OFFICE OF THE COURT
ADMINISTRATOR, complainant, vs. ATTY. MISAEL M. LADAGA, Branch
Clerk of Court, Regional Trial Court, Branch 133, Makati City, respondent.
R E S O L U T I O N
KAPUNAN, J.:
In a Letter, dated August 31, 1998,
respondent Atty. Misael M. Ladaga, Branch Clerk of Court of the Regional Trial
Court of Makati, Branch 133, requested the Court Administrator, Justice Alfredo
L. Benipayo, for authority to appear as pro bono counsel of
his cousin, Narcisa Naldoza Ladaga, in Criminal Case No. 84885, entitled People
vs. Narcisa Naldoza Ladaga for Falsification of Public Document
pending before the Metropolitan Trial Court of Quezon City, Branch 40.[1] While
respondents letter-request was pending action, Lisa Payoyo Andres, the private
complainant in Criminal Case No. 84885, sent a letter to the Court
Administrator, dated September 2, 1998, requesting for a certification with
regard to respondents authority to appear as counsel for the accused in the
said criminal case.[2] On
September 7, 1998, the Office of the Court Administrator referred the matter to
respondent for comment.[3]
In his Comment,[4] dated
September 14, 1998, respondent admitted that he had appeared in Criminal Case
No. 84885 without prior authorization. He reasoned out that the factual
circumstances surrounding the criminal case compelled him to handle the defense
of his cousin who did not have enough resources to hire the services of a
counsel de parte; while, on the other hand, private complainant was
a member of a powerful family who was out to get even with his cousin. Furthermore,
he rationalized that his appearance in the criminal case did not prejudice his
office nor the interest of the public since he did not take advantage of his
position. In any case, his appearances in court were covered by leave
application approved by the presiding judge.
On December 8, 1998, the Court issued a
resolution denying respondents request for authorization to appear as counsel
and directing the Office of the Court Administrator to file formal charges
against him for appearing in court without the required authorization from the
Court.[5] On
January 25, 1999, the Court Administrator filed the instant administrative
complaint against respondent for violating Sec. 7(b)(2) of Republic Act No.
6713, otherwise known as the Code of Conduct and Ethical Standards for Public
Officials and Employees, which provides:
Sec. 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;
In our Resolution, dated February 9,
1999, we required respondent to comment on the administrative complaint.
In his Comment, respondent explained that
he and Ms. Ladaga are close blood cousins who belong to a powerless family from
the impoverished town of Bacauag, Surigao del Norte. From childhood until
he finished his law degree, Ms. Ladaga had always supported and guided him
while he looked up to her as a mentor and an adviser. Because of their
close relationship, Ms. Ladaga sought respondents help and advice when she was
charged in Criminal Case No. 84885 for falsification by the private
complainant, Lisa Payoyo Andres, whose only purpose in filing the said criminal
case was to seek vengeance on her cousin. He explained that his cousins
discord with Ms. Andres started when the latters husband, SPO4 Pedro Andres,
left the conjugal home to cohabit with Ms. Ladaga. During the course of
their illicit affair, SPO4 Andres and Ms. Ladaga begot three (3) children. The
birth certificate of their eldest child is the subject of the falsification
charge against Ms. Ladaga. Respondent stated that since he is the only
lawyer in their family, he felt it to be his duty to accept Ms. Ladagas plea to
be her counsel since she did not have enough funds to pay for the services of a
lawyer. Respondent also pointed out that in his seven (7) years of
untainted government service, initially with the Commission on Human Rights and
now with the judiciary, he had performed his duties with honesty and integrity
and that it was only in this particular case that he had been administratively charged
for extending a helping hand to a close relative by giving a free legal
assistance for humanitarian purpose. He never took advantage of his position as
branch clerk of court since the questioned appearances were made in the
Metropolitan Trial Court of Quezon City and not in Makati where he is holding
office. He stressed that during the hearings of the criminal case, he was
on leave as shown by his approved leave applications attached to his comment.
In our Resolution, dated June 22, 1999,
we noted respondents comment and referred the administrative matter to the
Executive Judge of the Regional Trial Court of Makati, Judge Josefina
Guevarra-Salonga, for investigation, report and recommendation.
In her Report, dated September 29, 1999,
Judge Salonga made the following findings and recommendation:
There is no question
that Atty. Misael Ladaga appeared as counsel for and in behalf of his cousin,
Narcisa Naldoza Ladaga, an accused in Criminal Case No. 84-885 for
Falsification of Public Documents before the METC of Quezon City. It is
also denied that the appearance of said respondent in said case was without the
previous permission of the Court.
An examination of the
records shows that during the occasions that the respondent appeared as such
counsel before the METC of Quezon City, he was on official leave of absence. Moreover,
his Presiding Judge, Judge Napoleon Inoturan was aware of the case he was
handling. That the respondent appeared as pro bono counsel
likewise cannot be denied. His cousin-client Narcisa Ladaga herself
positively declared that the respondent did not receive a single centavo from
her. Helpless as she was and respondent being the only lawyer in the
family, he agreed to represent her out of his compassion and high regard for
her.
It may not be amiss to
point out, this is the first time that respondent ever handled a case for a
member of his family who is like a big sister to him. He appeared for free
and for the purpose of settling the case amicably. Furthermore, his
Presiding Judge was aware of his appearance as counsel for his cousin. On
top of this, during all the years that he has been in government service, he
has maintained his integrity and independence.
RECOMMENDATION
In the light of the
foregoing, it appearing that the respondent appeared as counsel for his cousin
without first securing permission from the court, and considering that this is
his first time to do it coupled with the fact that said appearance was not for
a fee and was with the knowledge of his Presiding Judge, it is hereby
respectfully recommended that he be REPRIMANDED with a stern warning that any
repetition of such act would be dealt with more severely.[6]
We agree with the recommendation of the
investigating judge.
Respondent is charged under Sec. 7(b)(2)
of the Code of Conduct and Ethical Standards for Public Officials and Employees
which prohibits civil servants from engaging in the private practice of their
profession. A similar prohibition is found under Sec. 35, Rule 138 of the
Revised Rules of Court which disallows certain attorneys from engaging in the
private practice of their profession. The said section reads:
SEC. 35. Certain
attorneys not to practice.- No judge or other official or employee of the
superior courts or of the Office of the Solicitor General, shall engage in
private practice as a member of the bar or give professional advise to clients.
However, it should be clarified that
private practice of a profession, specifically the law profession in this case,
which is prohibited, does not pertain to an isolated court appearance; rather,
it contemplates a succession of acts of the same nature habitually or
customarily holding ones self to the public as a lawyer.
In the case of People vs.
Villanueva,[7] we
explained the meaning of the term private practice prohibited by the said
section, to wit:
We believe that the
isolated appearance of City Attorney Fule did not constitute private practice,
within the meaning and contemplation of the Rules. Practice is more than
an isolated appearance, for it consists in frequent or customary action, a
succession of acts of the same kind. In other words, it is frequent
habitual exercise (State vs. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, N.S. 768)
Practice of law to fall within the prohibition of statute has been interpreted
as customarily or habitually holding ones self out to the public, as a lawyer
and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C.
644, 647).The appearance as counsel on one occasion, is not conclusive as
determinative of engagement in the private practice of law. The following
observation of the Solicitor General is noteworthy:
Essentially,
the word private practice of law implies that one must have presented himself
to be in the active and continued practice of the legal profession and that his
professional services are available to the public for a compensation, as a
source of his livelihood or in consideration of his said services.
For one thing, it has
never been refuted that City Attorney Fule had been given permission by his
immediate superior, the Secretary of Justice, to represent the complainant in
the case at bar, who is a relative.[8]
Based on the foregoing, it is evident
that the isolated instances when respondent appeared as pro bono counsel
of his cousin in Criminal Case No. 84885 does not constitute the private
practice of the law profession contemplated by law.
Nonetheless, while respondents isolated
court appearances did not amount to a private practice of law, he failed to
obtain a written permission therefor from the head of the Department, which is
this Court as required by Section 12, Rule XVIII of the Revised Civil Service
Rules, thus:
Sec. 12. No
officer or employee shall engage directly in any private business,
vocation, or profession or be connected with any commercial,
credit, agricultural, or industrial undertaking without a written
permission from the head of the Department: Provided, That this
prohibition will be absolute in the case of those officers and employees whose
duties and responsibilities require that their entire time be at the disposal
of the Government; Provided, further, That if an
employee is granted permission to engage in outside activities, time so devoted
outside of office hours should be fixed by the agency to the end that it will
not impair in any way the efficiency of the officer or employee: And
provided, finally, That no permission is necessary in the case of
investments, made by an officer or employee, which do not involve real or
apparent conflict between his private interests and public duties, or in any
way influence him in the discharge of his duties, and he shall not take part in
the management of the enterprise or become an officer of the board of
directors.[9]
Respondent entered his appearance and
attended court proceedings on numerous occasions, i.e., May 4-15,
1998, June 18, 1998, July 13, 1998 and August 5, 1998, as borne out by his own
admission. It is true that he filed leave applications corresponding to
the dates he appeared in court. However, he failed to obtain a prior
permission from the head of the Department. The presiding judge of the
court to which respondent is assigned is not the head of the Department
contemplated by law.
WHEREFORE, in view of the
foregoing, respondent Atty. Misael M. Ladaga is hereby REPRIMANDED with a stern
warning that any repetition of such act would be dealt with more severely.
SO ORDERED.
Facts:Atty. Misael Ladaga, Branch Clerk of Court of the Regional Trial Court
of Makati, appeared as counsel for and in behalf of his cousin, Narcisa Naldoza
Ladaga, an accused in Criminal Case No. 84-885 for “Falsification of Public
Documents” before the METC of Quezon City. It is also denied that the
appearance of said respondent in said case was without the previous permission
of the Court. During the occasions that the respondent appeared as such counsel
before the METC of Quezon City, he was on official leave of absence.
Moreover, his Presiding Judge, Judge Napoleon Inoturan was aware of the
case he was handling. Respondent appeared as pro bono counsel for his
cousin-client Narcisa Ladaga. Respondent did not receive a single centavo from
her. Helpless as she was and respondent being the only lawyer in the family, he
agreed to represent her out of his compassion and high regard for
her. This is the first time that respondent ever handled a case for a
member of his family who is like a big sister to him. He appeared for free
and for the purpose of settling the case amicably. Furthermore, his
Presiding Judge was aware of his appearance as counsel for his cousin. On
top of this, during all the years that hehas been in government service, he has
maintained his integrity and independence. He failed to obtain a
prior permission from the head of the Department. The presiding judge of
the court to which respondent is assigned is not the head of the Department
contemplated by law.
Issue:
Whether or not Atty. Ladaga, upon such several appearances, was engages
into private practice? NO
Held:
Respondent is charged under Sec. 7(b)(2) of the Code of Conduct and
Ethical Standards for Public Officials and Employees which prohibits civil
servants from engaging in the private practice of their profession. A similar
prohibition is found under Sec. 35, Rule 138 of the Revised Rules of Court
which disallows certain attorneys from engaging in the private practice of
their profession.
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