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Prof. Joselito Guianan Chan's The Labor Code of the Philippines, Annotated Labor Standards & Social Legislation Volume I of a 3-Volume Series 2019 Edition (3rd Revised Edition)
 

 
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UNITED STATES SUPREME COURT JURISPRUDENCE
 

 
PHILIPPINE SUPREME COURT JURISPRUDENCE
 

   
August-2009 Jurisprudence                 

  • A.C. No. 7399 - Antero J. Pobre v. Sen. Miriam Defensor-Santiago

  • A.M. No. 08-6-352-RTC - Query of Atty. Karen M. Silverio-Buffe, former Clerk of Court, Branch 81, Romblon, Romblon, on the prohibition from engaging in the private practice of law

  • A.M. No. 08-11-7-SC - Re: Request of National Committee on Legal Aid to exempt legal aid clients from paying filing, docket and other fees.

  • A.M. No. 09-6-9-SC - Query of Mr. Roger C. Prioreschi re exemption from legal and filing fees of the Good Shperd Foundation, Inc.

  • A.M. No. P-06-2282 - Lolita S. Regir v. Joel Regir

  • A.M. No. P-07-2390 - Office of the Court Administrator v. Lyndon L. Isip, Sheriff IV, RTC, OCC, City of San Fernando, Pampanga

  • A.M. No. P-08-2436 Formerly OCA I.P.I. No. 06-2394-P - Teopicio Tan v. Salvacion D. Sermonia, Clerk IV, MTCC, Iloilo City

  • A.M. No. P-08-2501 - Wilson B. Tan v. Jesus F. Hernando

  • A.M. No. P-08-2553 Formerly A.M. OCA IPI No. 98-455-P - Leo Mendoza v. Prospero V. Tablizo

  • A.M. No. P-08-2571 Formerly OCA I.P.I. No. 07-2651-P - Simeon Guari o, et al. v. Cesar F. Ragsac, et al.

  • A.M. No. P-09-2610 Formerly A.M. OCA IPI No. 09-3072-P - Hector P. Teodosio v. Rolando R. Somosa, et al.

  • A.M. No. P-09-2665 - Judge Alma Crispina B. Collado-Lacorte v. Eduardo Rabena

  • A.M. No. RTJ-07-2031 Formerly OCA IPI No. 06-2484-RTJ - Adelpha E. Malabed v. Judge Enrique C. Asis, RTC, Br. 16, Naval Biliran

  • A.M. No. RTJ-08-2124 Formerly A.M. OCA IPI No. 07-2631-RTJ and A.M. NO. RTJ-08-2125 Formerly A.M. OCA IPI No. 07-2632-RTJ - Judge Rizalina T. Capco-Umali, RTC, Br. 212, Mandaluyong City v. Judge Paulita B. Acosta-Villarante, RTC, Br. 211, Mandaluyong City

  • A.M. No. RTJ-08-2138 - Olga M. Samson v. Judge Virgilio G. Caballero

  • G.R. No. 130223 - Rural Bank of Sta. Barbara (Pangasinan), Inc. v. The Manila mission of the church of Jesus Christ of latter day saints, Inc.

  • G.R. No. 130371 & G.R. No. 130855 - Repbulic of the Philippines v. Ferdinand R. Marcos II and Imelda R. Marcos

  • G.R. No. 149241 - Dart Philippines, Inc. v. Spouses Francisco and Erlinda Calogcog

  • G.R. No. 149988 - Ramie Velenzuela v. People of the Philippines

  • G.R. No. 150887 - Francisco Madrid and Edgardo Bernardo v. Spouses Bonifacio Mapoy and Felicidad Martinez

  • G.R. No. 151932 - Henry Ching Tiu, et al. v. Philippine Bank of Communications

  • G.R. No. 152579 - Sameer Overseas Placement Agency, Inc. v. Mildred R. Santos, etc. et al.

  • G.R. No. 153690, G.R. No. 157381 and G.R. No. 170889 - David Lu v. Paterno Lu Ym, Sr., et al.

  • G.R. No. 154652 - Prudencio M. Reyes, Jr. v. Simplicio C. Belisario and Emmanuel S. Malicdem

  • G.R. No. 155174 - D.M. Consunji, Inc. v. Duvaz Corporation

  • G.R. No. 156660 - Ormoc Sugarcane Planters' Association, Inc. (OSPA), Occidental Leyte Farmer's Multi-Purpose Cooperative Inc., et al. v. The Court of Appeals (Special Former Sixth Division), et al.

  • G.R. No. 157374 - Heirs of Cayetano Pangan and Consuelo Pangan v. Spouses Rogelio Perreras and Priscilla G. Perreras

  • G.R. No. 160346 - Purita A. Pahud, et al. v. Court of Appeals, et al.

  • G.R. No. 160379 - Republic of the Philippines through the Department of Public Works and Highways v. Court of Appeals and Rosario Rodriguez Reyes

  • G.R. No. 160610 - Judelio Cobarrubias v. People of the Philippines

  • G.R. No. 160743 - Cornelia Baladad (Represented by Heinrich M. Angeles and Rex Aaron A. Baladad) v. Sergio A. Rublico and Spouses Laureano E. Yupano

  • G.R. No. 161042 - Republic of the Philippines v. Agripina Dela Raga

  • G.R. No. 161419 - Eugenio Encinares v. Dominga Achero

  • G.R. No. 162355 - Sta. Lucia East Commercial Corporation v. Hon. Secretary of Labor and Employment, et al.

  • G.R. No. 162518 - Rodrigo Sumiran v. Spouses Generoso Damaso and Eva Damaso

  • G.R. No. 163505 - Gualberto Aguanza v. Asian Terminal, Inc., et al.

  • G.R. No. 163788 - Ester B. Maralit v. Philippine National Bank

  • G.R. No. 164324 - Tanduay Distillers, Inc. v. Ginebra San Miguel, Inc.

  • G.R. No. 164789 - Christian Assembly, Inc. v. Sps. Avelino C. Ignacio and Priscilla R. Ignacio

  • G.R. NOS. 164813 & G.R. No. 174590 - Lowe, Inc., et al. v. Court of Appeals and Irma Mutuc

  • G.R. No. 165116 - Maria Soledad Tomimbang v. Atty. Jose Tomimbang

  • G.R. No. 165450 and G.R. No. 165452 - Francis F. Yenko, et al., (etc.) v. Raul Nestor C. Gungon

  • G.R. No. 165697 & G.R. No. 166481 - Antonio Navarro v. Metropolitan Bank & Trust Company

  • G.R. No. 166470 & G.R. No. 169217 - Cecilio C. Hernandez, Ma, Victoria C. Hernandez-Sagun, Teresa C. Hernandez-Villa Abrille and Natividad Cruz-Hernandez v. Jovita San Juan-Santos

  • G.R. No. 166738 - Rowena Padilla-Rumbaua v. Eduardo Rumbaua

  • G.R. No. 166879 - A. Soriano Aviation v. Employees Association of A. Soriano Aviation, et al.

  • G.R. No. 167230 - Spouses Dante and Ma. Teresa Galura v. Math-Agro Corporation

  • G.R. No. 167304 - People of the Philippines v. Sandiganbayan (Third Division) and Victoria Amante

  • G.R. No. 168910 - Republic Cement Corporation v. Peter Guinmapang

  • G.R. No. 168982 - People of the Philippines v. Dir. Cesar P. Nazareno, Dir. Evelino Nartatez, Dir. Nicasio Ma. S. Custodio and The Sandiganbayan

  • G.R. No. 169870 - People of the Philippines v. Elegio An

  • G.R. No. 170137 - People of the Philippines v. Randy Magbanua alias "Boyung" and Wilson Magbanua.

  • G.R. No. 170672 - Judge Felimon Abelita, III v. P/Supt. German Doria and SPO3 Cesar Ramirez

  • G.R. No. 170674 - Foundation Specialist, Inc. v. Betonval Ready Concrete, Inc., et al.

  • G.R. No. 171035 - William Ong Genato v. Benjamin Bayhon, et al.

  • G.R. No. 171169 - GC Dalton Industries, Inc. v. Equitable PCI Bank

  • G.R. No. 171313 - People of the Philippines v. Edgar Trayco y Masola

  • G.R. No. 171674 - Department of Agrarian Reform (etc.) v. Carmen S. Tongson

  • G.R. No. 171732 - People of the Philippines v. Edgar Denoman y Acurda

  • G.R. No. 171951 - Amado Alvarado Garcia v. People of the Philippines

  • G.R. No. 172537 - Jethro Intelligence & Security Corporation and Yakult, Inc. v. The Hon. Secretary of Labor and Employment, et al.

  • G.R. No. 172680 - The Heirs of the Late Fernando S. Falcasantos, etc., et al. v. Spouses Fidel Yeo Tan and Sy Soc Tiu, et al.

  • G.R. No. 174209 - Philippine Long Distance Telephone Company v. Rizalina Raut, et al.

  • G.R. No. 175345 - Baltazar L. Payno v. Orizon Trading Corp./ Orata Trading and Flordeliza Legaspi

  • G.R. No. 175605 - People of the Philippines v. Arnold Garchitorena Y Camba a.k.a. Junior, Joey Pamplona a.k.a. Nato, and Jessie Garcia y Adorino

  • G.R. No. 176487 - Republic of the Philippines, represented by the Department of Public Works and Highways v. Far East Enterprises, Inc., et al.

  • G.R. No. 176511 - Spouses Obdulia H. Espejo and Hildelberto T. Espejo v. Geraldine Coloma Ito

  • G.R. No. 176906 - Andrew B. Nudo v. Hon. Amado S. Caguioa, et al.

  • G.R. No. 176917 & G.R. No. 176919 - Continental Cement Corp., v. Filipinas (PREFAB) Systems, Inc.

  • G.R. No. 177134 - People of the Philippines v. Rachel Angeles y Naval Alias Russel Angeles y Cabal

  • G.R. No. 177508 - Barangay Association for National Advancement and Transparency (BANAT) Partylist represented by Salvador B. Britanico v. Commission on Elections

  • G.R. No. 177741 - People of the Philippines v. Willie Rivera

  • G.R. NOS. 178188, 181141, 181141 and 183527 - Olympic Mines and Development Corp., v. Platinum Group Metals Corporation

  • G.R. No. 178797 - Metropolitan Bank and Trust Co., v. Commissioner of Internal Revenue

  • G.R. No. 178984 - Erlinda Mapagay v. People of the Philippines

  • G.R. No. 179280 - People of the Philippines v. Pedro Calangi alias Haplas

  • G.R. No. 179293 - Eden Llamas v. Ocean Gateway Maritime and Management, Inc.

  • G.R. No. 179905 - Republic of the Philippines v. Neptuna G. Javier

  • G.R. No. 179941 - People of the Philippines v. Lito Macabare y Lopez

  • G.R. No. 180357 - Pioneer Insurance and Surety Corporation v. Heirs of Vicente Coronado, et al.

  • G.R. No. 180380 - Raymund Madali and Rodel Madali v. People of the Philippines

  • G.R. No. 180594 - People of the Philippines v. Ismael Mokammad, et al.

  • G.R. No. 180824 - Urban Consolidated Constructors Philippines, Inc. v. The Insular Life Assurance Co., Inc.

  • G.R. No. 180921 - People of the Philippines v. Bernardo Rimando, Jr. y Basilio alias "JOJO"

  • G.R. No. 180988 - Julie's Franchise Corporation, et al. v. Hon. Chandler O. Ruiz, in his capacity as Presiding Judge of the Regional Trial Court, Branch 10, Dipolog City, et al.

  • G.R. No. 181516 - Cesario L. Del Rosario v. Philippine Journalists, Inc.

  • G.R. No. 181845 - The City of Manila, Liberty M. Toledo in her capacity as the Treasurer of Manila, et al. v. Coca-Cola Bottlers Philippines, Inc.

  • G.R. No. 181972 - Philippine Hoteliers, Inc./Dusit Hotel Nikko-Manila v. National Union of Workers in Hotel, Restaurant, and Allied Industries (NUWHARAIN-APL-IUF) Dusit Hotel Nikko Chapter

  • G.R. No. 182267 - Pagayanan R. Hadji-Sirad v. Civil Service Commission

  • G.R. No. 182311 - Fidel O. Chua and Filiden Realty and Development Corporation v. Metropolitan Bank and Trust Company, et al.

  • G.R. No. 182380 - Robert P. Guzman v. Commission on Elections, Mayor Randolph S. Ting and Salvacion Garcia

  • G.R. No. 182528 - People of the Philippines v. Marian Coroche y Caber

  • G.R. No. 182792 - People of the Philippines v. Pepito Neverio

  • G.R. No. 183059 - Ely Quilatan & Rosvida Quilatan-Elias v. Heirs of Lorenzo Quilatan, et al.

  • G.R. No. 183196 - Chona Estacio and Leopoldo Manliclic v. Pampanga I, Electric Cooperative, Inc. and Loliano E. Allas

  • G.R. No. 183329 - Rufino C. Montoya v. Transmed Manila Corporation Mr. Edilberto Ellena and Great Lake Navigation Co., Ltd.

  • G.R. No. 183366 - Ricardo C. Duco v. The Hon. Commission on Elections, First Division, and Narciso B. Avelino

  • G.R. No. 183526 - Violeta R. Lalican v. The Insular Life Assurance Company Limited, as represented by the President Vicente R. Avilon

  • G.R. No. 184005 - Top Art Shirt Manufacturing Inc., Maximo Arejola and Tan Shu Keng v. Metropolitan Bank and Trust Inc., and the Court of the Appeals

  • G.R. No. 184337 - Heirs of Federico C. Delgado and Annalisa Pesico v. Luisito Q. Gonzales and Antonio T. Buenaflor

  • G.R. No. 184905 - Lambert S. Ramos v. C.O.L. Realty Corporation

  • G.R. No. 185004 - People of the Philippines v. Armando Ferasol

  • G.R. No. 185711 - People of the Philippines v. Reynaldo Sanz Laboa

  • G.R. No. 185712 - People of the Philippines v. Lilio U. Achas

  • G.R .No. 185723 - People of the Philippines v. Edwin Mejia

  • G.R .No. 185841 - People of the Philippines v. Ismael Diaz @ Maeng and Rodolfo Diaz @ Nanding

  • G.R. No. 186080 - Julius Amanquiton v. People of the Philippines

  • G.R. No. 186129 - People of the Philippines v. Jesus Paragas Cruz

  • G.R. No. 186224 - Constancio D. Pacanan, Jr. v. Commission on Elections and Francisco M. Langi, Sr.

  • G.R. No. 186379 - People of the Philippines v. Bienvenido Lazaro @ Bening

  • G.R. No. 186381 - People of the Philippines v. Clemencia Arguelles y Talacay

  • G.R. No. 186420 - People of the Philippines v. Samuel Anod

  • G.R. No. 186496 - People of the Philippines v. Dante Gragasin Y Par

  •  





     
     

    A.M. No. 08-6-352-RTC - Query of Atty. Karen M. Silverio-Buffe, former Clerk of Court, Branch 81, Romblon, Romblon, on the prohibition from engaging in the private practice of law

      A.M. No. 08-6-352-RTC - Query of Atty. Karen M. Silverio-Buffe, former Clerk of Court, Branch 81, Romblon, Romblon, on the prohibition from engaging in the private practice of law

    PHILIPPINE SUPREME COURT DECISIONS

    EN BANC

    [A.M. NO. 08-6-352-RTC : August 19, 2009]

    QUERY OF ATTY. KAREN M. SILVERIO-BUFFE, FORMER Clerk of Court - BRANCH 81, ROMBLON, ROMBLON - ON THE PROHIBITION FROM ENGAGING IN THE PRIVATE PRACTICE OF LAW.

    D E C I S I O N

    BRION, J.:

    This administrative matter started as a letter-query dated March 4, 2008 of Atty. Karen M. Silverio-Buffe (Atty. Buffe) addressed to the Office of the Court Administrator, which query the latter referred to the Court for consideration. In the course of its action on the matter, the Court discovered that the query was beyond pure policy interpretation and referred to the actual situation of Atty. Buffe, and, hence, was a matter that required concrete action on the factual situation presented.

    The query, as originally framed, related to Section 7(b)(2) of Republic Act (R.A.) No. 6713, as amended (or the Code of Conduct and Ethical Standards for Public Officials and Employees). This provision places a limitation on public officials and employees during their incumbency, and those already separated from government employment for a period of one (1) year after separation, in engaging in the private practice of their profession. Section 7(b)(2) of R.A. No. 6713 provides:

    SECTION 7. Prohibited Acts and Transactions. ' In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:

    x x x

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

    x x x

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

    x x x

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

    In her letter-query, 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?"1

    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.

    Then Deputy Court Administrator (now Court Administrator) Jose P. Perez made the following observations when the matter was referred to him:

    The general intent of the law, as defined in its title is "to uphold the time-honored principle of public office being a public trust." Section 4 thereof provides for the norms of conduct of public officials and employees, among others: (a) commitment to public interest; (b) professionalism; and (c) justness and sincerity. Of particular significance is the statement under professionalism that "[t]hey [public officials and employees] shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.

    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 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

    Subsequently, in a Minute Resolution dated July 15, 2008, we resolved to refer this case to the Office of the Chief Attorney (OCAT) for evaluation, report and recommendation.3 The OCAT took the view 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.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."

    x x x

    The interpretation that Section 7 (b) (2) generally prohibits incumbent public officials and employees from engaging in the practice of law, which is declared therein a prohibited and unlawful act, accords with the constitutional policy on accountability of public officers stated in Article XI of the Constitution'

    x x x

    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

    In view of the OCAT findings and recommendations, we issued an En Banc Resolution dated November 11, 2008 directing the Court Administrator to draft and submit to the Court a circular on the practice of profession during employment and within one year from resignation, retirement from or cessation of employment in the Judiciary. We likewise required the Executive Judge of the RTC of Romblon to (i) verify if Atty. Buffe had appeared as counsel during her incumbency as clerk of court and after her resignation in February 2008, and (ii) submit to the Court a report on his verification.8

    In compliance with this our Resolution, Executive Judge Ramiro R. Geronimo of RTC-Branch 81 of Romblon reported the following appearances made by Atty. Buffe:

    (1) Civil Case No. V-1564, entitled Oscar Madrigal Moreno, Jr. et al. v. Leonardo M. Macalam, et al. on February 19, 2008, March 4, 2008, April 10, 2008 and July 9, 2008 as counsel for the plaintiffs;

    (2) Civil Case No. V-1620, entitled Melchor M. Manal v. Zosimo Malasa, et al., on (sic) February, 2008, as counsel for the plaintiff;

    (3) Civil Case No. V-1396, entitled Solomon Y. Mayor v. Jose J. Mayor, on February 21, 2008, as counsel for the plaintiff; andcralawlibrary

    (4) Civil Case No. V-1639, entitled Philippine National Bank v. Sps. Mariano and Olivia Silverio, on April 11, 2008 and July 9, 2008, as counsel for the defendants.

    Atty. Buffe herself was furnished a copy of our November 11, 2008 En Banc Resolution and she filed a Manifestation (received by the Court on February 2, 2009) acknowledging receipt of our November 11, 2008 Resolution. She likewise stated that her appearances are part of Branch 81 records. As well, she informed the Court that she had previously taken the following judicial remedies in regard to the above query:

    1. SCA No. 089119028 (Annex C), filed with Branch 54 of the RTC Manila, which had been dismissed without prejudice on July 23, 2008 (Annex D) - a recourse taken when undersigned was still a private practitioner;

    2. SCA No. 08120423 (Annex A), filed with Branch 17 of the RTC of Manila, which had been also dismissed (with or without prejudice) on December 4, 2008 (Annex B) - a recourse taken when undersigned was already a public prosecutor appearing before the same Branch 81, after she took her oath of office as such on August 15, 2008.[Emphasis supplied]

    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 undersigned's law profession, before Branch 81, while on the other hand not containing a similar, express prohibition in regard to undersigned's practice of profession, before the same court, as a public prosecutor - within the supposedly restricted 1-year period?"

    OUR ACTION AND RULING

    Preliminary Considerations

    As we stated at the outset, this administrative matter confronts us, not merely with the task of determining how the Court will respond to the query, both with respect to the substance and form (as the Court does not give interpretative opinions9 but can issue circulars and regulations relating to pleading, practice and procedure in all courts10 and in the exercise of its administrative supervision over all courts and personnel thereof11 ), but also with the task of responding to admitted violations of Section 7 (b)(2) of R.A. No. 6713 and to multiple recourses on the same subject.

    After our directive to the Office of the Court Administrator to issue a circular on the subject of the query for the guidance of all personnel in the Judiciary, we consider this aspect of the present administrative matter a finished task, subject only to confirmatory closure when the OCA reports the completion of the undertaking to us.

    Atty. Buffe's 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. Buffe's 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. Buffe's 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.

    A last matter to consider before we proceed to the merits of Atty. Buffe's actions relates to possible objections on procedural due process grounds, as we have not made any formal directive to Atty. Buffe to explain why she should not be penalized for her appearance before Branch 81 soon after her resignation from that Branch. The essence of due process is the grant of the opportunity to be heard; what it abhors is the lack of the opportunity to be heard.14 The records of this case show that Atty. Buffe has been amply heard with respect to her actions. She was notified, and she even responded to our November 11, 2008 directive for the Executive Judge of the RTC of Romblon to report on Atty. Buffe's appearances before Branch 81; she expressly manifested that these appearances were part of the Branch records. Her legal positions on these appearances have also been expressed before this Court; first, in her original letter-query, and subsequently, in her Manifestation. Thus, no due process consideration needs to deter us from considering the legal consequences of her appearances in her previous Branch within a year from her resignation.

    The Governing Law: Section 7 of R.A. No. 6713

    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 employee's 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

    Parenthetically, in the case of court employees, Section 7(b)(2) of R.A. No. 6713 is not the only prohibition to contend 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:

    Outside employment may be allowed by the head of office provided it complies with all of the following requirements:

    (a) The outside employment is not with a person or entity that practices law before the courts or conducts business with the Judiciary;

    (b) The outside employment can be performed outside of normal working hours and is not incompatible with the performance of the court personnel's duties and responsibilities;

    (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;

    (d) The outside employment does not require or induce the court personnel to disclose confidential information acquired while performing officials duties;

    (e) The outside employment shall not be with the legislative or executive branch of government, unless specifically authorized by the Supreme Court.

    Where a conflict of 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 outside employment. [Emphasis supplied]

    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. Buffe's situation falls under Section 7.

    Atty. Buffe's Situation

    A distinctive feature of this administrative matter is Atty. Buffe's admission that she immediately engaged in private practice of law within the one-year period of prohibition stated in Section 7(b)(2) of R.A. No. 6713. We find it noteworthy, too, that she is aware of this provision and only objects to its application to her situation; she perceives it to be unfair that she cannot practice before her old office - Branch 81 - for a year immediately after resignation, as she believes that her only limitation is in matters where a conflict of interest exists between her appearance as counsel and her former duties as Clerk of Court. She believes that Section 7 (b)(2) gives preferential treatment to incumbent public officials and employees as against those already separated from government employment.

    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. Buffe's basic premise is misplaced.

    As we discussed above, a clerk of court can already engage in the practice of law immediately after her separation from the service and without any period limitation that applies to other prohibitions under Section 7 of R.A. No. 6713. The clerk of court's limitation is that she cannot practice her profession within one year before the office where he or she used to work with. In a comparison between a resigned, retired or separated official or employee, on the one hand, and an incumbent official or employee, on the other, the former has the advantage because the limitation is only with respect to the office he or she used to work with and only for a period of one year. The incumbent cannot practice at all, save only where specifically allowed by the Constitution and the law and only in areas where no conflict of interests exists. This analysis again disproves Atty. Buffe's basic premises.

    A worrisome aspect of Atty. Buffe's approach to Section 7 (b)(2) is her awareness of the law and her readiness to risk its violation because of the unfairness she perceives in the law. We find it disturbing that she first violated the law before making any inquiry. She also justifies her position by referring to the practice of other government lawyers known to her who, after separation from their judicial employment, immediately engaged in the private practice of law and appeared as private counsels before the RTC branches where they were previously employed. Again we find this a cavalier attitude on Atty. Buffe's part and, to our mind, only emphasizes her own willful or intentional disregard of Section 7 (b)(2) of R.A. No. 6713.

    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:

    CANON 1 - A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES

    x x x

    Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

    As indicated by the use of the mandatory word "shall," this provision must be strictly complied with. Atty. Buffe failed to do this, perhaps not with an evil intent, considering the misgivings she had about Section 7 (b)(2)'s unfairness. Unlawful conduct under Rule 1.01 of Canon 1, however, does not necessarily require the element of criminality, although the Rule is broad enough to include it.18 Likewise, the presence of evil intent on the part of the lawyer is not essential to bring his or her act or omission within the terms of Rule 1.01, when it specifically prohibits lawyers from engaging in unlawful conduct.19 Thus, we find Atty. Buffe liable under this quoted Rule.

    We also find that Atty. Buffe also failed to live up to her lawyer's 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

    Considering Atty. Buffe's ready admission of violating Section 7(b)(2), the principle of res ipsa loquitur finds application, making her administratively liable for violation of Rule 1.01 of Canon 1 and Canon 7 of the Code of Professional Responsibility.23 In several cases, the Court has disciplined lawyers without further inquiry or resort to any formal investigation where the facts on record sufficiently provided the basis for the determination of their administrative liability.

    In Prudential Bank v. Castro,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

    Also on the basis of this principle, we ruled in Richards v. Asoy,27 that no evidentiary hearing is required before the respondent may be disciplined for professional misconduct already established by the facts on record.

    We applied the principle of res ipsa loquitur once more in In re: Wenceslao Laureta28 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

    Likewise in Zaldivar v. Gonzales,30 the respondent was disciplined and punished for contempt for his slurs regarding the Court's alleged partiality, incompetence and lack of integrity on the basis of his answer in a show-cause order for contempt. The Court took note that the respondent did not deny making the negative imputations against the Court through the media and even acknowledged the correctness of his degrading statements. Through a per curiam decision, we justified imposing upon him the penalty of suspension in the following tenor:

    The power to punish for contempt of court does not exhaust the scope of disciplinary authority of the Court over lawyers. The disciplinary authority of the Court over members of the Bar is but corollary to the Court's exclusive power of admission to the Bar. A lawyer is not merely a professional but also an officer of the court and as such, he is called upon to share in the task and responsibility of dispensing justice and resolving disputes in society. Any act on his part which visibly tends to obstruct, pervert, or impede and degrade the administration of justice constitutes both professional misconduct calling for the exercise of disciplinary action against him, and contumacious conduct warranting application of the contempt power.31

    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.

    A member of the bar may be penalized, even disbarred or suspended from his office as an attorney, for violation of the lawyer's oath and/or for breach of the ethics of the legal profession as embodied in the Code of Professional Responsibility.32 The appropriate penalty on an errant lawyer depends on the exercise of sound judicial discretion based on the surrounding facts.33

    In this case, we cannot discern any mitigating factors we can apply, save OCAT's observation that Atty Buffe's 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 one's 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.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

    As we observed earlier,34 Atty. Buffe had no qualms about the simultaneous use of various fora in expressing her misgivings about the perceived unfairness of Section 7 of R.A. 6713. She formally lodged a query with the Office of the Court Administrator, and soon after filed her successive petitions for declaratory relief. Effectively, she exposed these fora to the possibility of embarrassment and confusion through their possibly differing views on the issue she posed. Although this is not strictly the forum-shopping that the Rules of Court prohibit, what she has done is something that we cannot help but consider with disfavor because of the potential damage and embarrassment to the Judiciary that it could have spawned. This is a point against Atty. Buffe that cancels out the leniency we might have exercised because of the OCAT's observation about her ignorance of and misgivings on the extent of the prohibition after separation from the service.

    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 Court's 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.

    WHEREFORE, premises considered, we find Atty. Karen M. Silverio-Buffe GUILTY of professional misconduct for violating Rule 1.01 of Canon 1 and Canon 7 of the Code of Professional Responsibility. She is hereby FINED in the amount of Ten Thousand Pesos (P10,000.00), and STERNLY WARNED that a repetition of this violation and the commission of other acts of professional misconduct shall be dealt with more severely.

    Let this Decision be noted in Atty. Buffe's record as a member of the Bar.

    SO ORDERED.

    Endnotes:


    * 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. Buffe's Manifestation of February 2, 2009.

    13 Id., p. 59; attachment "B" to Atty Buffe's 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.

    A.M. No. 08-6-352-RTC - Query of Atty. Karen M. Silverio-Buffe, former Clerk of Court, Branch 81, Romblon, Romblon, on the prohibition from engaging in the private practice of law


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