Archive for December, 2010


LEGAL NOTE 0003: JURISPRUDENCE ON THE SUB JUDICE RULE

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December 20, 2010

SOURCE: SUPPLEMENTAL OPINION OF JUSTICE BRION: G.R. NO. 176389 – ANTONIO LEJANO, PETITIONER, -VERSUS- PEOPLE OF THE PHILIPPINES, RESPONDENT. G.R. NO. 176864 – PEOPLE OF THE PHILIPPINES, APPELLEE, -VERSUS- HUBERT JEFFREY P. WEBB, ET AL., APPELLANTS.

 

IN ESSENCE WHAT IS THE SUB JUDICE RULE?

In essence, the sub judice rule restricts comments and disclosures pertaining to pending judicial proceedings. 

 

TO WHOM DOES IT APPLY?

 

The restriction applies not only to participants in the pending case, i.e., to members of the bar and bench, and to litigants and witnesses, but also to the public in general, which necessarily includes the media. 

 

WHAT IS THE LEGAL BASIS OF THE SUB JUDICE RULE?

 

Although the Rules of Court does not contain a specific provision imposing the sub judice rule, it supports the observance of the restriction by punishing its violation as indirect contempt under Section 3(d) of Rule 71:

Section 3.  Indirect contempt to be punished after charge and hearing. –  x  x  x  a person guilty of any of the following acts may be punished for indirect contempt:

x  x  x  x

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice[.]

 

WHAT IS THE USUAL DEFENSE OF PERSONS FACING CHARGES FOR INDIRECT CONTEMPT FOR VIOLATION OF THE SUB JUDICE RULE?

Persons facing charges for indirect contempt for violation of the sub judice rule often invoke as defense their right to free speech and claim that the citation for contempt constitutes a form of impermissible subsequent punishment. 

 

IS THIS A VALID DEFENSE?

We have long recognized in this jurisdiction that the freedom of speech under Section 4, Article III of the Constitution is not absolute.  A very literal construction of the provision, as espoused by US Supreme Court Justice Hugo Black,[1][1] may lead to the disregard of other equally compelling constitutional rights and principles.  In Vicente v. Majaducon,[2][2] this Court declared that “[the freedom of speech] needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests such as the maintenance of the integrity of courts and orderly functioning of the administration of justice.”  Courts, both within and outside this jurisdiction, have long grappled with the dilemma of balancing the public’s right to free speech and the government’s duty to administer fair and impartial justice.  While the sub judice rule may be considered as a curtailment of the right to free speech, it is “necessary to ensure the proper administration of justice and the right of an accused to a fair trial.”[3][3]   Both these latter concerns are equally paramount and cannot lightly be disregarded. 

 

IS THE SUB JUDICE RULE IMPOSED ON ALL FORMS OF SPEECH?

No. Only on publicized speech. The Constitution simply gives the citizens the right to speech, not the right to unrestricted publicized speech.

 

WHAT IS PUBLICIZED SPEECH?

Publicized speech should be understood to be limited to those aired or printed in the various forms of media such as television, radio, newspapers, magazines, and internet, and excludes discussions, in public or in private, between and among ordinary citizens.

 

IN CRIMINAL PROCEEDINGS WHAT ARE PROHIBITED PUBLICIZED SPEECH?

In so far as criminal proceedings are concerned, two classes of publicized speech made during the pendency of the proceedings can be considered as contemptuous:

first, comments on the merits of the case, and

second, intemperate and unreasonable comments on the conduct of the courts with respect to the case. 

 

WHAT IS MEANT BY COMMENTS ON THE MERITS OF THE CASE?

Comments on the merits of the case may refer to the credibility of witnesses, the character of the accused, the soundness of the alibis offered, the relevance of the evidence presented, and generally any other comment bearing on the guilt or innocence of the accused.[4][4]  The danger posed by this class of speech is the undue influence it may directly exert on the court in the resolution of the criminal case, or indirectly through the public opinion it may generate against the accused and the adverse impact this public opinion may have during the trial.  The significance of the sub judice rule is highlighted in criminal cases, as the possibility of undue influence prejudices the accused’s right to a fair trial.  “The principal purpose of the sub judice rule is to preserve the impartiality of the judicial system by protecting it from undue influence.”[5][5]  Public opinion has no place in a criminal trial. We ruled that –

it is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies.[6][6] 

The right to a fair trial is an adjunct of the accused’s right to due process which “guarantees [him] a presumption of innocence until the contrary is proved in a trial  x  x  x  where the conclusions reached are induced not by any outside force or influence but only by evidence and argument given in open court, where fitting dignity and calm ambiance is demanded.”[7][7] 

In foreign jurisdictions, the courts do not hesitate to exercise their power to punish for contempt where necessary to dispose of judicial business unhampered by publications that tend to impair the impartiality of verdicts.[8][8]

If the media publish prejudicial material, they can appear to urge, or may in fact be urging, a particular finding: the media can “wage a campaign” against one of the parties to proceedings. If the jury decides in accordance with an outcome promoted by the media, it will appear as if the jurors were swayed by the media. By the same token, if the jury’s decision does not accord with media opinion, it may appear as if they were deliberately reacting against it. Either way, it may appear that the jury’s decision was not impartial and based on the evidence presented in court, even if it was.[9][9]

The accused must be assured of a fair trial notwithstanding the prejudicial publicity;[10][10] he has a constitutional right to have his cause tried fairly by an impartial tribunal, uninfluenced by publication or public clamor.[11][11] “The sub judice doctrine protects against the appearance of decisions having been influenced by published material.”[12][12]

As may be observed from the cited material, the sub judice rule is used by foreign courts to insulate members of the jury from being influenced by prejudicial publicity.  But the fact that the jury system is not adopted in this jurisdiction is not an argument against our observance of the sub judice rule; justices and judges are no different from members of the jury, they are not immune from the pervasive effects of media.   “It might be farcical to build around them an impregnable armor against the influence of the most powerful media of public opinion.”[13][13]  As I said in another case, in a slightly different context, even those who are determined, in their conscious minds, to avoid bias may be affected.[14][14]

Also, it is not necessary that the publicity actually influenced the court’s disposition of the case; “the actual impact of prejudicial publicity is not relevant to liability for sub judice contempt.”[15][15]  In several cases, the Court has noted the

enormous effect of media in stirring public sentience  x  x  x  Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on [witnesses and judges] directly and through the shaping of public opinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect that such a coverage may have on the testimony of witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to it.[16][16]

 

WHAT IS MEANT BY COMMENT ON THE CONDUCT OF THE COURTS WITH RESPECT TO THE CASE?

Comment on the conduct of the courts with respect to the case becomes subject to a contempt proceeding when it is intemperate, is contumacious, and unduly impairs upon the dignity of the court.  A comment that impairs of the dignity of the court “excites in the mind of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them[.]”[17][17]  If the speech tends to undermine the confidence of the people in the honesty and integrity of the court and its members, and lowers or degrades the administration of  justice, then the speech constitutes contempt.[18][18]  “Unwarranted attacks on the dignity of the courts cannot be disguised as free speech, for the exercise of said right cannot be used to impair the independence and efficiency of courts or public respect therefore and confidence therein.”[19][19]  Without the sub judice rule and the contempt power, the courts will be powerless to protect their integrity and independence that are essential in the orderly and effective dispensation and administration of justice.

This, of course, is not meant to stifle all forms of criticism against the court.  As the third branch of the government, the courts remain accountable to the people.  The people’s freedom to criticize the government includes the right to criticize the courts, their proceedings and decisions.  This is the principle of open justice, which is fundamental to our democratic society and ensures that (a) there is a safeguard against judicial arbitrariness or idiosyncrasy, and that (b) the public’s confidence in the administration of justice is maintained.[20][20]  The criticism must, however, be fair, made in good faith, and “not spill over the walls of decency and propriety.”[21][21]  And to enhance the open court principle and allow the people to make fair and reasoned criticism of the courts, the sub judice rule excludes from its coverage fair and accurate reports (without comment) of what have actually taken place in open court. 

In sum, the court, in a pending litigation, must be shielded from embarrassment or influence in its all-important duty of deciding the case.[22][22] Any publication pending a suit, reflecting upon the court, the parties, the officers of the court, the counsel, etc., with reference to the suit, or tending to influence the decision of the controversy, is contempt of court and is punishable.  The resulting (but temporary) curtailment of speech because of the sub judice rule is necessary and justified by the more compelling interests to uphold the rights of the accused and promote the fair and orderly administration of justice.

[1][1]  See Justice Black’s concurring opinion in Smith v. California, 361 U.S. 147 (1959), part of which reads:

                Certainly the First Amendment’s language leaves no room for inference that abridgments of speech and press can be made just because they are slight. That Amendment provides, in simple words, that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” I read “no law . . . abridging” to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly “beyond the reach” of federal power to abridge.  No other provision of the Constitution purports to dilute the scope of these unequivocal commands of the First Amendment.  Consequently, I do not believe that any federal agencies, including Congress and this Court, have power or authority to subordinate speech and press to what they think are “more important interests.”  The contrary notion is, in my judgment, court-made, not Constitution-made. (361 U.S. 147, 157-159).

[2][2]  A.M. No. RTJ-02-1698, June 23, 2005, 461 SCRA 12, 24-25, citing Choa v. Chiongson, A.M. No. MTJ-95-1063, August 9, 1996, 260 SCRA 477, 484-485.

[3][3]  Law Reform Commission – New South Wales, Discussion Paper 43 (2000) – Contempt by Publication, http://www.lawlink.nsw.gov.au/lrc.nsf/pages/dp43chp02, last visited December 9, 2010.

[4][4]  Ibid.; the Discussion Paper 43 (2000) of the Law Reform Commission of New South Wales has identified some “high-risk publications” against which the sub judice rule applies.  These include:

a. A photograph of the accused where identity is likely to be an issue;

b. Suggestions that the accused has previous criminal convictions, has been previously charged for committing an offense and/or previously acquitted, or has been involved in other criminal activity;

c.  Suggestions that the accused has confessed to committing the crime in question;

d. Suggestions that the accused has confessed to committing the crime in question;

e.  Suggestions that the accused is guilty or innocent of the crime for which he or she is charged, or that the jury should convict or acquit the accused; and

f.  Comments which engender sympathy or antipathy for the accused and/or which disparage the prosecution, or which make favorable or unfavorable references to the character or credibility of the accused or a witness.

[5][5]  Ibid.

[6][6]  Nestle v. Sanchez, Nos. L-75209 and 78791, September 30, 1987, 154 SCRA 542, 546.

[7][7]  Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the Former   President Joseph E. Estrada, A.M. No. 01-4-03-SC, June 29, 2001, 360 SCRA 248, 259-260.

[8][8]  People v. Godoy, G.R. Nos. 115908-09, March 29, 1995, 243 SCRA 64, 81, citing U.S. v. Sullen, 36 F. 2d 220.

[9][9]  Supra note 3.

[10][10] See Wayne Overbeck, Major Principles in Media Law, p. 298.

[11][11] Supra note 6, at 546.

[12][12] Supra note 3.

[13][13] Supra note 7, at 260.

[14][14] Separate Opinion of the author in Louis “Barok” C. Biraogo v. The Philippine Truth Commission of 2010, G.R. Nos. 192935 & 193036, December 7, 2010, part of which reads:

                Where the government simply wants to tell its story, already labeled as true, well ahead of any court proceedings, and judicial notice is taken of the kind of publicity and the ferment in public opinion that news of government scandals generate, it does not require a leap of faith to conclude that an accused brought to court against overwhelming public opinion starts his case with less than equal chance of acquittal.  The presumption of innocence notwithstanding, the playing field cannot but be uneven in a criminal trial when the accused enters trial with a government-sponsored badge of guilty on his forehead.  The presumption of innocence in law cannot serve an accused in a biased atmosphere pointing to guilt in fact because the government and public opinion have spoken against the accused. [Citations omitted]

[15][15] Supra note 3.

[16][16] Supra note 7, at 259-260.

[17][17] Supra note 8, at 82, citing J. Perfecto’s dissenting opinion in In re Francisco Brillantes, 42 O.G. 59.

[18][18] Id. at 94.

[19][19] In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007, A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA 395, 448, citing Roxas v. Zuzuarregui, G.R. Nos. 152072 & 152104, July 12, 2007, 527 SCRA 446.

[20][20] Id.at 434.

[21][21] Tiongco v. Savillo, A.M. No. RTJ-02-1719, March 31, 2006, 486 SCRA 48, 64, citing In re Almacen, infra note 22.

[22][22] In re Almacen, No. L-27654, February 18, 1970, 31 SCRA 562.

Comment

CASE 0017: CARMEN EDANO VS. JUDGE FATIMA G. ASDALA, RTC BRANCH 87, QUEZON CITY (A.M. NO. RTJ-06-2007, 06 DECEMBER 2010) SUBJECT: DEADLINE OF JUDGES FOR RENDERING DECISIONS; DECISIONS NOT SUBJECT TO DISCIPLINARY ACTIONS;

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December 19, 2010

CARMEN EDANO VS. JUDGE FATIMA G. ASDALA, RTC BRANCH 87, QUEZON CITY (A.M. NO. RTJ-06-2007, 06 DECEMBER 2010) SUBJECT: DEADLINE OF JUDGES FOR RENDERING DECISIONS; DECISIONS NOT SUBJECT TO DISCIPLINARY ACTIONS;

 

DOCTRINES:

 

JUDGES MUST DECIDE ALL CASES WITHIN 3 MONTHS FROM DATE OF SUBMISSION

 

“. . . Section 15, Article VIII of the Constitution requires judges to decide all cases within three (3) months from the date of submission. This Constitutional policy is reiterated in Rule 1.02, Canon 1 of the Code of Judicial Conduct which states that a judge should administer justice impartially and without delay; and Rule 3.05, Canon 3 of the same Code provides that a judge shall dispose of the court’s business promptly and decide cases within the required periods.

ACTS OF JUDGE PERTAINING TO HIS JUDICIAL FUNCTIONS ARE NOT SUBJECT TO DISCIPLINARY ACTION UNLESS THEY ARE TAINTED WITH FRAUD, DISHONESTY, CORRUPTION OR BAD FAITH.

“. . The respondent judge’s dismissal of the civil case for Support and her denial of the notice of appeal were done in the discharge of her judicial functions. Time and again, we have ruled that the acts of a judge, pertaining to his judicial functions, are not subject to disciplinary action, unless they are tainted with fraud, dishonesty, corruption or bad faith.[1][10] As we explained in Jabon v. Usman:[2][11]

It must be stressed that an administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty.  The remedy of the aggrieved party is to elevate the assailed decision or order to the higher court for review and correction.  Thus, disciplinary proceedings and criminal actions against magistrates do not complement, supplement or substitute judicial remedies, whether ordinary or extraordinary. An inquiry into their civil, criminal and/or administrative liability may be made only after the available remedies have been exhausted and decided with finality. In fine, only judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith, or deliberate intent to do an injustice will be administratively sanctioned.  To hold, otherwise, would be to render judicial office untenable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment.”

x————————————————————————————-x

D E C I S I O N

 

BRION, J.:

 

 

          We resolve in this Decision the administrative complaint for violation of the Code of Judicial Ethics, misconduct, rendering an erroneous decision, and rendering a decision beyond the 90-day reglementary period filed by Carmen Edaño (complainant) against Judge Fatima G. Asdala (respondent judge).

          In her letter-complaint,[3][1] the complainant alleged that she was the plaintiff in a civil case for Support with prayer for Support Pendente Lite (Civil Case No. Q-97-30576), entitled “Carlo Edaño and Jay-ar Edaño, represented by Carmen Edano v. George F. Butler,” pending before the Regional Trial Court, Branch 87, Quezon City, presided over by the respondent judge.

The complainant claimed that the respondent judge made it appear that Civil Case No. Q-97-30576 was decided on March 22, 2005, although the records show that she (respondent judge) still ruled on several motions relating to this case even after that date. The complainant further alleged that the respondent judge erred in denying her notice of appeal.

          The Office of the Court Administrator (OCA) required the respondent judge to comment on the complaint. In her comment,[4][2] the respondent judge maintained that she had rendered the decision on March 22, 2005, although it was mailed on a later date. Even assuming that there was delay in rendering the decision, the delay was not deliberate. She added that the complainant was not prejudiced by the delay as she continuously received support pendente lite from the defendant.

          The respondent judge likewise explained that the orders she issued after March 22, 2005 did not touch on the merits of the case; they were orders directing the release of money deposited by the defendant as support pendente lite. According to her, she denied the complainant’s notice of appeal because Section 1, Rule 41 of the Revised Rules of Court provides that no appeal may be taken from an order dismissing an action without prejudice. Finally, she explained that her dismissal of the subject civil case and the denial of the notice of appeal are not the proper subjects of an administrative case as they are acts pertaining to her judicial functions.

          In her reply,[5][3] complainant maintained that the respondent judge violated the 90-day reglementary period for rendering decisions. She also revealed that the respondent judge made her sign a complaint against a Public Attorneys Office lawyer, to force the said lawyer to stay in her (respondent judge’s) sala.

          The OCA, in its Report[6][4] dated April 18, 2006, recommended that the respondent judge be fined in the amount of P10,000.00 for undue delay in rendering a decision, with a stern warning that a commission of similar acts in the future will be dealt with more severely.

THE COURT’S RULING

 

          We agree with the finding of the OCA that the respondent judge is guilty of undue delay in rendering a decision. Section 15, Article VIII of the Constitution requires judges to decide all cases within three (3) months from the date of submission. This Constitutional policy is reiterated in Rule 1.02, Canon 1 of the Code of Judicial Conduct which states that a judge should administer justice impartially and without delay; and Rule 3.05, Canon 3 of the same Code provides that a judge shall dispose of the court’s business promptly and decide cases within the required periods.

In Office of the Court Administrator v. Garcia-Blanco,[7][5] the Court held that the 90-day period is mandatory. Failure to decide cases within the reglementary period constitutes a ground for administrative liability except when there are valid reasons for the delay. We explained the raison d’etre behind the rule on mandatory compliance with the constitutionally prescribed periods in Office of the Court Administrator v. Reyes:[8][6]

The honor and integrity of the judiciary is measured not only by the fairness and correctness of the decisions rendered, but also by the efficiency with which disputes are resolved. Thus, judges must perform their official duties with utmost diligence if public confidence in the judiciary is to be preserved. There is no excuse for mediocrity in the performance of judicial functions. The position of judge exacts nothing less than faithful observance of the law and the Constitution in the discharge of official duties. 

In the present case, Civil Case No. Q-97-30576 had been submitted for decision on December 9, 2004; the decision was, therefore, due on March 9, 2005.  The records do not show that the respondent judge asked for an extension to decide this case.  Thus, when she decided the case on March 22, 2005, the 90-day reglementary period had already lapsed. The respondent judge’s explanation that the complainant was not prejudiced by the delay is immaterial, as it is her constitutional duty to decide the case within three months from the date of submission.

Under Rule 140, Section 9(1) of the Rules of Court,[9][7] as amended by Administrative Matter No. 01-8-10-SC,[10][8] the respondent judge’s undue delay in rendering a decision is classified as a less serious offense. It is punishable by suspension from office without salary and other benefits for not less than one month nor more than three months or a fine of more than P10,000.00 but not exceeding P20,000.00.  The OCA’s recommendation of P10,000.00 fine is, therefore, in order.

We point out that the respondent judge, in Edaño v. Asdala,[11][9] had been dismissed from the service, with forfeiture of all salaries, benefits and leave credits to which she may be entitled. The Court, in its resolution of September 11, 2007, modified the dispositive portion of this decision and exempted from forfeiture her accrued leave credits. The Court, in another Resolution dated January 15, 2008, directed the Financial Management Office to release and pay the money value of the accrued leave credits of Judge Fatima G. Asdala, subject to the retention of P80,000.00. In light of these considerations, we thus deduct the P10,000.00 fine, imposed in this case, from the P80,000.00 which this Court withheld, pursuant to our  January 15, 2008 Resolution.

Other Charges

The Court agrees with the OCA that the complainant’s charges of misconduct and rendering an erroneous decision have no leg to stand on. The respondent judge’s dismissal of the civil case for Support and her denial of the notice of appeal were done in the discharge of her judicial functions. Time and again, we have ruled that the acts of a judge, pertaining to his judicial functions, are not subject to disciplinary action, unless they are tainted with fraud, dishonesty, corruption or bad faith.[12][10] As we explained in Jabon v. Usman:[13][11]

It must be stressed that an administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty.  The remedy of the aggrieved party is to elevate the assailed decision or order to the higher court for review and correction.  Thus, disciplinary proceedings and criminal actions against magistrates do not complement, supplement or substitute judicial remedies, whether ordinary or extraordinary. An inquiry into their civil, criminal and/or administrative liability may be made only after the available remedies have been exhausted and decided with finality. In fine, only judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith, or deliberate intent to do an injustice will be administratively sanctioned.  To hold, otherwise, would be to render judicial office untenable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment.

 

WHEREFORE, premises considered, Judge Fatima G. Asdala is hereby found GUILTY of undue delay in rendering a decision. Accordingly, she is FINED  Ten Thousand Pesos (P10,000.00), to be deducted from the Eighty Thousand Pesos (P80,000.00) which the Court withheld pursuant to its January 15, 2008 Resolution.

SO ORDERED.

ARTURO D. BRION

                                                                       Associate Justice  

 

 

 

WE CONCUR:

 

 

CONCHITA CARPIO MORALES

Associate Justice
 

 

  
LUCAS P. BERSAMIN

Associate Justice

 MARTIN S. VILLARAMA, JR.

Associate Justice

 

 

 

 

MARIA LOURDES P.A. SERENO

Associate Justice 

 

 

 

 

 

[1][10] Mariano v. Garfin, A.M. No. RTJ-06-2024, [formerly OCA I.P.I. No. 06-2410-RTJ], October 17, 2006, 504 SCRA 605, 614.

[2][11] A.M. No. RTJ-02-1713 [formerly A.M. OCA I.P.I. No. 01-1257-RTJ], October 25, 2005, 474 SCRA 36, 61.

[3][1]  Rollo, pp. 2-9.

[4][2]  Id. at 34-37.

[5][3]  Id. at 41-42.

[6][4]  Id. at 46-50.

[7][5]  A.M. No. RTJ-05-1941 [formerly OCA I.P.I. No. 05-6-373-RTC], April 25, 2006, 488 SCRA 109, 120.

[8][6]  A.M. No. RTJ-05-1892 [formerly A.M. No. 04-9-494-RTC], January 24, 2008, 542 SCRA 330, 338, citing Petallar v. Pullos, A.M. No. MTJ-03-1484, January 15, 2004, 419 SCRA 434.

[9][7]  SEC. 9. Less Serious Charges. Less Serious Charges include:

1.       Undue delay in rendering a decision or order, or in transmitting the records of a case[.]

[10][8]  Re: Proposed Amendment to Rule 140 of the Rules of Court.

[11][9]  A.M. No. RTJ-06-1974 [formerly OCA I.P.I. No. 05-2226-RTJ], July 26, 2007, 528 SCRA 212.

[12][10] Mariano v. Garfin, A.M. No. RTJ-06-2024, [formerly OCA I.P.I. No. 06-2410-RTJ], October 17, 2006, 504 SCRA 605, 614.

[13][11] A.M. No. RTJ-02-1713 [formerly A.M. OCA I.P.I. No. 01-1257-RTJ], October 25, 2005, 474 SCRA 36, 61.

Comment

CASE 0016: JOVITO S. OLAZO VS. JUSTICE DANTE O. TINGA (RET.) (A.M. NO. 10-5-7-SC, 07 DECEMBER 2010) SUBJECT: DEFINITION OF PRACTICE OF LAW; ACCOUNTABILITY OF GOVERNMENT LAWYERS; ON PRIVATE PRACTICE BY GOVT LAWYERS; RULE ON PRACTICE OF LAW UPON LEAVING GOVERNMENT SERVICE.

Filed under: LATEST SUPREME COURT CASES — Leave a comment
December 18, 2010

JOVITO S. OLAZO VS. JUSTICE DANTE O. TINGA (RET.) (A.M. NO. 10-5-7-SC, 07 DECEMBER 2010) SUBJECT: DEFINITION OF PRACTICE OF LAW; ACCOUNTABILITY OF GOVERNMENT LAWYERS; ON PRIVATE PRACTICE BY GOVT LAWYERS; RULE ON PRACTICE OF LAW UPON LEAVING GOVERNMENT SERVICE.

DOCTRINES:

 

        DEFINITION OF PRACTICE OF LAW.

 

“IN CAYETANO V. MONSOD,[1][28] WE DEFINED THE PRACTICE OF LAW AS ANY ACTIVITY, IN AND OUT OF COURT, THAT REQUIRES THE APPLICATION OF LAW, LEGAL PROCEDURE, KNOWLEDGE, TRAINING AND EXPERIENCE. MOREOVER, WE RULED THAT TO ENGAGE IN THE PRACTICE OF LAW IS TO PERFORM THOSE ACTS WHICH ARE CHARACTERISTICS OF THE PROFESSION; 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.”

                XXXXXXXXXXXXXXXXXXXXX

 

“THE COMPLAINANT, TOO, FAILED TO SUFFICIENTLY ESTABLISH THAT THE RESPONDENT WAS ENGAGED IN THE PRACTICE OF LAW. AT FACE VALUE, THE LEGAL SERVICE RENDERED BY THE RESPONDENT WAS LIMITED ONLY IN THE PREPARATION OF A SINGLE DOCUMENT.  IN BORJA, SR. V. SULYAP, INC.,[2][32] WE SPECIFICALLY DESCRIBED PRIVATE PRACTICE OF LAW AS ONE THAT CONTEMPLATES A SUCCESSION OF ACTS OF THE SAME NATURE HABITUALLY OR CUSTOMARILY HOLDING ONE’S SELF TO THE PUBLIC AS A LAWYER.

 

ACCOUNTABILITY OF A GOVERNMENT LAWYER IN PUBLIC OFFICE

 

“CANON 6 OF THE CODE OF PROFESSIONAL RESPONSIBILITY HIGHLIGHTS THE CONTINUING STANDARD OF ETHICAL CONDUCT TO BE OBSERVED BY GOVERNMENT LAWYERS IN THE DISCHARGE OF THEIR OFFICIAL TASKS. IN ADDITION TO THE STANDARD OF CONDUCT LAID DOWN UNDER R.A. NO. 6713 FOR GOVERNMENT EMPLOYEES, A LAWYER IN THE GOVERNMENT SERVICE IS OBLIGED TO OBSERVE THE STANDARD OF CONDUCT UNDER THE CODE OF PROFESSIONAL RESPONSIBILITY. 

 

SINCE PUBLIC OFFICE IS A PUBLIC TRUST, THE ETHICAL CONDUCT DEMANDED UPON LAWYERS IN THE GOVERNMENT SERVICE IS MORE EXACTING THAN THE STANDARDS FOR THOSE IN PRIVATE PRACTICE. LAWYERS IN THE GOVERNMENT SERVICE ARE SUBJECT TO CONSTANT PUBLIC SCRUTINY UNDER NORMS OF PUBLIC ACCOUNTABILITY.  THEY ALSO BEAR THE HEAVY BURDEN OF HAVING TO PUT ASIDE THEIR PRIVATE INTEREST IN FAVOR OF THE INTEREST OF THE PUBLIC; THEIR PRIVATE ACTIVITIES SHOULD NOT INTERFERE WITH THE DISCHARGE OF THEIR OFFICIAL FUNCTIONS.[3][11]

 

THE FIRST CHARGE INVOLVES A VIOLATION OF RULE 6.02 OF THE CODE OF PROFESSIONAL RESPONSIBILITY.  IT IMPOSES THE FOLLOWING RESTRICTIONS IN THE CONDUCT OF A GOVERNMENT LAWYER:

 

A LAWYER IN THE GOVERNMENT SERVICE SHALL NOT USE HIS PUBLIC POSITION TO PROMOTE OR ADVANCE HIS PRIVATE INTERESTS, NOR ALLOW THE LATTER TO INTERFERE WITH HIS PUBLIC DUTIES.

 

THE ABOVE PROVISION PROHIBITS A LAWYER FROM USING HIS OR HER PUBLIC POSITION TO: (1) PROMOTE PRIVATE INTERESTS; (2) ADVANCE PRIVATE INTERESTS; OR (3) ALLOW PRIVATE INTEREST TO INTERFERE WITH HIS OR HER PUBLIC DUTIES. WE PREVIOUSLY HELD THAT THE RESTRICTION EXTENDS TO ALL GOVERNMENT LAWYERS WHO USE THEIR PUBLIC OFFICES TO PROMOTE THEIR PRIVATE INTERESTS.[4][12]

 

IN HUYSSEN V. GUTIERREZ,[5][13] WE DEFINED PROMOTION OF PRIVATE INTEREST TO INCLUDE SOLICITING GIFTS OR ANYTHING OF MONETARY VALUE IN ANY TRANSACTION REQUIRING THE APPROVAL OF HIS OR HER OFFICE, OR MAY BE AFFECTED BY THE FUNCTIONS OF HIS OR HER OFFICE.  IN ALI V. BUBONG,[6][14] WE RECOGNIZED THAT PRIVATE INTEREST IS NOT LIMITED TO DIRECT INTEREST, BUT EXTENDS TO ADVANCING THE INTEREST OF RELATIVES.  WE ALSO RULED THAT PRIVATE INTEREST INTERFERES WITH PUBLIC DUTY WHEN THE RESPONDENT USES THE OFFICE AND HIS OR HER KNOWLEDGE OF THE INTRICACIES OF THE LAW TO BENEFIT RELATIVES.[7][15] 

 

IN VITRIOLO V. DASIG,[8][16]  WE FOUND THE ACT OF THE RESPONDENT (AN OFFICIAL OF THE COMMISSION ON HIGHER EDUCATION) OF EXTORTING MONEY FROM PERSONS WITH APPLICATIONS OR REQUESTS PENDING BEFORE HER OFFICE TO BE A SERIOUS BREACH OF RULE 6.02 OF THE CODE OF PROFESSIONAL RESPONSIBILITY.[9][17] WE REACHED THE SAME CONCLUSION IN HUYSSEN, WHERE WE FOUND THE RESPONDENT (AN EMPLOYEE OF THE BUREAU OF IMMIGRATION AND DEPORTATION) LIABLE UNDER RULE 6.02 OF THE CODE OF PROFESSIONAL RESPONSIBILITY, BASED ON THE EVIDENCE SHOWING THAT HE DEMANDED MONEY FROM THE COMPLAINANT WHO HAD A PENDING APPLICATION FOR VISAS BEFORE HIS OFFICE.[10][18] 

       

SIMILARLY, IN IGOY V. SORIANO[11][19] WE FOUND THE RESPONDENT (A COURT ATTORNEY OF THIS COURT) LIABLE FOR VIOLATING RULE 6.02 OF THE CODE OF PROFESSIONAL RESPONSIBILITY, AFTER CONSIDERING THE EVIDENCE SHOWING THAT HE DEMANDED AND RECEIVED MONEY FROM THE COMPLAINANT WHO HAD A PENDING CASE BEFORE THIS COURT.”

 

RULE ON PRIVATE PRACTICE OF LAWYERS WHO ARE IN GOVERNMENT.

 

“AS A RULE, GOVERNMENT LAWYERS ARE NOT ALLOWED TO ENGAGE IN THE PRIVATE PRACTICE OF THEIR PROFESSION DURING THEIR INCUMBENCY.[12][29]  BY WAY OF EXCEPTION, A GOVERNMENT LAWYER CAN ENGAGE IN THE PRACTICE OF HIS OR HER PROFESSION UNDER THE FOLLOWING CONDITIONS: FIRST, THE PRIVATE PRACTICE IS AUTHORIZED BY THE CONSTITUTION OR BY THE LAW; AND SECOND, THE PRACTICE WILL NOT CONFLICT OR TEND TO CONFLICT WITH HIS OR HER OFFICIAL FUNCTIONS.[13][30]  THE LAST PARAGRAPH OF SECTION 7 PROVIDES AN EXCEPTION TO THE EXCEPTION.  IN CASE OF LAWYERS SEPARATED FROM THE GOVERNMENT SERVICE WHO ARE COVERED UNDER SUBPARAGRAPH (B) (2) OF SECTION 7 OF R.A. NO. 6713, A ONE-YEAR PROHIBITION IS IMPOSED TO PRACTICE LAW IN CONNECTION WITH ANY MATTER BEFORE THE OFFICE HE USED TO BE WITH.”

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

 

DECISION

 

BRION, J.:

Before us is the disbarment case against retired Supreme Court Associate Justice Dante O. Tinga (respondent) filed by Mr. Jovito S. Olazo (complainant).  The respondent is charged of violating Rule 6.02,[14][1] Rule 6.03[15][2] and Rule 1.01[16][3] of the Code of Professional Responsibility for representing conflicting interests.

 

Factual Background

 

          In March 1990, the complainant filed a sales application covering a parcel of land situated in Barangay Lower Bicutan in the Municipality of Taguig. The land (subject land) was previously part of Fort Andres Bonifacio that was segregated and declared open for disposition pursuant to Proclamation No. 2476,[17][4] issued on January 7, 1986, and Proclamation No. 172,[18][5] issued on October 16, 1987.

To implement Proclamation No. 172, Memorandum No. 119 was issued by then Executive Secretary Catalino Macaraig, creating a Committee on Awards whose duty was to study, evaluate, and make a recommendation on the applications to purchase the lands declared open for disposition. The Committee on Awards was headed by the Director of Lands and the respondent was one of the Committee members, in his official capacity as the Congressman of Taguig and Pateros (from 1987 to 1998); the respondent’s district includes the areas covered by the proclamations.

 

 

The First Charge: Violation of Rule 6.02

In the complaint,[19][6] the complainant claimed that the respondent abused his position as Congressman and as a member of the Committee on Awards when he unduly interfered with the complainant’s sales application because of his personal interest over the subject land. The complainant alleged that the respondent exerted undue pressure and influence over the complainant’s father, Miguel P. Olazo, for the latter to contest the complainant’s sales application and claim the subject land for himself.  The complainant also alleged that the respondent prevailed upon Miguel Olazo to accept, on various dates, sums of money as payment of the latter’s alleged rights over the subject land. The complainant further claimed that the respondent brokered the transfer of rights of the subject land between Miguel Olazo and Joseph Jeffrey Rodriguez, who is the nephew of the respondent’s deceased wife.

As a result of the respondent’s abuse of his official functions, the complainant’s sales application was denied. The conveyance of rights to Joseph Jeffrey Rodriguez and his sales application were subsequently given due course by the Department of Environment and Natural Resources (DENR).

 

The Second Charge: Violation of Rule 6.03

 

The second charge involves another parcel of land within the proclaimed areas belonging to Manuel Olazo, the complainant’s brother.  The complainant alleged that the respondent persuaded Miguel Olazo to direct Manuel to convey his rights over the land to Joseph Jeffrey Rodriguez. As a result of the respondent’s promptings, the rights to the land were transferred to Joseph Jeffrey Rodriguez.

In addition, the complainant alleged that in May 1999, the respondent met with Manuel for the purpose of nullifying the conveyance of rights over the land to Joseph Jeffrey Rodriguez. The complainant claimed that the respondent wanted the rights over the land transferred to one Rolando Olazo, the Barangay Chairman of Hagonoy, Taguig.  The respondent in this regard executed an “Assurance” where he stated that he was the lawyer of Ramon Lee and Joseph Jeffrey Rodriguez.

The Third Charge: Violation of  Rule 1.01

The complainant alleged that the respondent engaged in unlawful conduct considering his knowledge that Joseph Jeffrey Rodriguez was not a qualified beneficiary under Memorandum No. 119. The complainant averred that Joseph Jeffrey Rodriguez is not a bona fide resident of the proclaimed areas and does not qualify for an award. Thus, the approval of his sales application by the Committee on Awards amounted to a violation of the objectives of Proclamation No. 172 and Memorandum No. 119. 

The complainant also alleged that the respondent violated Section 7(b)(2) of the Code of Conduct and Ethical Standards for Public Officials and Employees or Republic Act (R.A.) No. 6713  since he engaged in the practice of law, within the one-year prohibition period, when he appeared as a lawyer for Ramon Lee and Joseph Jeffrey Rodriguez before the Committee on Awards. 

          In his Comment,[20][7] the respondent claimed that the present complaint is the third malicious charge filed against him by the complainant. The first one was submitted before the Judicial and Bar Council when he was nominated as an Associate Justice of the Supreme Court; the second complaint is now pending  with the Office of the Ombudsman, for alleged violation of Section 3(e) and (i) of R.A. No. 3019, as amended.

With his own supporting documents, the respondent presented a different version of the antecedent events.

The respondent asserted that Miguel Olazo owned the rights over the subject land and he later conveyed these rights to Joseph Jeffrey Rodriguez. Miguel Olazo’s rights over the subject land and the transfer of his rights to Joseph Jeffrey Rodriguez were duly recognized by the Secretary of the DENR before whom the conflict of rights over the subject land (between Miguel Olazo and Joseph Jeffrey Rodriguez, on one hand, and the complainant on the other hand) was brought. In its decision, the DENR found Joseph Jeffrey Rodriguez a qualified applicant, and his application over the subject land was given due course.  The respondent emphasized that the DENR decision is now final and executory.  It was affirmed by the Office of the President, by the Court of Appeals and by the Supreme Court.

          The respondent also advanced the following defenses:

(1) He denied the complainant’s allegation that Miguel Olazo told him (complainant) that the respondent had been orchestrating to get the subject land. The respondent argued that this allegation was without corroboration and was debunked by the affidavits of Miguel Olazo and Francisca Olazo, the complainant’s sister.

(2) He denied the complainant’s allegation that he offered the complainant P50,000.00 for the subject land and that he (the respondent) had exerted undue pressure and influence on Miguel Olazo to claim the rights over the subject land. The respondent also denied that he had an inordinate interest in the subject land.

(3) He claimed that there was nothing wrong in signing as a witness in Miguel Olazo’s affidavit where the latter asserted his rights over the subject land. The affidavit merely attested to the truth.

(4) He asserted that he and Miguel Olazo were cousins and that the latter decided to sell his rights over the subject land for the medical treatment of his heart condition and the illness of his daughter, Francisca Olazo.  The respondent insisted that the money he extended to them was a form of loan. 

(5)  The respondent’s participation in the transaction between Miguel Olazo and Joseph Jeffrey Rodriguez involved the payment of the loan that the respondent extended to Miguel Olazo.

(6) Manuel’s belated and secondhand allegation in his Sinumpaang Salaysay, dated January 20, 2000, regarding what his father told him, cannot prevail over his earlier Sinumpaang Salaysay with Francisca Olazo, dated August 2, 1997. In the said Sinumpaang Salaysay, Manuel categorically asserted that his father Miguel Olazo, not the complainant, was the farmer-beneficiary. Manuel also expressed his agreement to the transfer of rights (Pagpapatibay Sa Paglilipat Ng Karapatan) in favor of Joseph Jeffrey Rodriguez, and the withdrawal of his father’s application to give way to Joseph Jeffrey Rodriguez’s application. 

(7) The complainant’s allegation that the respondent had pressured and influenced Miguel Olazo to sell the subject land was not sufficient as it was lacking in specificity and corroboration. The DENR decision was clear that the complainant had no rights over the subject land.

 The respondent additionally denied violating Rule 1.01 of the Code of Professional Responsibility.  He alleged that during his third term as Congressman from 1995 to 1997, the conflicting applications of the complainant, Miguel Olazo and Joseph Jeffrey Rodriguez were not included in the agenda for deliberation of the Committee on Awards.  Rather, their conflicting claims and their respective supporting documents were before the Office of the Regional Director, NCR of the DENR.  This office ruled over the conflicting claims only on August 2, 2000. This ruling became the basis of the decision of the Secretary of the DENR. 

Similarly, the respondent cannot be held liable under Rule 6.02 of the Code of Professional Responsibility since the provision applies to lawyers in the government service who are allowed by law to engage in private law practice and to those who, though prohibited from engaging in the practice of law, have friends, former associates and relatives who are in the active practice of law.[21][8] In this regard, the respondent had already completed his third term in Congress and his stint in the Committee on Awards when he represented Joseph Jeffrey Rodriguez on May 24, 1999.

Lastly, the respondent claimed that he cannot be held liable under Rule 6.03 of the Code of Professional Responsibility since he did not intervene in the disposition of the conflicting applications of the complainant and Joseph Jeffrey Rodriguez because the applications were not submitted to the Committee on Awards when he was still a member.

The Court’s Ruling

 

Generally, a lawyer who holds a government office may not be disciplined as a member of the Bar for misconduct in the discharge of his duties as a government official.[22][9]  He may be disciplined by this Court as a member of the Bar only when his misconduct also constitutes a violation of his oath as a lawyer.[23][10] 

The issue in this case calls for a determination of whether the respondent’s actions constitute a breach of the standard ethical conduct – first, while the respondent was still an elective public official and a member of the Committee on Awards; and second, when he was no longer a public official, but a private lawyer who represented a client before the office he was previously connected with.   

          After a careful evaluation of the pleadings filed by both parties and their respective pieces of evidence, we resolve to dismiss the administrative complaint.

Accountability of a government lawyer in public office

     Canon 6 of the Code of Professional Responsibility highlights the continuing standard of ethical conduct to be observed by government lawyers in the discharge of their official tasks. In addition to the standard of conduct laid down under R.A. No. 6713 for government employees, a lawyer in the government service is obliged to observe the standard of conduct under the Code of Professional Responsibility. 

Since public office is a public trust, the ethical conduct demanded upon lawyers in the government service is more exacting than the standards for those in private practice. Lawyers in the government service are subject to constant public scrutiny under norms of public accountability.  They also bear the heavy burden of having to put aside their private interest in favor of the interest of the public; their private activities should not interfere with the discharge of their official functions.[24][11]

The first charge involves a violation of Rule 6.02 of the Code of Professional Responsibility.  It imposes the following restrictions in the conduct of a government lawyer:

A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.

The above provision prohibits a lawyer from using his or her public position to: (1) promote private interests; (2) advance private interests; or (3) allow private interest to interfere with his or her public duties. We previously held that the restriction extends to all government lawyers who use their public offices to promote their private interests.[25][12]

          In Huyssen v. Gutierrez,[26][13] we defined promotion of private interest to include soliciting gifts or anything of monetary value in any transaction requiring the approval of his or her office, or may be affected by the functions of his or her office.  In Ali v. Bubong,[27][14] we recognized that private interest is not limited to direct interest, but extends to advancing the interest of relatives.  We also ruled that private interest interferes with public duty when the respondent uses the office and his or her knowledge of the intricacies of the law to benefit relatives.[28][15]

 In Vitriolo v. Dasig,[29][16]  we found the act of the respondent (an official of the Commission on Higher Education) of extorting money from persons with applications or requests pending before her office to be a serious breach of Rule 6.02 of the Code of Professional Responsibility.[30][17] We reached the same conclusion in Huyssen, where we found the respondent (an employee of the Bureau of Immigration and Deportation) liable under Rule 6.02 of the Code of Professional Responsibility, based on the evidence showing that he demanded money from the complainant who had a pending application for visas before his office.[31][18] 

          Similarly, in Igoy v. Soriano[32][19] we found the respondent (a Court Attorney of this Court) liable for violating Rule 6.02 of the Code of Professional Responsibility, after considering the evidence showing that he demanded and received money from the complainant who had a pending case before this Court.

Applying these legal precepts to the facts of the case, we find the absence of any concrete proof that the respondent abused his position as a Congressman and as a member of the Committee on Awards in the manner defined under Rule 6.02 of the Code of Professional Responsibility.

First, the records do not clearly show if the complainant’s sales application was ever brought before the Committee on Awards. By the complaint’s own account, the complainant filed a sales application in March 1990 before the Land Management Bureau.  By 1996, the complainant’s sales application was pending before the Office of the Regional Director, NCR of the DENR due to the conflicting claims of Miguel Olazo, and, subsequently, of Joseph Jeffrey Rodriguez. The records show that it was only on August 2, 2000 that the Office of the Regional Director, NCR of the DENR rendered its decision, or after the term of the respondent’s elective public office and membership to the Committee on Awards, which expired in 1997.

 These circumstances do not show that the respondent did in any way promote, advance or use his private interests in the discharge of his official duties. To repeat, since the sales application was not brought before the Committee on Awards when the respondent was still a member, no sufficient basis exists to conclude that he used his position to obtain personal benefits.  We note in this regard that the denial of the complainant’s sales application over the subject land was made by the DENR, not by the Committee on Awards. 

Second, the complainant’s allegation that the respondent “orchestrated” the efforts to get the subject land does not specify how the orchestration was undertaken.  What appears clear in the records is the uncorroborated Sinumpaang Salaysay of Miguel Olazo, dated May 25, 2003,[33][20] categorically stating that the respondent had no interest in the subject land, and neither was he a contracting party in the transfer of his rights over the subject land.  In the absence of any specific charge, Olazo’s disclaimer is the nearest relevant statement on the respondent’s alleged participation, and we find it to be in the respondent’s favor.

Third, the other documents executed by Miguel Olazo, that the complainant presented to support his claim that the respondent exerted undue pressure and influence over his father (namely: the letter, dated June 22, 1996, to the DENR Regional Director-NCR;[34][21] the Sinumpaang Salaysay dated July 12, 1996;[35][22] and the Sinumpaang Salaysay dated July 17, 1996[36][23]), do not contain any reference to the alleged pressure or force exerted by the respondent over Miguel Olazo. The documents merely showed that the respondent helped Miguel Olazo in having his farm lots (covered by the proclaimed areas) surveyed.  They also showed that the respondent merely acted as a witness in the Sinumpaang Salaysay dated July 17, 1996.  To our mind, there are neutral acts that may be rendered by one relative to another, and do not show how the respondent could have influenced the decision of Miguel Olazo to contest the complainant’s sales application.  At the same time, we cannot give any credit to the Sinumpaang Salaysay, dated January 20, 2000, of Manuel.  They are not only hearsay but are contrary to what Miguel Olazo states on the record.  We note that Manuel had no personal knowledge, other than what Miguel Olazo told him, of the force allegedly exerted by the respondent against Miguel Olazo.

In turn, the respondent was able to provide a satisfactory explanation – backed by corroborating evidence – of the nature of the transaction in which he gave the various sums of money to Miguel Olazo and Francisca Olazo in the year 1995. In her affidavits dated May 25, 2003[37][24] and July 21, 2010,[38][25]  Francisca Olazo corroborated the respondent’s claim that the sums of money he extended to her and Miguel Olazo were loans used for their medical treatment. Miguel Olazo, in his Sinumpaang Salaysay dated May 25, 2003, asserted that some of the money borrowed from the respondent was used for his medical treatment and hospitalization expenses.

The affidavit of Joseph Jeffrey Rodriguez further corroborated the respondent’s claim that the latter’s involvement was limited to being paid the loans he gave to Miguel Olazo and Francisca Olazo. According to Joseph Jeffrey Rodriguez, he and Miguel Olazo agreed that a portion of the loan would be directly paid by Joseph Jeffrey Rodriguez to the respondent and the amount paid would be considered as part of the purchase price of the subject land.[39][26]

It also bears stressing that a facial comparison of the documentary evidence, specifically the dates when the sums of money were extended by the respondent – on February 21, 1995, September 2, 1995 and October 17, 1995, and the date when the Deed of Conveyance[40][27] over the subject land was executed or on October 25, 1995, showed that the sums of money were extended prior to the transfer of rights over the subject land. These pieces of evidence are consistent with the respondent’s allegation that Miguel Olazo decided to sell his rights over the subject land to pay the loans he obtained from the respondent and, also, to finance his continuing medical treatment.

Private practice of law after separation from public office

 

As proof that the respondent was engaged in an unauthorized practice of law after his separation from the government service, the complainant presented the Sinumpaang Salaysay, dated January 20, 2000, of Manuel and the document entitled “Assurance” where the respondent legally represented Ramon Lee and Joseph Jeffrey Rodriguez. Nevertheless, the foregoing pieces of evidence fail to persuade us to conclude that there was a violation of Rule 6.03 of the Code of Professional Responsibility.

In Cayetano v. Monsod,[41][28] we defined the practice of law as any activity, in and out of court, that requires the application of law, legal procedure, knowledge, training and experience. Moreover, we ruled that to engage in the practice of law is to perform those acts which are characteristics of the profession; 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.

    Under the circumstances, the foregoing definition should be correlated with R.A. No. 6713 and Rule 6.03 of the Code of Professional Responsibility which impose certain restrictions on government lawyers to engage in private practice after their separation from the service.

Section 7(b)(2) of R.A. No. 6713 reads:

Section 7. Prohibited Acts and Transactions. — In addition to acts and

omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:

x  x  x  x

(b) Outside employment and other activities related thereto. – Public officials and employees during their incumbency shall not:

x  x  x  x

(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; x  x  x

These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply.

As a rule, government lawyers are not allowed to engage in the private practice of their profession during their incumbency.[42][29]  By way of exception, a government lawyer can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict or tend to conflict with his or her official functions.[43][30]  The last paragraph of Section 7 provides an exception to the exception.  In case of lawyers separated from the government service who are covered under subparagraph (b) (2) of Section 7 of R.A. No. 6713, a one-year prohibition is imposed to practice law in connection with any matter before the office he used to be with.

Rule 6.03 of the Code of Professional Responsibility echoes this restriction and prohibits lawyers, after leaving the government service, to accept engagement or employment in connection with any matter in which he had intervened while in the said service.  The keyword in Rule 6.03 of the Code of Professional Responsibility is the term “intervene” which we previously interpreted to include an act of a person who has the power to influence the proceedings.[44][31]  Otherwise stated, to fall within the ambit of Rule 6.03 of the Code of Professional Responsibility, the respondent must have accepted engagement or employment in a matter which, by virtue of his public office, he had previously exercised power to  influence the outcome of the proceedings.

As the records show, no evidence exists showing that the respondent previously interfered with the sales application covering Manuel’s land when the former was still a member of the Committee on Awards.  The complainant, too, failed to sufficiently establish that the respondent was engaged in the practice of law. At face value, the legal service rendered by the respondent was limited only in the preparation of a single document.  In Borja, Sr. v. Sulyap, Inc.,[45][32] we specifically described private practice of law as one that contemplates a succession of acts of the same nature habitually or customarily holding one’s self to the public as a lawyer.

In any event, even granting that respondent’s act fell within the definition of practice of law, the available pieces of evidence are insufficient to show that the legal representation was made before the Committee on Awards, or that the Assurance was intended to be presented before it.  These are matters for the complainant to prove and we cannot consider any uncertainty in this regard against the respondent’s favor.

Violation of Rule 1.01

 

Rule 1.01 prohibits a lawyer from engaging in unlawful, immoral or deceitful conduct. From the above discussion, we already struck down the complainant’s allegation that respondent engaged in an unauthorized practice of law when he appeared as a lawyer for Ramon Lee and Joseph Jeffrey Rodriguez before the Committee on Awards.

We find that a similar treatment should be given to the complainant’s claim that the respondent violated paragraph 4(1)[46][33] of Memorandum No. 119 when he encouraged the sales application of Joseph Jeffrey Rodriguez despite his knowledge that his nephew was not a qualified applicant.  The matter of  Joseph Jeffrey Rodriguez’s qualifications to apply for a sales application over lots covered by the proclaimed areas has been resolved in the affirmative  by the Secretary of the DENR in the decision dated April 3, 2004,[47][34] when the DENR gave due course to his sales application over the subject land.  We are, at this point, bound by this finding.

As pointed out by the respondent, the DENR decision was affirmed by the Office of the President, the Court of Appeals[48][35] and, finally, the Court, per our Minute Resolution, dated October 11, 2006, in G.R. No. 173453. In our Resolution, we dismissed the petition for review on certiorari filed by the complainant after finding, among others, that no reversible error was committed by the Court of Appeals in its decision.[49][36]

All told, considering the serious consequences of the penalty of disbarment or suspension of a member of the Bar, the burden rests on the complainant to present clear, convincing and satisfactory proof for the Court to exercise its disciplinary powers.[50][37]  The respondent generally is under no obligation to prove his/her defense,[51][38] until the burden shifts to him/her because of what the complainant has proven.  Where no case has in the first place been proven, nothing has to be rebutted in defense.[52][39]

With this in mind, we resolve to dismiss the administrative case against the respondent for the complainant’s failure to prove by clear and convincing evidence that the former committed unethical infractions warranting the exercise of the Court’s disciplinary power.

WHEREFORE, premises considered, we DISMISS the administrative case for violation of Rule 6.02, Rule 6.03 and Rule 1.01 of the Code of Professional Responsibility, filed against retired Supreme Court Associate Justice Dante O. Tinga, for lack of merit.

 

SO ORDERED. 

                                                          ARTURO D. BRION

                                                             Associate Justice

 

 

 

WE CONCUR:

 

 

 

 

RENATO C. CORONA

Chief Justice
 

ANTONIO T. CARPIO

Associate Justice

(on official leave)

 PRESBITERO J. VELASCO, JR.

Associate Justice

  TERESITA J. LEONARDO-DE CASTRO

Associate Justice

     LUCAS P. BERSAMIN

Associate Justice

ROBERTO A. ABAD

                     Associate Justice

 

 JOSE PORTUGAL PEREZ

                        Associate Justice

  

        CONCHITA CARPIO MORALES

                     Associate Justice

 

 

 

 

ANTONIO EDUARDO B. NACHURA

Associate Justice

 DIOSDADO M. PERALTA

                       Associate Justice

 

 

         MARIANO C. DEL CASTILLO

                       Associate Justice

         MARTIN S. VILLARAMA, JR.

Associate Justice

 JOSE CATRAL MENDOZA

Associate Justice

MARIA LOURDES P.A. SERENO

Associate Justice

 

 

[1][28] G.R. No. 100113, September 3, 1991, 201 SCRA 210, 214.

[2][32] G.R. No. 150718, March 26, 2003, 399 SCRA 601, 610.

[3][11] Agpalo, Legal and Judicial Ethics (2002 edition), p. 88.

[4][12] Chan v. Go, A.C. No. 7547, September 4, 2009, 598 SCRA 145, 155.

[5][13] A.C. No. 6707, March 24, 2006, 485 SCRA 244, 258.

[6][14] A.C. No. 4018, March 8, 2005, 453 SCRA 1, 14.

[7][15] Ibid.

[8][16] Supra note 9, at 179.

[9][17] Ibid.

[10][18] Supra note 13, at 257-258.

[11][19] A.M. No. 2001-9-SC, October 11, 2001, 367 SCRA 70, 79 and 81.

[12][29] Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court – Branch 81, Romblon, Romblon – On the Prohibition from Engaging in the Private Practice of Law, A.M. No. 08-6-352-RTC, August 19, 2009, 596 SCRA 378, 390.

[13][30] Id. at 390-391.

[14][1]  A lawyer in the government service shall not use his public position to promote or advance his private interests, nor allow the latter to interfere with his public duties.

[15][2]  A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he had intervened while in said service.

[16][3]  A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

[17][4]  Excluding from the Operation of Proclamation No. 423 dated July 12, 1957, which Established the Military Reservation known as Fort William Mckinley (now Fort Andres Bonifacio), situated in the Municipalities of Pasig-Taguig and Parañaque, Province of Rizal, and Pasay City (now of Metropolitan Manila), a certain portion of land embraced therein known as Barangays Lower Bicutan, Upper Bicutan and Signal Village situated in the Municipality of Taguig, Metropolitan Manila, and Declaring the Same Open for Disposition under the Provisions of Republic Act Nos. 274 and 730.

[18][5]  Excluding from the Operation of Proclamation No. 423 dated July 12, 1957, which Established the Military Reservation known as Fort William Mckinley (now Fort Andres Bonifacio) situated in the Municipalities of Pasig, Taguig, Pateros and Parañaque, Province of Rizal and Pasay City (now Metropolitan Manila), as amended by Proclamation No. 2476 dated January 7, 1986, certain portions of land embraced therein known as Barangays Lower Bicutan, Upper Bicutan, Western Bicutan and Signal Village situated in the Municipality of Taguig, Metropolitan Manila and Declaring the Same Open for Disposition under the Provisions of Republic Act No. 274 and Republic Act No. 730 in relation to the Provisions of the Public Land Act, as amended; and Providing the Implementing Guidelines.

[19][6]  Complaint, pp. 1-7.

[20][7]  Comment, pp. 1-15.

[21][8]  Citing Agpalo, Ruben, Comments On The Code Of Professional Responsibility And The Code of Judicial Conduct, p. 51.

[22][9]  Vitriolo v. Dasig, A.C. No. 4984, April 1, 2003, 400 SCRA 172, 178.

[23][10] Ibid.

[24][11] Agpalo, Legal and Judicial Ethics (2002 edition), p. 88.

[25][12] Chan v. Go, A.C. No. 7547, September 4, 2009, 598 SCRA 145, 155.

[26][13] A.C. No. 6707, March 24, 2006, 485 SCRA 244, 258.

[27][14] A.C. No. 4018, March 8, 2005, 453 SCRA 1, 14.

[28][15] Ibid.

[29][16] Supra note 9, at 179.

[30][17] Ibid.

[31][18] Supra note 13, at 257-258.

[32][19] A.M. No. 2001-9-SC, October 11, 2001, 367 SCRA 70, 79 and 81.

[33][20] Annex “9” of Comment.

[34][21] Annex “F” of the Complaint-Affidavit.

[35][22] Annex “G” of the Complaint-Affidavit.

[36][23] Annex “H” of the Complaint-Affidavit.

[37][24] Annex “C” of the Comment.

[38][25] Annex “7” of the Comment.

[39][26] Annex “11” of the Comment.

[40][27] Annex “O” of the Complaint-Affidavit.

[41][28] G.R. No. 100113, September 3, 1991, 201 SCRA 210, 214.

[42][29] Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court – Branch 81, Romblon, Romblon – On the Prohibition from Engaging in the Private Practice of Law, A.M. No. 08-6-352-RTC, August 19, 2009, 596 SCRA 378, 390.

[43][30] Id. at 390-391.

[44][31] Presidential Commission on Good Government v. Sandiganbayan, G.R. Nos. 151809-12, April 12, 2005, 455 SCRA 526, 579.

[45][32] G.R. No. 150718, March 26, 2003, 399 SCRA 601, 610.

[46][33] Rollo, p. 3.

[47][34] Annex “8” of the Comment.

[48][35] Decision dated January 19, 2006 in CA-G.R. SP No. 89931, entitled “Jovito Olazo v. Jeffrey Bernardo Rodriguez; Annex “16” of the Comment.

[49][36] Annex “17” of the Comment.

[50][37] Berbano v. Barcelano, A.C. No. 6084, September 3, 2003, 410 SCRA 258, 264-265.

[51][38] Boyboy v. Yabut, Jr., A.C. No. 5225, April 29, 2003, 401 SCRA 622, 628.

[52][39] Borromeo-Garcia v. Pagayatan, A.M. No. RTJ-08-2127, September 25, 2008, 566 SCRA 320, 329.

Comment