). Legislation has even
been proposed to certify legal assistants. There are also associations of paralegals in the United
States with their own code of professional ethics, such as the National Association of Legal
Assistants, Inc. and the American Paralegal Association. 29
In the Philippines, we still have a restricted concept and limited acceptance of what may be
considered as paralegal service. As pointed out by FIDA, some persons not duly licensed to
practice law are or have been allowed limited representation in behalf of another or to render
legal services, but such allowable services are limited in scope and extent by the law, rules or
regulations granting permission therefor. 30
Accordingly, we have adopted the American judicial policy that, in the absence of constitutional
or statutory authority, a person who has not been admitted as an attorney cannot practice law for
the proper administration of justice cannot be hindered by the unwarranted intrusion of an
unauthorized and unskilled person into the practice of law. 31 That policy should continue to be
one of encouraging persons who are unsure of their legal rights and remedies to seek legal
assistance only from persons licensed to practice law in the state. 32
Anent the issue on the validity of the questioned advertisements, the Code of Professional
Responsibility provides that a lawyer in making known his legal services shall use only true,
honest, fair, dignified and objective information or statement of facts. 33 He is not supposed to use
or permit the use of any false, fraudulent, misleading, deceptive, undignified, self-laudatory or
unfair statement or claim regarding his qualifications or legal services. 34 Nor shall he pay or give
something of value to representatives of the mass media in anticipation of, or in return for,
publicity to attract legal business. 35 Prior to the adoption of the code of Professional
Responsibility, the Canons of Professional Ethics had also warned that lawyers should not resort
to indirect advertisements for professional employment, such as furnishing or inspiring
newspaper comments, or procuring his photograph to be published in connection with causes in
which the lawyer has been or is engaged or concerning the manner of their conduct, the
magnitude of the interest involved, the importance of the lawyer's position, and all other like self-
laudation. 36
The standards of the legal profession condemn the lawyer's advertisement of his talents. A lawyer
cannot, without violating the ethics of his profession. advertise his talents or skill as in a manner
similar to a merchant advertising his goods. 37 The prescription against advertising of legal
services or solicitation of legal business rests on the fundamental postulate that the that the
practice of law is a profession. Thus, in the case of The Director of Religious Affairs. vs.
Estanislao R. Bayot 38 an advertisement, similar to those of respondent which are involved in the
present proceeding, 39 was held to constitute improper advertising or solicitation.
The pertinent part of the decision therein reads:
It is undeniable that the advertisement in question was a flagrant violation by the respondent of
the ethics of his profession, it being a brazen solicitation of business from the public. Section 25
of Rule 127 expressly provides among other things that "the practice of soliciting cases at law for
the purpose of gain, either personally or thru paid agents or brokers, constitutes malpractice." It is
highly unethical for an attorney to advertise his talents or skill as a merchant advertises his wares.
Law is a profession and not a trade. The lawyer degrades himself and his profession who stoops
to and adopts the practices of mercantilism by advertising his services or offering them to the
public. As a member of the bar, he defiles the temple of justice with mercenary activities as the
money-changers of old defiled the temple of Jehovah. "The most worthy and effective
advertisement possible, even for a young lawyer, . . . . is the establishment of a well-merited
reputation for professional capacity and fidelity to trust. This cannot be forced but must be the
outcome of character and conduct." (Canon 27, Code of Ethics.).
We repeat, the canon of the profession tell us that the best advertising possible for a lawyer is a
well-merited reputation for professional capacity and fidelity to trust, which must be earned as the
outcome of character and conduct. Good and efficient service to a client as well as to the
community has a way of publicizing itself and catching public attention. That publicity is a
normal by-product of effective service which is right and proper. A good and reputable lawyer
needs no artificial stimulus to generate it and to magnify his success. He easily sees the difference
between a normal by-product of able service and the unwholesome result of propaganda. 40
Of course, not all types of advertising or solicitation are prohibited. The canons of the profession
enumerate exceptions to the rule against advertising or solicitation and define the extent to which
they may be undertaken. The exceptions are of two broad categories, namely, those which are
expressly allowed and those which are necessarily implied from the restrictions. 41
The first of such exceptions is the publication in reputable law lists, in a manner consistent with
the standards of conduct imposed by the canons, of brief biographical and informative data.
"Such data must not be misleading and may include only a statement of the lawyer's name and the
names of his professional associates; addresses, telephone numbers, cable addresses; branches of
law practiced; date and place of birth and admission to the bar; schools attended with dates of
graduation, degrees and other educational distinction; public or quasi-public offices; posts of
honor; legal authorships; legal teaching positions; membership and offices in bar associations and
committees thereof, in legal and scientific societies and legal fraternities; the fact of listings in
other reputable law lists; the names and addresses of references; and, with their written consent,
the names of clients regularly represented." 42
The law list must be a reputable law list published primarily for that purpose; it cannot be a mere
supplemental feature of a paper, magazine, trade journal or periodical which is published
principally for other purposes. For that reason, a lawyer may not properly publish his brief
biographical and informative data in a daily paper, magazine, trade journal or society program.
Nor may a lawyer permit his name to be published in a law list the conduct, management or
contents of which are calculated or likely to deceive or injure the public or the bar, or to lower the
dignity or standing of the profession. 43
The use of an ordinary simple professional card is also permitted. The card may contain only a
statement of his name, the name of the law firm which he is connected with, address, telephone
number and special branch of law practiced. The publication of a simple announcement of the
opening of a law firm or of changes in the partnership, associates, firm name or office address,
being for the convenience of the profession, is not objectionable. He may likewise have his name
listed in a telephone directory but not under a designation of special branch of law. 44
Verily, taking into consideration the nature and contents of the advertisements for which
respondent is being taken to task, which even includes a quotation of the fees charged by said
respondent corporation for services rendered, we find and so hold that the same definitely do not
and conclusively cannot fall under any of the above-mentioned exceptions.
The ruling in the case of Bates, et al. vs. State Bar of Arizona, 45 which is repeatedly invoked and
constitutes the justification relied upon by respondent, is obviously not applicable to the case at
bar. Foremost is the fact that the disciplinary rule involved in said case explicitly allows a lawyer,
as an exception to the prohibition against advertisements by lawyers, to publish a statement of
legal fees for an initial consultation or the availability upon request of a written schedule of fees
or an estimate of the fee to be charged for the specific services. No such exception is provided
for, expressly or impliedly, whether in our former Canons of Professional Ethics or the present
Code of Professional Responsibility. Besides, even the disciplinary rule in the Bates case contains
a proviso that the exceptions stated therein are "not applicable in any state unless and until it is
implemented by such authority in that state." 46 This goes to show that an exception to the general
rule, such as that being invoked by herein respondent, can be made only if and when the canons
expressly provide for such an exception. Otherwise, the prohibition stands, as in the case at bar.
It bears mention that in a survey conducted by the American Bar Association after the decision in
Bates, on the attitude of the public about lawyers after viewing television commercials, it was
found that public opinion dropped significantly 47 with respect to these characteristics of lawyers:
Trustworthy from 71% to 14%
Professional from 71% to 14%
Honest from 65% to 14%
Dignified from 45% to 14%
Secondly, it is our firm belief that with the present situation of our legal and judicial systems, to
allow the publication of advertisements of the kind used by respondent would only serve to
aggravate what is already a deteriorating public opinion of the legal profession whose integrity
has consistently been under attack lately by media and the community in general. At this point in
time, it is of utmost importance in the face of such negative, even if unfair, criticisms at times, to
adopt and maintain that level of professional conduct which is beyond reproach, and to exert all
efforts to regain the high esteem formerly accorded to the legal profession.
In sum, it is undoubtedly a misbehavior on the part of the lawyer, subject to disciplinary action, to
advertise his services except in allowable instances 48 or to aid a layman in the unauthorized
practice of law. 49 Considering that Atty. Rogelio P. Nogales, who is the prime incorporator,
major stockholder and proprietor of The Legal Clinic, Inc. is a member of the Philippine Bar, he
is hereby reprimanded, with a warning that a repetition of the same or similar acts which are
involved in this proceeding will be dealt with more severely.
While we deem it necessary that the question as to the legality or illegality of the purpose/s for
which the Legal Clinic, Inc. was created should be passed upon and determined, we are
constrained to refrain from lapsing into an obiter on that aspect since it is clearly not within the
adjudicative parameters of the present proceeding which is merely administrative in nature. It is,
of course, imperative that this matter be promptly determined, albeit in a different proceeding and
forum, since, under the present state of our law and jurisprudence, a corporation cannot be
organized for or engage in the practice of law in this country. This interdiction, just like the rule
against unethical advertising, cannot be subverted by employing some so-called paralegals
supposedly rendering the alleged support services.
The remedy for the apparent breach of this prohibition by respondent is the concern and province
of the Solicitor General who can institute the corresponding quo warranto action, 50 after due
ascertainment of the factual background and basis for the grant of respondent's corporate charter,
in light of the putative misuse thereof. That spin-off from the instant bar matter is referred to the
Solicitor General for such action as may be necessary under the circumstances.
ACCORDINGLY, the Court Resolved to RESTRAIN and ENJOIN herein respondent, The Legal
Clinic, Inc., from issuing or causing the publication or dissemination of any advertisement in any
form which is of the same or similar tenor and purpose as Annexes "A" and "B" of this petition,
and from conducting, directly or indirectly, any activity, operation or transaction proscribed by
law or the Code of Professional Ethics as indicated herein. Let copies of this resolution be
furnished the Integrated Bar of the Philippines, the Office of the Bar Confidant and the Office of
the Solicitor General for appropriate action in accordance herewith.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Davide, Jr., Romero, Nocon,
Bellosillo, Melo and Quiason, JJ., concur
A.M. No. 10-10-4-SC March 8, 2011
RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING INTEGRITY: A
STATEMENT BY THE FACULTY OF THE UNIVERSITY OF THE PHILIPPINES
COLLEGE OF LAW ON THE ALLEGATIONS OF PLAGIARISM AND
MISREPRESENTATION IN THE SUPREME COURT"
DECISION
LEONARDO-DE CASTRO, J.:
For disposition of the Court are the various submissions of the 37 respondent law professors 1 in
response to the Resolution dated October 19, 2010 (the Show Cause Resolution), directing them
to show cause why they should not be disciplined as members of the Bar for violation of specific
provisions of the Code of Professional Responsibility enumerated therein.
At the outset, it must be stressed that the Show Cause Resolution clearly dockets this as an
administrative matter, not a special civil action for indirect contempt under Rule 71 of the Rules
of Court, contrary to the dissenting opinion of Associate Justice Maria Lourdes P. A. Sereno
(Justice Sereno) to the said October 19, 2010 Show Cause Resolution. Neither is this a
disciplinary proceeding grounded on an allegedly irregularly concluded finding of indirect
contempt as intimated by Associate Justice Conchita Carpio Morales (Justice Morales) in her
dissenting opinions to both the October 19, 2010 Show Cause Resolution and the present
decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in mind, the Court
finds that with the exception of one respondent whose compliance was adequate and another who
manifested he was not a member of the Philippine Bar, the submitted explanations, being mere
denials and/or tangential to the issues at hand, are decidedly unsatisfactory. The proffered
defenses even more urgently behoove this Court to call the attention of respondent law
professors, who are members of the Bar, to the relationship of their duties as such under the Code
of Professional Responsibility to their civil rights as citizens and academics in our free and
democratic republic.
The provisions of the Code of Professional Responsibility involved in this case are as follows:
CANON 1 A lawyer shall uphold the constitution, obey the laws of the land and promote
respect for law and legal processes.
RULE 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at
lessening confidence in the legal system.
CANON 10 - A lawyer owes candor, fairness and good faith to the court.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of any in court; nor
shall he mislead, or allow the Court to be misled by any artifice.
Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents of paper, the
language or the argument of opposing counsel, or the text of a decision or authority, or knowingly
cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact
that which has not been proved.
Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse them to defeat the
ends of justice.
CANON 11 A lawyer shall observe and maintain the respect due to the courts and to judicial
officers and should insist on similar conduct by others.
RULE 11.05 A lawyer shall submit grievances against a Judge to the proper authorities only.
CANON 13 A lawyer shall rely upon the merits of his cause and refrain from any impropriety
which tends to influence, or gives the appearance of influencing the court.
Established jurisprudence will undeniably support our view that when lawyers speak their minds,
they must ever be mindful of their sworn oath to observe ethical standards of their profession, and
in particular, avoid foul and abusive language to condemn the Supreme Court, or any court for
that matter, for a decision it has rendered, especially during the pendency of a motion for such
decisions reconsideration. The accusation of plagiarism against a member of this Court is not the
real issue here but rather this plagiarism issue has been used to deflect everyones attention from
the actual concern of this Court to determine by respondents explanations whether or not
respondent members of the Bar have crossed the line of decency and acceptable professional
conduct and speech and violated the Rules of Court through improper intervention or interference
as third parties to a pending case. Preliminarily, it should be stressed that it was respondents
themselves who called upon the Supreme Court to act on their Statement, 2 which they formally
submitted, through Dean Marvic M.V.F. Leonen (Dean Leonen), for the Courts proper
disposition. Considering the defenses of freedom of speech and academic freedom invoked by the
respondents, it is worth discussing here that the legal reasoning used in the past by this Court to
rule that freedom of expression is not a defense in administrative cases against lawyers for using
intemperate speech in open court or in court submissions can similarly be applied to respondents
invocation of academic freedom. Indeed, it is precisely because respondents are not merely
lawyers but lawyers who teach law and mould the minds of young aspiring attorneys that
respondents own non-observance of the Code of Professional Responsibility, even if purportedly
motivated by the purest of intentions, cannot be ignored nor glossed over by this Court.
To fully appreciate the grave repercussions of respondents actuations, it is apropos to revisit the
factual antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo (Justice Del Castillo)
in Vinuya, et al. v. Executive Secretary (G.R. No. 162230) was promulgated. On May 31, 2010,
the counsel3 for Vinuya, et al. (the "Malaya Lolas"), filed a Motion for Reconsideration of the
Vinuya decision, raising solely the following grounds:
I. Our own constitutional and jurisprudential histories reject this Honorable Courts (sic) assertion
that the Executives foreign policy prerogatives are virtually unlimited; precisely, under the
relevant jurisprudence and constitutional provisions, such prerogatives are proscribed by
international human rights and humanitarian standards, including those provided for in the
relevant international conventions of which the Philippines is a party.4
II. This Honorable Court has confused diplomatic protection with the broader, if fundamental,
responsibility of states to protect the human rights of its citizens especially where the rights
asserted are subject of erga omnes obligations and pertain to jus cogens norms.5
On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr. (Atty. Roque) and
Romel Regalado Bagares (Atty. Bagares), filed a Supplemental Motion for Reconsideration in
G.R. No. 162230, where they posited for the first time their charge of plagiarism as one of the
grounds for reconsideration of the Vinuya decision. Among other arguments, Attys. Roque and
Bagares asserted that:
I.
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE COURTS
JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST THREE SOURCES AN
ARTICLE PUBLISHED IN 2009 IN THE YALE LAW JOURNAL OF INTERNATIONAL
LAW, A BOOK PUBLISHED BY THE CAMBRIDGE UNIVERSITY PRESS IN 2005 AND
AN ARTICLE PUBLISHED IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF
INTERNATIONAL LAW AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT
THE JUDGMENTS ARGUMENTS FOR DISMISSING THE INSTANT PETITION WHEN IN
TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG CASE FOR THE
PETITIONS CLAIMS.7
They also claimed that "[i]n this controversy, the evidence bears out the fact not only of extensive
plagiarism but of (sic) also of twisting the true intents of the plagiarized sources by the ponencia
to suit the arguments of the assailed Judgment for denying the Petition."8
According to Attys. Roque and Bagares, the works allegedly plagiarized in the Vinuya decision
were namely: (1) Evan J. Criddle and Evan Fox-Decents article "A Fiduciary Theory of Jus
Cogens;"9 (2) Christian J. Tams book Enforcing Erga Omnes Obligations in International
Law;10 and (3) Mark Ellis article "Breaking the Silence: On Rape as an International Crime."11
On the same day as the filing of the Supplemental Motion for Reconsideration on July 19, 2010,
journalists Aries C. Rufo and Purple S. Romero posted an article, entitled "SC justice plagiarized
parts of ruling on comfort women," on the Newsbreak website.12 The same article appeared on
the GMA News TV website also on July 19, 2010.13
On July 22, 2010, Atty. Roques column, entitled "Plagiarized and Twisted," appeared in the
Manila Standard Today.14 In the said column, Atty. Roque claimed that Prof. Evan Criddle, one
of the authors purportedly not properly acknowledged in the Vinuya decision, confirmed that his
work, co-authored with Prof. Evan Fox-Decent, had been plagiarized. Atty. Roque quoted Prof.
Criddles response to the post by Julian Ku regarding the news report 15 on the alleged plagiarism
in the international law blog, Opinio Juris. Prof. Criddle responded to Kus blog entry in this
wise:
The newspapers16 [plagiarism] claims are based on a motion for reconsideration filed yesterday
with the Philippine Supreme Court yesterday. The motion is available here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-the-supreme-
court/
The motion suggests that the Courts decision contains thirty-four sentences and citations that are
identical to sentences and citations in my 2009 YJIL article (co-authored with Evan Fox-Decent).
Professor Fox-Decent and I were unaware of the petitioners [plagiarism] allegations until after
the motion was filed today.
Speaking for myself, the most troubling aspect of the courts jus cogens discussion is that it
implies that the prohibitions against crimes against humanity, sexual slavery, and torture are not
jus cogens norms. Our article emphatically asserts the opposite. The Supreme Courts decision is
available here: http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm17
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the Court in reply to
the charge of plagiarism contained in the Supplemental Motion for Reconsideration. 18
In a letter dated July 23, 2010, another purportedly plagiarized author in the Vinuya decision, Dr.
Mark Ellis, wrote the Court, to wit:
Your Honours:
I write concerning a most delicate issue that has come to my attention in the last few days.
Much as I regret to raise this matter before your esteemed Court, I am compelled, as a question of
the integrity of my work as an academic and as an advocate of human rights and humanitarian
law, to take exception to the possible unauthorized use of my law review article on rape as an
international crime in your esteemed Courts Judgment in the case of Vinuya et al. v. Executive
Secretary et al. (G.R. No. 162230, Judgment of 28 April 2010).
My attention was called to the Judgment and the issue of possible plagiarism by the Philippine
chapter of the Southeast Asia Media Legal Defence Initiative (SEAMLDI),19 an affiliate of the
London-based Media Legal Defence Initiative (MLDI), where I sit as trustee.
In particular, I am concerned about a large part of the extensive discussion in footnote 65, pp. 27-
28, of the said Judgment of your esteemed Court. I am also concerned that your esteemed Court
may have misread the arguments I made in the article and employed them for cross purposes.
This would be ironic since the article was written precisely to argue for the appropriate legal
remedy for victims of war crimes, genocide, and crimes against humanity.
I believe a full copy of my article as published in the Case Western Reserve Journal of
International Law in 2006 has been made available to your esteemed Court. I trust that your
esteemed Court will take the time to carefully study the arguments I made in the article.
I would appreciate receiving a response from your esteemed Court as to the issues raised by this
letter.
With respect,
(Sgd.)
Dr. Mark Ellis20
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed the Committee on
Ethics and Ethical Standards (the Ethics Committee) pursuant to Section 13, Rule 2 of the
Internal Rules of the Supreme Court. In an En Banc Resolution also dated July 27, 2010, the
Court referred the July 22, 2010 letter of Justice Del Castillo to the Ethics Committee. The matter
was subsequently docketed as A.M. No. 10-7-17-SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares to comment on the
letter of Justice Del Castillo.21
On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring Integrity: A Statement by
the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism
and Misrepresentation in the Supreme Court" (the Statement), was posted in Newsbreaks
website22 and on Atty. Roques blog.23 A report regarding the statement also appeared on various
on-line news sites, such as the GMA News TV24 and the Sun Star25 sites, on the same date. The
statement was likewise posted at the University of the Philippines College of Laws bulletin
board allegedly on August 10, 201026 and at said colleges website.27
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the University of the
Philippines College of Law Faculty (UP Law faculty) to the Court, through Chief Justice Renato
C. Corona (Chief Justice Corona). The cover letter dated August 10, 2010 of Dean Leonen read:
The Honorable
Supreme Court of the Republic of the Philippines
Through: Hon. Renato C. Corona
Chief Justice
Subject: Statement of faculty
from the UP College of Law
on the Plagiarism in the case of
Vinuya v Executive Secretary
Your Honors:
We attach for your information and proper disposition a statement signed by thirty[-]eight
(38)28members of the faculty of the UP College of Law. We hope that its points could be
considered by the Supreme Court en banc.
Respectfully,
(Sgd.)
Marvic M.V.F. Leonen
Dean and Professor of Law
(Emphases supplied.)
The copy of the Statement attached to the above-quoted letter did not contain the actual
signatures of the alleged signatories but only stated the names of 37 UP Law professors with the
notation (SGD.) appearing beside each name. For convenient reference, the text of the UP Law
faculty Statement is reproduced here:
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been committed against the brave Filipinas who had
suffered abuse during a time of war. After they courageously came out with their very personal
stories of abuse and suffering as "comfort women", waited for almost two decades for any
meaningful relief from their own government as well as from the government of Japan, got their
hopes up for a semblance of judicial recourse in the case of Vinuya v. Executive Secretary, G.R.
No. 162230 (28 April 2010), they only had these hopes crushed by a singularly reprehensible act
of dishonesty and misrepresentation by the Highest Court of the land.
It is within this frame that the Faculty of the University of the Philippines College of Law views
the charge that an Associate Justice of the Supreme Court committed plagiarism and
misrepresentation in Vinuya v. Executive Secretary. The plagiarism and misrepresentation are not
only affronts to the individual scholars whose work have been appropriated without correct
attribution, but also a serious threat to the integrity and credibility of the Philippine Judicial
System.
In common parlance, plagiarism is the appropriation and misrepresentation of another persons
work as ones own. In the field of writing, it is cheating at best, and stealing at worst. It
constitutes a taking of someone elses ideas and expressions, including all the effort and creativity
that went into committing such ideas and expressions into writing, and then making it appear that
such ideas and expressions were originally created by the taker. It is dishonesty, pure and simple.
A judicial system that allows plagiarism in any form is one that allows dishonesty. Since all
judicial decisions form part of the law of the land, to allow plagiarism in the Supreme Court is to
allow the production of laws by dishonest means. Evidently, this is a complete perversion and
falsification of the ends of justice.
A comparison of the Vinuya decision and the original source material shows that the ponente
merely copied select portions of other legal writers works and interspersed them into the
decision as if they were his own, original work. Under the circumstances, however, because the
Decision has been promulgated by the Court, the Decision now becomes the Courts and no
longer just the ponentes. Thus the Court also bears the responsibility for the Decision. In the
absence of any mention of the original writers names and the publications from which they
came, the thing speaks for itself.
So far there have been unsatisfactory responses from the ponente of this case and the spokesman
of the Court.
It is argued, for example, that the inclusion of the footnotes from the original articles is a
reference to the primary sources relied upon. This cursory explanation is not acceptable,
because the original authors writings and the effort they put into finding and summarizing those
primary sources are precisely the subject of plagiarism. The inclusion of the footnotes together
with portions of their writings in fact aggravates, instead of mitigates, the plagiarism since it
provides additional evidence of a deliberate intention to appropriate the original authors work of
organizing and analyzing those primary sources.
It is also argued that the Members of the Court cannot be expected to be familiar with all legal
and scholarly journals. This is also not acceptable, because personal unfamiliarity with sources all
the more demands correct and careful attribution and citation of the material relied upon. It is a
matter of diligence and competence expected of all Magistrates of the Highest Court of the Land.
But a far more serious matter is the objection of the original writers, Professors Evan Criddle and
Evan Fox-Descent, that the High Court actually misrepresents the conclusions of their
work entitled "A Fiduciary Theory of Jus Cogens," the main source of the plagiarized text. In this
article they argue that the classification of the crimes of rape, torture, and sexual slavery as
crimes against humanity have attained the status of jus cogens, making it obligatory upon the
State to seek remedies on behalf of its aggrieved citizens. Yet, the Vinuya decision uses parts of
the same article to arrive at the contrary conclusion. This exacerbates the intellectual dishonesty
of copying works without attribution by transforming it into an act of intellectual fraud by
copying works in order to mislead and deceive.
The case is a potential landmark decision in International Law, because it deals with State
liability and responsibility for personal injury and damage suffered in a time of war, and the role
of the injured parties home States in the pursuit of remedies against such injury or damage.
National courts rarely have such opportunities to make an international impact. That the
petitioners were Filipino "comfort women" who suffered from horrific abuse during the Second
World War made it incumbent on the Court of last resort to afford them every solicitude. But
instead of acting with urgency on this case, the Court delayed its resolution for almost seven
years, oblivious to the deaths of many of the petitioners seeking justice from the Court. When it
dismissed the Vinuya petition based on misrepresented and plagiarized materials, the Court
decided this case based on polluted sources. By so doing, the Supreme Court added insult to
injury by failing to actually exercise its "power to urge and exhort the Executive Department to
take up the claims of the Vinuya petitioners. Its callous disposition, coupled with false sympathy
and nonchalance, belies a more alarming lack of concern for even the most basic values of
decency and respect. The reputation of the Philippine Supreme Court and the standing of the
Philippine legal profession before other Judiciaries and legal systems are truly at stake.
The High Court cannot accommodate less than absolute honesty in its decisions and cannot
accept excuses for failure to attain the highest standards of conduct imposed upon all members of
the Bench and Bar because these undermine the very foundation of its authority and power in a
democratic society. Given the Courts recent history and the controversy that surrounded it, it
cannot allow the charges of such clear and obvious plagiarism to pass without sanction as this
would only further erode faith and confidence in the judicial system. And in light of the
significance of this decision to the quest for justice not only of Filipino women, but of women
elsewhere in the world who have suffered the horrors of sexual abuse and exploitation in times of
war, the Court cannot coldly deny relief and justice to the petitioners on the basis of pilfered and
misinterpreted texts.
The Court cannot regain its credibility and maintain its moral authority without ensuring that its
own conduct, whether collectively or through its Members, is beyond reproach. This necessarily (SGD.) CARMELO V. SISON (SGD.) JAY L. BATONGBACAL
includes ensuring that not only the content, but also the processes of preparing and writing its Professor Assistant Professor
own decisions, are credible and beyond question. The Vinuya Decision must be conscientiously
reviewed and not casually cast aside, if not for the purpose of sanction, then at least for the
purpose of reflection and guidance. It is an absolutely essential step toward the establishment of a
higher standard of professional care and practical scholarship in the Bench and Bar, which are (SGD.) PATRICIA R.P.
(SGD.) EVELYN (LEO) D.
critical to improving the system of administration of justice in the Philippines. It is also a very SALVADOR DAWAY
BATTAD
crucial step in ensuring the position of the Supreme Court as the Final Arbiter of all Associate Dean and Associate
Assistant Professor
controversies: a position that requires competence and integrity completely above any and all Professor
reproach, in accordance with the exacting demands of judicial and professional ethics.
With these considerations, and bearing in mind the solemn duties and trust reposed upon them as
teachers in the profession of Law, it is the opinion of the Faculty of the University of the (SGD.) DANTE B. GATMAYTAN (SGD.) GWEN G. DE VERA
Philippine College of Law that: Associate Professor Assistant Professor
(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is unacceptable,
unethical and in breach of the high standards of moral conduct and judicial and professional
competence expected of the Supreme Court; (SGD.) THEODORE O. TE (SGD.) SOLOMON F. LUMBA
Assistant Professor Assistant Professor
(2) Such a fundamental breach endangers the integrity and credibility of the entire Supreme Court
and undermines the foundations of the Philippine judicial system by allowing implicitly the
decision of cases and the establishment of legal precedents through dubious means;
(SGD.) FLORIN T. HILBAY (SGD.) ROMMEL J. CASIS
(3) The same breach and consequent disposition of the Vinuya case does violence to the Assistant Professor Assistant Professor
primordial function of the Supreme Court as the ultimate dispenser of justice to all those who
have been left without legal or equitable recourse, such as the petitioners therein;
LECTURERS
(4) In light of the extremely serious and far-reaching nature of the dishonesty and to save the
honor and dignity of the Supreme Court as an institution, it is necessary for the ponente of (SGD.) JOSE GERARDO A. ALAMPAY (SGD.) JOSE C. LAURETA
Vinuya v. Executive Secretary to resign his position, without prejudice to any other sanctions that
the Court may consider appropriate; (SGD.) ARTHUR P. AUTEA (SGD.) DINA D. LUCENARIO
(5) The Supreme Court must take this opportunity to review the manner by which it conducts
(SGD.) ROSA MARIA J. BAUTISTA (SGD.) OWEN J. LYNCH
research, prepares drafts, reaches and finalizes decisions in order to prevent a recurrence of
similar acts, and to provide clear and concise guidance to the Bench and Bar to ensure only the (SGD.) MARK R. BOCOBO (SGD.) ANTONIO M. SANTOS
highest quality of legal research and writing in pleadings, practice, and adjudication.
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July 2010. (SGD.) DAN P. CALICA (SGD.) VICENTE V. MENDOZA

(SGD.) MARVIC M.V.F. LEONEN (SGD.) TRISTAN A. CATINDIG (SGD.) RODOLFO NOEL S. QUIMBO
Dean and Professor of Law
(SGD.) SANDRA MARIE O. CORONEL (SGD.) GMELEEN FAYE B. TOMBOC

(SGD.) FROILAN M. (SGD.) ROSARIO O. GALLO (SGD.) NICHOLAS FELIX L. TY

(SGD.) PACIFICO A. AGABIN
BACUNGAN
Dean (1989-1995) (SGD.) CONCEPCION L. JARDELEZA (SGD.) EVALYN G. URSUA
Dean (1978-1983)

(SGD.) ANTONIO G.M. LA VIA (SGD.) RAUL T. VASQUEZ

(SGD.) SALVADOR T. (SGD.) SUSAN D. VILLANUEVA29

(SGD.) MERLIN M. (SGD.) CARINA C. LAFORTEZA
CARLOTA (Underscoring supplied.)
MAGALLONA
Dean (2005-2008) and Professor of
Dean (1995-1999) Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made known his sentiments
Law
on the alleged plagiarism issue to the Court.30 We quote Prof. Tams letter here:

REGULAR FACULTY Glasgow, 18 August 2010

Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230)
Hon. Renato C. Corona, Chief Justice
Your Excellency,
My name is Christian J. Tams, and I am a professor of international law at the University of
Glasgow. I am writing to you in relation to the use of one of my publications in the above-
mentioned judgment of your Honourable Court.
The relevant passage of the judgment is to be found on p. 30 of your Courts Judgment, in the
section addressing the concept of obligations erga omnes. As the table annexed to this letter
shows, the relevant sentences were taken almost word by word from the introductory chapter of
my book Enforcing Obligations Erga Omnes in International Law (Cambridge University Press
2005). I note that there is a generic reference to my work in footnote 69 of the Judgment, but as
this is in relation to a citation from another author (Bruno Simma) rather than with respect to the
substantive passages reproduced in the Judgment, I do not think it can be considered an
appropriate form of referencing.
I am particularly concerned that my work should have been used to support the Judgments
cautious approach to the erga omnes concept. In fact, a most cursory reading shows that my
books central thesis is precisely the opposite: namely that the erga omnes concept has been
widely accepted and has a firm place in contemporary international law. Hence the introductory
chapter notes that "[t]he present study attempts to demystify aspects of the very mysterious
concept and thereby to facilitate its implementation" (p. 5). In the same vein, the concluding
section notes that "the preceding chapters show that the concept is now a part of the reality of
international law, established in the jurisprudence of courts and the practice of States" (p. 309).
With due respect to your Honourable Court, I am at a loss to see how my work should have been
cited to support as it seemingly has the opposite approach. More generally, I am concerned at
the way in which your Honourable Courts Judgment has drawn on scholarly work without
properly acknowledging it.
On both aspects, I would appreciate a prompt response from your Honourable Court.
I remain
Sincerely yours
(Sgd.)
Christian J. Tams31
In the course of the submission of Atty. Roque and Atty. Bagares exhibits during the August 26,
2010 hearing in the ethics case against Justice Del Castillo, the Ethics Committee noted that
Exhibit "J" (a copy of the Restoring Integrity Statement) was not signed but merely reflected the
names of certain faculty members with the letters (SGD.) beside the names. Thus, the Ethics
Committee directed Atty. Roque to present the signed copy of the said Statement within three
days from the August 26 hearing.32
It was upon compliance with this directive that the Ethics Committee was given a copy of the
signed UP Law Faculty Statement that showed on the signature pages the names of the full roster
of the UP Law Faculty, 81 faculty members in all. Indubitable from the actual signed copy of the
Statement was that only 37 of the 81 faculty members appeared to have signed the same.
However, the 37 actual signatories to the Statement did not include former Supreme Court
Associate Justice Vicente V. Mendoza (Justice Mendoza) as represented in the previous copies of
the Statement submitted by Dean Leonen and Atty. Roque. It also appeared that Atty. Miguel R.
Armovit (Atty. Armovit) signed the Statement although his name was not included among the
signatories in the previous copies submitted to the Court. Thus, the total number of ostensible
signatories to the Statement remained at 37.
The Ethics Committee referred this matter to the Court en banc since the same Statement, having
been formally submitted by Dean Leonen on August 11, 2010, was already under consideration
by the Court.33
In a Resolution dated October 19, 2010, the Court en banc made the following observations
regarding the UP Law Faculty Statement:
Notably, while the statement was meant to reflect the educators opinion on the allegations of
plagiarism against Justice Del Castillo, they treated such allegation not only as an established
fact, but a truth. In particular, they expressed dissatisfaction over Justice Del Castillos
explanation on how he cited the primary sources of the quoted portions and yet arrived at a
contrary conclusion to those of the authors of the articles supposedly plagiarized.
Beyond this, however, the statement bore certain remarks which raise concern for the Court. The
opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave Filipinas who had
suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary
as a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of deliberately delaying
the resolution of the said case, its dismissal on the basis of "polluted sources," the Courts alleged
indifference to the cause of petitioners [in the Vinuya case], as well as the supposed alarming lack
of concern of the members of the Court for even the most basic values of decency and respect.34 x
x x. (Underscoring ours.)
In the same Resolution, the Court went on to state that:
While most agree that the right to criticize the judiciary is critical to maintaining a free and
democratic society, there is also a general consensus that healthy criticism only goes so far. Many
types of criticism leveled at the judiciary cross the line to become harmful and irresponsible
attacks. These potentially devastating attacks and unjust criticism can threaten the independence
of the judiciary. The court must "insist on being permitted to proceed to the disposition of its
business in an orderly manner, free from outside interference obstructive of its functions and
tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the facultys less than objective
comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the
Courts honesty, integrity and competence in addressing the motion for its reconsideration. As if
the case on the comfort womens claims is not controversial enough, the UP Law faculty would
fan the flames and invite resentment against a resolution that would not reverse the said decision.
This runs contrary to their obligation as law professors and officers of the Court to be the first to
uphold the dignity and authority of this Court, to which they owe fidelity according to the oath
they have taken as attorneys, and not to promote distrust in the administration of justice.35 x x x.
(Citations omitted; emphases and underscoring supplied.)
Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A.
Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador
Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn
(Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A.
Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P.
Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L.
Jardeleza, Antonio G.M. La Via, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo
Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G.
Ursua, Raul T. Vasquez, Susan D. Villanueva and Dina D. Lucenario to show cause, within ten
(10) days from receipt of the copy of the Resolution, why they should not be disciplined as
members of the Bar for violation of Canons 1,36 11 and 13 and Rules 1.02 and 11.05 of the Code
of Professional Responsibility.37
Dean Leonen was likewise directed to show cause within the same period why he should not be
disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 for submitting
through his letter dated August 10, 2010, during the pendency of G.R. No. 162230 and of the
investigation before the Ethics Committee, for the consideration of the Court en banc, a dummy
which is not a true and faithful reproduction of the UP Law Faculty Statement. 38
In the same Resolution, the present controversy was docketed as a regular administrative matter.
Summaries of the Pleadings Filed by Respondents in Response to the October 19, 2010 Show
Cause Resolution
On November 19, 2010, within the extension for filing granted by the Court, respondents filed the
following pleadings:
(1) Compliance dated November 18, 2010 by counsels for 35 of the 37 respondents, excluding
Prof. Owen Lynch and Prof. Raul T. Vasquez, in relation to the charge of violation of Canons 1,
11 and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility;
(2) Compliance and Reservation dated November 18, 2010 by Prof. Rosa Maria T. Juan-Bautista
in relation to the same charge in par. (1);
(3) Compliance dated November 19, 2010 by counsel for Prof. Raul T. Vasquez in relation to the
same charge in par. (1);
(4) Compliance dated November 19, 2010 by counsels for Dean Leonen, in relation to the charge
of violation of Canon 10, Rules 10.01, 10.02 and 10.03; and
(5) Manifestation dated November 19, 2010 by counsel for Prof. Owen Lynch.
Common Compliance of 35 Respondents (Excluding Prof. Owen Lynch and Prof. Raul Vasquez)
Thirty-five (35) of the respondent UP Law professors filed on November 19, 2010 a common
compliance which was signed by their respective counsels (the Common Compliance). In the
"Preface" of said Common Compliance, respondents stressed that "[they] issued the Restoring
Integrity Statement in the discharge of the solemn duties and trust reposed upon them as teachers
in the profession of law, and as members of the Bar to speak out on a matter of public concern
and one that is of vital interest to them."39 They likewise alleged that "they acted with the purest
of intentions" and pointed out that "none of them was involved either as party or counsel"40 in the
Vinuya case. Further, respondents "note with concern" that the Show Cause Resolutions findings
and conclusions were "a prejudgment that respondents indeed are in contempt, have breached
their obligations as law professors and officers of the Court, and have violated Canons [1], 11
and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility."41
By way of explanation, the respondents emphasized the following points:
(a) Respondents alleged noble intentions
In response to the charges of failure to observe due respect to legal processes42 and the
courts43 and of tending to influence, or giving the appearance of influencing the Court 44 in the
issuance of their Statement, respondents assert that their intention was not to malign the Court but
rather to defend its integrity and credibility and to ensure continued confidence in the legal
system. Their noble motive was purportedly evidenced by the portion of their Statement
"focusing on constructive action."45 Respondents call in the Statement for the Court "to provide
clear and concise guidance to the Bench and Bar to ensure only the highest quality of legal
research and writing in adjudication," was reputedly "in keeping with strictures enjoining lawyers
to participate in the development of the legal system by initiating or supporting efforts in law
reform and in the improvement of the administration of justice" (under Canon 4 of the Code of
Professional Responsibility) and to "promote respect for the law and legal processes" (under
Canon 1, id.).46 Furthermore, as academics, they allegedly have a "special interest and duty to
vigilantly guard against plagiarism and misrepresentation because these unwelcome occurrences
have a profound impact in the academe, especially in our law schools."47
Respondents further "[called] on this Court not to misconstrue the Restoring Integrity Statement
as an institutional attack x x x on the basis of its first and ninth paragraphs."48 They further
clarified that at the time the Statement was allegedly drafted and agreed upon, it appeared to them
the Court "was not going to take any action on the grave and startling allegations of plagiarism
and misrepresentation."49 According to respondents, the bases for their belief were (i) the news
article published on July 21, 2010 in the Philippine Daily Inquirer wherein Court Administrator
Jose Midas P. Marquez was reported to have said that Chief Justice Corona would not order an
inquiry into the matter;50 and (ii) the July 22, 2010 letter of Justice Del Castillo which they
claimed "did nothing but to downplay the gravity of the plagiarism and misrepresentation
charges."51 Respondents claimed that it was their perception of the Courts indifference to the
dangers posed by the plagiarism allegations against Justice Del Castillo that impelled them to
urgently take a public stand on the issue.
(b) The "correctness" of respondents position that Justice Del Castillo committed plagiarism and
should be held accountable in accordance with the standards of academic writing
A significant portion of the Common Compliance is devoted to a discussion of the merits of
respondents charge of plagiarism against Justice Del Castillo. Relying on University of the
Philippines Board of Regents v. Court of Appeals52 and foreign materials and jurisprudence,
respondents essentially argue that their position regarding the plagiarism charge against Justice
Del Castillo is the correct view and that they are therefore justified in issuing their Restoring
Integrity Statement. Attachments to the Common Compliance included, among others: (i) the
letter dated October 28, 2010 of Peter B. Payoyo, LL.M, Ph.D., 53 sent to Chief Justice Corona
through Justice Sereno, alleging that the Vinuya decision likewise lifted without proper
attribution the text from a legal article by Mariana Salazar Albornoz that appeared in the Anuario
Mexicano De Derecho Internacional and from an International Court of Justice decision; and (ii)
a 2008 Human Rights Law Review Article entitled "Sexual Orientation, Gender Identity and
International Human Rights Law" by Michael OFlaherty and John Fisher, in support of their
charge that Justice Del Castillo also lifted passages from said article without proper attribution,
but this time, in his ponencia in Ang Ladlad LGBT Party v. Commission on Elections. 54
(c) Respondents belief that they are being "singled out" by the Court when others have likewise
spoken on the "plagiarism issue"
In the Common Compliance, respondents likewise asserted that "the plagiarism and
misrepresentation allegations are legitimate public issues."55 They identified various published
reports and opinions, in agreement with and in opposition to the stance of respondents, on the
issue of plagiarism, specifically:
(i) Newsbreak report on July 19, 2010 by Aries Rufo and Purple Romero; 56
(ii) Column of Ramon Tulfo which appeared in the Philippine Daily Inquirer on July 24, 2010; 57
(iii) Editorial of the Philippine Daily Inquirer published on July 25, 2010;58
(iv) Letter dated July 22, 2010 of Justice Del Castillo published in the Philippine Star on July 30,
2010;59
(v) Column of Former Intellectual Property Office Director General Adrian Cristobal, Jr.
published in the Business Mirror on August 5, 2010;60
(vi) Column of Former Chief Justice Artemio Panganiban published in the Philippine Daily
Inquirer on August 8, 2010;61
(vii) News report regarding Senator Francis Pangilinans call for the resignation of Justice Del
Castillo published in the Daily Tribune and the Manila Standard Today on July 31, 2010; 62
(viii) News reports regarding the statement of Dean Cesar Villanueva of the Ateneo de Manila
University School of Law on the calls for the resignation of Justice Del Castillo published in The
Manila Bulletin, the Philippine Star and the Business Mirror on August 11, 2010;63
(ix) News report on expressions of support for Justice Del Castillo from a former dean of the
Pamantasan ng Lungsod ng Maynila, the Philippine Constitutional Association, the Judges
Association of Bulacan and the Integrated Bar of the Philippines Bulacan Chapter published in
the Philippine Star on August 16, 2010;64 and
(x) Letter of the Dean of the Liceo de Cagayan University College of Law published in the
Philippine Daily Inquirer on August 10, 2010.65
In view of the foregoing, respondents alleged that this Court has singled them out for sanctions
and the charge in the Show Cause Resolution dated October 19, 2010 that they may have violated
specific canons of the Code of Professional Responsibility is unfair and without basis.
(d) Freedom of expression
In paragraphs 28 to 30 of the Common Compliance, respondents briefly discussed their position
that in issuing their Statement, "they should be seen as not only to be performing their duties as
members of the Bar, officers of the court, and teachers of law, but also as citizens of a democracy
who are constitutionally protected in the exercise of free speech."66 In support of this contention,
they cited United States v. Bustos,67In re: Atty. Vicente Raul Almacen, 68 and In the Matter of
Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v.
Commission on Elections.69
(e) Academic freedom
In paragraphs 31 to 34 of the Common Compliance, respondents asserted that their Statement was
also issued in the exercise of their academic freedom as teachers in an institution of higher
learning. They relied on Section 5 of the University of the Philippines Charter of 2008 which
provided that "[t]he national university has the right and responsibility to exercise academic
freedom." They likewise adverted to Garcia v. The Faculty Admission Committee, Loyola School
of Theology70 which they claimed recognized the extent and breadth of such freedom as to
encourage a free and healthy discussion and communication of a faculty members field of study
without fear of reprisal. It is respondents view that had they remained silent on the plagiarism
issue in the Vinuya decision they would have "compromised [their] integrity and credibility as
teachers; [their silence] would have created a culture and generation of students, professionals,
even lawyers, who would lack the competence and discipline for research and pleading; or,
worse, [that] their silence would have communicated to the public that plagiarism and
misrepresentation are inconsequential matters and that intellectual integrity has no bearing or
relevance to ones conduct."71
In closing, respondents Common Compliance exhorted this Court to consider the following
portion of the dissenting opinion of Justice George A. Malcolm in Salcedo v. Hernandez, 72 to wit:
Respect for the courts can better be obtained by following a calm and impartial course from the
bench than by an attempt to compel respect for the judiciary by chastising a lawyer for a too
vigorous or injudicious exposition of his side of a case. The Philippines needs lawyers of
independent thought and courageous bearing, jealous of the interests of their clients and unafraid
of any court, high or low, and the courts will do well tolerantly to overlook occasional
intemperate language soon to be regretted by the lawyer which affects in no way the outcome of a
case.73
On the matter of the reliefs to which respondents believe they are entitled, the Common
Compliance stated, thus:
WHEREFORE:
A. Respondents, as citizens of a democracy, professors of law, members of the Bar and officers
of the Court, respectfully pray that:
1. the foregoing be noted; and
2. the Court reconsider and reverse its adverse findings in the Show Cause Resolution, including
its conclusions that respondents have: [a] breached their "obligation as law professors and
officers of the Court to be the first to uphold the dignity and authority of this Court, and not to
promote distrust in the administration of justice;" and [b] committed "violations of Canons 10,
11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility."
B. In the event the Honorable Court declines to grant the foregoing prayer, respondents
respectfully pray, in the alternative, and in assertion of their due process rights, that before final
judgment be rendered:
1. the Show Cause Resolution be set for hearing;
2. respondents be given a fair and full opportunity to refute and/or address the findings and
conclusions of fact in the Show Cause Resolution (including especially the finding and
conclusion of a lack of malicious intent), and in that connection, that appropriate procedures and
schedules for hearing be adopted and defined that will allow them the full and fair opportunity to
require the production of and to present testimonial, documentary, and object evidence bearing on
the plagiarism and misrepresentation issues in Vinuya v. Executive Secretary (G.R. No. 162230,
April 28, 2010) and In the Matter of the Charges of Plagiarism, etc. Against Associate Justice
Mariano C. Del Castillo (A.M. No. 10-7-17-SC); and
3. respondents be given fair and full access to the transcripts, records, drafts, reports and
submissions in or relating to, and accorded the opportunity to cross-examine the witnesses who
were or could have been called in In The Matter of the Charges of Plagiarism, etc. Against
Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-17-SC).74
Compliance and Reservation of Prof. Rosa Maria T. Juan-Bautista
Although already included in the Common Compliance, Prof. Rosa Maria T. Juan-Bautista (Prof.
Juan-Bautista) filed a separate Compliance and Reservation (the Bautista Compliance), wherein
she adopted the allegations in the Common Compliance with some additional averments.
Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her to challenge the
findings and conclusions in the Show Cause Resolution. Furthermore, "[i]f the Restoring Integrity
Statement can be considered indirect contempt, under Section 3 of Rule 71 of the Rules of Court,
such may be punished only after charge and hearing."75
Prof. Juan-Bautista stressed that respondents signed the Statement "in good faith and with the
best intentions to protect the Supreme Court by asking one member to resign."76 For her part,
Prof. Juan-Bautista intimated that her deep disappointment and sadness for the plight of the
Malaya Lolas were what motivated her to sign the Statement.
On the point of academic freedom, Prof. Juan-Bautista cited jurisprudence77 which in her view
highlighted that academic freedom is constitutionally guaranteed to institutions of higher learning
such that schools have the freedom to determine for themselves who may teach, what may be
taught, how lessons shall be taught and who may be admitted to study and that courts have no
authority to interfere in the schools exercise of discretion in these matters in the absence of grave
abuse of discretion. She claims the Court has encroached on the academic freedom of the
University of the Philippines and other universities on their right to determine how lessons shall
be taught.
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of respondents
constitutional right to freedom of expression that can only be curtailed when there is grave and
imminent danger to public safety, public morale, public health or other legitimate public
interest.78
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate Compliance by
registered mail (the Vasquez Compliance). In said Compliance, Prof. Vasquez narrated the
circumstances surrounding his signing of the Statement. He alleged that the Vinuya decision was
a topic of conversation among the UP Law faculty early in the first semester (of academic year
2010-11) because it reportedly contained citations not properly attributed to the sources; that he
was shown a copy of the Statement by a clerk of the Office of the Dean on his way to his class;
and that, agreeing in principle with the main theme advanced by the Statement, he signed the
same in utmost good faith.79
In response to the directive from this Court to explain why he should not be disciplined as a
member of the Bar under the Show Cause Resolution, Prof. Vasquez also took the position that a
lawyer has the right, like all citizens in a democratic society, to comment on acts of public
officers. He invited the attention of the Court to the following authorities: (a) In re: Vicente
Sotto;80 (b) In re: Atty. Vicente Raul Almacen;81 and (c) a discussion appearing in American
Jurisprudence (AmJur) 2d.82 He claims that he "never had any intention to unduly influence, nor
entertained any illusion that he could or should influence, [the Court] in its disposition of the
Vinuya case"83 and that "attacking the integrity of [the Court] was the farthest thing on
respondents mind when he signed the Statement."84Unlike his colleagues, who wish to impress
upon this Court the purported homogeneity of the views on what constitutes plagiarism, Prof.
Vasquez stated in his Compliance that:
13. Before this Honorable Court rendered its Decision dated 12 October 2010, some espoused the
view that willful and deliberate intent to commit plagiarism is an essential element of the same.
Others, like respondent, were of the opinion that plagiarism is committed regardless of the intent
of the perpetrator, the way it has always been viewed in the academe. This uncertainty made the
issue a fair topic for academic discussion in the College. Now, this Honorable Court has ruled
that plagiarism presupposes deliberate intent to steal anothers work and to pass it off as ones
own.85 (Emphases supplied.)
Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he "might have been
remiss in correctly assessing the effects of such language [in the Statement] and could have been
more careful."86 He ends his discussion with a respectful submission that with his explanation, he
has faithfully complied with the Show Cause Resolution and that the Court will rule that he had
not in any manner violated his oath as a lawyer and officer of the Court.
Separate Compliance of Dean Leonen regarding the charge of violation of Canon 10 in relation to
his submission of a "dummy" of the UP Law Faculty Statement to this Court
In his Compliance, Dean Leonen claimed that there were three drafts/versions of the UP Law
Faculty Statement, which he described as follows:
"Restoring Integrity I" which bears the entire roster of the faculty of the UP College of Law in
its signing pages, and the actual signatures of the thirty-seven (37) faculty members subject of the
Show Cause Resolution. A copy was filed with the Honorable Court by Roque and Butuyan on
31 August 2010 in A.M. No. 10-7-17-SC.
"Restoring Integrity II" which does not bear any actual physical signature, but which reflects
as signatories the names of thirty-seven (37) members of the faculty with the notation "(SGD.)".
A copy of Restoring Integrity II was publicly and physically posted in the UP College of Law on
10 August 2010. Another copy of Restoring Integrity II was also officially received by the
Honorable Court from the Dean of the UP College of Law on 11 August 2010, almost three
weeks before the filing of Restoring Integrity I.
"Restoring Integrity III" which is a reprinting of Restoring Integrity II, and which presently
serves as the official file copy of the Deans Office in the UP College of Law that may be signed
by other faculty members who still wish to. It bears the actual signatures of the thirty- seven
original signatories to Restoring Integrity I above their printed names and the notation "(SGD.")
and, in addition, the actual signatures of eight (8) other members of the faculty above their
handwritten or typewritten names.87
For purposes of this discussion, only Restoring Integrity I and Restoring Integrity II are relevant
since what Dean Leonen has been directed to explain are the discrepancies in the signature pages
of these two documents. Restoring Integrity III was never submitted to this Court.
On how Restoring Integrity I and Restoring Integrity II were prepared and came about, Dean
Leonen alleged, thus:
2.2 On 27 July 2010, sensing the emergence of a relatively broad agreement in the faculty on a
draft statement, Dean Leonen instructed his staff to print the draft and circulate it among the
faculty members so that those who wished to may sign. For this purpose, the staff encoded the
law faculty roster to serve as the printed drafts signing pages. Thus did the first printed draft of
the Restoring Integrity Statement, Restoring Integrity I, come into being.
2.3. As of 27 July 2010, the date of the Restoring Integrity Statement, Dean Leonen was unaware
that a Motion for Reconsideration of the Honorable Courts Decision in Vinuya vs. Executive
Secretary (G.R. No. 162230, 28 April 2010) had already been filed, or that the Honorable Court
was in the process of convening its Committee on Ethics and Ethical Standards in A.M. No. 10-7-
17-SC.
2.4. Dean Leonens staff then circulated Restoring Integrity I among the members of the faculty.
Some faculty members visited the Deans Office to sign the document or had it brought to their
classrooms in the College of Law, or to their offices or residences. Still other faculty members
who, for one reason or another, were unable to sign Restoring Integrity I at that time, nevertheless
conveyed to Dean Leonen their assurances that they would sign as soon as they could manage.
2.5. Sometime in the second week of August, judging that Restoring Integrity I had been
circulated long enough, Dean Leonen instructed his staff to reproduce the statement in a style and
manner appropriate for posting in the College of Law. Following his own established practice in
relation to significant public issuances, he directed them to reformat the signing pages so that
only the names of those who signed the first printed draft would appear, together with the
corresponding "(SGD.)" note following each name. Restoring Integrity II thus came into being. 88
According to Dean Leonen, the "practice of eliminating blanks opposite or above the names of
non-signatories in the final draft of significant public issuances, is meant not so much for
aesthetic considerations as to secure the integrity of such documents."89 He likewise claimed that
"[p]osting statements with blanks would be an open invitation to vandals and pranksters."90
With respect to the inclusion of Justice Mendozas name as among the signatories in Restoring
Integrity II when in fact he did not sign Restoring Integrity I, Dean Leonen attributed the mistake
to a miscommunication involving his administrative officer. In his Compliance, he narrated that:
2.7. Upon being presented with a draft of Restoring Integrity II with the reformatted signing
pages, Dean Leonen noticed the inclusion of the name of Justice Mendoza among the "(SGD.)"
signatories. As Justice Mendoza was not among those who had physically signed Restoring
Integrity I when it was previously circulated, Dean Leonen called the attention of his staff to the
inclusion of the Justices name among the "(SGD.)" signatories in Restoring Integrity II.
2.8. Dean Leonen was told by his administrative officer that she had spoken to Justice Mendoza
over the phone on Friday, 06 August 2010. According to her, Justice Mendoza had authorized the
dean to sign the Restoring Integrity Statement for him as he agreed fundamentally with its
contents. Also according to her, Justice Mendoza was unable at that time to sign the Restoring
Integrity Statement himself as he was leaving for the United States the following week. It would
later turn out that this account was not entirely accurate.91(Underscoring and italics supplied.)
Dean Leonen claimed that he "had no reason to doubt his administrative officer, however, and so
placed full reliance on her account"92 as "[t]here were indeed other faculty members who had also
authorized the Dean to indicate that they were signatories, even though they were at that time
unable to affix their signatures physically to the document."93
However, after receiving the Show Cause Resolution, Dean Leonen and his staff reviewed the
circumstances surrounding their effort to secure Justice Mendozas signature. It would turn out
that this was what actually transpired:
2.22.1. On Friday, 06 August 2010, when the deans staff talked to Justice Mendoza on the
phone, he [Justice Mendoza] indeed initially agreed to sign the Restoring Integrity Statement as
he fundamentally agreed with its contents. However, Justice Mendoza did not exactly say that he
authorized the dean to sign the Restoring Integrity Statement. Rather, he inquired if he could
authorize the dean to sign it for him as he was about to leave for the United States. The deans
staff informed him that they would, at any rate, still try to bring the Restoring Integrity Statement
to him.
2.22.2. Due to some administrative difficulties, Justice Mendoza was unable to sign the Restoring
Integrity Statement before he left for the U.S. the following week.
2.22.3. The staff was able to bring Restoring Integrity III to Justice Mendoza when he went to the
College to teach on 24 September 2010, a day after his arrival from the U.S. This time, Justice
Mendoza declined to sign.94
According to the Dean:
2.23. It was only at this time that Dean Leonen realized the true import of the call he received
from Justice Mendoza in late September. Indeed, Justice Mendoza confirmed that by the time the
hard copy of the Restoring Integrity Statement was brought to him shortly after his arrival from
the U.S., he declined to sign it because it had already become controversial. At that time, he
predicted that the Court would take some form of action against the faculty. By then, and under
those circumstances, he wanted to show due deference to the Honorable Court, being a former
Associate Justice and not wishing to unduly aggravate the situation by signing the
Statement.95 (Emphases supplied.)
With respect to the omission of Atty. Armovits name in the signature page of Restoring Integrity
II when he was one of the signatories of Restoring Integrity I and the erroneous description in
Dean Leonens August 10, 2010 letter that the version of the Statement submitted to the Court
was signed by 38 members of the UP Law Faculty, it was explained in the Compliance that:
Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when it was circulated
to him. However, his name was inadvertently left out by Dean Leonens staff in the reformatting
of the signing pages in Restoring Integrity II. The dean assumed that his name was still included
in the reformatted signing pages, and so mentioned in his cover note to Chief Justice Corona that
38 members of the law faculty signed (the original 37 plus Justice Mendoza.) 96
Dean Leonen argues that he should not be deemed to have submitted a dummy of the Statement
that was not a true and faithful reproduction of the same. He emphasized that the main body of
the Statement was unchanged in all its three versions and only the signature pages were not the
same. This purportedly is merely "reflective of [the Statements] essential nature as a live public
manifesto meant to continuously draw adherents to its message, its signatory portion is
necessarily evolving and dynamic x x x many other printings of [the Statement] may be made in
the future, each one reflecting the same text but with more and more signatories." 97 Adverting to
criminal law by analogy, Dean Leonen claims that "this is not an instance where it has been made
to appear in a document that a person has participated in an act when the latter did not in fact so
participate"98 for he "did not misrepresent which members of the faculty of the UP College of
Law had agreed with the Restoring Integrity Statement proper and/or had expressed their desire
to be signatories thereto."99
In this regard, Dean Leonen believes that he had not committed any violation of Canon 10 or
Rules 10.01 and 10.02 for he did not mislead nor misrepresent to the Court the contents of the
Statement or the identities of the UP Law faculty members who agreed with, or expressed their
desire to be signatories to, the Statement. He also asserts that he did not commit any violation of
Rule 10.03 as he "coursed [the Statement] through the appropriate channels by transmitting the
same to Honorable Chief Justice Corona for the latters information and proper disposition with
the hope that its points would be duly considered by the Honorable Court en banc."100 Citing
Rudecon Management Corporation v. Camacho,101 Dean Leonen posits that the required quantum
of proof has not been met in this case and that no dubious character or motivation for the act
complained of existed to warrant an administrative sanction for violation of the standard of
honesty provided for by the Code of Professional Responsibility.102
Dean Leonen ends his Compliance with an enumeration of nearly identical reliefs as the Common
Compliance, including the prayers for a hearing and for access to the records, evidence and
witnesses allegedly relevant not only in this case but also in A.M. No. 10-7-17-SC, the ethical
investigation involving Justice Del Castillo.
Manifestation of Prof. Owen Lynch (Lynch Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is not a member of
the Philippine bar; but he is a member of the bar of the State of Minnesota. He alleges that he first
taught as a visiting professor at the UP College of Law in 1981 to 1988 and returned in the same
capacity in 2010. He further alleges that "[h]e subscribes to the principle, espoused by this Court
and the Supreme Court of the United States, that [d]ebate on public issues should be
uninhibited, robust and wide open and that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials."103 In signing the Statement, he
believes that "the right to speak means the right to speak effectively."104 Citing the dissenting
opinions in Manila Public School Teachers Association v. Laguio, Jr.,105 Prof. Lynch argued that
"[f]or speech to be effective, it must be forceful enough to make the intended recipients
listen"106 and "[t]he quality of education would deteriorate in an atmosphere of repression, when
the very teachers who are supposed to provide an example of courage and self-assertiveness to
their pupils can speak only in timorous whispers."107 Relying on the doctrine in In the Matter of
Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v.
Commission on Elections,108Prof. Lynch believed that the Statement did not pose any danger,
clear or present, of any substantive evil so as to remove it from the protective mantle of the Bill
of Rights (i.e., referring to the constitutional guarantee on free speech). 109 He also stated that he
"has read the Compliance of the other respondents to the Show Cause Resolution" and that "he
signed the Restoring Integrity Statement for the same reasons they did."110
ISSUES
Based on the Show Cause Resolution and a perusal of the submissions of respondents, the
material issues to be resolved in this case are as follows:
1.) Does the Show Cause Resolution deny respondents their freedom of expression?
2.) Does the Show Cause Resolution violate respondents academic freedom as law professors?
3.) Do the submissions of respondents satisfactorily explain why they should not be disciplined as
Members of the Bar under Canons 1, 11, and 13 and Rules 1.02 and 11.05 of the Code of
Professional Responsibility?
4.) Does the separate Compliance of Dean Leonen satisfactorily explain why he should not be
disciplined as a Member of the Bar under Canon 10, Rules 10.01, 10.02 and 10.03?
5.) Are respondents entitled to have the Show Cause Resolution set for hearing and in relation to
such hearing, are respondents entitled to require the production or presentation of evidence
bearing on the plagiarism and misrepresentation issues in the Vinuya case (G.R. No. 162230) and
the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to the
records and transcripts of, and the witnesses and evidence presented, or could have been
presented, in the ethics case against Justice Del Castillo (A.M. No. 10-7-17-SC)?
DISCUSSION
The Show Cause Resolution does not deny respondents their freedom of expression.
It is respondents collective claim that the Court, with the issuance of the Show Cause Resolution,
has interfered with respondents constitutionally mandated right to free speech and expression. It
appears that the underlying assumption behind respondents assertion is the misconception that
this Court is denying them the right to criticize the Courts decisions and actions, and that this
Court seeks to "silence" respondent law professors dissenting view on what they characterize as
a "legitimate public issue."
This is far from the truth. A reading of the Show Cause Resolution will plainly show that it was
neither the fact that respondents had criticized a decision of the Court nor that they had charged
one of its members of plagiarism that motivated the said Resolution. It was the manner of the
criticism and the contumacious language by which respondents, who are not parties nor counsels
in the Vinuya case, have expressed their opinion in favor of the petitioners in the said pending
case for the "proper disposition" and consideration of the Court that gave rise to said Resolution.
The Show Cause Resolution painstakingly enumerated the statements that the Court considered
excessive and uncalled for under the circumstances surrounding the issuance, publication, and
later submission to this Court of the UP Law facultys Restoring Integrity Statement.
To reiterate, it was not the circumstance that respondents expressed a belief that Justice Del
Castillo was guilty of plagiarism but rather their expression of that belief as "not only as an
established fact, but a truth"111 when it was "[o]f public knowledge [that there was] an ongoing
investigation precisely to determine the truth of such allegations."112 It was also pointed out in the
Show Cause Resolution that there was a pending motion for reconsideration of the Vinuya
decision.113 The Show Cause Resolution made no objections to the portions of the Restoring
Integrity Statement that respondents claimed to be "constructive" but only asked respondents to
explain those portions of the said Statement that by no stretch of the imagination could be
considered as fair or constructive, to wit:
Beyond this, however, the statement bore certain remarks which raise concern for the Court. The
opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave Filipinas who had
suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary
as a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of deliberately delaying
the resolution of the said case, its dismissal on the basis of "polluted sources," the Courts alleged
indifference to the cause of petitioners [in the Vinuya case], as well as the supposed alarming lack
of concern of the members of the Court for even the most basic values of decency and
respect.114 x x x. (Underscoring ours.)
To be sure, the Show Cause Resolution itself recognized respondents freedom of expression
when it stated that:
While most agree that the right to criticize the judiciary is critical to maintaining a free and
democratic society, there is also a general consensus that healthy criticism only goes so far. Many
types of criticism leveled at the judiciary cross the line to become harmful and irresponsible
attacks. These potentially devastating attacks and unjust criticism can threaten the independence
of the judiciary. The court must "insist on being permitted to proceed to the disposition of its
business in an orderly manner, free from outside interference obstructive of its functions and
tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the facultys less than objective
comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the
Courts honesty, integrity and competence in addressing the motion for its reconsideration. As if
the case on the comfort womens claims is not controversial enough, the UP Law faculty would
fan the flames and invite resentment against a resolution that would not reverse the said decision.
This runs contrary to their obligation as law professors and officers of the Court to be the first to
uphold the dignity and authority of this Court, to which they owe fidelity according to the oath
they have taken as attorneys, and not to promote distrust in the administration of justice.115 x x x.
(Citations omitted; emphases and underscoring supplied.)
Indeed, in a long line of cases, including those cited in respondents submissions, this Court has
held that the right to criticize the courts and judicial officers must be balanced against the equally
primordial concern that the independence of the Judiciary be protected from due influence or
interference. In cases where the critics are not only citizens but members of the Bar,
jurisprudence has repeatedly affirmed the authority of this Court to discipline lawyers whose
statements regarding the courts and fellow lawyers, whether judicial or extrajudicial, have
exceeded the limits of fair comment and common decency.
As early as the 1935 case of Salcedo v. Hernandez,116 the Court found Atty. Vicente J. Francisco
both guilty of contempt and liable administratively for the following paragraph in his second
motion for reconsideration:
We should like frankly and respectfully to make it of record that the resolution of this court,
denying our motion for reconsideration, is absolutely erroneous and constitutes an outrage to the
rights of the petitioner Felipe Salcedo and a mockery of the popular will expressed at the polls in
the municipality of Tiaong, Tayabas. We wish to exhaust all the means within our power in order
that this error may be corrected by the very court which has committed it, because we should not
want that some citizen, particularly some voter of the municipality of Tiaong, Tayabas, resort to
the press publicly to denounce, as he has a right to do, the judicial outrage of which the herein
petitioner has been the victim, and because it is our utmost desire to safeguard the prestige of this
honorable court and of each and every member thereof in the eyes of the public. But, at the same
time we wish to state sincerely that erroneous decisions like these, which the affected party and
his thousands of voters will necessarily consider unjust, increase the proselytes of 'sakdalism' and
make the public lose confidence in the administration of justice.117 (Emphases supplied.)
The highlighted phrases were considered by the Court as neither justified nor necessary and
further held that:
[I]n order to call the attention of the court in a special way to the essential points relied upon in
his argument and to emphasize the force thereof, the many reasons stated in his said motion were
sufficient and the phrases in question were superfluous. In order to appeal to reason and justice, it
is highly improper and amiss to make trouble and resort to threats, as Attorney Vicente J.
Francisco has done, because both means are annoying and good practice can never sanction them
by reason of their natural tendency to disturb and hinder the free exercise of a serene and
impartial judgment, particularly in judicial matters, in the consideration of questions submitted
for resolution.
There is no question that said paragraph of Attorney Vicente J. Francisco's motion contains a
more or less veiled threat to the court because it is insinuated therein, after the author shows the
course which the voters of Tiaong should follow in case he fails in his attempt, that they will
resort to the press for the purpose of denouncing, what he claims to be a judicial outrage of which
his client has been the victim; and because he states in a threatening manner with the intention of
predisposing the mind of the reader against the court, thus creating an atmosphere of prejudices
against it in order to make it odious in the public eye, that decisions of the nature of that referred
to in his motion promote distrust in the administration of justice and increase the proselytes
of sakdalism, a movement with seditious and revolutionary tendencies the activities of which, as
is of public knowledge, occurred in this country a few days ago. This cannot mean otherwise than
contempt of the dignity of the court and disrespect of the authority thereof on the part of Attorney
Vicente J. Francisco, because he presumes that the court is so devoid of the sense of justice that,
if he did not resort to intimidation, it would maintain its error notwithstanding the fact that it may
be proven, with good reasons, that it has acted erroneously.118 (Emphases supplied.)
Significantly, Salcedo is the decision from which respondents culled their quote from
the minority view of Justice Malcolm. Moreover, Salcedo concerned statements made in a
pleading filed by a counsel in a case, unlike the respondents here, who are neither parties nor
counsels in the Vinuya case and therefore, do not have any standing at all to interfere in
the Vinuya case. Instead of supporting respondents theory, Salcedo is authority for the following
principle:
As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as any
attorney, is in duty bound to uphold its dignity and authority and to defend its integrity, not only
because it has conferred upon him the high privilege, not a right (Malcolm, Legal Ethics, 158 and
160), of being what he now is: a priest of justice (In re Thatcher, 80 Ohio St. Rep., 492, 669),
but also because in so doing, he neither creates nor promotes distrust in the administration of
justice, and prevents anybody from harboring and encouraging discontent which, in many cases,
is the source of disorder, thus undermining the foundation upon which rests that bulwark called
judicial power to which those who are aggrieved turn for protection and relief.119 (Emphases
supplied.)
Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious statements in his
pleading, by accusing the Court of "erroneous ruling." Here, the respondents Statement goes way
beyond merely ascribing error to the Court.
Other cases cited by respondents likewise espouse rulings contrary to their position. In re: Atty.
Vicente Raul Almacen,120 cited in the Common Compliance and the Vasquez Compliance, was
an instance where the Court indefinitely suspended a member of the Bar for filing and releasing
to the press a "Petition to Surrender Lawyers Certificate of Title" in protest of what he claimed
was a great injustice to his client committed by the Supreme Court. In the decision, the petition
was described, thus:
He indicts this Court, in his own phrase, as a tribunal "peopled by men who are calloused to our
pleas for justice, who ignore without reasons their own applicable decisions and commit culpable
violations of the Constitution with impunity." His client's he continues, who was deeply
aggrieved by this Court's "unjust judgment," has become "one of the sacrificial victims before the
altar of hypocrisy." In the same breath that he alludes to the classic symbol of justice, he ridicules
the members of this Court, saying "that justice as administered by the present members of the
Supreme Court is not only blind, but also deaf and dumb." He then vows to argue the cause of his
client "in the people's forum," so that "the people may know of the silent injustices committed by
this Court," and that "whatever mistakes, wrongs and injustices that were committed must never
be repeated." He ends his petition with a prayer that
"x x x a resolution issue ordering the Clerk of Court to receive the certificate of the undersigned
attorney and counsellor-at-law IN TRUST with reservation that at any time in the future and in
the event we regain our faith and confidence, we may retrieve our title to assume the practice of
the noblest profession."121
It is true that in Almacen the Court extensively discussed foreign jurisprudence on the principle
that a lawyer, just like any citizen, has the right to criticize and comment upon actuations of
public officers, including judicial authority. However, the real doctrine in Almacen is that such
criticism of the courts, whether done in court or outside of it, must conform to standards of
fairness and propriety. This case engaged in an even more extensive discussion of the legal
authorities sustaining this view.1awphi1 To quote from that decision:
But it is the cardinal condition of all such criticism that it shall be bona fide, and shall not spill
over the walls of decency and propriety. A wide chasm exists between fair criticism, on the one
hand, and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair
criticism is a gross violation of the duty of respect to courts. It is such a misconduct that subjects
a lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties which are not mere flux
and ferment. His investiture into the legal profession places upon his shoulders no burden more
basic, more exacting and more imperative than that of respectful behavior toward the courts. He
vows solemnly to conduct himself "with all good fidelity x x x to the courts;" and the Rules of
Court constantly remind him "to observe and maintain the respect due to courts of justice and
judicial officers." The first canon of legal ethics enjoins him "to maintain towards the courts a
respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the
maintenance of its supreme importance."
As Mr. Justice Field puts it:
"x x x the obligation which attorneys impliedly assume, if they do not by express declaration take
upon themselves, when they are admitted to the Bar, is not merely to be obedient to the
Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial
officers. This obligation is not discharged by merely observing the rules of courteous demeanor in
open court, but includes abstaining out of court from all insulting language and offensive conduct
toward judges personally for their judicial acts." (Bradley, v. Fisher, 20 Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to the orderly
administration of justice. Hence, in the assertion of their clients' rights, lawyers even those
gifted with superior intellect are enjoined to rein up their tempers.
"The counsel in any case may or may not be an abler or more learned lawyer than the judge, and
it may tax his patience and temper to submit to rulings which he regards as incorrect, but
discipline and self-respect are as necessary to the orderly administration of justice as they are to
the effectiveness of an army. The decisions of the judge must be obeyed, because he is the
tribunal appointed to decide, and the bar should at all times be the foremost in rendering
respectful submission." (In Re Scouten, 40 Atl. 481)
xxxx
In his relations with the courts, a lawyer may not divide his personality so as to be an attorney at
one time and a mere citizen at another. Thus, statements made by an attorney in private
conversations or communications or in the course of a political campaign, if couched in insulting
language as to bring into scorn and disrepute the administration of justice, may subject the
attorney to disciplinary action.122 (Emphases and underscoring supplied.)
In a similar vein, In re: Vicente Sotto,123 cited in the Vasquez Compliance, observed that:
[T]his Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause, respecting the same,
has always been considered as misbehavior, tending to obstruct the administration of justice, and
subjects such persons to contempt proceedings. Parties have a constitutional right to have their
causes tried fairly in court, by an impartial tribunal, uninfluenced by publications or public
clamor. Every citizen has a profound personal interest in the enforcement of the fundamental
right to have justice administered by the courts, under the protection and forms of law, free from
outside coercion or interference. x x x.
Mere criticism or comment on the correctness or wrongness, soundness or unsoundness of the
decision of the court in a pending case made in good faith may be tolerated; because if well
founded it may enlighten the court and contribute to the correction of an error if committed; but if
it is not well taken and obviously erroneous, it should, in no way, influence the court in reversing
or modifying its decision. x x x.
xxxx
To hurl the false charge that this Court has been for the last years committing deliberately "so
many blunders and injustices," that is to say, that it has been deciding in favor of one party
knowing that the law and justice is on the part of the adverse party and not on the one in whose
favor the decision was rendered, in many cases decided during the last years, would tend
necessarily to undermine the confidence of the people in the honesty and integrity of the members
of this Court, and consequently to lower or degrade the administration of justice by this Court.
The Supreme Court of the Philippines is, under the Constitution, the last bulwark to which the
Filipino people may repair to obtain relief for their grievances or protection of their rights when
these are trampled upon, and if the people lose their confidence in the honesty and integrity of the
members of this Court and believe that they cannot expect justice therefrom, they might be driven
to take the law into their own hands, and disorder and perhaps chaos might be the result. As a
member of the bar and an officer of the courts Atty. Vicente Sotto, like any other, is in duty
bound to uphold the dignity and authority of this Court, to which he owes fidelity according to
the oath he has taken as such attorney, and not to promote distrust in the administration of
justice. Respect to the courts guarantees the stability of other institutions, which without such
guaranty would be resting on a very shaky foundation.124 (Emphases and underscoring supplied.)
That the doctrinal pronouncements in these early cases are still good law can be easily gleaned
even from more recent jurisprudence.
In Choa v. Chiongson,125 the Court administratively disciplined a lawyer, through the imposition
of a fine, for making malicious and unfounded criticisms of a judge in the guise of an
administrative complaint and held, thus:
As an officer of the court and its indispensable partner in the sacred task of administering justice,
graver responsibility is imposed upon a lawyer than any other to uphold the integrity of the courts
and to show respect to its officers. This does not mean, however, that a lawyer cannot criticize a
judge. As we stated in Tiongco vs. Hon. Aguilar:
It does not, however, follow that just because a lawyer is an officer of the court, he cannot
criticize the courts. That is his right as a citizen, and it is even his duty as an officer of the court to
avail of such right. Thus, in In Re: Almacen (31 SCRA 562, 579-580 [1970]), this Court
explicitly declared:
Hence, as a citizen and as officer of the court, a lawyer is expected not only to exercise the right,
but also to consider it his duty to avail of such right. No law may abridge this right. Nor is he
"professionally answerable to a scrutiny into the official conduct of the judges, which would not
expose him to legal animadversion as a citizen." (Case of Austin, 28 Am Dec. 657, 665).
xxxx
Nevertheless, such a right is not without limit. For, as this Court warned in Almacen:
But it is a cardinal condition of all such criticism that it shall be bona fide, and shall not spill over
the walls of decency and propriety. A wide chasm exists between fair criticism, on the one hand,
and abuse and slander of courts and the judges thereof, on the other. Intemperate and unfair
criticism is a gross violation of the duty of respect to courts. It is such a misconduct, that subjects
a lawyer to disciplinary action.
xxxx
Elsewise stated, the right to criticize, which is guaranteed by the freedom of speech and of
expression in the Bill of Rights of the Constitution, must be exercised responsibly, for every right
carries with it a corresponding obligation. Freedom is not freedom from responsibility, but
freedom with responsibility. x x x.
xxxx
Proscribed then are, inter alia, the use of unnecessary language which jeopardizes high esteem in
courts, creates or promotes distrust in judicial administration (Rheem, supra), or tends necessarily
to undermine the confidence of people in the integrity of the members of this Court and to
degrade the administration of justice by this Court (In re: Sotto, 82 Phil. 595 [1949]); or of
offensive and abusive language (In re: Rafael Climaco, 55 SCRA 107 [1974]); or abrasive and
offensive language (Yangson vs. Salandanan, 68 SCRA 42 [1975]; or of disrespectful, offensive,
manifestly baseless, and malicious statements in pleadings or in a letter addressed to the
judge (Baja vs. Macandog, 158 SCRA [1988], citing the resolution of 19 January 1988 in Phil.
Public Schools Teachers Association vs. Quisumbing, G.R. No. 76180, and Ceniza vs. Sebastian,
130 SCRA 295 [1984]); or of disparaging, intemperate, and uncalled-for remarks (Sangalang vs.
Intermediate Appellate Court, 177 SCRA 87 [1989]).
Any criticism against a judge made in the guise of an administrative complaint which is clearly
unfounded and impelled by ulterior motive will not excuse the lawyer responsible therefor under
his duty of fidelity to his client. x x x.126 (Emphases and underscoring supplied.)
In Saberon v. Larong,127 where this Court found respondent lawyer guilty of simple misconduct
for using intemperate language in his pleadings and imposed a fine upon him, we had the
occasion to state:
The Code of Professional Responsibility mandates:
CANON 8 - A lawyer shall conduct himself with courtesy, fairness and candor toward his
professional colleagues, and shall avoid harassing tactics against opposing counsel.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is abusive,
offensive or otherwise improper.
CANON 11 - A lawyer shall observe and maintain the respect due to the courts and to
judicial officers and should insist on similar conduct by others.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or
behavior before the Courts.
To be sure, the adversarial nature of our legal system has tempted members of the bar to use
strong language in pursuit of their duty to advance the interests of their clients.
However, while a lawyer is entitled to present his case with vigor and courage, such
enthusiasm does not justify the use of offensive and abusive language. Language abounds
with countless possibilities for one to be emphatic but respectful, convincing but not
derogatory, illuminating but not offensive.
On many occasions, the Court has reminded members of the Bar to abstain from all
offensive personalityand to advance no fact prejudicial to the honor or reputation of a party or
witness, unless required by the justice of the cause with which he is charged. In keeping with the
dignity of the legal profession, a lawyers language even in his pleadings must be dignified. 128
Verily, the accusatory and vilifying nature of certain portions of the Statement exceeded the
limits of fair comment and cannot be deemed as protected free speech. Even In the Matter of
Petition for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v.
Commission on Elections,129 relied upon by respondents in the Common Compliance, held that:
From the language of the specific constitutional provision, it would appear that the right is not
susceptible of any limitation. No law may be passed abridging the freedom of speech and of the
press. The realities of life in a complex society preclude however a literal interpretation. Freedom
of expression is not an absolute. It would be too much to insist that at all times and under all
circumstances it should remain unfettered and unrestrained. There are other societal values that
press for recognition. x x x.130 (Emphasis supplied.)
One such societal value that presses for recognition in the case at bar is the threat to judicial
independence and the orderly administration of justice that immoderate, reckless and unfair
attacks on judicial decisions and institutions pose. This Court held as much in Zaldivar v.
Sandiganbayan and Gonzales,131 where we indefinitely suspended a lawyer from the practice of
law for issuing to the media statements grossly disrespectful towards the Court in relation to a
pending case, to wit:
Respondent Gonzales is entitled to the constitutional guarantee of free speech. No one seeks to
deny him that right, least of all this Court. What respondent seems unaware of is that freedom of
speech and of expression, like all constitutional freedoms, is not absolute and that freedom of
expression needs on occasion to be adjusted to and accommodated with the requirements of
equally important public interest. One of these fundamental public interests is the maintenance of
the integrity and orderly functioning of the administration of justice. There is no antinomy
between free expression and the integrity of the system of administering justice. For the
protection and maintenance of freedom of expression itself can be secured only within the context
of a functioning and orderly system of dispensing justice, within the context, in other words, of
viable independent institutions for delivery of justice which are accepted by the general
community. x x x.132 (Emphases supplied.)
For this reason, the Court cannot uphold the view of some respondents133 that the Statement
presents no grave or imminent danger to a legitimate public interest.
The Show Cause Resolution does not interfere with respondents academic freedom.
It is not contested that respondents herein are, by law and jurisprudence, guaranteed academic
freedom and undisputably, they are free to determine what they will teach their students and how
they will teach. We must point out that there is nothing in the Show Cause Resolution that
dictates upon respondents the subject matter they can teach and the manner of their instruction.
Moreover, it is not inconsistent with the principle of academic freedom for this Court to subject
lawyers who teach law to disciplinary action for contumacious conduct and speech, coupled with
undue intervention in favor of a party in a pending case, without observing proper procedure,
even if purportedly done in their capacity as teachers.
A novel issue involved in the present controversy, for it has not been passed upon in any previous
case before this Court, is the question of whether lawyers who are also law professors can invoke
academic freedom as a defense in an administrative proceeding for intemperate statements
tending to pressure the Court or influence the outcome of a case or degrade the courts.
Applying by analogy the Courts past treatment of the "free speech" defense in other bar
discipline cases, academic freedom cannot be successfully invoked by respondents in this case.
The implicit ruling in the jurisprudence discussed above is that the constitutional right to freedom
of expression of members of the Bar may be circumscribed by their ethical duties as lawyers to
give due respect to the courts and to uphold the publics faith in the legal profession and the
justice system. To our mind, the reason that freedom of expression may be so delimited in the
case of lawyers applies with greater force to the academic freedom of law professors.
It would do well for the Court to remind respondents that, in view of the broad definition in
Cayetano v. Monsod,134lawyers when they teach law are considered engaged in the practice of
law. Unlike professors in other disciplines and more than lawyers who do not teach law,
respondents are bound by their oath to uphold the ethical standards of the legal profession. Thus,
their actions as law professors must be measured against the same canons of professional
responsibility applicable to acts of members of the Bar as the fact of their being law professors is
inextricably entwined with the fact that they are lawyers.
Even if the Court was willing to accept respondents proposition in the Common Compliance that
their issuance of the Statement was in keeping with their duty to "participate in the development
of the legal system by initiating or supporting efforts in law reform and in the improvement of the
administration of justice" under Canon 4 of the Code of Professional Responsibility, we cannot
agree that they have fulfilled that same duty in keeping with the demands of Canons 1, 11 and 13
to give due respect to legal processes and the courts, and to avoid conduct that tends to influence
the courts. Members of the Bar cannot be selective regarding which canons to abide by given
particular situations. With more reason that law professors are not allowed this indulgence, since
they are expected to provide their students exemplars of the Code of Professional Responsibility
as a whole and not just their preferred portions thereof.
The Courts rulings on the submissions regarding the charge of violation of Canons 1, 11 and 13.
Having disposed of respondents main arguments of freedom of expression and academic
freedom, the Court considers here the other averments in their submissions.
With respect to good faith, respondents allegations presented two main ideas: (a) the validity of
their position regarding the plagiarism charge against Justice Del Castillo, and (b) their pure
motive to spur this Court to take the correct action on said issue.
The Court has already clarified that it is not the expression of respondents staunch belief that
Justice Del Castillo has committed a misconduct that the majority of this Court has found so
unbecoming in the Show Cause Resolution. No matter how firm a lawyers conviction in the
righteousness of his cause there is simply no excuse for denigrating the courts and engaging in
public behavior that tends to put the courts and the legal profession into disrepute. This doctrine,
which we have repeatedly upheld in such cases as Salcedo, In re Almacen and Saberong, should
be applied in this case with more reason, as the respondents, not parties to the Vinuya case,
denounced the Court and urged it to change its decision therein, in a public statement using
contumacious language, which with temerity they subsequently submitted to the Court for
"proper disposition."
That humiliating the Court into reconsidering the Vinuya Decision in favor of the Malaya Lolas
was one of the objectives of the Statement could be seen in the following paragraphs from the
same:
And in light of the significance of this decision to the quest for justice not only of Filipino
women, but of women elsewhere in the world who have suffered the horrors of sexual abuse and
exploitation in times of war, the Court cannot coldly deny relief and justice to the petitioners on
the basis of pilfered and misinterpreted texts.
xxxx
(3) The same breach and consequent disposition of the Vinuya case does violence to the
primordial function of the Supreme Court as the ultimate dispenser of justice to all those who
have been left without legal or equitable recourse, such as the petitioners therein.135 (Emphases
and underscoring supplied.)
Whether or not respondents views regarding the plagiarism issue in the Vinuya case had valid
basis was wholly immaterial to their liability for contumacious speech and conduct. These are
two separate matters to be properly threshed out in separate proceedings. The Court considers it
highly inappropriate, if not tantamount to dissembling, the discussion devoted in one of the
compliances arguing the guilt of Justice Del Castillo. In the Common Compliance, respondents
even go so far as to attach documentary evidence to support the plagiarism charges against Justice
Del Castillo in the present controversy. The ethics case of Justice Del Castillo (A.M. No. 10-7-
17-SC), with the filing of a motion for reconsideration, was still pending at the time of the filing
of respondents submissions in this administrative case. As respondents themselves admit, they
are neither parties nor counsels in the ethics case against Justice Del Castillo. Notwithstanding
their professed overriding interest in said ethics case, it is not proper procedure for respondents to
bring up their plagiarism arguments here especially when it has no bearing on their own
administrative case.
Still on motive, it is also proposed that the choice of language in the Statement was intended for
effective speech; that speech must be "forceful enough to make the intended recipients
listen."136 One wonders what sort of effect respondents were hoping for in branding this Court as,
among others, callous, dishonest and lacking in concern for the basic values of decency and
respect. The Court fails to see how it can ennoble the profession if we allow respondents to send a
signal to their students that the only way to effectively plead their cases and persuade others to
their point of view is to be offensive.
This brings to our mind the letters of Dr. Ellis and Prof. Tams which were deliberately quoted in
full in the narration of background facts to illustrate the sharp contrast between the civil tenor of
these letters and the antagonistic irreverence of the Statement. In truth, these foreign authors are
the ones who would expectedly be affected by any perception of misuse of their works.
Notwithstanding that they are beyond the disciplinary reach of this Court, they still obviously
took pains to convey their objections in a deferential and scholarly manner. It is unfathomable to
the Court why respondents could not do the same. These foreign authors letters underscore the
universality of the tenet that legal professionals must deal with each other in good faith and due
respect. The mark of the true intellectual is one who can express his opinions logically and
soberly without resort to exaggerated rhetoric and unproductive recriminations.
As for the claim that the respondents noble intention is to spur the Court to take "constructive
action" on the plagiarism issue, the Court has some doubts as to its veracity. For if the Statement
was primarily meant for this Courts consideration, why was the same published and reported in
the media first before it was submitted to this Court? It is more plausible that the Statement was
prepared for consumption by the general public and designed to capture media attention as part of
the effort to generate interest in the most controversial ground in the Supplemental Motion for
Reconsideration filed in the Vinuya case by Atty. Roque, who is respondents colleague on the
UP Law faculty.
In this regard, the Court finds that there was indeed a lack of observance of fidelity and due
respect to the Court, particularly when respondents knew fully well that the matter of plagiarism
in the Vinuya decision and the merits of the Vinuya decision itself, at the time of the Statements
issuance, were still both sub judice or pending final disposition of the Court. These facts have
been widely publicized. On this point, respondents allege that at the time the Statement was first
drafted on July 27, 2010, they did not know of the constitution of the Ethics Committee and they
had issued the Statement under the belief that this Court intended to take no action on the ethics
charge against Justice Del Castillo. Still, there was a significant lapse of time from the drafting
and printing of the Statement on July 27, 2010 and its publication and submission to this Court in
early August when the Ethics Committee had already been convened. If it is true that the
respondents outrage was fueled by their perception of indifference on the part of the Court then,
when it became known that the Court did intend to take action, there was nothing to prevent
respondents from recalibrating the Statement to take this supervening event into account in the
interest of fairness.
Speaking of the publicity this case has generated, we likewise find no merit in the respondents
reliance on various news reports and commentaries in the print media and the internet as proof
that they are being unfairly "singled out." On the contrary, these same annexes to the Common
Compliance show that it is not enough for one to criticize the Court to warrant the institution of
disciplinary137 or contempt138 action. This Court takes into account the nature of the criticism and
weighs the possible repercussions of the same on the Judiciary. When the criticism comes from
persons outside the profession who may not have a full grasp of legal issues or from individuals
whose personal or other interests in making the criticism are obvious, the Court may perhaps
tolerate or ignore them. However, when law professors are the ones who appear to have lost sight
of the boundaries of fair commentary and worse, would justify the same as an exercise of civil
liberties, this Court cannot remain silent for such silence would have a grave implication on legal
education in our country.
With respect to the 35 respondents named in the Common Compliance, considering that this
appears to be the first time these respondents have been involved in disciplinary proceedings of
this sort, the Court is willing to give them the benefit of the doubt that they were for the most part
well-intentioned in the issuance of the Statement. However, it is established in jurisprudence that
where the excessive and contumacious language used is plain and undeniable, then good intent
can only be mitigating. As this Court expounded in Salcedo:
In his defense, Attorney Vicente J. Francisco states that it was not his intention to offend the court
or to be recreant to the respect thereto but, unfortunately, there are his phrases which need no
further comment. Furthermore, it is a well settled rule in all places where the same conditions and
practice as those in this jurisdiction obtain, that want of intention is no excuse from liability (13
C. J., 45). Neither is the fact that the phrases employed are justified by the facts a valid defense:
"Where the matter is abusive or insulting, evidence that the language used was justified by the
facts is not admissible as a defense. Respect for the judicial office should always be observed and
enforced." (In re Stewart, 118 La., 827; 43 S., 455.) Said lack or want of intention constitutes at
most an extenuation of liability in this case, taking into consideration Attorney Vicente J.
Francisco's state of mind, according to him when he prepared said motion. This court is disposed
to make such concession. However, in order to avoid a recurrence thereof and to prevent others,
by following the bad example, from taking the same course, this court considers it imperative to
treat the case of said attorney with the justice it deserves.139 (Emphases supplied.)
Thus, the 35 respondents named in the Common Compliance should, notwithstanding their claim
of good faith, be reminded of their lawyerly duty, under Canons 1, 11 and 13, to give due respect
to the courts and to refrain from intemperate and offensive language tending to influence the
Court on pending matters or to denigrate the courts and the administration of justice.
With respect to Prof. Vasquez, the Court favorably notes the differences in his Compliance
compared to his colleagues. In our view, he was the only one among the respondents who showed
true candor and sincere deference to the Court. He was able to give a straightforward account of
how he came to sign the Statement. He was candid enough to state that his agreement to the
Statement was in principle and that the reason plagiarism was a "fair topic of discussion" among
the UP Law faculty prior to the promulgation of the October 12, 2010 Decision in A.M. No. 10-7-
17-SC was the uncertainty brought about by a division of opinion on whether or not willful or
deliberate intent was an element of plagiarism. He was likewise willing to acknowledge that he
may have been remiss in failing to assess the effect of the language of the Statement and could
have used more care. He did all this without having to retract his position on the plagiarism issue,
without demands for undeserved reliefs (as will be discussed below) and without baseless
insinuations of deprivation of due process or of prejudgment. This is all that this Court expected
from respondents, not for them to sacrifice their principles but only that they recognize that they
themselves may have committed some ethical lapse in this affair. We commend Prof. Vaquez for
showing that at least one of the respondents can grasp the true import of the Show Cause
Resolution involving them. For these reasons, the Court finds Prof. Vasquezs Compliance
satisfactory.
As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar of the State of
Minnesota and, therefore, not under the disciplinary authority of this Court, he should be excused
from these proceedings. However, he should be reminded that while he is engaged as a professor
in a Philippine law school he should strive to be a model of responsible and professional conduct
to his students even without the threat of sanction from this Court. For even if one is not bound
by the Code of Professional Responsibility for members of the Philippine Bar, civility and respect
among legal professionals of any nationality should be aspired for under universal standards of
decency and fairness.
The Courts ruling on Dean Leonens Compliance regarding the charge of violation of Canon 10.
To recall, the Show Cause Resolution directed Dean Leonen to show cause why he should not be
disciplinary dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 and for submitting
a "dummy" that was not a true and faithful reproduction of the signed Statement.
In his Compliance, Dean Leonen essentially denies that Restoring Integrity II was not a true and
faithful reproduction of the actual signed copy, Restoring Integrity I, because looking at the text
or the body, there were no differences between the two. He attempts to downplay the
discrepancies in the signature pages of the two versions of the Statement (i.e., Restoring
Integrity I and Restoring Integrity II) by claiming that it is but expected in "live" public
manifestos with dynamic and evolving pages as more and more signatories add their imprimatur
thereto. He likewise stresses that he is not administratively liable because he did not misrepresent
the members of the UP Law faculty who "had agreed with the Restoring Integrity Statement
proper and/or who had expressed their desire to be signatories thereto."140
To begin with, the Court cannot subscribe to Dean Leonens implied view that the signatures in
the Statement are not as significant as its contents. Live public manifesto or not, the Statement
was formally submitted to this Court at a specific point in time and it should reflect accurately its
signatories at that point. The value of the Statement as a UP Law Faculty Statement lies precisely
in the identities of the persons who have signed it, since the Statements persuasive authority
mainly depends on the reputation and stature of the persons who have endorsed the same. Indeed,
it is apparent from respondents explanations that their own belief in the "importance" of their
positions as UP law professors prompted them to publicly speak out on the matter of the
plagiarism issue in the Vinuya case.
Further, in our assessment, the true cause of Dean Leonens predicament is the fact that he did not
from the beginning submit the signed copy, Restoring Integrity I, to this Court on August 11,
2010 and, instead, submitted Restoring Integrity II with its retyped or "reformatted" signature
pages. It would turn out, according to Dean Leonens account, that there were errors in the
retyping of the signature pages due to lapses of his unnamed staff. First, an unnamed
administrative officer in the deans office gave the dean inaccurate information that led him to
allow the inclusion of Justice Mendoza as among the signatories of Restoring Integrity II.
Second, an unnamed staff also failed to type the name of Atty. Armovit when encoding the
signature pages of Restoring Integrity II when in fact he had signed Restoring Integrity I.
The Court can understand why for purposes of posting on a bulletin board or a website a signed
document may have to be reformatted and signatures may be indicated by the notation (SGD).
This is not unusual. We are willing to accept that the reformatting of documents meant for
posting to eliminate blanks is necessitated by vandalism concerns.
However, what is unusual is the submission to a court, especially this Court, of a signed
document for the Courts consideration that did not contain the actual signatures of its authors. In
most cases, it is the original signed document that is transmitted to the Court or at the very least a
photocopy of the actual signed document. Dean Leonen has not offered any explanation why he
deviated from this practice with his submission to the Court of Restoring Integrity II on August
11, 2010. There was nothing to prevent the dean from submitting Restoring Integrity I to this
Court even with its blanks and unsigned portions. Dean Leonen cannot claim fears of vandalism
with respect to court submissions for court employees are accountable for the care of documents
and records that may come into their custody. Yet, Dean Leonen deliberately chose to submit to
this Court the facsimile that did not contain the actual signatures and his silence on the reason
therefor is in itself a display of lack of candor.
Still, a careful reading of Dean Leonens explanations yield the answer. In the course of his
explanation of his willingness to accept his administrative officers claim that Justice Mendoza
agreed to be indicated as a signatory, Dean Leonen admits in a footnote that other professors had
likewise only authorized him to indicate them as signatories and had not in fact signed the
Statement. Thus, at around the time Restoring Integrity II was printed, posted and submitted to
this Court, at least one purported signatory thereto had not actually signed the same. Contrary to
Dean Leonens proposition, that is precisely tantamount to making it appear to this Court that a
person or persons participated in an act when such person or persons did not.
We are surprised that someone like Dean Leonen, with his reputation for perfection and stringent
standards of intellectual honesty, could proffer the explanation that there was no
misrepresentation when he allowed at least one person to be indicated as having actually signed
the Statement when all he had was a verbal communication of an intent to sign. In the case of
Justice Mendoza, what he had was only hearsay information that the former intended to sign the
Statement. If Dean Leonen was truly determined to observe candor and truthfulness in his
dealings with the Court, we see no reason why he could not have waited until all the professors
who indicated their desire to sign the Statement had in fact signed before transmitting the
Statement to the Court as a duly signed document. If it was truly impossible to secure some
signatures, such as that of Justice Mendoza who had to leave for abroad, then Dean Leonen
should have just resigned himself to the signatures that he was able to secure.
We cannot imagine what urgent concern there was that he could not wait for actual signatures
before submission of the Statement to this Court. As respondents all asserted, they were neither
parties to nor counsels in the Vinuya case and the ethics case against Justice Del Castillo. The
Statement was neither a pleading with a deadline nor a required submission to the Court; rather, it
was a voluntary submission that Dean Leonen could do at any time.
In sum, the Court likewise finds Dean Leonens Compliance unsatisfactory. However, the Court
is willing to ascribe these isolated lapses in judgment of Dean Leonen to his misplaced zeal in
pursuit of his objectives. In due consideration of Dean Leonens professed good intentions, the
Court deems it sufficient to admonish Dean Leonen for failing to observe full candor and honesty
in his dealings with the Court as required under Canon 10.
Respondents requests for a hearing, for production/presentation of evidence bearing on the
plagiarism and misrepresentation issues in G.R. No. 162230 and A.M. No. 10-7-17-SC, and for
access to the records of A.M. No. 10-7-17-SC are unmeritorious.
In the Common Compliance, respondents named therein asked for alternative reliefs should the
Court find their Compliance unsatisfactory, that is, that the Show Cause Resolution be set for
hearing and for that purpose, they be allowed to require the production or presentation of
witnesses and evidence bearing on the plagiarism and misrepresentation issues in the Vinuya case
(G.R. No. 162230) and the plagiarism case against Justice Del Castillo (A.M. No. 10-7-17-SC)
and to have access to the records of, and evidence that were presented or may be presented in the
ethics case against Justice Del Castillo. The prayer for a hearing and for access to the records of
A.M. No. 10-7-17-SC was substantially echoed in Dean Leonens separate Compliance. In Prof.
Juan-Bautistas Compliance, she similarly expressed the sentiment that "[i]f the Restoring
Integrity Statement can be considered indirect contempt, under Section 3 of Rule 71 of the Rules
of Court, such may be punished only after charge and hearing."141 It is this group of respondents
premise that these reliefs are necessary for them to be accorded full due process.
The Court finds this contention unmeritorious.
Firstly, it would appear that the confusion as to the necessity of a hearing in this case springs
largely from its characterization as a special civil action for indirect contempt in the Dissenting
Opinion of Justice Sereno (to the October 19, 2010 Show Cause Resolution) and her reliance
therein on the majoritys purported failure to follow the procedure in Rule 71 of the Rules of
Court as her main ground for opposition to the Show Cause Resolution.
However, once and for all, it should be clarified that this is not an indirect contempt proceeding
and Rule 71 (which requires a hearing) has no application to this case. As explicitly ordered in
the Show Cause Resolution this case was docketed as an administrative matter.
The rule that is relevant to this controversy is Rule 139-B, Section 13, on disciplinary
proceedings initiated motu proprio by the Supreme Court, to wit:
SEC. 13. Supreme Court Investigators.In proceedings initiated motu proprio by the Supreme
Court or in other proceedings when the interest of justice so requires, the Supreme
Court may refer the case for investigation to the Solicitor General or to any officer of the
Supreme Court or judge of a lower court, in which case the investigation shall proceed in the
same manner provided in sections 6 to 11 hereof, save that the review of the report of
investigation shall be conducted directly by the Supreme Court. (Emphasis supplied.)
From the foregoing provision, it cannot be denied that a formal investigation, through a referral to
the specified officers, is merely discretionary, not mandatory on the Court. Furthermore, it is
only if the Court deems such an investigation necessary that the procedure in Sections 6 to 11 of
Rule 139-A will be followed.
As respondents are fully aware, in general, administrative proceedings do not require a trial type
hearing. We have held that:
The essence of due process is simply an opportunity to be heard or, as applied to administrative
proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of
the action or ruling complained of. What the law prohibits is absolute absence of the opportunity
to be heard, hence, a party cannot feign denial of due process where he had been afforded the
opportunity to present his side. A formal or trial type hearing is not at all times and in all
instances essential to due process, the requirements of which are satisfied where the parties are
afforded fair and reasonable opportunity to explain their side of the controversy.142 (Emphases
supplied.)
In relation to bar discipline cases, we have had the occasion to rule in Pena v. Aparicio 143 that:
Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal,
they do not involve a trial of an action or a suit, but is rather an investigation by the Court into the
conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal
prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated
by the Court motu proprio. Public interest is its primary objective, and the real question for
determination is whether or not the attorney is still a fit person to be allowed the privileges as
such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of
the Bar to account for his actuations as an officer of the Court with the end in view of preserving
the purity of the legal profession and the proper and honest administration of justice by purging
the profession of members who by their misconduct have proved themselves no longer worthy to
be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such
posture, there can thus be no occasion to speak of a complainant or a prosecutor. 144 (Emphases
supplied.)
In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court Br. 81, Romblon On the
Prohibition from Engaging in the Private Practice of Law, 145 we further observed that:
[I]n several cases, the Court has disciplined lawyers without further inquiry or resort to any
formal investigation where the facts on record sufficiently provided the basis for the
determination of their administrative liability.
In Prudential Bank v. Castro, the Court disbarred a lawyer without need of any further
investigation after considering his actions based on records showing his unethical misconduct; the
misconduct not only cast dishonor on the image of both the Bench and the Bar, but was also
inimical to public interest and welfare. In this regard, the Court took judicial notice of several
cases handled by the errant lawyer and his cohorts that revealed their modus operandi in
circumventing the payment of the proper judicial fees for the astronomical sums they claimed in
their cases. The Court held that those cases sufficiently provided the basis for the determination
of respondents' administrative liability, without need for further inquiry into the matter under the
principle of res ipsa loquitur.
Also on the basis of this principle, we ruled in Richards v. Asoy, that no evidentiary hearing is
required before the respondent may be disciplined for professional misconduct already
established by the facts on record.
xxxx
These cases clearly show that the absence of any formal charge against and/or formal
investigation of an errant lawyer do not preclude the Court from immediately exercising its
disciplining authority, as long as the errant lawyer or judge has been given the opportunity to be
heard. As we stated earlier, Atty. Buffe has been afforded the opportunity to be heard on the
present matter through her letter-query and Manifestation filed before this Court.146(Emphases
supplied.)
Under the rules and jurisprudence, respondents clearly had no right to a hearing and their
reservation of a right they do not have has no effect on these proceedings. Neither have they
shown in their pleadings any justification for this Court to call for a hearing in this instance. They
have not specifically stated what relevant evidence, documentary or testimonial, they intend to
present in their defense that will necessitate a formal hearing.
Instead, it would appear that they intend to present records, evidence, and witnesses bearing on
the plagiarism and misrepresentation issues in the Vinuya case and in A.M. No. 10-7-17-SC on
the assumption that the findings of this Court which were the bases of the Show Cause Resolution
were made in A.M. No. 10-7-17-SC, or were related to the conclusions of the Court in the
Decision in that case. This is the primary reason for their request for access to the records and
evidence presented in A.M. No. 10-7-17-SC.
This assumption on the part of respondents is erroneous. To illustrate, the only incident in A.M.
No. 10-7-17-SC that is relevant to the case at bar is the fact that the submission of the actual
signed copy of the Statement (or Restoring Integrity I, as Dean Leonen referred to it) happened
there. Apart from that fact, it bears repeating that the proceedings in A.M. No. 10-7-17-SC, the
ethics case against Justice Del Castillo, is a separate and independent matter from this case.
To find the bases of the statements of the Court in the Show Cause Resolution that the
respondents issued a Statement with language that the Court deems objectionable during the
pendency of the Vinuya case and the ethics case against Justice Del Castillo, respondents need to
go no further than the four corners of the Statement itself, its various versions, news
reports/columns (many of which respondents themselves supplied to this Court in their Common
Compliance) and internet sources that are already of public knowledge.
Considering that what respondents are chiefly required to explain are the language of the
Statement and the circumstances surrounding the drafting, printing, signing, dissemination, etc.,
of its various versions, the Court does not see how any witness or evidence in the ethics case of
Justice Del Castillo could possibly shed light on these facts. To be sure, these facts are within the
knowledge of respondents and if there is any evidence on these matters the same would be in
their possession.
We find it significant that in Dean Leonens Compliance he narrated how as early as September
2010, i.e., before the Decision of this Court in the ethics case of Justice Del Castillo on October
12, 2010 and before the October 19, 2010 Show Cause Resolution, retired Supreme Court Justice
Vicente V. Mendoza, after being shown a copy of the Statement upon his return from abroad,
predicted that the Court would take some form of action on the Statement. By simply reading a
hard copy of the Statement, a reasonable person, even one who "fundamentally agreed" with the
Statements principles, could foresee the possibility of court action on the same on an implicit
recognition that the Statement, as worded, is not a matter this Court should simply let pass. This
belies respondents claim that it is necessary for them to refer to any record or evidence in A.M.
No. 10-7-17-SC in order to divine the bases for the Show Cause Resolution.
If respondents have chosen not to include certain pieces of evidence in their respective
compliances or chosen not to make a full defense at this time, because they were counting on
being granted a hearing, that is respondents own look-out. Indeed, law professors of their stature
are supposed to be aware of the above jurisprudential doctrines regarding the non-necessity of a
hearing in disciplinary cases. They should bear the consequence of the risk they have taken.
Thus, respondents requests for a hearing and for access to the records of, and evidence presented
in, A.M. No. 10-7-17-SC should be denied for lack of merit.
A final word
In a democracy, members of the legal community are hardly expected to have monolithic views
on any subject, be it a legal, political or social issue. Even as lawyers passionately and vigorously
propound their points of view they are bound by certain rules of conduct for the legal profession.
This Court is certainly not claiming that it should be shielded from criticism. All the Court
demands is the same respect and courtesy that one lawyer owes to another under established
ethical standards. All lawyers, whether they are judges, court employees, professors or private
practitioners, are officers of the Court and have voluntarily taken an oath, as an indispensable
qualification for admission to the Bar, to conduct themselves with good fidelity towards the
courts. There is no exemption from this sworn duty for law professors, regardless of their status
in the academic community or the law school to which they belong.
WHEREFORE, this administrative matter is decided as follows:
(1) With respect to Prof. Vasquez, after favorably noting his submission, the Court finds his
Compliance to be satisfactory.
(2) The Common Compliance of 35 respondents, namely, Attys. Marvic M.V.F. Leonen, Froilan
M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison,
Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L.
Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis,
Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R.
Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo,
Concepcion L. Jardeleza, Antonio G.M. La Via, Carina C. Laforteza, Jose C. Laureta, Rodolfo
Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G.
Ursua, Susan D. Villanueva and Dina D. Lucenario, is found UNSATISFACTORY. These 35
respondent law professors are reminded of their lawyerly duty, under Canons 1, 11 and 13 of the
Code of Professional Responsibility, to give due respect to the Court and to refrain from
intemperate and offensive language tending to influence the Court on pending matters or to
denigrate the Court and the administration of justice and warned that the same or similar act in
the future shall be dealt with more severely.
(3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding the charge of violation of
Canon 10 is found UNSATISFACTORY. He is further ADMONISHED to be more mindful of
his duty, as a member of the Bar, an officer of the Court, and a Dean and professor of law, to
observe full candor and honesty in his dealings with the Court and warned that the same or
similar act in the future shall be dealt with more severely.
(4) Prof. Lynch, who is not a member of the Philippine bar, is excused from these proceedings.
However, he is reminded that while he is engaged as a professor in a Philippine law school he
should strive to be a model of responsible and professional conduct to his students even without
the threat of sanction from this Court.
(5) Finally, respondents requests for a hearing and for access to the records of A.M. No. 10-7-
17-SC are denied for lack of merit.
SO ORDERED.
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary of
Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS, J.:
We are faced here with a controversy of far-reaching proportions. While ostensibly only legal
issues are involved, the Court's decision in this case would indubitably have a profound effect on
the political aspect of our national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six Commissioners who
shall be natural-born citizens of the Philippines and, at the time of their appointment, at least
thirty-five years of age, holders of a college degree, and must not have been candidates for any
elective position in the immediately preceding -elections. However, a majority thereof, including
the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of
law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution
which similarly provides:
There shall be an independent Commission on Elections composed of a Chairman and eight
Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age and holders of a college degree. However, a majority
thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged
in the practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as
a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal principles and
technique to serve the interest of another with his consent. It is not limited to appearing in court,
or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings,
and other papers incident to actions and special proceedings, conveyancing, the preparation of
legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice
to clients and all actions taken for them in matters connected with the law. An attorney engages in
the practice of law by maintaining an office where he is held out to be-an attorney, using a
letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with
opposing counsel about pending litigation, and fixing and collecting fees for services rendered by
his associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust
Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice
of law when he:
... for valuable consideration engages in the business of advising person, firms, associations or
corporations as to their rights under the law, or appears in a representative capacity as an
advocate in proceedings pending or prospective, before any court, commissioner, referee, board,
body, committee, or commission constituted by law or authorized to settle controversies and
there, in such representative capacity performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise stated, one who, in a representative
capacity, engages in the business of advising clients as to their rights under the law, or while so
engaged performs any act or acts either in court or outside of court for that purpose, is engaged in
the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo.
852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177)
stated:
The practice of law is not limited to the conduct of cases or litigation in court; it embraces the
preparation of pleadings and other papers incident to actions and special proceedings, the
management of such actions and proceedings on behalf of clients before judges and courts, and in
addition, conveying. In general, all advice to clients, and all action taken for them in
matters connected with the law incorporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement
of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in
attachment, and in matters of estate and guardianship have been held to constitute law practice, as
do the preparation and drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p.
262, 263). (Emphasis supplied)
Practice of law under modem conditions consists in no small part of work performed outside of
any court and having no immediate relation to proceedings in court. It embraces conveyancing,
the giving of legal advice on a large variety of subjects, and the preparation and execution of
legal instruments covering an extensive field of business and trust relations and other
affairs. Although these transactions may have no direct connection with court proceedings, they
are always subject to become involved in litigation. They require in many aspects a high degree
of legal skill, a wide experience with men and affairs, and great capacity for adaptation to
difficult and complex situations. These customary functions of an attorney or counselor at law
bear an intimate relation to the administration of justice by the courts. No valid distinction, so far
as concerns the question set forth in the order, can be drawn between that part of the work of the
lawyer which involves appearance in court and that part which involves advice and drafting of
instruments in his office. It is of importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of adequate learning and skill, of sound
moral character, and acting at all times under the heavy trust obligations to clients which rests
upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666,
citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v.
Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation briefing for new lawyers
(1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy,
counselling and public service.
One may be a practicing attorney in following any line of employment in the profession. If what
he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active
practice of their profession, and he follows some one or more lines of employment such as this he
is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)
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 profession. Generally, to practice law is to give notice
or render any kind of service, which device or service requires the use in any degree of legal
knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has adopted a liberal
interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do
during our review of the provisions on the Commission on Audit. May I be allowed to make a
very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit.
Among others, the qualifications provided for by Section I is that "They must be Members of the
Philippine Bar" I am quoting from the provision "who have been engaged in the practice of
law for at least ten years".
To avoid any misunderstanding which would result in excluding members of the Bar who are
now employed in the COA or Commission on Audit, we would like to make the clarification that
this provision on qualifications regarding members of the Bar does not necessarily refer or
involve actual practice of law outside the COA We have to interpret this to mean that as long as
the lawyers who are employed in the COA are using their legal knowledge or legal talent in their
respective work within COA, then they are qualified to be considered for appointment as
members or commissioners, even chairman, of the Commission on Audit.
This has been discussed by the Committee on Constitutional Commissions and Agencies and we
deem it important to take it up on the floor so that this interpretation may be made available
whenever this provision on the qualifications as regards members of the Philippine Bar engaging
in the practice of law for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the
requirement of a law practice that is set forth in the Article on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will
necessarily involve legal work; it will involve legal work. And, therefore, lawyers who are
employed in COA now would have the necessary qualifications in accordance with the Provision
on qualifications under our provisions on the Commission on Audit. And, therefore, the answer is
yes.
MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of
law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman
and two Commissioners of the Commission on Audit (COA) should either be certified public
accountants with not less than ten years of auditing practice, or members of the Philippine Bar
who have been engaged in the practice of law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways synonymous with
the word "lawyer." Today, although many lawyers do not engage in private practice, it is still a
fact that the majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law
Careers [VGM Career Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to define private practice. The term, as commonly understood,
means "an individual or organization engaged in the business of delivering legal services." (Ibid.).
Lawyers who practice alone are often called "sole practitioners." Groups of lawyers are called
"firms." The firm is usually a partnership and members of the firm are the partners. Some firms
may be organized as professional corporations and the members called shareholders. In either
case, the members of the firm are the experienced attorneys. In most firms, there are younger or
more inexperienced salaried attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice is essentially
tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W.
Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of
law is defined as the performance of any acts . . . in or out of court, commonly understood to be
the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d
863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]).
Because lawyers perform almost every function known in the commercial and governmental
realm, such a definition would obviously be too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar
role for lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little
time in courtrooms, and a large percentage spend their entire practice without litigating a case.
(Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role
colors much of both the public image and the self perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not reality.
(Ibid.). Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated
on the importance of a lawyer as a business counselor in this wise: "Even today, there are still
uninformed laymen whose concept of an attorney is one who principally tries cases before the
courts. The members of the bench and bar and the informed laymen such as businessmen, know
that in most developed societies today, substantially more legal work is transacted in law offices
than in the courtrooms. General practitioners of law who do both litigation and non-litigation
work also know that in most cases they find themselves spending more time doing what [is]
loosely desccribe[d] as business counseling than in trying cases. The business lawyer has been
described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be]
stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be
effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner wig engage in a number of legal
tasks, each involving different legal doctrines, legal skills, legal processes, legal institutions,
clients, and other interested parties. Even the increasing numbers of lawyers in specialized
practice wig usually perform at least some legal services outside their specialty. And even within
a narrow specialty such as tax practice, a lawyer will shift from one legal task or role such as
advice-giving to an importantly different one such as representing a client before an
administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of the relatively
rare types a litigator who specializes in this work to the exclusion of much else. Instead, the
work will require the lawyer to have mastered the full range of traditional lawyer skills of client
counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find
that the new skills of evaluation and mediation are both effective for many clients and a source of
employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in
very important ways, at least theoretically, so as to remove from it some of the salient features of
adversarial litigation. Of these special roles, the most prominent is that of prosecutor. In some
lawyers' work the constraints are imposed both by the nature of the client and by the way in
which the lawyer is organized into a social unit to perform that work. The most common of these
roles are those of corporate practice and government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are emerging trends
in corporate law practice, a departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary transformation in corporate
law practice. Lawyers and other professional groups, in particular those members participating in
various legal-policy decisional contexts, are finding that understanding the major emerging trends
in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an accurate understanding
of the nature and implications of the corporate law research function accompanied by an
accelerating rate of information accumulation. The recognition of the need for such improved
corporate legal policy formulation, particularly "model-making" and "contingency planning," has
impressed upon us the inadequacy of traditional procedures in many decisional contexts.
In a complex legal problem the mass of information to be processed, the sorting and weighing of
significant conditional factors, the appraisal of major trends, the necessity of estimating the
consequences of given courses of action, and the need for fast decision and response in situations
of acute danger have prompted the use of sophisticated concepts of information flow theory,
operational analysis, automatic data processing, and electronic computing equipment.
Understandably, an improved decisional structure must stress the predictive component of the
policy-making process, wherein a "model", of the decisional context or a segment thereof is
developed to test projected alternative courses of action in terms of futuristic effects flowing
therefrom.
Although members of the legal profession are regularly engaged in predicting and projecting the
trends of the law, the subject of corporate finance law has received relatively little organized and
formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a
cross-disciplinary approach to legal research has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained primarily in the
law can be improved through an early introduction to multi-variable decisional context and the
various approaches for handling such problems. Lawyers, particularly with either a master's or
doctorate degree in business administration or management, functioning at the legal policy level
of decision-making now have some appreciation for the concepts and analytical techniques of
other professions which are currently engaged in similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would require the services of
an astute attorney because of the complex legal implications that arise from each and every
necessary step in securing and maintaining the business issue raised. (Business Star, "Corporate
Finance Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de
campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the
tycoons and magnates of business and industry.
Despite the growing number of corporate lawyers, many people could not explain what it is that a
corporate lawyer does. For one, the number of attorneys employed by a single corporation will
vary with the size and type of the corporation. Many smaller and some large corporations farm
out all their legal problems to private law firms. Many others have in-house counsel only for
certain matters. Other corporation have a staff large enough to handle most legal problems in-
house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a
corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research,
tax laws research, acting out as corporate secretary (in board meetings), appearances in both
courts and other adjudicatory agencies (including the Securities and Exchange Commission), and
in other capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the
business of the corporation he is representing. These include such matters as determining policy
and becoming involved in management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from the action, or not
understanding how one's work actually fits into the work of the orgarnization. This can be
frustrating to someone who needs to see the results of his work first hand. In short, a corporate
lawyer is sometimes offered this fortune to be more closely involved in the running of the
business.
Moreover, a corporate lawyer's services may sometimes be engaged by a multinational
corporation (MNC). Some large MNCs provide one of the few opportunities available to
corporate lawyers to enter the international law field. After all, international law is practiced in a
relatively small number of companies and law firms. Because working in a foreign country is
perceived by many as glamorous, tills is an area coveted by corporate lawyers. In most cases,
however, the overseas jobs go to experienced attorneys while the younger attorneys do their
"international practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990,
p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the
lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to
spot problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is
one who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer
are we talking of the traditional law teaching method of confining the subject study to the
Corporation Code and the Securities Code but an incursion as well into the intertwining modern
management issues.
Such corporate legal management issues deal primarily with three (3) types of learning: (1)
acquisition of insights into current advances which are of particular significance to the corporate
counsel; (2) an introduction to usable disciplinary skins applicable to a corporate counsel's
management responsibilities; and (3) a devotion to the organization and management of the legal
function itself.
These three subject areas may be thought of as intersecting circles, with a shared area linking
them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for
the corporate counsel's total learning.
Some current advances in behavior and policy sciences affect the counsel's role. For that matter,
the corporate lawyer reviews the globalization process, including the resulting strategic
repositioning that the firms he provides counsel for are required to make, and the need to think
about a corporation's; strategy at multiple levels. The salience of the nation-state is being reduced
as firms deal both with global multinational entities and simultaneously with sub-national
governmental units. Firms increasingly collaborate not only with public entities but with each
other often with those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly
changing. The modem corporate lawyer has gained a new role as a stakeholder in some cases
participating in the organization and operations of governance through participation on boards
and other decision-making roles. Often these new patterns develop alongside existing legal
institutions and laws are perceived as barriers. These trends are complicated as corporations
organize for global operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with governmental policies toward the
promotion and management of technology. New collaborative arrangements for promoting
specific technologies or competitiveness more generally require approaches from industry that
differ from older, more adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other countries. In
Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and
business Japan's MITI is world famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate Counsel comprises a
distinct group within the managerial structure of all kinds of organizations. Effectiveness of both
long-term and temporary groups within organizations has been found to be related to indentifiable
factors in the group-context interaction such as the groups actively revising their knowledge of
the environment coordinating work with outsiders, promoting team achievements within the
organization. In general, such external activities are better predictors of team performance than
internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the
managerial mettle of corporations are challenged. Current research is seeking ways both to
anticipate effective managerial procedures and to understand relationships of financial liability
and insurance considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors are apropos:
First System Dynamics. The field of systems dynamics has been found an effective tool for new
managerial thinking regarding both planning and pressing immediate problems. An understanding
of the role of feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts
of systematic problems physical, economic, managerial, social, and psychological. New
programming techniques now make the system dynamics principles more accessible to managers
including corporate counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions involving complexity and
uncertainty. In the context of a law department, it can be used to appraise the settlement value of
litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a
portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can be used directly by
parties and mediators in all lands of negotiations. All integrated set of such tools provide coherent
and effective negotiation support, including hands-on on instruction in these techniques. A
simulation case of an international joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function, concern three pointed
areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of
the general counsel's responsibilities. They differ from those of remedial law. Preventive
lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for
such legal entities at that time when transactional or similar facts are being considered and made.
Managerial Jurisprudence. This is the framework within which are undertaken those activities of
the firm to which legal consequences attach. It needs to be directly supportive of this nation's
evolving economic and organizational fabric as firms change to stay competitive in a global,
interdependent environment. The practice and theory of "law" is not adequate today to facilitate
the relationships needed in trying to make a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The general counsel has
emerged in the last decade as one of the most vibrant subsets of the legal profession. The
corporate counsel hear responsibility for key aspects of the firm's strategic issues, including
structuring its global operations, managing improved relationships with an increasingly
diversified body of employees, managing expanded liability exposure, creating new and varied
interactions with public decision-makers, coping internally with more complex make or by
decisions.
This whole exercise drives home the thesis that knowing corporate law is not enough to make one
a good general corporate counsel nor to give him a full sense of how the legal system shapes
corporate activities. And even if the corporate lawyer's aim is not the understand all of the law's
effects on corporate activities, he must, at the very least, also gain a working knowledge of the
management issues if only to be able to grasp not only the basic legal "constitution' or makeup of
the modem corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more than a passing
knowledge of financial law affecting each aspect of their work. Yet, many would admit to
ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of
professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign
understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of
Chairman of the COMELEC in a letter received by the Secretariat of the Commission on
Appointments on April 25, 1991. Petitioner opposed the nomination because allegedly Monsod
does not possess the required qualification of having been engaged in the practice of law for at
least ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as
Chairman of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he
assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of Monsod's
nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and
Prohibition praying that said confirmation and the consequent appointment of Monsod as
Chairman of the Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of
1960 with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the
Philippines since its inception in 1972-73. He has also been paying his professional license fees
as lawyer for more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod
worked in the law office of his father. During his stint in the World Bank Group (1963-
1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama,
which involved getting acquainted with the laws of member-countries negotiating loans and
coordinating legal, economic, and project work of the Bank. Upon returning to the Philippines in
1970, he worked with the Meralco Group, served as chief executive officer of an investment bank
and subsequently of a business conglomerate, and since 1986, has rendered services to various
companies as a legal and economic consultant or chief executive officer. As former Secretary-
General (1986) and National Chairman (1987) of NAMFREL. Monsod's work involved being
knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings before
the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-
Chairman of the Bishops Businessmen's Conference for Human Development, has worked with
the under privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying
for and engaging in affirmative action for the agrarian reform law and lately the urban land
reform bill. Monsod also made use of his legal knowledge as a member of the Davide
Commission, a quast judicial body, which conducted numerous hearings (1990) and as a member
of the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability
of Public Officers, for which he was cited by the President of the Commission, Justice Cecilia
Muoz-Palma for "innumerable amendments to reconcile government functions with individual
freedoms and public accountability and the party-list system for the House of Representative. (pp.
128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately
constituted to meet the various contingencies that arise during a negotiation. Besides top officials
of the Borrower concerned, there are the legal officer (such as the legal counsel), the finance
manager, and an operations officer (such as an official involved in negotiating the contracts) who
comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for
Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila,
1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as
the loan transaction is concerned. Thus, the meat of any Loan Agreement can be
compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's
representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring program. For aside
from performing the tasks of legislative drafting and legal advising, they score national
development policies as key factors in maintaining their countries' sovereignty. (Condensed from
the work paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by
L. Michael Hager, regional legal adviser of the United States Agency for International
Development, during the Session on Law for the Development of Nations at the Abidjan World
Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31,
1973). ( Emphasis supplied)
Loan concessions and compromises, perhaps even more so than purely renegotiation policies,
demand expertise in the law of contracts, in legislation and agreement drafting and in
renegotiation. Necessarily, a sovereign lawyer may work with an international business specialist
or an economist in the formulation of a model loan agreement. Debt restructuring contract
agreements contain such a mixture of technical language that they should be carefully drafted and
signed only with the advise of competent counsel in conjunction with the guidance of adequate
technical support personnel. (See International Law Aspects of the Philippine External Debts, an
unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is the set of terms and
conditions which determines the contractual remedies for a failure to perform one or more
elements of the contract. A good agreement must not only define the responsibilities of both
parties, but must also state the recourse open to either party when the other fails to discharge an
obligation. For a compleat debt restructuring represents a devotion to that principle which in the
ultimate analysis is sine qua non for foreign loan agreements-an adherence to the rule of law in
domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell
Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men learn
that bustle and bush are not the equal of quiet genius and serene mastery." (See Ricardo J.
Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal,
Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law". particularly the
modern concept of law practice, and taking into consideration the liberal construction intended
by the framers of the Constitution, Atty. Monsod's past work experiences as a lawyer-economist,
a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a
lawyer-legislator of both the rich and the poor verily more than satisfy the constitutional
requirement that he has been engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:
Appointment is an essentially discretionary power and must be performed by the officer in which
it is vested according to his best lights, the only condition being that the appointee should possess
the qualifications required by law. If he does, then the appointment cannot be faulted on the
ground that there are others better qualified who should have been preferred. This is a political
question involving considerations of wisdom which only the appointing authority can decide.
(emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171
SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all the other legal
requirements are satisfied, the Commission has no alternative but to attest to the appointment in
accordance with the Civil Service Law. The Commission has no authority to revoke an
appointment on the ground that another person is more qualified for a particular position. It also
has no authority to direct the appointment of a substitute of its choice. To do so would be an
encroachment on the discretion vested upon the appointing authority. An appointment is
essentially within the discretionary power of whomsoever it is vested, subject to the only
condition that the appointee should possess the qualifications required by law. ( Emphasis
supplied)
The appointing process in a regular appointment as in the case at bar, consists of four (4) stages:
(1) nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a
commission (in the Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent appointment; and (4) acceptance
e.g., oath-taking, posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949;
Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the nomination of Monsod
as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article
IX of the Constitution which provides:
The Chairman and the Commisioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the
last Members for three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the
practice of law is the traditional or stereotyped notion of law practice, as distinguished from the
modern concept of the practice of law, which modern connotation is exactly what was intended
by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would
require generally a habitual law practice, perhaps practised two or three times a week and would
outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from
the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written
opinion, I made use of a definition of law practice which really means nothing because the
definition says that law practice " . . . is what people ordinarily mean by the practice of law." True
I cited the definition but only by way of sarcasm as evident from my statement that the definition
of law practice by "traditional areas of law practice is essentially tautologous" or defining a
phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all situations, most
individuals, in making use of the law, or in advising others on what the law means, are actually
practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod
is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This
is different from the acts of persons practising law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected President of the
Philippines, say, on the ground that he lacks one or more qualifications. This matter, I greatly
doubt. For one thing, how can an action or petition be brought against the President? And even
assuming that he is indeed disqualified, how can the action be entertained since he is the
incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings on Monsod's
confirmation, implicitly determined that he possessed the necessary qualifications as required by
law. The judgment rendered by the Commission in the exercise of such an acknowledged power
is beyond judicial interference except only upon a clear showing of a grave abuse of discretion
amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where
such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's
judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power,
since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of
jurisdiction and would warrant the issuance of the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme
Court reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is
in the negative.
(2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed?
The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides
to confirm a Presidential nominee, it would be incredible that the U.S. Supreme Court would
still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah
(who was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod
burning white-hot two or three inches away from in front of Samson's eyes. This blinded the man.
Upon hearing of what had happened to her beloved, Delilah was beside herself with anger, and
fuming with righteous fury, accused the procurator of reneging on his word. The procurator
calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The
procurator was clearly relying on the letter, not the spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it
does not appear to me that there has been an adequate showing that the challenged determination
by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of
the Commission on Elections should, on the basis of his stated qualifications and after due
assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of
discretion and consequently merits nullification by this Court in accordance with the second
paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on the Petition at bar, I
voted not only to require the respondents to comment on the Petition, but I was the sole vote for
the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the
position of COMELEC Chairman, while the Court deliberated on his constitutional qualification
for the office. My purpose in voting for a TRO was to prevent the inconvenience and even
embarrassment to all parties concerned were the Court to finally decide for respondent Monsod's
disqualification. Moreover, a reading of the Petition then in relation to established jurisprudence
already showed prima facie that respondent Monsod did not possess the needed qualification, that
is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as
COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the
constitutional requirement of "practice of law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because,
ultimately, the core issue to be resolved in this petition is the proper construal of the
constitutional provision requiring a majority of the membership of COMELEC, including the
Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art.
IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of constitutional
provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63
Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among
these are that he must have been "engaged in the practice of law for at least ten (10) years." It is
the bounden duty of this Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual
performance or application of knowledge as distinguished from mere possession of knowledge; it
connotes an active, habitual, repeated or customary action.1 To "practice" law, or any profession
for that matter, means, to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a
nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant who
works as a clerk, cannot be said to practice his profession as an accountant. In the same way, a
lawyer who is employed as a business executive or a corporate manager, other than as head or
attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be
in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva:2
Practice is more than an isolated appearance for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs-
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition
of statute has been interpreted as customarily or habitually holding one's self out to the public as a
lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.)
... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it
prepared, enumerated several factors determinative of whether a particular activity constitutes
"practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out
to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522,
98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for
the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office
as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it
of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva,
14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be in the active
and continued practice of the legal profession and that his professional services are available to
the public for compensation, as a service of his livelihood or in consideration of his said services.
(People v. Villanueva, supra). Hence, charging for services such as preparation of documents
involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Pao,
Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards
State Bank, 176 N.B. 901) and, one who renders an opinion as to the proper interpretation of a
statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing
Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all
advice to clients and all action taken for them in matters connected with the law; are practicing
law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for legal knowledge,
training and experience is within the term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of
lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires
knowledge of law but involves no attorney-client relationship, such as teaching law or writing
law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer
(Agpalo, Legal Ethics, 1989 ed., p. 30).3
The above-enumerated factors would, I believe, be useful aids in determining whether or not
respondent Monsod meets the constitutional qualification of practice of law for at least ten (10)
years at the time of his appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR
AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am
persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did
not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC
Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly
considered activities peculiar to the practice of law, like the drafting of legal documents and the
rendering of legal opinion or advice, such were isolated transactions or activities which do not
qualify his past endeavors as "practice of law." To become engaged in the practice of law, there
must be a continuity, or a succession of acts. As observed by the Solicitor General in People vs.
Villanueva:4
Essentially, the word private practice of law implies that one must have presented himself to be in
the activeand continued practice of the legal profession and that his professional services are
available to the public for a compensation, as a source of his livelihood or in consideration of his
said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not
qualified for the position of COMELEC Chairman for not having engaged in the practice of law
for at least ten (10) years prior to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the
same. There are certain points on which I must differ with him while of course respecting
hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent
simply because his nomination has been confirmed by the Commission on Appointments. In my
view, this is not a political question that we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established facts, not the discretion of that
body. Even if it were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing
authority to choosebetween two claimants to the same office who both possessed the required
qualifications. It was that kind of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of
the required qualifications, I see no reason why we cannot disqualified an appointee simply
because he has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate
proceeding notwithstanding that he has been found acceptable by no less than the enfranchised
citizenry. The reason is that what we would be examining is not the wisdom of his election but
whether or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have
been too sweeping in its definition of the phrase "practice of law" as to render the qualification
practically toothless. From the numerous activities accepted as embraced in the term, I have the
uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of
law as long as his activities involve the application of some law, however peripherally. The stock
broker and the insurance adjuster and the realtor could come under the definition as they deal
with or give advice on matters that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another
business and he interprets and applies some law only as an incident of such business. That covers
every company organized under the Corporation Code and regulated by the SEC under P.D. 902-
A. Considering the ramifications of the modern society, there is hardly any activity that is not
affected by some law or government regulation the businessman must know about and observe.
In fact, again going by the definition, a lawyer does not even have to be part of a business
concern to be considered a practitioner. He can be so deemed when, on his own, he rents a house
or buys a car or consults a doctor as these acts involve his knowledge and application of the laws
regulating such transactions. If he operates a public utility vehicle as his main source of
livelihood, he would still be deemed engaged in the practice of law because he must obey the
Public Service Act and the rules and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of
any acts ... in or out of court, commonly understood to be the practice of law," which tells us
absolutely nothing. The decision goes on to say that "because lawyers perform almost every
function known in the commercial and governmental realm, such a definition would obviously be
too global to be workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be
engaged in the practice of law even if he does not earn his living, or at least part of it, as a lawyer.
It is enough that his activities are incidentally (even if only remotely) connected with some law,
ordinance, or regulation. The possible exception is the lawyer whose income is derived from
teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has
been engaged in the practice of law for ten years as required by the Constitution. It is conceded
that he has been engaged in business and finance, in which areas he has distinguished himself, but
as an executive and economist and not as a practicing lawyer. The plain fact is that he has
occupied the various positions listed in his resume by virtue of his experience and prestige as a
businessman and not as an attorney-at-law whose principal attention is focused on the law. Even
if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian and urban
reform, served in the NAMFREL and the Constitutional Commission (together with non-lawyers
like farmers and priests) and was a member of the Davide Commission, he has not proved that his
activities in these capacities extended over the prescribed 10-year period of actual practice of the
law. He is doubtless eminently qualified for many other positions worthy of his abundant talents
but not as Chairman of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must
regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a qualification
for public office would be settled one way or another in fairly definitive terms. Unfortunately,
this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the
practice of law (with one of these 5 leaving his vote behind while on official leave but not
expressing his clear stand on the matter); 4 categorically stating that he did not practice law; 2
voting in the result because there was no error so gross as to amount to grave abuse of discretion;
one of official leave with no instructions left behind on how he viewed the issue; and 2 not taking
part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the work of a
constitutional Commission on Appointments whose duty is precisely to look into the
qualifications of persons appointed to high office. Even if the Commission errs, we have no
power to set aside error. We can look only into grave abuse of discretion or whimsically and
arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms of
executive ability, proficiency in management, educational background, experience in
international banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is compliance with a specific
requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never
engaged in the practice of law for even one year. He is a member of the bar but to say that he has
practiced law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if
he has not engaged in an activity where membership in the bar is a requirement I fail to see how
he can claim to have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for
appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we
have if there main occupation is selling real estate, managing a business corporation, serving in
fact-finding committee, working in media, or operating a farm with no active involvement in the
law, whether in Government or private practice, except that in one joyful moment in the distant
past, they happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The
deliberate choice of words shows that the practice envisioned is active and regular, not isolated,
occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in
an activity for ten years requires committed participation in something which is the result of one's
decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or
pledged to carry it out with intent and attention during the ten-year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the
Commission on Appointments, the latter has not been engaged in the practice of law for at least
ten years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one
year period after passing the bar examinations when he worked in his father's law firm. Even then
his law practice must have been extremely limited because he was also working for M.A. and Ph.
D. degrees in Economics at the University of Pennsylvania during that period. How could he
practice law in the United States while not a member of the Bar there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of
the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin
American Department; Division Chief, South Asia and Middle East, International Finance
Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities
Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated
companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has
given the lawenough attention or a certain degree of commitment and participation as would
support in all sincerity and candor the claim of having engaged in its practice for at least ten
years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the oneadvice and those services as an
executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in
the practice of law" with the use of legal knowledge in various fields of endeavor such as
commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such
knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman
accepts as having a familiar and customary well-defined meaning. Every resident of this country
who has reached the age of discernment has to know, follow, or apply the law at various times in
his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor,
barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name
only a few. And yet, can these people honestly assert that as such, they are engaged in the
practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It is
not satisfied with having been "a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation but also
services rendered out of court, and it includes the giving of advice or the rendering of any
services requiring the use of legal skill or knowledge, such as preparing a will, contract or other
instrument, the legal effect of which, under the facts and conditions involved, must be carefully
determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex
rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and
cases cited.
It would be difficult, if not impossible to lay down a formula or definition of what constitutes the
practice of law. "Practicing law" has been defined as "Practicing as an attorney or counselor at
law according to the laws and customs of our courts, is the giving of advice or rendition of any
sort of service by any person, firm or corporation when the giving of such advice or rendition of
such service requires the use of any degree of legal knowledge or skill." Without adopting that
definition, we referred to it as being substantially correct in People ex rel. Illinois State Bar Ass'n
v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d
773, 776)
For one's actions to come within the purview of practice of law they should not only be activities
peculiar to the work of a lawyer, they should also be performed, habitually, frequently or
customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He was asked whether
or not he ever prepared contracts for the parties in real-estate transactions where he was not the
procuring agent. He answered: "Very seldom." In answer to the question as to how many times he
had prepared contracts for the parties during the twenty-one years of his business, he said: "I have
no Idea." When asked if it would be more than half a dozen times his answer was I suppose.
Asked if he did not recall making the statement to several parties that he had prepared contracts in
a large number of instances, he answered: "I don't recall exactly what was said." When asked if
he did not remember saying that he had made a practice of preparing deeds, mortgages and
contracts and charging a fee to the parties therefor in instances where he was not the broker in the
deal, he answered: "Well, I don't believe so, that is not a practice." Pressed further for an answer
as to his practice in preparing contracts and deeds for parties where he was not the broker, he
finally answered: "I have done about everything that is on the books as far as real estate is
concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a lawful right to do
any legal work in connection with real-estate transactions, especially in drawing of real-estate
contracts, deeds, mortgages, notes and the like. There is no doubt but that he has engaged in these
practices over the years and has charged for his services in that connection. ... (People v. Schafer,
87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed by another to act in
his stead; an agent; more especially, one of a class of persons authorized to appear and act for
suitors or defendants in legal proceedings. Strictly, these professional persons are attorneys at
law, and non-professional agents are properly styled "attorney's in fact;" but the single word is
much used as meaning an attorney at law. A person may be an attorney in facto for another,
without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at
law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend
actions in such court on the retainer of clients. "The principal duties of an attorney are (1) to be
true to the court and to his client; (2) to manage the business of his client with care, skill, and
integrity; (3) to keep his client informed as to the state of his business; (4) to keep his secrets
confided to him as such. ... His rights are to be justly compensated for his services." Bouv. Law
Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or
perform frequently, customarily, or habitually; to perform by a succession of acts, as, to practice
gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to
exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan,
S.E. 522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of
acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State v.
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition
of statute has been interpreted as customarily or habitually holding one's self out to the public, as
a lawyer and demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required
component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to
the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98
N.C. 644) such as when one sends a circular announcing the establishment of a law office for the
general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as
a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of
his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva,
14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited from his legal
knowledge, the use of such legal knowledge is incidental and consists of isolated activities which
do not fall under the denomination of practice of law. Admission to the practice of law was not
required for membership in the Constitutional Commission or in the Fact-Finding Commission on
the 1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr.
Monsod while a member may be likened to isolated transactions of foreign corporations in the
Philippines which do not categorize the foreign corporations as doing business in the Philippines.
As in the practice of law, doing business also should be active and continuous. Isolated business
transactions or occasional, incidental and casual transactions are not within the context of doing
business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143
SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional
Commission may possess the background, competence, integrity, and dedication, to qualify for
such high offices as President, Vice-President, Senator, Congressman or Governor but the
Constitution in prescribing the specific qualification of having engaged in the practice of law for
at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be
confirmed for that office. The Constitution charges the public respondents no less than this Court
to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of discretion
in confirming the nomination of respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent
Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it
does not appear to me that there has been an adequate showing that the challenged determination
by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of
the Commission on Elections should, on the basis of his stated qualifications and after due
assessment thereof, be confirmed-was attended by error so gross as to amount to grave abuse of
discretion and consequently merits nullification by this Court in accordance with the second
paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition.
Melencio-Herrera, J., concur.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on the Petition at bar, I
voted not only to require the respondents to comment on the Petition, but I was the sole vote for
the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the
position of COMELEC Chairman, while the Court deliberated on his constitutional qualification
for the office. My purpose in voting for a TRO was to prevent the inconvenience and even
embarrassment to all parties concerned were the Court to finally decide for respondent Monsod's
disqualification. Moreover, a reading of the Petition then in relation to established jurisprudence
already showed prima facie that respondent Monsod did not possess the needed qualification, that
is, he had not engaged in the practice of law for at least ten (10) years prior to his appointment as
COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the
constitutional requirement of "practice of law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because,
ultimately, the core issue to be resolved in this petition is the proper construal of the
constitutional provision requiring a majority of the membership of COMELEC, including the
Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art.
IX(C), Section 1(1), 1987 Constitution). Questions involving the construction of constitutional
provisions are best left to judicial resolution. As declared in Angara v. Electoral Commission, (63
Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of
interpreting the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among
these are that he must have been "engaged in the practice of law for at least ten (10) years." It is
the bounden duty of this Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual
performance or application of knowledge as distinguished from mere possession of knowledge; it
connotes an active, habitual, repeated or customary action.1 To "practice" law, or any profession
for that matter, means, to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a
nursing aide, cannot be said to be in the "practice of medicine." A certified public accountant who
works as a clerk, cannot be said to practice his profession as an accountant. In the same way, a
lawyer who is employed as a business executive or a corporate manager, other than as head or
attorney of a Legal Department of a corporation or a governmental agency, cannot be said to be
in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva:2
Practice is more than an isolated appearance for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs-
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition
of statute has been interpreted as customarily or habitually holding one's self out to the public as a
lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.)
... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it
prepared, enumerated several factors determinative of whether a particular activity constitutes
"practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out
to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522,
98 N.C. 644) such as when one sends a circular announcing the establishment of a law office for
the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one takes the oath of office
as a lawyer before a notary public, and files a manifestation with the Supreme Court informing it
of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva,
14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be in the active
and continued practice of the legal profession and that his professional services are available to
the public for compensation, as a service of his livelihood or in consideration of his said services.
(People v. Villanueva, supra). Hence, charging for services such as preparation of documents
involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Pao,
Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards
State Bank, 176 N.B. 901) and, one who renders an opinion as to the proper interpretation of a
statute, and receives pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing
Mendelaun v. Gilbert and Barket Mfg. Co., 290 N.Y.S. 462) If compensation is expected, all
advice to clients and all action taken for them in matters connected with the law; are practicing
law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for legal knowledge,
training and experience is within the term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of
lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires
knowledge of law but involves no attorney-client relationship, such as teaching law or writing
law books or articles, he cannot be said to be engaged in the practice of his profession or a lawyer
(Agpalo, Legal Ethics, 1989 ed., p. 30).3
The above-enumerated factors would, I believe, be useful aids in determining whether or not
respondent Monsod meets the constitutional qualification of practice of law for at least ten (10)
years at the time of his appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR
AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am
persuaded that if ever he did perform any of the tasks which constitute the practice of law, he did
not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC
Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly
considered activities peculiar to the practice of law, like the drafting of legal documents and the
rendering of legal opinion or advice, such were isolated transactions or activities which do not
qualify his past endeavors as "practice of law." To become engaged in the practice of law, there
must be a continuity, or a succession of acts. As observed by the Solicitor General in People vs.
Villanueva:4
Essentially, the word private practice of law implies that one must have presented himself to be in
the activeand continued practice of the legal profession and that his professional services are
available to the public for a compensation, as a source of his livelihood or in consideration of his
said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not
qualified for the position of COMELEC Chairman for not having engaged in the practice of law
for at least ten (10) years prior to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the
same. There are certain points on which I must differ with him while of course respecting
hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent
simply because his nomination has been confirmed by the Commission on Appointments. In my
view, this is not a political question that we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established facts, not the discretion of that
body. Even if it were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing
authority to choosebetween two claimants to the same office who both possessed the required
qualifications. It was that kind of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of
the required qualifications, I see no reason why we cannot disqualified an appointee simply
because he has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate
proceeding notwithstanding that he has been found acceptable by no less than the enfranchised
citizenry. The reason is that what we would be examining is not the wisdom of his election but
whether or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have
been too sweeping in its definition of the phrase "practice of law" as to render the qualification
practically toothless. From the numerous activities accepted as embraced in the term, I have the
uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of
law as long as his activities involve the application of some law, however peripherally. The stock
broker and the insurance adjuster and the realtor could come under the definition as they deal
with or give advice on matters that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another
business and he interprets and applies some law only as an incident of such business. That covers
every company organized under the Corporation Code and regulated by the SEC under P.D. 902-
A. Considering the ramifications of the modern society, there is hardly any activity that is not
affected by some law or government regulation the businessman must know about and observe.
In fact, again going by the definition, a lawyer does not even have to be part of a business
concern to be considered a practitioner. He can be so deemed when, on his own, he rents a house
or buys a car or consults a doctor as these acts involve his knowledge and application of the laws
regulating such transactions. If he operates a public utility vehicle as his main source of
livelihood, he would still be deemed engaged in the practice of law because he must obey the
Public Service Act and the rules and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of
any acts . . . in or out of court, commonly understood to be the practice of law," which tells us
absolutely nothing. The decision goes on to say that "because lawyers perform almost every
function known in the commercial and governmental realm, such a definition would obviously be
too global to be workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be
engaged in the practice of law even if he does not earn his living, or at least part of it, as a lawyer.
It is enough that his activities are incidentally (even if only remotely) connected with some law,
ordinance, or regulation. The possible exception is the lawyer whose income is derived from
teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has
been engaged in the practice of law for ten years as required by the Constitution. It is conceded
that he has been engaged in business and finance, in which areas he has distinguished himself, but
as an executive and economist and not as a practicing lawyer. The plain fact is that he has
occupied the various positions listed in his resume by virtue of his experience and prestige as a
businessman and not as an attorney-at-law whose principal attention is focused on the law. Even
if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian and urban
reform, served in the NAMFREL and the Constitutional Commission (together with non-lawyers
like farmers and priests) and was a member of the Davide Commission, he has not proved that his
activities in these capacities extended over the prescribed 10-year period of actual practice of the
law. He is doubtless eminently qualified for many other positions worthy of his abundant talents
but not as Chairman of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must
regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a qualification
for public office would be settled one way or another in fairly definitive terms. Unfortunately,
this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the
practice of law (with one of these 5 leaving his vote behind while on official leave but not
expressing his clear stand on the matter); 4 categorically stating that he did not practice law; 2
voting in the result because there was no error so gross as to amount to grave abuse of discretion;
one of official leave with no instructions left behind on how he viewed the issue; and 2 not taking
part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the work of a
constitutional Commission on Appointments whose duty is precisely to look into the
qualifications of persons appointed to high office. Even if the Commission errs, we have no
power to set aside error. We can look only into grave abuse of discretion or whimsically and
arbitrariness. Second is our belief that Mr. Monsod possesses superior qualifications in terms of
executive ability, proficiency in management, educational background, experience in
international banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is compliance with a specific
requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never
engaged in the practice of law for even one year. He is a member of the bar but to say that he has
practiced law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if
he has not engaged in an activity where membership in the bar is a requirement I fail to see how
he can claim to have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for
appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we
have if there main occupation is selling real estate, managing a business corporation, serving in
fact-finding committee, working in media, or operating a farm with no active involvement in the
law, whether in Government or private practice, except that in one joyful moment in the distant
past, they happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The
deliberate choice of words shows that the practice envisioned is active and regular, not isolated,
occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in
an activity for ten years requires committed participation in something which is the result of one's
decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or
pledged to carry it out with intent and attention during the ten-year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the
Commission on Appointments, the latter has not been engaged in the practice of law for at least
ten years. In fact, if appears that Mr. Monsod has never practiced law except for an alleged one
year period after passing the bar examinations when he worked in his father's law firm. Even then
his law practice must have been extremely limited because he was also working for M.A. and Ph.
D. degrees in Economics at the University of Pennsylvania during that period. How could he
practice law in the United States while not a member of the Bar there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of
the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin
American Department; Division Chief, South Asia and Middle East, International Finance
Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities
Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated
companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has
given the lawenough attention or a certain degree of commitment and participation as would
support in all sincerity and candor the claim of having engaged in its practice for at least ten
years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the oneadvice and those services as an
executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in
the practice of law" with the use of legal knowledge in various fields of endeavor such as
commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc. where such
knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman
accepts as having a familiar and customary well-defined meaning. Every resident of this country
who has reached the age of discernment has to know, follow, or apply the law at various times in
his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor,
barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name
only a few. And yet, can these people honestly assert that as such, they are engaged in the
practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It is
not satisfied with having been "a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation but also
services rendered out of court, and it includes the giving of advice or the rendering of any
services requiring the use of legal skill or knowledge, such as preparing a will, contract or other
instrument, the legal effect of which, under the facts and conditions involved, must be carefully
determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d 693; People ex
rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and
cases cited.
It would be difficult, if not impossible to lay down a formula or definition of what constitutes the
practice of law. "Practicing law" has been defined as "Practicing as an attorney or counselor at
law according to the laws and customs of our courts, is the giving of advice or rendition of any
sort of service by any person, firm or corporation when the giving of such advice or rendition of
such service requires the use of any degree of legal knowledge or skill." Without adopting that
definition, we referred to it as being substantially correct in People ex rel. Illinois State Bar Ass'n
v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d
773, 776)
For one's actions to come within the purview of practice of law they should not only be activities
peculiar to the work of a lawyer, they should also be performed, habitually, frequently or
customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He was asked whether
or not he ever prepared contracts for the parties in real-estate transactions where he was not the
procuring agent. He answered: "Very seldom." In answer to the question as to how many times he
had prepared contracts for the parties during the twenty-one years of his business, he said: "I have
no Idea." When asked if it would be more than half a dozen times his answer was I suppose.
Asked if he did not recall making the statement to several parties that he had prepared contracts in
a large number of instances, he answered: "I don't recall exactly what was said." When asked if
he did not remember saying that he had made a practice of preparing deeds, mortgages and
contracts and charging a fee to the parties therefor in instances where he was not the broker in the
deal, he answered: "Well, I don't believe so, that is not a practice." Pressed further for an answer
as to his practice in preparing contracts and deeds for parties where he was not the broker, he
finally answered: "I have done about everything that is on the books as far as real estate is
concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a lawful right to do
any legal work in connection with real-estate transactions, especially in drawing of real-estate
contracts, deeds, mortgages, notes and the like. There is no doubt but that he has engaged in these
practices over the years and has charged for his services in that connection. ... (People v. Schafer,
87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed by another to act in
his stead; an agent; more especially, one of a class of persons authorized to appear and act for
suitors or defendants in legal proceedings. Strictly, these professional persons are attorneys at
law, and non-professional agents are properly styled "attorney's in fact;" but the single word is
much used as meaning an attorney at law. A person may be an attorney in facto for another,
without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney at confirmed for that office. The Constitution charges the public respondents no less than this Court
law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend to obey its mandate.
actions in such court on the retainer of clients. "The principal duties of an attorney are (1) to be
true to the court and to his client; (2) to manage the business of his client with care, skill, and I, therefore, believe that the Commission on Appointments committed grave abuse of discretion
integrity; (3) to keep his client informed as to the state of his business; (4) to keep his secrets in confirming the nomination of respondent Monsod as Chairman of the COMELEC.
confided to him as such. ... His rights are to be justly compensated for his services." Bouv. Law I vote to GRANT the petition.
Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or
perform frequently, customarily, or habitually; to perform by a succession of acts, as, to practice Bidin, J., dissent
gaming, ... to carry on in practice, or repeated action; to apply, as a theory, to real life; to
exercise, as a profession, trade, art. etc.; as, to practice law or medicine,' etc...." (State v. Bryan,
S.E. 522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of
acts. Thus, we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State v.
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition
of statute has been interpreted as customarily or habitually holding one's self out to the public, as
a lawyer and demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required
component of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to
the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98
N.C. 644) such as when one sends a circular announcing the establishment of a law office for the
general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one takes the oath of office as
a lawyer before a notary public, and files a manifestation with the Supreme Court informing it of
his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is a habitual exercise (People v. Villanueva,
14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited from his legal
knowledge, the use of such legal knowledge is incidental and consists of isolated activities which
do not fall under the denomination of practice of law. Admission to the practice of law was not
required for membership in the Constitutional Commission or in the Fact-Finding Commission on
the 1989 Coup Attempt. Any specific legal activities which may have been assigned to Mr.
Monsod while a member may be likened to isolated transactions of foreign corporations in the
Philippines which do not categorize the foreign corporations as doing business in the Philippines.
As in the practice of law, doing business also should be active and continuous. Isolated business
transactions or occasional, incidental and casual transactions are not within the context of doing
business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143
SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional
Commission may possess the background, competence, integrity, and dedication, to qualify for
such high offices as President, Vice-President, Senator, Congressman or Governor but the
Constitution in prescribing the specific qualification of having engaged in the practice of law for
at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be
 At this point, we would like to reiterate what we said in the case of Philippine Education
Co. vs. CIR and the Union of Philippine Education Co., Employees (NUL) (92 Phil., 381; 48 Off.
G.R. No. L-13667 April 29, 1960 Gaz., 5278)
PRIMITIVO ANSAY, ETC., ET AL., plaintiffs-appellants, xxx xxx xxx
vs.
THE BOARD OF DIRECTORS OF THE NATIONAL DEVELOPMENT COMPANY, ET From the legal point of view a bonus is not a demandable and enforceable obligation. It is so
AL., defendants-appellees. when it is made a part of the wage or salary compensation.
Celso A. Fernandez for appellants. And while it is true that the subsequent case of H. E. Heacock vs. National Labor Union, et al., 95
Juan C. Jimenez, for appellees. Phil., 553; 50 Off. Gaz., 4253, we stated that:
PARAS, C. J.: Even if a bonus is not demandable for not forming part of the wage, salary or compensation of an
employee, the same may nevertheless, be granted on equitable consideration as when it was given
On July 25, 1956, appellants filed against appellees in the Court of First Instance of Manila a in the past, though withheld in succeeding two years from low salaried employees due to salary
complaint praying for a 20% Christmas bonus for the years 1954 and 1955. The court a quo on increases.
appellees' motion to dismiss, issued the following order:
still the facts in said Heacock case are not the same as in the instant one, and hence the ruling
Considering the motion to dismiss filed on 15 August, 1956, set for this morning; considering that applied in said case cannot be considered in the present action.
at the hearing thereof, only respondents appeared thru counsel and there was no appearance for
the plaintiffs although the court waited for sometime for them; considering, however, that Premises considered, the order appealed from is hereby affirmed, without pronouncement as to
petitioners have submitted an opposition which the court will consider together with the costs.
arguments presented by respondents and the Exhibits marked and presented, namely, Exhibits 1
to 5, at the hearing of the motion to dismiss; considering that the action in brief is one to compel Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia Barrera and
respondents to declare a Christmas bonus for petitioners workers in the National Development Gutierrez David, JJ.,concur.
Company; considering that the Court does not see how petitioners may have a cause of action to
secure such bonus because:
(a) A bonus is an act of liberality and the court takes it that it is not within its judicial powers to
command respondents to be liberal;
(b) Petitioners admit that respondents are not under legal duty to give such bonus but that they
had only ask that such bonus be given to them because it is a moral obligation of respondents to
give that but as this Court understands, it has no power to compel a party to comply with a moral
obligation (Art. 142, New Civil Code.).
IN VIEW WHEREOF, dismissed. No pronouncement as to costs.
A motion for reconsideration of the afore-quoted order was denied. Hence this appeal.
Appellants contend that there exists a cause of action in their complaint because their claim rests
on moral grounds or what in brief is defined by law as a natural obligation.
Since appellants admit that appellees are not under legal obligation to give such claimed bonus;
that the grant arises only from a moral obligation or the natural obligation that they discussed in
their brief, this Court feels it urgent to reproduce at this point, the definition and meaning of
natural obligation.
Article 1423 of the New Civil Code classifies obligations into civil or natural. "Civil obligations
are a right of action to compel their performance. Natural obligations, not being based on positive
law but on equity and natural law, do not grant a right of action to enforce their performance, but
after voluntary fulfillment by the obligor, they authorize the retention of what has been delivered
or rendered by reason thereof".
It is thus readily seen that an element of natural obligation before it can be cognizable by the
court is voluntary fulfillment by the obligor. Certainly retention can be ordered but only after
there has been voluntary performance. But here there has been no voluntary performance. In fact,
the court cannot order the performance.
G.R. No. L-48889 May 11, 1989
DEVELOPMENT BANK OF THE PHILIPPINES (DBP), petitioner,
vs.
THE HONORABLE MIDPAINTAO L. ADIL, Judge of the Second Branch of the Court of
First Instance of Iloilo and SPOUSES PATRICIO CONFESOR and JOVITA
VILLAFUERTE, respondents.
GANCAYCO, J.:
The issue posed in this petition for review on certiorari is the validity of a promissory note which
was executed in consideration of a previous promissory note the enforcement of which had been
barred by prescription.
On February 10, 1940 spouses Patricio Confesor and Jovita Villafuerte obtained an agricultural
loan from the Agricultural and Industrial Bank (AIB), now the Development of the Philippines
(DBP), in the sum of P2,000.00, Philippine Currency, as evidenced by a promissory note of said
date whereby they bound themselves jointly and severally to pay the account in ten (10) equal
yearly amortizations. As the obligation remained outstanding and unpaid even after the lapse of
the aforesaid ten-year period, Confesor, who was by then a member of the Congress of the
Philippines, executed a second promissory note on April 11, 1961 expressly acknowledging said
loan and promising to pay the same on or before June 15, 1961. The new promissory note reads
as follows
I hereby promise to pay the amount covered by my promissory note on or before June 15, 1961.
Upon my failure to do so, I hereby agree to the foreclosure of my mortgage. It is understood that
if I can secure a certificate of indebtedness from the government of my back pay I will be allowed
to pay the amount out of it.
Said spouses not having paid the obligation on the specified date, the DBP filed a complaint dated
September 11, 1970 in the City Court of Iloilo City against the spouses for the payment of the
loan.
After trial on the merits a decision was rendered by the inferior court on December 27, 1976, the
dispositive part of which reads as follows:
WHEREFORE, premises considered, this Court renders judgment, ordering the defendants
Patricio Confesor and Jovita Villafuerte Confesor to pay the plaintiff Development Bank of the
Philippines, jointly and severally, (a) the sum of P5,760.96 plus additional daily interest of P l.04
from September 17, 1970, the date Complaint was filed, until said amount is paid; (b) the sum of
P576.00 equivalent to ten (10%) of the total claim by way of attorney's fees and incidental
expenses plus interest at the legal rate as of September 17,1970, until fully paid; and (c) the costs
of the suit.
Defendants-spouses appealed therefrom to the Court of First Instance of Iloilo wherein in due
course a decision was rendered on April 28, 1978 reversing the appealed decision and dismissing
the complaint and counter-claim with costs against the plaintiff.
A motion for reconsideration of said decision filed by plaintiff was denied in an order of August
10, 1978. Hence this petition wherein petitioner alleges that the decision of respondent judge is
contrary to law and runs counter to decisions of this Court when respondent judge (a) refused to
recognize the law that the right to prescription may be renounced or waived; and (b) that in
signing the second promissory note respondent Patricio Confesor can bind the conjugal
partnership; or otherwise said respondent became liable in his personal capacity. The petition is
impressed with merit. The right to prescription may be waived or renounced. Article 1112 of
Civil Code provides:
Art. 1112. Persons with capacity to alienate property may renounce prescription already obtained,
but not the right to prescribe in the future.
Prescription is deemed to have been tacitly renounced when the renunciation results from acts
which imply the abandonment of the right acquired.
There is no doubt that prescription has set in as to the first promissory note of February 10, 1940.
However, when respondent Confesor executed the second promissory note on April 11, 1961
whereby he promised to pay the amount covered by the previous promissory note on or before
June 15, 1961, and upon failure to do so, agreed to the foreclosure of the mortgage, said
respondent thereby effectively and expressly renounced and waived his right to the prescription
of the action covering the first promissory note.
This Court had ruled in a similar case that
... when a debt is already barred by prescription, it cannot be enforced by the creditor. But a new
contract recognizing and assuming the prescribed debt would be valid and enforceable ... . 1
Thus, it has been held
Where, therefore, a party acknowledges the correctness of a debt and promises to pay it after the
same has prescribed and with full knowledge of the prescription he thereby waives the benefit of
prescription. 2
This is not a mere case of acknowledgment of a debt that has prescribed but a new promise to pay
the debt. The consideration of the new promissory note is the pre-existing obligation under the
first promissory note. The statutory limitation bars the remedy but does not discharge the debt.
A new express promise to pay a debt barred ... will take the case from the operation of the statute
of limitations as this proceeds upon the ground that as a statutory limitation merely bars the
remedy and does not discharge the debt, there is something more than a mere moral obligation to
support a promise, to wit a pre-existing debt which is a sufficient consideration for the new the
new promise; upon this sufficient consideration constitutes, in fact, a new cause of action. 3
... It is this new promise, either made in express terms or deduced from an acknowledgement as a
legal implication, which is to be regarded as reanimating the old promise, or as imparting vitality
to the remedy (which by lapse of time had become extinct) and thus enabling the creditor to
recover upon his original contract. 4
However, the court a quo held that in signing the promissory note alone, respondent Confesor
cannot thereby bind his wife, respondent Jovita Villafuerte, citing Article 166 of the New Civil
Code which provides:
Art. 166. Unless the wife has been declared a non compos mentis or a spend thrift, or is under
civil interdiction or is confined in a leprosarium, the husband cannot alienate or encumber any
real property of the conjugal partnership without, the wife's consent. If she ay compel her to
refuses unreasonably to give her consent, the court m grant the same.
We disagree. Under Article 165 of the Civil Code, the husband is the administrator of the
conjugal partnership. As such administrator, all debts and obligations contracted by the husband
for the benefit of the conjugal partnership, are chargeable to the conjugal partnership. 5 No doubt,
in this case, respondent Confesor signed the second promissory note for the benefit of the
conjugal partnership. Hence the conjugal partnership is liable for this obligation.
WHEREFORE, the decision subject of the petition is reversed and set aside and another decision
is hereby rendered reinstating the decision of the City Court of Iloilo City of December 27, 1976,
without pronouncement as to costs in this instance. This decision is immediately executory and
no motion for extension of time to file motion for reconsideration shall be granted.
SO ORDERED.
Narvasa and Cruz, JJ., concur.
Grio-Aquino, J., took no part.