Bar Matter No.

553 June 17, 1993 It is the submission of petitioner that the advertisements above reproduced are
champterous, unethical, demeaning of the law profession, and destructive of the
MAURICIO C. ULEP, petitioner, confidence of the community in the integrity of the members of the bar and that, as a
vs. member of the legal profession, he is ashamed and offended by the said
THE LEGAL CLINIC, INC., respondent. advertisements, hence the reliefs sought in his petition as hereinbefore quoted.
R E SO L U T I O N 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
REGALADO, J.: modern computers and electronic machines. Respondent further argues that
Petitioner prays this Court "to order the respondent to cease and desist from issuing assuming that the services advertised are legal services, the act of advertising these
advertisements similar to or of the same tenor as that of annexes "A" and "B" (of services should be allowed supposedly
said petition) and to perpetually prohibit persons or entities from making in the light of the case of John R. Bates and Van O'Steen vs. State Bar of
advertisements pertaining to the exercise of the law profession other than those Arizona,2 reportedly decided by the United States Supreme Court on June 7, 1977.
allowed by law." Considering the critical implications on the legal profession of the issues raised
The advertisements complained of by herein petitioner are as follows: herein, we required the (1) Integrated Bar of the Philippines (IBP), (2) Philippine
Bar Association (PBA), (3) Philippine Lawyers' Association (PLA), (4) U.P.
Annex A Womens Lawyers' Circle (WILOCI), (5) Women Lawyers Association of the
Philippines (WLAP), and (6) Federacion International de Abogadas (FIDA) to
SECRET MARRIAGE?
submit their respective position papers on the controversy and, thereafter, their
P560.00 for a valid marriage.
memoranda. 3 The said bar associations readily responded and extended their
Info on DIVORCE. ABSENCE.
valuable services and cooperation of which this Court takes note with appreciation
ANNULMENT. VISA.
and gratitude.
THE Please call: 521-0767 LEGAL 5217232, 5222041 CLINIC,
The main issues posed for resolution before the Court are whether or not the services
INC. 8:30 am 6:00 pm 7-Flr. Victoria Bldg., UN Ave., Mla.
offered by respondent, The Legal Clinic, Inc., as advertised by it constitutes practice
Annex B of law and, in either case, whether the same can properly be the subject of the
advertisements herein complained of.
GUAM DIVORCE.
Before proceeding with an in-depth analysis of the merits of this case, we deem it
DON PARKINSON proper and enlightening to present hereunder excerpts from the respective position
an Attorney in Guam, is giving FREE BOOKS on Guam papers adopted by the aforementioned bar associations and the memoranda
Divorce through The Legal Clinic beginning Monday to Friday submitted by them on the issues involved in this bar matter.
during office hours. 1. Integrated Bar of the Philippines:
Guam divorce. Annulment of Marriage. Immigration Problems, xxx xxx xxx
Visa Ext. Quota/Non-quota Res. & Special Retiree's Visa.
Declaration of Absence. Remarriage to Filipina Fiancees. Notwithstanding the subtle manner by which respondent
Adoption. Investment in the Phil. US/Foreign Visa for Filipina endeavored to distinguish the two terms, i.e., "legal support
Spouse/Children. Call Marivic. services" vis-a-vis "legal services", common sense would readily
dictate that the same are essentially without substantial
THE 7F Victoria Bldg. 429 UN Ave., LEGAL Ermita, Manila distinction. For who could deny that document search, evidence
nr. US Embassy CLINIC, INC.1 Tel. 521-7232; 521-7251; 522- gathering, assistance to layman in need of basic institutional
2041; 521-0767 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 The remedy for the apparent breach of this prohibition by respondent is the concern
disciplinary rule in the Bates case contains a proviso that the exceptions stated and province of the Solicitor General who can institute the corresponding quo
therein are "not applicable in any state unless and until it is implemented by such warranto action, 50 after due ascertainment of the factual background and basis for
authority in that state." 46 This goes to show that an exception to the general rule, the grant of respondent's corporate charter, in light of the putative misuse thereof.
such as that being invoked by herein respondent, can be made only if and when the That spin-off from the instant bar matter is referred to the Solicitor General for such
canons expressly provide for such an exception. Otherwise, the prohibition stands, action as may be necessary under the circumstances.
as in the case at bar.
ACCORDINGLY, the Court Resolved to RESTRAIN and ENJOIN herein
It bears mention that in a survey conducted by the American Bar Association after respondent, The Legal Clinic, Inc., from issuing or causing the publication or
the decision in Bates, on the attitude of the public about lawyers after viewing dissemination of any advertisement in any form which is of the same or similar tenor
television commercials, it was found that public opinion dropped and purpose as Annexes "A" and "B" of this petition, and from conducting, directly
significantly 47 with respect to these characteristics of lawyers: 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
Trustworthy from 71% to 14% Integrated Bar of the Philippines, the Office of the Bar Confidant and the Office of
Professional from 71% to 14% the Solicitor General for appropriate action in accordance herewith.
Honest from 65% to 14%
Dignified from 45% to 14% Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Davide, Jr., Romero,
Nocon, Bellosillo, Melo and Quiason, JJ., concur
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.
 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
professors1 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
A.M. No. 10-10-4-SC March 8, 2011 the doing of any in court; nor shall he mislead, or allow the
Court to be misled by any artifice.
RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING
INTEGRITY: A STATEMENT BY THE FACULTY OF THE UNIVERSITY
 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 report15 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 women", waited for almost two decades for any meaningful relief from their own
allegedly on August 10, 201026 and at said colleges website.27 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.
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the No. 162230 (28 April 2010), they only had these hopes crushed by a singularly
University of the Philippines College of Law Faculty (UP Law faculty) to the Court, reprehensible act of dishonesty and misrepresentation by the Highest Court of the
through Chief Justice Renato C. Corona (Chief Justice Corona). The cover letter land.
dated August 10, 2010 of Dean Leonen read:
It is within this frame that the Faculty of the University of the Philippines College of
The Honorable Law views the charge that an Associate Justice of the Supreme Court committed
Supreme Court of the Republic of the Philippines plagiarism and misrepresentation in Vinuya v. Executive Secretary. The plagiarism
and misrepresentation are not only affronts to the individual scholars whose work
Through: Hon. Renato C. Corona have been appropriated without correct attribution, but also a serious threat to the
Chief Justice integrity and credibility of the Philippine Judicial System.
In common parlance, plagiarism is the appropriation and misrepresentation of
Subject: Statement of faculty another persons work as ones own. In the field of writing, it is cheating at best, and
from the UP College of Law stealing at worst. It constitutes a taking of someone elses ideas and expressions,
on the Plagiarism in the case of including all the effort and creativity that went into committing such ideas and
Vinuya v Executive Secretary 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
Your Honors: 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
We attach for your information and proper disposition a statement signed by thirty[- Supreme Court is to allow the production of laws by dishonest means. Evidently,
]eight (38)28members of the faculty of the UP College of Law. We hope that its this is a complete perversion and falsification of the ends of justice.
points could be considered by the Supreme Court en banc.
A comparison of the Vinuya decision and the original source material shows that the
Respectfully, ponente merely copied select portions of other legal writers works and interspersed
(Sgd.) them into the decision as if they were his own, original work. Under the
Marvic M.V.F. Leonen circumstances, however, because the Decision has been promulgated by the Court,
Dean and Professor of Law 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
(Emphases supplied.) the original writers names and the publications from which they came, the thing
The copy of the Statement attached to the above-quoted letter did not contain the speaks for itself.
actual signatures of the alleged signatories but only stated the names of 37 UP Law So far there have been unsatisfactory responses from the ponente of this case and the
professors with the notation (SGD.) appearing beside each name. For convenient spokesman of the Court.
reference, the text of the UP Law faculty Statement is reproduced here:
It is argued, for example, that the inclusion of the footnotes from the original articles
RESTORING INTEGRITY is a reference to the primary sources relied upon. This cursory explanation is not
A STATEMENT BY THE FACULTY OF acceptable, because the original authors writings and the effort they put into finding
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW and summarizing those primary sources are precisely the subject of plagiarism. The
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION inclusion of the footnotes together with portions of their writings in fact aggravates,
IN THE SUPREME COURT instead of mitigates, the plagiarism since it provides additional evidence of a
deliberate intention to appropriate the original authors work of organizing and
An extraordinary act of injustice has again been committed against the brave analyzing those primary sources.
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
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 includes ensuring that not only the content, but
also the processes of preparing and writing its 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 critical to improving the system of administration of justice in the
Philippines. It is also a very crucial step in ensuring the position of the Supreme
Court as the Final Arbiter of all controversies: a position that requires competence
and integrity completely above any and all 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 Philippine College of Law that:
(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;
(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;
(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;
(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 Vinuya
v. Executive Secretary to resign his position, without prejudice
to any other sanctions that the Court may consider appropriate;
(5) The Supreme Court must take this opportunity to review the
manner by which it conducts 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 highest quality of legal research and
writing in pleadings, practice, and adjudication. (SGD.) SOLOMON F.
(SGD.) THEODORE O. TE
LUMBA
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July Assistant Professor
Assistant Professor
2010.
(SGD.) MARVIC M.V.F. LEONEN
Dean and Professor of Law
(SGD.) FLORIN T. HILBAY (SGD.) ROMMEL J. CASIS
Assistant Professor Assistant Professor
(SGD.) FROILAN M. (SGD.) PACIFICO A.
BACUNGAN AGABIN
LECTURERS
Dean (1978-1983) Dean (1989-1995)
(SGD.) JOSE GERARDO A.
(SGD.) JOSE C. LAURETA
ALAMPAY
(SGD.) SALVADOR T.
(SGD.) MERLIN M. (SGD.) ARTHUR P. AUTEA (SGD.) DINA D. LUCENARIO
CARLOTA
MAGALLONA
Dean (2005-2008) and
Dean (1995-1999) (SGD.) ROSA MARIA J. BAUTISTA (SGD.) OWEN J. LYNCH
Professor of Law
(SGD.) MARK R. BOCOBO (SGD.) ANTONIO M. SANTOS
REGULAR FACULTY
(SGD.) DAN P. CALICA (SGD.) VICENTE V. MENDOZA

(SGD.) CARMELO V. (SGD.) JAY L. (SGD.) RODOLFO NOEL S.

(SGD.) TRISTAN A. CATINDIG
SISON BATONGBACAL QUIMBO
Professor Assistant Professor
(SGD.) SANDRA MARIE O. (SGD.) GMELEEN FAYE B.
CORONEL TOMBOC

(SGD.) PATRICIA R.P. (SGD.) ROSARIO O. GALLO (SGD.) NICHOLAS FELIX L. TY

(SGD.) EVELYN (LEO) D.
SALVADOR DAWAY
BATTAD (SGD.) CONCEPCION L.
Associate Dean and Associate (SGD.) EVALYN G. URSUA
Assistant Professor JARDELEZA
Professor
(SGD.) ANTONIO G.M. LA VIA (SGD.) RAUL T. VASQUEZ

(SGD.) DANTE B. (SGD.) SUSAN D. VILLANUEVA29

(SGD.) GWEN G. DE VERA (SGD.) CARINA C. LAFORTEZA
GATMAYTAN (Underscoring supplied.)
Assistant Professor
Associate Professor
Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made known
his sentiments on the alleged plagiarism issue to the Court.30 We quote Prof. Tams
letter here:
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 Court44 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.
Aparicio143 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 the Court and the administration of justice and warned that the same or
respective compliances or chosen not to make a full defense at this time, because similar act in the future shall be dealt with more severely.
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 (3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding
jurisprudential doctrines regarding the non-necessity of a hearing in disciplinary the charge of violation of Canon 10 is found UNSATISFACTORY. He is
cases. They should bear the consequence of the risk they have taken. 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
Thus, respondents requests for a hearing and for access to the records of, and observe full candor and honesty in his dealings with the Court and warned
evidence presented in, A.M. No. 10-7-17-SC should be denied for lack of merit. that the same or similar act in the future shall be dealt with more severely.
A final word (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
In a democracy, members of the legal community are hardly expected to have as a professor in a Philippine law school he should strive to be a model of
monolithic views on any subject, be it a legal, political or social issue. Even as responsible and professional conduct to his students even without the
lawyers passionately and vigorously propound their points of view they are bound threat of sanction from this Court.
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 (5) Finally, respondents requests for a hearing and for access to the
respect and courtesy that one lawyer owes to another under established ethical records of A.M. No. 10-7-17-SC are denied for lack of merit.
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 SO ORDERED.
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 G.R. No. 100113 September 3, 1991
Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Susan D. RENATO CAYETANO, petitioner,
Villanueva and Dina D. Lucenario, is found UNSATISFACTORY. These vs.
35 respondent law professors are reminded of their lawyerly duty, under CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
Canons 1, 11 and 13 of the Code of Professional Responsibility, to give APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as
due respect to the Court and to refrain from intemperate and offensive Secretary of Budget and Management, respondents.
language tending to influence the Court on pending matters or to denigrate
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.
Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.
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 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
G.R. No. L-13667 April 29, 1960
PRIMITIVO ANSAY, ETC., ET AL., plaintiffs-appellants,
vs.
THE BOARD OF DIRECTORS OF THE NATIONAL DEVELOPMENT
COMPANY, ET AL., defendants-appellees.
Celso A. Fernandez for appellants.
Juan C. Jimenez, for appellees.
PARAS, C. J.:
On July 25, 1956, appellants filed against appellees in the Court of First Instance of
Manila a complaint praying for a 20% Christmas bonus for the years 1954 and 1955.
The court a quo on appellees' motion to dismiss, issued the following order:
Considering the motion to dismiss filed on 15 August, 1956, set for this
morning; considering that 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 petitioners have submitted an opposition which the court will consider
together with the 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
respondents to declare a Christmas bonus for petitioners workers in the
National Development 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.
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. Gaz., 5278)
xxx xxx xxx
From the legal point of view a bonus is not a demandable and enforceable
obligation. It is so when it is made a part of the wage or salary
compensation.
And while it is true that the subsequent case of H. E. Heacock vs. National Labor
Union, et al., 95 Phil., 553; 50 Off. Gaz., 4253, we stated that:
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 in the past, though
withheld in succeeding two years from low salaried employees due to
salary increases.
still the facts in said Heacock case are not the same as in the instant one, and hence
the ruling applied in said case cannot be considered in the present action.
Premises considered, the order appealed from is hereby affirmed, without
pronouncement as to costs.
Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia
Barrera and Gutierrez David, JJ.,concur.
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 Grio-Aquino, J., took no part.
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.