CASES LEGPROF

7/27/2019 CASES LEGPROF

1/84

EDUARDO J. BERENGUER, complainant, vs. PEDRO B. CARRANZA,respondent.

SYLLABUS

1.LEGAL ETHICS; ATTORNEYS-AT-LAW; VIOLATION OF OATH OF OFFICE; INTRODUCING FALSE AFFIDAVIT

OF ADJUDICATION AND TRANSFER. A complaint against respondent was filed for deception practicedon the Court of First Instance of Sorsogon, in that aware of the falsity of an Affidavit of Adjudication and

Transfer wherein he had no hand in the making of said affidavit, he introduced the same in evidence.

Held. For failure to exercise greater care in the discharge of his duties as a lawyer consistent with his

oath of office, confusion and prolongation of a cadastral suit has resulted. Under the circumstances, it

would be to err on the side of leniency if he would be held blameless. He had incurred liability. His

fidelity to his oath as attorney was less than entire.

2.ID.; ID.; DUTIES; FIDELITY TO CLIENTS AND CANDOR TOWARDS THE COURT. Every member of the

bar must be on his guard, lest through oversight or inadvertence, the way he conducts his case or the

evidence he presents could conceivably result in a failure of justice. Time and time again, lawyers have

been admonished to remember that they are officers of the court, and that while they owe their clients

the duty of complete fidelity and the utmost diligence, they are likewise held to strict accountability

insofar as candor and honesty towards the court is concerned.

3.ID.; ID.; CARELESSNESS DOES NOT FREE A LAWYER FROM LIABILITY AS CHARGED. Even if there be

no intent to deceive, a lawyer whose conduct betrays inattention or carelessness should not be allowed

to free himself from a charge thereafter instituted against him by the mere plea that his conduct was

not willful and that he has not consented to the doing of the falsity.

4.ID.; ID.; LAWYER'S OATH IS IMPRESSED WITH UTMOST SERIOUSNESS, MUST NOT BE TAKEN LIGHTLY.

A lawyer's oath is one impressed with the utmost seriousness; it must not be taken lightly. Everylawyer must do his best to live up to it. There would be a failure of justice if courts cannot rely on the

submission as well as the representations made by lawyers, insofar as the presentation of evidence,

whether oral or documentary, is concerned. Even without any intent on the part of a member of the bar

to mislead the court, such deplorable event did occur, he must not be allowed to escape the

responsibility that justly attaches to a conduct far from impeccable.

D E C I S I O N

FERNANDO,J p:

The law is an exacting taskmaster. Membership in the bar, as so appropriately put, is a privilegeburdened with conditions.1A lawyer is called upon by virtue of his oath of office to "do no falsehood,

nor consent to the doing of any in court; . . . [and to] conduct [himself] as a lawyer according to the best

of [his] knowledge and discretion with all good fidelity . . . to the courts . . ."2The question, one that has

an element of novelty, is whether respondent Pedro B. Carranza, duly admitted to the practice of the

law, did get entangled in the complexity of the strands in the web of obligation such an oath imposes?

More specifically, did he manifest the utmost fealty to the trust reposed in him as an officer of the Court
http://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnotes


2/84

by taking all necessary measures to avoid the court being misled, even if such were the result not of

design but of inadvertence?

A complaint against respondent Pedro B. Carranza was filed on July 15, 1966, for deception practiced on

the Court of First Instance of Sorsogon, in that aware of the falsity of an Affidavit of Adjudication and

Transfer executed by the mother of his client to the effect that her own mother left no legitimateascendants or descendants or any other heirs except herself, when, as a matter of fact, the deceased

was survived by four other daughters and one son, father of the complainant, he introduced the same in

evidence.3

Respondent Carranza was required in our resolution of July 22, 1966, to file an answer. Thereafter, on

August 17, 1966, he did so, alleging as the truth of the matter that the aforesaid Affidavit of

Adjudication and Transfer was introduced in evidence only to prove the fact of such transfer of the

property in question to his client, respondent having "no hand in the making of said affidavit nor of the

petition, both of which were prepared in Pasay City."4

On September 1, 1966, the matter was referred by us to the Solicitor General for investigation, report

and recommendation. Such investigation was had wherein both complainant and respondent were duly

heard. The issue in the opinion of the then Solicitor General, the Honorable Antonio Barredo, now a

member of this Court, as set forth in his report of March 18, 1968, is whether respondent "consented in

violation of his oath, to the doing of any falsehood in court."

It was admitted in said report: "If respondent had anything to do with the preparation of the Petition or

of the Affidavit of Adjudication, his participation does not appear from the evidence presented in this

case. The Petition was subscribed and sworn to in Pasay City before one Atty. A. Mendoza, while the

Affidavit was subscribed under oath in Pasay before Notary Public Ernesto V. Ventura. The foregoing

documents were posted from Pasay to the Clerk of Court, Sorsogon. . . ."5

It was likewise noted that respondent testified as to his being "not `very meticulous about the petition'

because there was neither private nor government opposition thereto; that if he had intended to

deceive the court by virtue of the documents, he could have told his client to answer his questions at

the cadastral hearing to conform to the controverted paragraph in the Affidavit of Adjudication

concerning the statement reproduced from the tax declaration that the decedent left no legitimate

ascendants or descendants or any other heirs except the affiant . . ."6

There is this admission in the aforesaid report. Thus: "As the evidence stands, there is no apparent

causal link between the falsehood and the fact that respondent is the lawyer handling the cadastral case

at the Sorsogon end."7Nonetheless, while recognizing the absence of evidence that such falsehood in

the Affidavit of Adjudication could be traced to respondent, the report would hold him liable for

discretionary action as the circumstance that various estates are involved "certainly warranted a greater

exercise of diligence on respondent's part."8

Moreover, as likewise stated therein, the fact "that he did not even bother to read the entirety of the

affidavit runs counter to respondent's inescapable duty to clear up doubts and inconsistencies."9For he
http://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnotes


3/84

could have been aware "of the family litigations between his client and complainant which are rooted in

successional rights. . . ."10If only for the above fact then, as stated in the report, "he should precisely

have taken the bother to read the entirety of the Affidavit of Adjudication when the cadastral case was

heard on January 17, 1966. . . ."11

From which, in the light of the above, it was the conclusion of the then Solicitor General AntonioBarredo, assisted by Assistant Solicitor General Frine Zaballero: "If he did not, he cannot be relieved

from the consequences of his acts as a lawyer, and disclaim responsibility therefor. To allow respondent

relief from his duty is to ignore what is obvious from the nature of the litigations in which he entered his

appearance . . .. Actually, respondent's failure to read the affidavit proves that he did not properly

inform himself of the evidence he was going to present in court, thereby exhibiting an indifference to

proof inconsistent with facts he definitely knows. Thus, respondent has contributed to confusion and

the prolongation of the cadastral suit, which pends as a petition for Relief. . . ."12

It was the recommendation that the corresponding complaint for the violation of his oath against

respondent be instituted. Such complaint was filed by the two above officials on March 18, 1968.

Respondent was charged with "violation of his oath of office, [having] caused confusion and

prolongation of the cadastral suit for presenting evidence therein containing a false statement

inconsistent with facts he definitely knows by reason of the family litigations between his client and

complainant herein, which are rooted in successional rights [and that] respondent's failure to discharge

his duties as a lawyer consistent with his oath of office finds sanction in Rule 138, Section 27, Revised

Rules of Court. . . ."13

Respondent in his answer, dated March 16, 1968, raised no issue as to the facts. He would allege in

justification however "that while it is true that the .. respondent was the counsel who appeared for the

petitioner in Cadastral Case No. 2, LRC Cadastral Record No. 869 of Sorsogon Cadastre, yet he had

nothing to do with the making of the petition and the annexes thereto attached; for the same were

made in Pasay City and that when [he] accepted to represent the petitioner in the Cadastral Case

mentioned above, there was no opposition from anybody .. not even from the Bureau of Lands nor from

the Honorable Solicitor General, making, therefore, the hearing therein a mere formality. Such being the

case, the [respondent] presented the petitioner's case on January 17, 1966, without meticulously going

over the documents, and the alleged Affidavit of Adjudication and Transfer was presented to show the

fact of transfer of the land described therein from the affiant to her son. The stenographic notes in that

proceeding will bear this matter out. [Respondent's] failure to notice the existence of an incorrect

statement in the said affidavit was a mere oversight. It was not [willful], for he has not consented to the

doing of the falsity therein made, since the same was prepared by petitioner's lawyer in Pasay City; nor

did [respondent] willingly do falsehood in the hearing mentioned above; . . ."14

There is something unique in this proceeding then. With the finding of the then Solicitor General

Barredo that there was nothing willful in the conduct pursued by respondent in thus introducing in

evidence the Affidavit of Adjudication and Transfer which turned out to be false, in the preparation of
http://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnoteshttp://www.cdasiaonline.com/search/show_article/30171?search=%28berenguer+vs%29+AND+title%3A+%28berenguer%29+AND+title%3A+%28carranza%29#footnotes


4/84

which, however, he had nothing to do, the charge of deliberate deception obviously cannot be

sustained.

Would that of itself entirely exculpate him from any responsibility? The answer must be in the negative.

As was correctly pointed out in the complaint, his failure to exercise greater care did result in the

"confusion and prolongation of the cadastral suit." Under the circumstances, it would be to err on theside of undue leniency if he would be held blameless. He had incurred liability. His fidelity to his oath as

attorney was less than entire.

Every member of the bar must be on his guard, lest through oversight or inadvertence, the way he

conducts his case or the evidence he presents could conceivably result in a failure of justice. Time and

time again, lawyers have been admonished to remember that they are officers of the court, and that

while they owe their clients the duty of complete fidelity and the utmost diligence, they are likewise

held to strict accountability insofar as candor and honesty towards the court is concerned.

Even if there be no intent to deceive, therefore, a lawyer whose conduct, as in this case, betrays

inattention or carelessness should not be allowed to free himself from a charge thereafter instituted

against him by the mere plea that his conduct was not willful and that he has not consented to the doing

of the falsity.

A lawyer's oath is one impressed with the utmost seriousness; it must not be taken lightly. Every lawyer

must do his best to live up to it. There would be a failure of justice if courts cannot rely on the

submission as well as the representations made by lawyers, insofar as the presentation of evidence,

whether oral or documentary, is concerned. If, as unfortunately happened in this case, even without any

intent on the part of a member of the bar to mislead the court, such deplorable event did occur, he

must not be allowed to escape the responsibility that justly attaches to a conduct far from impeccable.

WHEREFORE, respondent Pedro B. Carranza is reprimanded and warned that a repetition of an offense

of this character would be much more severely dealt with. The Court of First Instance of Sorsogon,

through any of the district judges, is hereby directed to administer in public the reprimand thus imposed

on respondent Pedro B.Carranza. The complainant, Eduardo J. Berenguer, must be duly informed of the

date when such reprimand is to be administered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro,

Capistrano and Teehankee, JJ., concur.

Barredo, J., did not take part.


5/84

IN RE: DISBARMENT PROCEEDINGS AGAINST ATTY. DIOSDADO Q. GUTIERREZ, respondent.

Victoriano A. Savellano for complaint.

Nestor M. Andrada for respondent.

MAKALINTAL, J.:

Respondent Diosdado Q. Gutierrez is a member of the Philippine Bar, admitted to it on October 5, 1945.

In criminal case No. R-793 of the Court of First Instance of Oriental Mindoro he was convicted of the

murder of Filemon Samaco, former municipal mayor of Calapan, and together with his co-conspirators

was sentenced to the penalty of death. Upon review by this Court the judgment of conviction wasaffirmed on June 30, 1956 (G.R. No. L-17101), but the penalty was changed to reclusion perpetua. After

serving a portion of the sentence respondent was granted a conditional pardon by the President on

August 19, 1958. The unexecuted portion of the prison term was remitted "on condition that he shall

not again violate any of the penal laws of the Philippines."

On October 9, 1958 the widow of the deceased Filemon Samaco, victim in the murder case, filed a

verified complaint before this Court praying that respondent be removed from the roll of lawyers

pursuant to Rule 127, section 5. Respondent presented his answer in due time, admitting the facts

alleged by complainant regarding pardon in defense, on the authority of the decision of this Court in the

case of In re Lontok, 43 Phil. 293.

Under section 5 of Rule 127, a member of the bar may be removed suspended from his office as

attorney by the Supreme Court by reason of his conviction of a crime insolving moral turpitude. Murder

is, without doubt, such a crime. The term "moral turpitude" includes everything which is done contrary

to justice, honesty, modesty or good morals. In re Carlos S. Basa, 41 Phil. 275. As used in disbarment

statutes, it means an act of baseness, vileness, or depravity in the private and social duties which a man

owes to his fellowmen or to society in general, contrary to the accepted rule of right and duty betweenman and man. State ex rel. Conklin v. Buckingham, 84 P. 2nd 49; 5 Am. Jur. Sec. 279. pp. 428-429.

The only question to be resolved is whether or not the conditional pardon extended to respondent

places him beyond the scope of the rule on disbarment aforecited. Reliance is placed by him squarely on

the Lontok case. The respondent therein was convicted of bigamy and thereafter pardoned by the


6/84

Governor-General. In a subsequent viction, this Court decided in his favor and held: "When proceedings

to strike an attorney's name from the rolls the fact of a conviction for a felony ground for disbarment, it

has been held that a pardon operates to wipe out the conviction and is a bar to any proceeding for the

disbarment of the attorney after the pardon has been granted."

It is our view that the ruling does not govern the question now before us. In making it the Court

proceeded on the assumption that the pardon granted to respondent Lontok was absolute. This is

implicit in the ratio decidendi of the case, particularly in the citations to support it, namely. In Re

Emmons, 29 Cal. App. 121; Scott vs. State, 6 Tex. Civ. App. 343; and Ex parte Garland, 4 Wall, 380. Thus

in Scott vs. State the court said:

We are of opinion that after received an unconditional pardon the record of the felony conviction could

no longer be used as a basis for the proceeding provided for in article 226. The record, when offered inevidence, was met with an unconditional pardon, and could not, therefore, properly be said to afford

"proof of a conviction of any felony." Having been thus cancelled, all its force as a felony conviction was

taken away. A pardon falling short of this would not be a pardon, according to the judicial construction

which that act of executive grace was received. Ex parte Garland, 4 Wall, 344; Knote v. U.S., 95 U.S. 149,

and cases there cited; Young v. Young, 61 Tex. 191.

And the portion of the decision in Ex parte Garland quoted with approval in the Lontok case is as

follows:

A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and

when the pardon is full, it releases the punishment and blots out the existence of guilt, so that in the eye

of the law the offender is as innocent as if he had never committed the offense. It granted before

conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching;

if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights

it makes him, as it were, a new man, and gives him a new credit and capacity.

The pardon granted to respondent here is not absolute but conditional, and merely remitted the

unexecuted portion of his term. It does not reach the offense itself, unlike that in Ex parte Garland,

which was "a full pardon and amnesty for all offense by him committed in connection with rebellion

(civil war) against government of the United States."


7/84

The foregoing considerations rendered In re Lontok are inapplicable here. Respondent Gutierrez must

be judged upon the fact of his conviction for murder without regard to the pardon he invokes in

defense. The crime was qualified by treachery and aggravated by its having been committed in hand, by

taking advantage of his official position (respondent being municipal mayor at the time) and with the

use of motor vehicle. People vs. Diosdado Gutierrez, supra. The degree of moral turpitude involved is

such as to justify his being purged from the profession.

The practice of law is a privilege accorded only to those who measure up to certain rigid standards of

mental and moral fitness. For the admission of a candidate to the bar the Rules of Court not only

prescribe a test of academic preparation but require satisfactory testimonials of good moral character.

These standards are neither dispensed with nor lowered after admission: the lawyer must continue to

adhere to them or else incur the risk of suspension or removal. As stated in Ex parte Wall, 107 U.S. 263,

27 Law ed., 552, 556: "Of all classes and professions, the lawyer is most sacredly bound to uphold the

laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws,

to trample them under foot and to ignore the very bonds of society, argues recreancy to his position and

office and sets a pernicious example to the insubordinate and dangerous elements of the body politic.

WHEREFORE, pursuant to Rule 127, Section 5, and considering the nature of the crime for which

respondent Diosdado Q. Gutierrez has been convicted, he is ordered disbarred and his name stricken

from the roll of lawyers.

Bengzon, C.J., Labrador, Concepcion, Barrera, Paredes, Dizon and Regala, JJ., concur.

Padilla, J., took no part.


8/84

G.R. No. L-12426 February 16, 1959

PHILIPPINE LAWYER'S ASSOCIATION, petitioner,

vs.

CELEDONIO AGRAVA, in his capacity as Director of the Philippines Patent Office, respondent.

Arturo A. Alafriz for petitioner.

Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent.

MONTEMAYOR,J.:

This is the petition filed by the Philippine Lawyer's Association for prohibition and injunction against

Celedonio Agrava, in his capacity as Director of the Philippines Patent Office.

On may 27, 1957, respondent Director issued a circular announcing that he had scheduled for June 27,

1957 an examination for the purpose of determining who are qualified to practice as patent attorneys

before the Philippines Patent Office, the said examination to cover patent law and jurisprudence and the

rules of practice before said office. According to the circular, members of the Philippine Bar, engineers

and other persons with sufficient scientific and technical training are qualified to take the said

examination. It would appear that heretofore, respondent Director has been holding similar

examinations.

It is the contention of the petitioner Philippine Lawyer's Association that one who has passed the bar

examinations and is licensed by the Supreme Court to practice law in the Philippines and who is in good

standing, is duly qualified to practice before the Philippines Patent Office, and that consequently, the cat

of the respondent Director requiring members of the Philippine Bar in good standing to take and pass an

examination given by the Patent Office as a condition precedent to their being allowed to practice

before said office, such as representing applicants in the preparation and prosecution of applications for

patent, is in excess of his jurisdiction and is in violation of the law.

In his answer, respondent Director, through the Solicitor General, maintains that the prosecution of

patent cases "does not involve entirely or purely the practice of law but includes the application of

scientific and technical knowledge and training, so much so that, as a matter of actual practice, the

prosecution of patent cases may be handled not only by lawyers, but also engineers and other persons

with sufficient scientific and technical training who pass the prescribed examinations as given by the

Patent Office; . . . that the Rules of Court do not prohibit the Patent Office, or any other quasi-judicial

body from requiring further condition or qualification from those who would wish to handle cases

before the Patent Office which, as stated in the preceding paragraph, requires more of an application ofscientific and technical knowledge than the mere application of provisions of law; . . . that the action

taken by the respondent is in accordance with Republic Act No. 165, otherwise known as the Patent Law

of the Philippines, which similar to the United States Patent Law, in accordance with which the United

States Patent Office has also prescribed a similar examination as that prescribed by respondent. . . .


9/84

Respondent further contends that just as the Patent law of the United States of America authorizes the

Commissioner of Patents to prescribe examinations to determine as to who practice before the United

States Patent Office, the respondent, is similarly authorized to do so by our Patent Law, Republic Act No.

165.

Although as already stated, the Director of Patents, in the past, would appear to have been holding testsor examinations the passing of which was imposed as a required qualification to practice before the

Patent Office, to our knowledge, this is the first time that the right of the Director of Patents to do so,

specially as regards members of the bar, has been questioned formally, or otherwise put in issue. And

we have given it careful thought and consideration.

The Supreme Court has the exclusive and constitutional power with respect to admission to the practice

of law in the Philippines1

and to any member of the Philippine Bar in good standing may practice law

anywhere and before any entity, whether judicial or quasi-judicial or administrative, in the Philippines.

Naturally, the question arises as to whether or not appearance before the patent Office and the

preparation and the prosecution of patent applications, etc., constitutes or is included in the practice of

law.

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 social proceedings, the management

of such actions and proceedings on behalf of clients before judges and courts, and in addition,

conveying. In general, alladvice to clients, and all action taken for them in matters connected with the

lawcorporation 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. Jur. p. 262, 263). (Emphasis supplied).

Practice of lawunder 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 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


10/84

(1953 ed.), p. 665-666, citing In re Opinion of the Justices (Mass.), 194 N.E. 313, quoted in Rhode Is. Bar

Assoc. vs. Automobile Service Assoc. (R. I. ) 179 A. 139, 144). (Emphasis ours).

In our opinion, the practice of law includes such appearance before the Patent Office, the

representation of applicants, oppositors, and other persons, and the prosecution of their applications

for patent, their oppositions thereto, or the enforcement of their rights in patent cases. In the firstplace, although the transaction of business in the Patent Office involves the use and application of

technical and scientific knowledge and training, still, all such business has to be rendered in accordance

with the Patent Law, as well as other laws, including the Rules and Regulations promulgated by the

Patent Office in accordance with law. Not only this, but practice before the Patent Office involves the

interpretation and application of other laws and legal principles, as well as the existence of facts to be

established in accordance with the law of evidence and procedure. For instance: Section 8 of our Patent

Law provides that an invention shall not be patentable if it is contrary to public order or morals, or to

public health or welfare. Section 9 says that an invention shall not be considered new or patentable if it

was known or used by others in the Philippines before the invention thereof by the inventor named in

any printed publication in the Philippines or any foreign country more than one year before theapplication for a patent therefor, or if it had been in public use or on sale in the Philippines for more

than one year before the application for the patent therefor. Section 10 provides that the right to patent

belongs to the true and actual inventor, his heirs, legal representatives or assigns. Section 25 and 26

refer to connection of any mistake in a patent. Section 28 enumerates the grounds for cancellation of a

patent; that although any person may apply for such cancellation, under Section 29, the Solicitor

General is authorized to petition for the cancellation of a patent. Section 30 mentions the requirements

of a petition for cancellation. Section 31 and 32 provide for a notice of hearing of the petition for

cancellation of the patent by the Director of Patents in case the said cancellation is warranted. Under

Section 34, at any time after the expiration of three years from the day the patent was granted, any

person patent on several grounds, such as, if the patented invention is not being worked in thePhilippines on a commercial scale, or if the demand for the patented article in the Philippines on a

commercial scale, or if the demand for the patented article in the Philippines is not being met to an

adequate extent and reasonable terms, or if by reason of the patentee's refusal to grant a license on

reasonable terms or by reason of the condition attached by him to the license, purchase or use of the

patented article or working of the patented process or machine of production, the establishment of a

new trade or industry in the Philippines is prevented; or if the patent or invention relates to food or

medicine or is necessary to public health or public safety. All these things involve the applications of

laws, legal principles, practice and procedure. They call for legal knowledge, training and experience for

which a member of the bar has been prepared.

In support of the proposition that much of the business and many of the act, orders and decisions of the

Patent Director involve questions of law or a reasonable and correct evaluation of facts, the very Patent

Law, Republic Act No. 165, Section 61, provides that:

. . . . The applicant for a patent or for the registration of a design, any party to a proceeding to cancel a

patent or to obtain a compulsory license, and any party to any other proceeding in the Office may

appeal to the Supreme Court from any final order or decision of the director.


11/84

In other words, the appeal is taken to this Tribunal. If the transaction of business in the Patent Office

and the acts, orders and decisions of the Patent Director involved exclusively or mostly technical and

scientific knowledge and training, then logically, the appeal should be taken not to a court or judicial

body, but rather to a board of scientists, engineers or technical men, which is not the case.

Another aspect of the question involves the consideration of the nature of the functions and acts of theHead of the Patent Office.

. . . . The Commissioner, in issuing or withholding patents, in reissues, interferences, and extensions,

exercises quasi-judicial functions. Patents are public records, and it is the duty of the Commissioner to

give authenticated copies to any person, on payment of the legal fees. (40 Am. Jur. 537). (Emphasis

supplied).

. . . . The Commissioner has the only original initiatory jurisdiction that exists up to the granting and

delivering of a patent, and it is his duty to decide whether the patent is new and whether it is the proper

subject of a patent; and his action in awarding or refusing a patent is a judicial function. In passing on an

application the commissioner should decide not only questions of law, but also questions of fact, as

whether there has been a prior public use or sale of the article invented. . . . (60 C.J.S. 460). (Emphasis

supplied).

The Director of Patents, exercising as he does judicial or quasi-judicial functions, it is reasonable to hold

that a member of the bar, because of his legal knowledge and training, should be allowed to practice

before the Patent Office, without further examination or other qualification. Of course, the Director of

Patents, if he deems it advisable or necessary, may require that members of the bar practising before

him enlist the assistance of technical men and scientist in the preparation of papers and documents,

such as, the drawing or technical description of an invention or machine sought to be patented, in the

same way that a lawyer filing an application for the registration of a parcel of land on behalf of hisclients, is required to submit a plan and technical description of said land, prepared by a licensed

surveyor.

But respondent Director claims that he is expressly authorized by the law to require persons desiring to

practice or to do business before him to submit an examination, even if they are already members of the

bar. He contends that our Patent Law, Republic Act No. 165, is patterned after the United States Patent

Law; and of the United States Patent Office in Patent Cases prescribes an examination similar to that

which he (respondent) has prescribed and scheduled. He invites our attention to the following

provisions of said Rules of Practice:

Registration of attorneys and agents. A register of an attorneys and a register agents are kept in the

Patent Office on which are entered the names of all persons recognized as entitled to represent

applicants before the Patent Office in the preparation and prosecution of applicants for patent.

Registration in the Patent Office under the provisions of these rules shall only entitle the person

registered to practice before the Patent Office.


12/84

(a)Attorney at law. Any attorney at law in good standing admitted to practice before any United

States Court or the highest court of any State or Territory of the United States who fulfills the

requirements and complied with the provisions of these rules may be admitted to practice before the

Patent Office and have his name entered on the register of attorneys.

x x x x x x x x x

(c) Requirement for registration. No person will be admitted to practice and register unless he shall

apply to the Commissioner of Patents in writing on a prescribed form supplied by the Commissioner and

furnish all requested information and material; and shall establish to the satisfaction of the

Commissioner that he is of good moral character and of good repute and possessed of the legal and

scientific and technical qualifications necessary to enable him to render applicants for patent valuable

service, and is otherwise competent to advise and assist him in the presentation and prosecution of

their application before the Patent Office. In order that the Commissioner may determine whether a

person seeking to have his name placed upon either of the registers has the qualifications specified,

satisfactory proof of good moral character and repute, and of sufficient basic training in scientific and

technical matters must be submitted and an examination which is held from time to time must be taken

and passed. The taking of an examination may be waived in the case of any person who has served for

three years in the examining corps of the Patent Office.

Respondent states that the promulgation of the Rules of Practice of the United States Patent Office in

Patent Cases is authorized by the United States Patent Law itself, which reads as follows:

The Commissioner of Patents, subject to the approval of the Secretary of Commerce may prescribe rules

and regulations governing the recognition of agents, attorneys, or other persons representing applicants

or other parties before his office, and may require of such persons, agents, or attorneys, before being

recognized as representatives of applicants or other persons, that they shall show they are of goodmoral character and in good repute, are possessed of the necessary qualifications to enable them to

render to applicants or other persons valuable service, and are likewise to competent to advise and assist

applicants or other persons in the presentation or prosecution of their applications or other business

before the Office. The Commissioner of Patents may, after notice and opportunity for a hearing,

suspend or exclude, either generally or in any particular case from further practice before his office any

person, agent or attorney shown to be incompetent or disreputable, or guilty of gross misconduct, or

who refuses to comply with the said rules and regulations, or who shall, with intent to defraud in any

matter, deceive, mislead, or threaten any applicant or prospective applicant, or other person having

immediate or prospective applicant, or other person having immediate or prospective business before

the office, by word, circular, letter, or by advertising. The reasons for any such suspension or exclusion

shall be duly recorded. The action of the Commissioner may be reviewed upon the petition of the

person so refused recognition or so suspended by the district court of the United States for the District

of Columbia under such conditions and upon such proceedings as the said court may by its rules

determine. (Emphasis supplied)


13/84

Respondent Director concludes that Section 78 of Republic Act No. 165 being similar to the provisions of

law just reproduced, then he is authorized to prescribe the rules and regulations requiring that persons

desiring to practice before him should submit to and pass an examination. We reproduce said Section

78, Republic Act No. 165, for purposes of comparison:

SEC. 78. Rules and regulations. The Director subject to the approval of the Secretary of Justice, shallpromulgate the necessary rules and regulations, not inconsistent with law, for the conduct of all

business in the Patent Office.

The above provisions of Section 78 certainly and by far, are different from the provisions of the United

States Patent Law as regards authority to hold examinations to determine the qualifications of those

allowed to practice before the Patent Office. While the U.S. Patent Law authorizes the Commissioner of

Patents to require attorneys to show that they possess the necessary qualifications and competence to

render valuable service to and advise and assist their clients in patent cases, which showing may take

the form of a test or examination to be held by the Commissioner, our Patent Law, Section 78, is silent

on this important point. Our attention has not been called to any express provision of our Patent Law,

giving such authority to determine the qualifications of persons allowed to practice before the Patent

Office.

Section 551 of the Revised Administrative Code authorizes every chief of bureau to prescribe forms and

make regulations or general orders not inconsistent with law, to secure the harmonious and efficient

administration of his branch of the service and to carry into full effect the laws relating to matters within

the jurisdiction of his bureau. Section 608 of Republic Act 1937, known as the Tariff and Customs Code

of the Philippines, provides that the Commissioner of Customs shall, subject to the approval of the

Department Head, makes all rules and regulations necessary to enforce the provisions of said code.

Section 338 of the National Internal Revenue Code, Commonwealth Act No. 466 as amended, states that

the Secretary of Finance, upon recommendation of the Collector of Internal Revenue, shall promulgate

all needful rules and regulations for the effective enforcement of the provisions of the code. We

understand that rules and regulations have been promulgated not only for the Bureau of Customs and

Internal Revenue, but also for other bureaus of the Government, to govern the transaction of business

in and to enforce the law for said bureaus.

Were we to allow the Patent Office, in the absence of an express and clear provision of law giving the

necessary sanction, to require lawyers to submit to and pass on examination prescribed by it before

they are allowed to practice before said Patent Office, then there would be no reason why other

bureaus specially the Bureau of Internal Revenue and Customs, where the business in the same area are

more or less complicated, such as the presentation of books of accounts, balance sheets, etc.,

assessments exemptions, depreciation, these as regards the Bureau of Internal Revenue, and the

classification of goods, imposition of customs duties, seizures, confiscation, etc., as regards the Bureau

of Customs, may not also require that any lawyer practising before them or otherwise transacting

business with them on behalf of clients, shall first pass an examination to qualify.


14/84

In conclusion, we hold that under the present law, members of the Philippine Bar authorized by this

Tribunal to practice law, and in good standing, may practice their profession before the Patent Office,

for the reason that much of the business in said office involves the interpretation and determination of

the scope and application of the Patent Law and other laws applicable, as well as the presentation of

evidence to establish facts involved; that part of the functions of the Patent director are judicial or

quasi-judicial, so much so that appeals from his orders and decisions are, under the law, taken to the

Supreme Court.

For the foregoing reasons, the petition for prohibition is granted and the respondent Director is hereby

prohibited from requiring members of the Philippine Bar to submit to an examination or tests and pass

the same before being permitted to appear and practice before the Patent Office. No costs.

Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and

Endencia, JJ., concur.


15/84

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,

vs.

CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON.

GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS,J.:p

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


16/84

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 ofPhilippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of lawis 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 mattersconnected with the

lawincorporation 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 andinsolvency 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 lawunder 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 inlitigation. 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


17/84

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.


18/84

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

thepractice of lawfor 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 defineprivate 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 asprofessional 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


19/84

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


20/84

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 trendsof 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).


21/84

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 varywith 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 enterthe 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


22/84

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 ofcollaborative 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:


23/84

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 economicand 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).


24/84

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 anoperations 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 affirmativeaction 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


25/84

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 o

Documents

CASES LEGPROF