Querry of Atty. Karen
Querry of Atty. Karen
Atty. Buffe posed these questions: Why may an incumbent engage in private practice under
(b)(2), assuming the same does not conflict or tend to conflict with his official duties, but a non-
incumbent like myself cannot, as is apparently prohibited by the last paragraph of Sec. 7? Why is
the former allowed, who is still occupying the very public position that he is liable to exploit, but
a non-incumbent like myself who is no longer in a position of possible abuse/exploitation
cannot?
It appears that Atty. Buffe had been practicing law within the 1-year period by appearing in
several cases in Br. 81 of RTC where she served as clerk before.
Atty. Buffe alleged that Section 7(b)(2) of R.A. No. 6713 gives preferential treatment to an
incumbent public employee, who may engage in the private practice of his profession so long as
this practice does not conflict or tend to conflict with his official functions.
She filed petition for declaratory reliefs in relation to such questions before the court which the
Court dismissed.
The SC referred the query to the OCAT. The OCAT observed that The premise of the query is
erroneous. She interprets Section 7 (b) (2) as a blanket authority for an incumbent clerk of court
to practice law. Clearly, there is a misreading of that provision of law.
The SC explains Sec. 7 (b) 2 of RA 6713 which prohibits O or E from engaging in the practice of
their profession except when the Costitution or law allows it AND the practice will not conflict ,
or tend to conflict , with his or her official functions.
As an exception to this exception, the one-year prohibited period applies
with respect to any matter before the office the public officer or
employee used to work with.
Section 5, Canon 3 of the Code of Conduct for Court Personnel also
applies. The latter provision provides the definitive rule on the outside
employment that an incumbent court official or court employee may
undertake in addition to his official duties:
(c) That outside employment does not require the practice of
law; Provided, however, that court personnel may render services as
professor, lecturer, or resource person in law schools, review or
continuing education centers or similar institutions;
The clerk of courts limitation is that she cannot practice her profession within one year before
the office where he or she used to work with.
Nafine si Atty. Buffe ug 10k plus a warning! Mao rah.
FULL TEXT
EN BANC
DECISION
BRION, J.:
xxx
xxx
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.
The query arose because Atty. Buffe previously worked as Clerk of Court VI
of the Regional Trial Court (RTC), Branch 81 of Romblon; she resigned from her
position effective February 1, 2008. Thereafter (and within the one-year period of
prohibition mentioned in the above-quoted provision), she engaged in the private
practice of law by appearing as private counsel in several cases before RTC-
Branch 81 of Romblon.
Atty. Buffe alleged that Section 7(b)(2) of R.A. No. 6713 gives preferential
treatment to an incumbent public employee, who may engage in the private
practice of his profession so long as this practice does not conflict or tend to
conflict with his official functions. In contrast, a public official or employee who
has retired, resigned, or has been separated from government service like her, is
prohibited from engaging in private practice on any matter before the office where
she used to work, for a period of one (1) year from the date of her separation from
government employment.
Atty. Buffe further alleged that the intention of the above prohibition is to
remove the exercise of clout, influence or privity to insider information, which the
incumbent public employee may use in the private practice of his profession.
However, this situation did not obtain in her case, since she had already resigned as
Clerk of Court of RTC-Branch 18 of Romblon. She advanced the view that she
could engage in the private practice of law before RTC-Branch 81 of Romblon, so
long as her appearance as legal counsel shall not conflict or tend to conflict with
her former duties as former Clerk of Court of that Branch.
Thus, it may be well to say that the prohibition was intended to avoid any
impropriety or the appearance of impropriety which may occur in any transaction
between the retired government employee and his former colleagues, subordinates
or superiors brought about by familiarity, moral ascendancy or undue influence,
as the case may be.[2]
The premise of the query is erroneous. She interprets Section 7 (b) (2) as a blanket
authority for an incumbent clerk of court to practice law. Clearly, there is a
misreading of that provision of law.[4]
and further observed:
The confusion apparently lies in the use of the term such practice after the phrase
provided that. It may indeed be misinterpreted as modifying the phrase engage in
the private practice of their profession should be prefatory sentence that public
officials during their incumbency shall not be disregarded. However, read in its
entirety, such practice may only refer to practice authorized by the Constitution or
law or the exception to the prohibition against the practice of profession. The term
law was intended by the legislature to include a memorandum or a circular or an
administrative order issued pursuant to the authority of law.
xxx
xxx
The policy thus requires public officials and employees to devote full time public
service so that in case of conflict between personal and public interest, the latter
should take precedence over the former.[5][Footnotes omitted]
With respect to lawyers in the judiciary, the OCAT pointed to Section 5, Canon 3
of the Code of Conduct for Court Personnel the rule that deals with outside
employment by an incumbent judicial employee and which limits such outside
employment to one that does not require the practice of law.[6] The prohibition to
practice law with respect to any matter where they have intervened while in the
government service is reiterated in Rule 6.03, Canon 6 of the Code of Professional
Responsibility, which governs the conduct of lawyers in the government service.[7]
(1) Civil Case No. V-1564, entitled Oscar Madrigal Moreno, Jr.
et al. versus Leonardo M. Macalam, et al. on February 19, 2008,
March 4, 2008, April 10, 2008 and July 9, 2008 as counsel for the
plaintiffs;
She also made known her intent to elevate the dismissal of the above cases so that
eventually, the Honorable Supreme Court may put to rest the legal issue/s
presented in the above petitions which is, why is it that R.A. No. 6713, Sec. 7 (b)(2)
and last par. thereof, apparently contains an express prohibition (valid or invalid)
on the private practice of undersigneds law profession, before Branch 81, while on
the other hand not containing a similar, express prohibition in regard to
undersigneds practice of profession, before the same court, as a public prosecutor
within the supposedly restricted 1-year period?
Preliminary Considerations
Atty. Buffes admitted appearance, before the very same branch she served
and immediately after her resignation, is a violation that we cannot close our eyes
to and that she cannot run away from under the cover of the letter-query she filed
and her petition for declaratory relief, whose dismissal she manifested she would
pursue up to our level.
We note that at the time she filed her letter-query (on March 4, 2008), Atty.
Buffe had already appeared before Branch 81 in at least three (3) cases. The terms
of Section 7 (b)(2) of R.A. No. 6713 did not deter her in any way and her
misgivings about the fairness of the law cannot excuse any resulting violation she
committed. In other words, she took the risk of appearing before her own Branch
and should suffer the consequences of the risk she took.
Nor can she hide behind the two declaratory relief petitions she filed, both of
which were dismissed, and her intent to elevate the dismissal to this Court for
resolution. The first, filed before the RTC, Branch 54, Manila, was dismissed on
July 23, 2008 because the court declined to exercise the power to declare rights as
prayed for in the petition, as any decision that may be rendered will be inutile and
will not generally terminate the uncertainty or controversy.[12] The second, filed
with the RTC, Branch 17, Manila, was dismissed for being an inappropriate
remedy after the dismissal ordered by the RTC, Branch 54, Manila, on December
4, 2008.[13] Under these circumstances, we see nothing to deter us from ruling on
Atty. Buffes actions, as no actual court case other than the present administrative
case, is now actually pending on the issue she raised. On the contrary, we see from
Atty. Buffes recourse to this Court and the filing of the two declaratory petitions
the intent to shop for a favorable answer to her query. We shall duly consider this
circumstance in our action on the case.
Section 7 of R.A. No. 6713 generally provides for the prohibited acts and
transactions of public officials and employees. Subsection (b)(2) prohibits them
from engaging in the private practice of their profession during their
incumbency. As an exception, a public official or employee 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.
The Section 7 prohibitions continue to apply for a period of one year after
the public official or employees resignation, retirement, or separation from public
office, except for the private practice of profession under subsection (b)(2), which
can already be undertaken even within the one-year prohibition period. As an
exception to this exception, the one-year prohibited period applies with respect to
any matter before the office the public officer or employee used to work with.
The Section 7 prohibitions are predicated on the principle that public office
is a public trust; and serve to remove any impropriety, real or imagined, which may
occur in government transactions between a former government official or
employee and his or her former colleagues, subordinates or superiors. The
prohibitions also promote the observance and the efficient use of every moment of
the prescribed office hours to serve the public.[15]
In both the above discussed aspect of R.A. No. 6713 and the quoted Canon
3, the practice of law is covered; the practice of law is a practice of profession,
while Canon 3 specifically mentions any outside employment requiring the
practice of law. In Cayetano v. Monsod,[16] 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. [17] Under both
provisions, a common objective is to avoid any conflict of interest on the part of
the employee who may wittingly or unwittingly use confidential information
acquired from his employment, or use his or her familiarity with court personnel
still with the previous office.
After separation from the service, Section 5, Canon 3 of the Code of
Conduct for Court Personnel ceases to apply as it applies specifically to
incumbents, but Section 7 and its subsection (b)(2) of R.A. No. 6713 continue to
apply to the extent discussed above. Atty. Buffes situation falls under Section 7.
Atty. Buffe apparently misreads the law. As the OCAT aptly stated, she
interprets Section 7 (b)(2) as a blanket authority for an incumbent clerk of court to
practice law. We reiterate what we have explained above, that the general rule
under Section 7 (b)(2) is to bar public officials and employees from the practice of
their professions; it is unlawful under this general rule for clerks of court to
practice their profession. By way of exception, they can practice their profession if
the Constitution or the law allows them, but no conflict of interest must exist
between their current duties and the practice of their profession. As we also
mentioned above, no chance exists for lawyers in the Judiciary to practice their
profession, as they are in fact expressly prohibited by Section 5, Canon 3 of the
Code of Conduct for Court Personnel from doing so. Under both the general rule
and the exceptions, therefore, Atty. Buffes basic premise is misplaced.
By acting in a manner that R.A. No. 6713 brands as unlawful, Atty. Buffe
contravened Rule 1.01 of Canon 1 of the Code of
Professional Responsibility, which provides:
We also find that Atty. Buffe also failed to live up to her lawyers oath and thereby
violated Canon 7 of the Code of Professional Responsibility when she blatantly
and unlawfully practised law within the prohibited period by appearing before the
RTC Branch she had just left. Canon 7 states:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY
AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE
ACTIVITIES OF THE INTEGRATED BAR. [Emphasis supplied]
By her open disregard of R.A. No. 6713, she thereby followed the footsteps
of the models she cited and wanted to replicate the former court officials who
immediately waded into practice in the very same court they came from. She, like
they, disgraced the dignity of the legal profession by openly disobeying and
disrespecting the law.[20] By her irresponsible conduct, she also eroded public
confidence in the law and in lawyers.[21] Her offense is not in any way mitigated by
her transparent attempt to cover up her transgressions by writing the Court a letter-
query, which she followed up with unmeritorious petitions for declaratory relief,
all of them dealing with the same Section 7 (b)(2) issue, in the hope perhaps that at
some point she would find a ruling favorable to her cause. These are acts whose
implications do not promote public confidence in the integrity of the legal
profession.[22]
In Prudential Bank v. Castro,[24] 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.[25] 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.[26]
We applied the principle of res ipsa loquitur once more in In re: Wenceslao
Laureta[28] where we punished a lawyer for grave professional misconduct solely
based on his answer to a show-cause order for contempt and without going into a
trial-type hearing. We ruled then that due process is satisfied as long as the
opportunity to be heard is given to the person to be disciplined.[29]
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.
In this case, we cannot discern any mitigating factors we can apply, save
OCATs observation that Atty Buffes letter-query may really reflect a
misapprehension of the parameters of the prohibition on the practice of the law
profession under Section 7 (b) (2) of R.A. No. 6713. Ignorance of the law,
however, is no excuse, particularly on a matter as sensitive as practice of the legal
profession soon after ones separation from the service. If Atty. Buffe is correct in
the examples she cited, it is time to ring the bell and to blow the whistle signaling
that we cannot allow this practice to continue.
Under the circumstances, we find that her actions merit a penalty of fine
of P10,000.00, together with a stern warning to deter her from repeating her
transgression and committing other acts of professional misconduct.[35] This
penalty reflects as well the Courts sentiments on how seriously the retired,
resigned or separated officers and employees of the Judiciary should regard
and observe the prohibition against the practice of law with the office that
they used to work with.
Let this Decision be noted in Atty. Buffes record as a member of the Bar.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
(On official leave) (On official leave)
LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice
ROBERTO A. ABAD
Associate Justice
*
On official leave.
*
On official leave.
[1]
Rollo, p. 2.
[2]
Id., p. 3.
[3]
Id., p. 8.
[4]
Id., p. 12.
[5]
Id., pp. 12-13.
[6]
The last paragraph of Section 5 states: Where a conflict if interest exists, may reasonably appear to exist, or where
the outside employment reflects adversely on the integrity of the Judiciary, the court personnel shall not accept the
outside employment; see rollo, p. 16.
[7]
Rule 6.03 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.
[8]
Rollo, p. 23.
[9]
Province of North Cotabato, etc. v. The Government of the Republic of the Philippines Peace Panel on Ancestral
Domain (GRP), G.R. No. 183591, October 14, 2008.
[10]
CONSTITUTION, Article VIII, Section 5(b).
[11]
Id., Section 6.
[12]
Rollo, pp. 57-58; attachment D to Atty. Buffes Manifestation of February 2, 2009.
[13]
Id., p. 59; attachment B to Atty Buffes Manifestation of February 2, 2009.
[14]
Prudential Bank v. Castro, A.C. No. 2756, November 12, 1987, 155 SCRA 604; Richards v. Asoy, A. C. No.
2655 , July 9, 1987, 152 SCRA 45; In re: Wenceslao Laureta, G.R. No. L-68635, May 14, 1987, 149 SCRA
570; Zaldivar v. Gonzales, G.R. No. L-80578 , October 7, 1988, 166 SCRA 316.
[15]
Aquino-Simbulan v. Zabat, A.M. No. P-05-1993, April 26, 2005, 457 SCRA 23.
[16]
G.R. No. 100113, September 3, 1991, 201 SCRA 210.
[17]
Ibid.
[18]
Re: Report on the Financial Audit Conducted on the Books of Accounts of Atty. Raquel G. Kho, Clerk of Court
IV, Regional Trial Court, Oras, Easter Samar, A.M. No. P-06-2177, April 19, 2007, 521 SCRA 22.
[19]
Id., p. 29.
[20]
Catu v. Rellosa,, A .C. No. 5738, February 19, 2008, 546 SCRA 209
[21]
Id., pp. 202-221.
[22]
Id., p. 221.
[23]
Agpalo, Comments on the Code of Professional Responsibility and Code of Judicial Conduct (2004 edition), pp.
457-458; and Pineda, Legal and Judicial Ethics (1999 edition), pp. 338-339.
[24]
Supra note 14.
[25]
Id., p. 622.
[26]
Id., p. 623.
[27]
Supra note 14.
[28]
Supra note 14.
[29]
Ibid.
[30]
Supra note 14.
[31]
Id., pp. 331-332.
[32]
Catu v. Rellosa, supra note 20, p. 221.
[33]
Lim-Santiago v. Saguico, A.C. No. 6705, March 31, 2006, 486 SCRA 10.
[34]
See 2nd paragraph of page 8 of this Decision.
[35]
Agpalo, Comments on the Code of Professional Responsibility and the Code of Judicial Conduct, supra note 23,
p. 408; Section 12 (c), Rule 139 of the Rules of Court in connection with Section 15 of the same Rule; and Visbal
v. Buban, G.R. No. MTJ-02-1432, September 3, 2004, 437 SCRA 520.