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 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, and ABAD, JJ. Promulgated: August 19, 2009

Section 7(b)(2) of Republic Act (R.A.) No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees

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:

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

(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

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?”

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’s defense: 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.

Office of the Chief Attorney (OCAT) evaluation:

The premise of the query is erroneous. She interprets Section 7 (b) (2) as a blanket authority for an incumbent clerk of court to practice law. Clearly, there is a misreading of that provision of law.

The 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

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.

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. versus Leonardo M. Macalam, et al. on February 19, 2008, March 4, 2008, April 10, 2008 and July 9, 2008 as counsel for the plaintiffs;

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

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

(4) Civil Case No. V-1639, entitled Philippine National Bank versus 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 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 needed judicial remedies in regard to the above query.

ACTION AND RULING 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.

Section 5, Canon 3 of the Code of Conduct for Court Personnel

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

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

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;

That outside employment does not require the practice of law; Provided, however, that court personnel may render services as professor, lecturer, or resource person in law schools, review or continuing education centers or similar institutions;

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

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]

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

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

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.

COURT RULING:

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. 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.

ATTY. VICTORIANO S. MURING, JR., Complainant vs. ATTY. MANUEL T. GATCHO,Court Attorney V, NELPA LOTA-CALAYAG, Executive Assistant V, and ATTY. EDNA S. PAÑA, Respondents.

A.M. No. CA-05-19-P

Promulgated:

August 31, 2006

The Issues Whether Atty. Gatcho and Calayag

demanded and received P450,000 from Atty. Paña or her employer to facilitate a favorable decision in a case before the office of Court of Appeals Justice Roberto Barrios.

Whether Atty. Gatcho and Calayag demanded P150,000 from Atty. Paña or her employer, with the representation that they could facilitate a favorable decision in a case before the office of Supreme Court Justice Jose A.R. Melo.

The Court’s Ruling

Complaint not supported by substantial evidence

We have repeatedly held that the quantum of proof necessary for a finding of guilt in administrative cases is substantial evidence, i.e., such relevant evidence as a reasonable mind may accept as adequate to support a conclusion. Mere allegation is not evidence and is not equivalent to proof.

A thorough examination of the records shows that complainant’s case is founded mainly on statements uttered by Atty. Paña to complainant and to Atty. Besonaya. Complainant and Atty. Besonaya had no personal knowledge of the alleged pay-off.

Worse, complainant could not even vouch for the integrity of Atty. Paña’s information, as he was not certain if Atty. Paña personally dealt with Atty. Gatcho and Calayag in the alleged transactions

Testimony of Atty. Pascual and Atty. Besonaya fail to bolster complainant’s allegations

Atty. Gatcho filed petitions for commission as notary public while employed as court attorney

In the course of the hearings, complainant presented copies of petitions filed by Atty. Gatcho for commission as notary public in the cities of Mandaluyong and Makati, dated 3 April 2000 and 7 February 2003, respectively. Atty. Gatcho asserts that he filed the petitions only because he was “planning to engage in private practice” upon separation from government service. These petitions do not form part of the records.

Memorandum Circular No. 17 of the Executive Department permits employees of government offices to “engage directly in any private business, vocation or profession x x x outside office hours.”However, we declared in an En Banc resolution dated 1 October 1987 that —

x x x [the memorandum circular] x x x [is] not applicable to officials or employees of the courts considering the express prohibition in the Rules of Court and the nature of their work which requires them to serve with the highest degree of efficiency and responsibility, in order to maintain public confidence in the Judiciary.

Atty. Gatcho should have known that as a government lawyer, he was prohibited from engaging in notarial practice, or in any form of private legal practice for that matter. Atty. Gatcho cannot now feign ignorance or good faith, as he did not seek to exculpate himself by providing an explanation for his error. Atty. Gatcho’s filing of the petition for commission, while not an actual engagement in the practice of law, appears as a furtive attempt to evade the prohibition.

Complainant engaged in unauthorized private practice While complainant must have intended to assume the

role of whistle-blower in filing this case, we cannot disregard complainant’s admission that he appeared in court as counsel and received P2,000 in appearance fees when he was employed as court attorney. Appearing in court on behalf of a party litigant falls within the scope of the phrase “practice of law.”

Under the Uniform Rules on Administrative Cases in the Civil Service, engaging in the private practice of profession, when unauthorized, is classified as a light offense punishable by reprimand.

Resignation or removal not a barto a finding of administrative liability

The fact that complainant and Atty. Gatcho are no longer employed at the Court of Appeals, and claim to have shifted to private practice, does not preclude the Court from making a pronouncement as to their administrative liability for acts committed by them while in government service

The complaint in this case was filed on 28 February 2003, before Atty. Gatcho resigned.

The jurisdiction that the Court acquired at the time of the filing of the complaint is retained until the case is finally resolved.

However, while they deserve a more severe penalty, like suspension from office, they can only now be admonished since they are no longer in the service.

Court ruling: WHEREFORE, we find Atty. Edna S. Paña guilty of

gross misconduct and accordingly SUSPEND her from the practice of law for three (3) months effective upon finality of this Decision. For engaging in the unauthorized private practice of law, we ADMONISH Atty. Victoriano S. Muring, Jr., Court Attorney IV. For filing a petition for commission as notary public while employed in the Judiciary, we also ADMONISH Atty. Manuel T. Gatcho, Court Attorney V. They are STERNLY WARNED that repetition of the same or similar act in the future shall merit a more severe sanction.