Monday, December 3, 2018
In re Luis B. TAGORDA
March 23, 1929
FACTS
In 1928, Luis Tagorda was a provincial board member of Isabela. He admits that during his campaign, he made use of a card written in Spanish and Ilocano which, in translation means that he is a lawyer and a notary public; and that as a notary public he can do notarial acts such as execution of deeds of sale, can renew lost documents, and etc.; that as a lawyer, he can help clients collect debts; that he offers free consultation; and that he is willing to serve the poor. The respondent further admits that he is the author of a letter addressed to a lieutenant of barrio in his home municipality advising the latter that even though he was elected as a provincial board member, he can still practice law; that he wants the lieutenant to tell the same to his people; that he is willing to receive works regarding preparations of sales contracts and affidavits etc.; that he is willing to receive land registration cases for a charge of three pesos.
ISSUE Whether or not Tagorda is guilty of malpractice.
HELD
Yes. Tagorda admitted doing the foregoing acts. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.
The most worthy and effective advertisement possible, even for a young lawyer, and especially with his brother lawyers, is the establishment of a well- merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct. Solicitation of business by circulars or advertisements, or by personal communications or interviews not warranted by personal relations, is unprofessional. It is equally unprofessional to procure business by indirection through touters of any kind, whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning the manner of their conduct, the magnitude of the interests involved, the importance of the lawyer’s position, and all other like self-laudation, defy the traditions and lower the tone of our high calling, and are intolerable.
It is unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so.
Tagorda’s liability is however mitigated by the fact that he is a young inexperienced lawyer and that he was unaware of the impropriety of his acts. So instead of being disbarred, he was suspended from the practice of law for a month.
DECISION
Respondent Luis B. Tagorda be and is hereby suspended from the practice as an attorney-at-law for the period of one month from April 1, 1929.
Sunday, December 2, 2018
TELESFORO A. DIAO, vs. SEVERINO G. MARTINEZ
A.C. No. 244. March 29, 1963
FACTS
After successfully passing the corresponding examinations held in 1953, Telesforo A. Diao was admitted to the Bar. About two years later, Severino Martinez charged him with having falsely represented in his application for such Bar examination, that he had the requisite academic qualifications. He prayed that Diao’s name be erased from the roll of attorneys, because contrary to the allegations in his petition for examination, he (Diao) had not completed, before taking up law subjects, the required pre-legal education prescribed by the Department of Private Education, specially, in the following particulars:
(a) Diao did not complete his high school training; and
(b) Diao never attended Quisumbing College, and never obtained his A.A. diploma therefrom — which contradicts the credentials he had submitted in support of his application for examination, and of his allegation therein of successful completion of the “required pre-legal education”.
Answering this official report and complaint, Telesforo A. Diao, practically admits the first charge: but he claims that although he had left high school in his third year, he entered the service of the U.S. Army, passed the General Classification Test given therein, which (according to him) is equivalent to a high school diploma, and upon his return to civilian life, the educational authorities considered his army service as the equivalent of 3rd and 4th year high school.
ISSUE
Whether or not Telesforo A. Diao should be disbarred from practice of law
HELD
Plainly, therefore, Telesforo A. Diao was not qualified to take the bar examinations; but due to his false representations, he was allowed to take it, luckily passed it, and was thereafter admitted to the Bar. Such admission having been obtained under false pretenses must be and is hereby revoked.
The fact that he hurdled the Bar examinations is immaterial. Passing such examinations is not the only qualification to become an attorney-at-law; taking the prescribed courses of legal study in the regular manner is equally essential.
DECISION
The Clerk is, therefore, ordered to strike from the roll of attorneys, the name of Telesforo A. Diao. And the latter is required to return his lawyer’s diploma within thirty days.
After successfully passing the corresponding examinations held in 1953, Telesforo A. Diao was admitted to the Bar. About two years later, Severino Martinez charged him with having falsely represented in his application for such Bar examination, that he had the requisite academic qualifications. He prayed that Diao’s name be erased from the roll of attorneys, because contrary to the allegations in his petition for examination, he (Diao) had not completed, before taking up law subjects, the required pre-legal education prescribed by the Department of Private Education, specially, in the following particulars:
(a) Diao did not complete his high school training; and
(b) Diao never attended Quisumbing College, and never obtained his A.A. diploma therefrom — which contradicts the credentials he had submitted in support of his application for examination, and of his allegation therein of successful completion of the “required pre-legal education”.
Answering this official report and complaint, Telesforo A. Diao, practically admits the first charge: but he claims that although he had left high school in his third year, he entered the service of the U.S. Army, passed the General Classification Test given therein, which (according to him) is equivalent to a high school diploma, and upon his return to civilian life, the educational authorities considered his army service as the equivalent of 3rd and 4th year high school.
ISSUE
Whether or not Telesforo A. Diao should be disbarred from practice of law
HELD
Plainly, therefore, Telesforo A. Diao was not qualified to take the bar examinations; but due to his false representations, he was allowed to take it, luckily passed it, and was thereafter admitted to the Bar. Such admission having been obtained under false pretenses must be and is hereby revoked.
The fact that he hurdled the Bar examinations is immaterial. Passing such examinations is not the only qualification to become an attorney-at-law; taking the prescribed courses of legal study in the regular manner is equally essential.
DECISION
The Clerk is, therefore, ordered to strike from the roll of attorneys, the name of Telesforo A. Diao. And the latter is required to return his lawyer’s diploma within thirty days.
IN RE: FLORENCIO MALLARE
Adm. Case No. 533. September 12, 1974
FACTS
Florencio Mallare was admitted to the Philippine Bar however the court ordered an investigation regarding his citizenship and for the purpose of determining whether his name should be stricken from the roll of persons authorized to practice law in the Philippines. After the investigation, a decision was rendered by the Court, holding that by preponderance of evidence, it appeared that respondent Mallare’s father, Esteban Mallare, was a Chinese up to his death; and his mother admittedly being a Chinese, respondent is likewise a Chinese national. Consequently, respondent Florencio Mallare was declared excluded from the practice of law; his admission to the bar was revoked, and he was ordered to return to this Court, the lawyer’s diploma previously issued to him.
Respondent moved for reconsideration of the decision, which was denied by the Court. On February 4, 1969, respondent petitioned the Court for the reopening of the case and for new trial on the ground, inter alia, of newly discovered evidence, the introduction of which could alter the decision previously promulgated. The evidence proposed to be presented consisted of :
(1) an entry in the registry of baptism of the Immaculate Concepcion Church at Macalelon, Quezon, purporting to show that Estaben Mallare (respondent’s father) is the natural son of Ana Mallare, a Filipina; and
(2) testimonies of certain persons who had a known Esteban Mallare and his mother during their lifetime.
ISSUE
WON the respondent is Filipino citizen.
HELD
The Court finds sufficient grounds to warrant a definite setting aside of its decision and a definitive declaration that respondent Florencio Mallare is a Filipino citizen and therefore with qualification and right to continue the practice of law in the Philippines. With the additional evidence submitted by respondent pursuant to the authority granted by this Court, the aforementioned void in the proof of respondent’s citizenship has been duly filled.
The witnesses, all natives of Macalelon, who had personal knowledge of the person, birth and residency of both Ana Mallare and her son Esteban, were one in their declaration that Ana Mallare is a Tagalog who had continuously resided in the place, and that Esteban, her son, was reputedly born out of wedlock. Such declarations constitute admissible evidence of the birth and illegitimacy of Esteban Mallare.
Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no other act would be necessary to confer on him all the rights and privileges attached to Philippine citizenship.
DECISION
Upon the foregoing considerations, and on the basis of the original and additional evidence herein adduced the decision of this Court dated April 29, 1968, is hereby definitely set aside, and the complaint in this case is DISMISSED, without pronouncement as to costs.
Florencio Mallare was admitted to the Philippine Bar however the court ordered an investigation regarding his citizenship and for the purpose of determining whether his name should be stricken from the roll of persons authorized to practice law in the Philippines. After the investigation, a decision was rendered by the Court, holding that by preponderance of evidence, it appeared that respondent Mallare’s father, Esteban Mallare, was a Chinese up to his death; and his mother admittedly being a Chinese, respondent is likewise a Chinese national. Consequently, respondent Florencio Mallare was declared excluded from the practice of law; his admission to the bar was revoked, and he was ordered to return to this Court, the lawyer’s diploma previously issued to him.
Respondent moved for reconsideration of the decision, which was denied by the Court. On February 4, 1969, respondent petitioned the Court for the reopening of the case and for new trial on the ground, inter alia, of newly discovered evidence, the introduction of which could alter the decision previously promulgated. The evidence proposed to be presented consisted of :
(1) an entry in the registry of baptism of the Immaculate Concepcion Church at Macalelon, Quezon, purporting to show that Estaben Mallare (respondent’s father) is the natural son of Ana Mallare, a Filipina; and
(2) testimonies of certain persons who had a known Esteban Mallare and his mother during their lifetime.
ISSUE
WON the respondent is Filipino citizen.
HELD
The Court finds sufficient grounds to warrant a definite setting aside of its decision and a definitive declaration that respondent Florencio Mallare is a Filipino citizen and therefore with qualification and right to continue the practice of law in the Philippines. With the additional evidence submitted by respondent pursuant to the authority granted by this Court, the aforementioned void in the proof of respondent’s citizenship has been duly filled.
The witnesses, all natives of Macalelon, who had personal knowledge of the person, birth and residency of both Ana Mallare and her son Esteban, were one in their declaration that Ana Mallare is a Tagalog who had continuously resided in the place, and that Esteban, her son, was reputedly born out of wedlock. Such declarations constitute admissible evidence of the birth and illegitimacy of Esteban Mallare.
Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no other act would be necessary to confer on him all the rights and privileges attached to Philippine citizenship.
DECISION
Upon the foregoing considerations, and on the basis of the original and additional evidence herein adduced the decision of this Court dated April 29, 1968, is hereby definitely set aside, and the complaint in this case is DISMISSED, without pronouncement as to costs.
IN RE: PETITION OF ARTURO EFREN GARCIA
August 15, 1961
FACTS
Arturo E. Garcia has applied for admission to the practice of law in the Philippines without submitting to the required bar examinations. In his verified petition, he avers:
1. that he is a Filipino citizen born in Bacolor City,Province of Negros Occidental, of Filipino parentage;
2.that he had taken and finished in Spain, the course of "Bachillerato Superior";
3. that he was approved, selected and qualified by the "Instituto de Cervantes" for admission to the Central University of Madrid where he studied and finished the law course graduating there as "Licenciado En Derecho";
4.that thereafter he was allowed to practice the law profession in Spain;
5. and that under the provision of the Treaty of Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish state, he is entitled to practice the law profession in the Philippines without submitting to the required bar examinations.
After due consideration, the Court resolved to deny the petition.
ISSUE
Whether treaty can modify regulations governing admission to the Philippine Bar.
HELD
The Court resolved to deny the petition. The provision of the Treaty on Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish state cannot be invoked by the applicant. Said Treaty was intended to govern Filipino citizens desiring to practice the legal in Spain, and the citizens of Spain desiring to practice the legal profession in the Philippines. Applicant is a Filipino citizen desiring to practice the legal profession in the Philippines. He is therefore subject to the laws of his own country and is not entitled to the privileges extended to Spanish nationals desiring to practice in the Philippines. The privileges provided in the Treaty invoked by the applicant are made expressly subject to the laws and regulations of the contracting state in whose territory it is desired to exercise the legal profession.
The aforementioned Treaty, concluded between the Republic of the Philippines and the Spanish state could not have been intended to modify the laws and regulations governing admission to the practice of law in the Philippines, for reason that the Executive Department may not enroach upon the consitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the Philippines, and the power to repeal, alter or supplement such rules being reserved only to the Congress of the Philippines.
Arturo E. Garcia has applied for admission to the practice of law in the Philippines without submitting to the required bar examinations. In his verified petition, he avers:
1. that he is a Filipino citizen born in Bacolor City,Province of Negros Occidental, of Filipino parentage;
2.that he had taken and finished in Spain, the course of "Bachillerato Superior";
3. that he was approved, selected and qualified by the "Instituto de Cervantes" for admission to the Central University of Madrid where he studied and finished the law course graduating there as "Licenciado En Derecho";
4.that thereafter he was allowed to practice the law profession in Spain;
5. and that under the provision of the Treaty of Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish state, he is entitled to practice the law profession in the Philippines without submitting to the required bar examinations.
After due consideration, the Court resolved to deny the petition.
ISSUE
Whether treaty can modify regulations governing admission to the Philippine Bar.
HELD
The Court resolved to deny the petition. The provision of the Treaty on Academic Degrees and the Exercise of Professions between the Republic of the Philippines and the Spanish state cannot be invoked by the applicant. Said Treaty was intended to govern Filipino citizens desiring to practice the legal in Spain, and the citizens of Spain desiring to practice the legal profession in the Philippines. Applicant is a Filipino citizen desiring to practice the legal profession in the Philippines. He is therefore subject to the laws of his own country and is not entitled to the privileges extended to Spanish nationals desiring to practice in the Philippines. The privileges provided in the Treaty invoked by the applicant are made expressly subject to the laws and regulations of the contracting state in whose territory it is desired to exercise the legal profession.
The aforementioned Treaty, concluded between the Republic of the Philippines and the Spanish state could not have been intended to modify the laws and regulations governing admission to the practice of law in the Philippines, for reason that the Executive Department may not enroach upon the consitutional prerogative of the Supreme Court to promulgate rules for admission to the practice of law in the Philippines, and the power to repeal, alter or supplement such rules being reserved only to the Congress of the Philippines.
IN RE CUNANAN
94 PHIL. 534, MARCH 18, 1954
FACTS
Congress passed Rep. Act No. 972, or what is known as the Bar Flunkers Act, in 1952. Under the Rules of Court governing admission to the bar, "in order that a candidate (for admission to the Bar) may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject."(Rule 127, sec. 14, Rules of Court).
Believing themselves as fully qualified to practice law as those reconsidered and passed by this court, and feeling conscious of having been discriminated against (See Explanatory Note to R. A. No. 972), unsuccessful candidates who obtained averages of a few percentage lower than those admitted to the Bar agitated in Congress for, and secured in 1951 the passage of Senate Bill No. 12 which, among others, reduced the passing general average in bar examinations to 70 per cent effective since 1946.
The President requested the views of the court on the bill. Complying with that request, seven members of the court subscribed to and submitted written comments adverse thereto, and shortly thereafter the President vetoed it. Congress did not override the veto. Instead, it approved Senate Bill No. 371 which is an Act to fix the passing marks for bar examinations from nineteen hundred and forty-six up to and including nineteen Hundred and fifty-five, embodying substantially the provisions of the vetoed bill.
Republic Act 972 has for its object, according to its author, to admit to the Bar those candidates who suffered from insufficiency of reading materials and inadequate preparations. By and large, the law is contrary to public interest since it qualifies 1,094 law graduates who had inadequate preparation for the practice of law profession, as evidenced by their failure in the exams.
After its approval, many of the unsuccessful postwar candidates filed petitions for admission to the bar invoking its provisions, while others whose motions for the revision of their examination papers were still pending also invoked the aforesaid law as an additional ground for admission. To avoid injustice to individual petitioners, the court first reviewed the motions for reconsideration, irrespective of whether or not they had invoked Republic Act No. 972. Unfortunately, the court has found no reason to revise their grades. If they are to be admitted to the bar, it must be pursuant to Republic Act No. 972 which, if declared valid, should be applied equally to all concerned whether they have filed petitions or not.
ISSUE
Whether or Not RA No. 972 is constitutional and valid.
HELD
RA No. 972 has for its object, according to its author, to admit to the Bar, those candidates who suffered from insufficiency of reading materials and inadequate preparation.
In the judicial system from which ours has been evolved, the admission, suspension, disbarment and reinstatement of attorneys at law in the practice of the profession and their supervision have been indisputably a judicial function and responsibility. We have said that in the judicial system from which ours has been derived, the admission, suspension, disbarment or reinstatement of attorneys at law in the practice of the profession is concededly judicial.
On this matter, there is certainly a clear distinction between the functions of the judicial and legislative departments of the government.
It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities may say, merely to fix the minimum conditions for the license.
Reasons for Unconstitutionality: 1. There was a manifest encroachment on the constitutional responsibility of the Supreme Court. 2. It is in effect a judgment revoking the resolution of the court, and only the S.C. may revise or alter them, in attempting to do so R.A. 972 violated the Constitution. 3. That congress has exceeded its power to repeal, alter, and supplement the rules on admission to the bar (since the rules made by congress must elevate the profession, and those rules promulgated are considered the bare minimum.) 4. It is a class legislation 5. Art. 2 of R.A. 972 is not embraced in the title of the law, contrary to what the constitution enjoins, and being inseparable from the provisions of art. 1, the entire law is void.
Republic Act Number 972 is held to be unconstitutional.
Congress passed Rep. Act No. 972, or what is known as the Bar Flunkers Act, in 1952. Under the Rules of Court governing admission to the bar, "in order that a candidate (for admission to the Bar) may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject."(Rule 127, sec. 14, Rules of Court).
Believing themselves as fully qualified to practice law as those reconsidered and passed by this court, and feeling conscious of having been discriminated against (See Explanatory Note to R. A. No. 972), unsuccessful candidates who obtained averages of a few percentage lower than those admitted to the Bar agitated in Congress for, and secured in 1951 the passage of Senate Bill No. 12 which, among others, reduced the passing general average in bar examinations to 70 per cent effective since 1946.
The President requested the views of the court on the bill. Complying with that request, seven members of the court subscribed to and submitted written comments adverse thereto, and shortly thereafter the President vetoed it. Congress did not override the veto. Instead, it approved Senate Bill No. 371 which is an Act to fix the passing marks for bar examinations from nineteen hundred and forty-six up to and including nineteen Hundred and fifty-five, embodying substantially the provisions of the vetoed bill.
Republic Act 972 has for its object, according to its author, to admit to the Bar those candidates who suffered from insufficiency of reading materials and inadequate preparations. By and large, the law is contrary to public interest since it qualifies 1,094 law graduates who had inadequate preparation for the practice of law profession, as evidenced by their failure in the exams.
After its approval, many of the unsuccessful postwar candidates filed petitions for admission to the bar invoking its provisions, while others whose motions for the revision of their examination papers were still pending also invoked the aforesaid law as an additional ground for admission. To avoid injustice to individual petitioners, the court first reviewed the motions for reconsideration, irrespective of whether or not they had invoked Republic Act No. 972. Unfortunately, the court has found no reason to revise their grades. If they are to be admitted to the bar, it must be pursuant to Republic Act No. 972 which, if declared valid, should be applied equally to all concerned whether they have filed petitions or not.
ISSUE
Whether or Not RA No. 972 is constitutional and valid.
HELD
RA No. 972 has for its object, according to its author, to admit to the Bar, those candidates who suffered from insufficiency of reading materials and inadequate preparation.
In the judicial system from which ours has been evolved, the admission, suspension, disbarment and reinstatement of attorneys at law in the practice of the profession and their supervision have been indisputably a judicial function and responsibility. We have said that in the judicial system from which ours has been derived, the admission, suspension, disbarment or reinstatement of attorneys at law in the practice of the profession is concededly judicial.
On this matter, there is certainly a clear distinction between the functions of the judicial and legislative departments of the government.
It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities may say, merely to fix the minimum conditions for the license.
Reasons for Unconstitutionality: 1. There was a manifest encroachment on the constitutional responsibility of the Supreme Court. 2. It is in effect a judgment revoking the resolution of the court, and only the S.C. may revise or alter them, in attempting to do so R.A. 972 violated the Constitution. 3. That congress has exceeded its power to repeal, alter, and supplement the rules on admission to the bar (since the rules made by congress must elevate the profession, and those rules promulgated are considered the bare minimum.) 4. It is a class legislation 5. Art. 2 of R.A. 972 is not embraced in the title of the law, contrary to what the constitution enjoins, and being inseparable from the provisions of art. 1, the entire law is void.
Republic Act Number 972 is held to be unconstitutional.
Thursday, November 29, 2018
FERDINAND A. CRUZ v ALBERTO MINA
G.R. No. 154207. April 27, 2007
FACTS
Ferdinand A. Cruz (petitioner), a third-year law student, filed before the MeTC a formal Entry of Appearance, as private prosecutor, in Criminal Case for Grave Threats, where his father, Mariano Cruz, is the complaining witness. The petitioner furthermore avers that his appearance was with the prior conformity of the public prosecutor and a written authority of Mariano Cruz appointing him to be his agent in the prosecution of the said criminal case.
However, the MeTC denied permission for petitioner to appear as private prosecutor on the ground that Circular No. 19 governing limited law student practice in conjunction with Rule 138-A of the Rules of Court (Law Student Practice Rule) should take precedence over the ruling of the Court and set the case for continuation of trial.
Petitioner filed a Motion for Reconsideration (MeTC and RTC) seeking to reverse the Order alleging that Rule 138-A, or the Law Student Practice Rule, does not have the effect of superseding Section 34 of Rule 138, for the authority to interpret the rule is the source itself of the rule, which is the Supreme Court alone.
The petitioner argues that nowhere does the law provide that the crime of Grave Threats has no civil aspect. And last, petitioner cites Bar Matter No. 730 dated June 10, 1997 which expressly provides for the appearance of a non-lawyer before the inferior courts, as an agent or friend of a party litigant, even without the supervision of a member of the bar.
The petitioner directly filed to the Supreme Court the petition and contended that the court[s] are clearly ignoring the law when they patently refused to heed to the clear mandate of the Laput, Cantimbuhan and Bulacan cases, as well as bar matter no. 730, providing for the appearance of non-lawyers before the lower courts (MTC’s).
ISSUE
Whether the petitioner, a law student, may appear before an inferior court as an agent or friend of a party litigant
HELD
The courts a quo held that the Law Student Practice Rule as encapsulated in Rule 138-A of the Rules of Court, prohibits the petitioner, as a law student, from entering his appearance in behalf of his father, the private complainant in the criminal case without the supervision of an attorney duly accredited by the law school.
However, in Bar Matter No. 730, the Court En Banc clarified: The rule, however, is different if the law student appears before an inferior court, where the issues and procedure are relatively simple. In inferior courts, a law student may appear in his personal capacity without the supervision of a lawyer: Section 34, Rule 138 provides:
Sec. 34. By whom litigation is conducted.—In the court of a justice of the peace, a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar.
Thus, a law student may appear before an inferior court as an agent or friend of a party without the supervision of a member of the bar.There is really no problem as to the application of Section 34 of Rule 138 and Rule 138-A. In the former, the appearance of a non-lawyer, as an agent or friend of a party litigant, is expressly allowed, while the latter rule provides for conditions when a law student, not as an agent or a friend of a party litigant, may appear before the courts.
Rule 138-A should not have been used by the courts a quo in denying permission to act as private prosecutor against petitioner for the simple reason that Rule 138-A is not the basis for the petitioner’s appearance. Section 34, Rule 138 is clear that appearance before the inferior courts by a non-lawyer is allowed, irrespective of whether or not he is a law student. As succinctly clarified in Bar Matter No. 730, by virtue of Section 34, Rule 138, a law student may appear, as an agent or a friend of a party litigant, without the supervision of a lawyer before inferior courts.
DECISION
WHEREFORE, the Petition is GRANTED. The assailed Resolution and Order of the Regional Trial Court, Branch 116, Pasay City are REVERSED and SET ASIDE. The Metropolitan Trial Court, Branch 45, Pasay City is DIRECTED to ADMIT the Entry of Appearance of petitioner in Criminal Case No. 00-1705 as a private prosecutor under the direct control and supervision of the public prosecutor.
Ferdinand A. Cruz (petitioner), a third-year law student, filed before the MeTC a formal Entry of Appearance, as private prosecutor, in Criminal Case for Grave Threats, where his father, Mariano Cruz, is the complaining witness. The petitioner furthermore avers that his appearance was with the prior conformity of the public prosecutor and a written authority of Mariano Cruz appointing him to be his agent in the prosecution of the said criminal case.
However, the MeTC denied permission for petitioner to appear as private prosecutor on the ground that Circular No. 19 governing limited law student practice in conjunction with Rule 138-A of the Rules of Court (Law Student Practice Rule) should take precedence over the ruling of the Court and set the case for continuation of trial.
Petitioner filed a Motion for Reconsideration (MeTC and RTC) seeking to reverse the Order alleging that Rule 138-A, or the Law Student Practice Rule, does not have the effect of superseding Section 34 of Rule 138, for the authority to interpret the rule is the source itself of the rule, which is the Supreme Court alone.
The petitioner argues that nowhere does the law provide that the crime of Grave Threats has no civil aspect. And last, petitioner cites Bar Matter No. 730 dated June 10, 1997 which expressly provides for the appearance of a non-lawyer before the inferior courts, as an agent or friend of a party litigant, even without the supervision of a member of the bar.
The petitioner directly filed to the Supreme Court the petition and contended that the court[s] are clearly ignoring the law when they patently refused to heed to the clear mandate of the Laput, Cantimbuhan and Bulacan cases, as well as bar matter no. 730, providing for the appearance of non-lawyers before the lower courts (MTC’s).
ISSUE
Whether the petitioner, a law student, may appear before an inferior court as an agent or friend of a party litigant
HELD
The courts a quo held that the Law Student Practice Rule as encapsulated in Rule 138-A of the Rules of Court, prohibits the petitioner, as a law student, from entering his appearance in behalf of his father, the private complainant in the criminal case without the supervision of an attorney duly accredited by the law school.
However, in Bar Matter No. 730, the Court En Banc clarified: The rule, however, is different if the law student appears before an inferior court, where the issues and procedure are relatively simple. In inferior courts, a law student may appear in his personal capacity without the supervision of a lawyer: Section 34, Rule 138 provides:
Sec. 34. By whom litigation is conducted.—In the court of a justice of the peace, a party may conduct his litigation in person, with the aid of an agent or friend appointed by him for that purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation personally or by aid of an attorney, and his appearance must be either personal or by a duly authorized member of the bar.
Thus, a law student may appear before an inferior court as an agent or friend of a party without the supervision of a member of the bar.There is really no problem as to the application of Section 34 of Rule 138 and Rule 138-A. In the former, the appearance of a non-lawyer, as an agent or friend of a party litigant, is expressly allowed, while the latter rule provides for conditions when a law student, not as an agent or a friend of a party litigant, may appear before the courts.
Rule 138-A should not have been used by the courts a quo in denying permission to act as private prosecutor against petitioner for the simple reason that Rule 138-A is not the basis for the petitioner’s appearance. Section 34, Rule 138 is clear that appearance before the inferior courts by a non-lawyer is allowed, irrespective of whether or not he is a law student. As succinctly clarified in Bar Matter No. 730, by virtue of Section 34, Rule 138, a law student may appear, as an agent or a friend of a party litigant, without the supervision of a lawyer before inferior courts.
DECISION
WHEREFORE, the Petition is GRANTED. The assailed Resolution and Order of the Regional Trial Court, Branch 116, Pasay City are REVERSED and SET ASIDE. The Metropolitan Trial Court, Branch 45, Pasay City is DIRECTED to ADMIT the Entry of Appearance of petitioner in Criminal Case No. 00-1705 as a private prosecutor under the direct control and supervision of the public prosecutor.
DONNA MARIE S. AGUIRRE v EDWIN L. RANA
Bar Matter No. 1036. June 10, 2003
FACTS
Respondent Edwin L. Rana was among those who passed the 2000 Bar Examinations. One day before the scheduled mass oath-taking of successful bar examinees as members of the Philippine Bar, complainant Donna Marie Aguirre filed against the respondent. Complainant charged respondent with unauthorized practice of law, grave misconduct, violation of law, and grave misrepresentation. The Court allowed respondent to take his oath as a member of the Bar. However, the Court ruled that respondent could not sign the Roll of Attorneys pending the resolution of the charge against him. Thus, respondent took the lawyer’s oath on the scheduled date but has not signed the Roll of Attorneys up to now. Complainant alleges that respondent, while not yet a lawyer, appeared as counsel for a candidate in the May 2001 elections before the Municipal Board of Election Canvassers (“MBEC”) of Mandaon, Masbate. Complainant further alleges that respondent filed with the MBEC a pleading wherein the respondent represented himself as counsel for and in be Vice Mayoralty Candidate and signed the pleading as counsel for him. Complainant claims that respondent filed the pleading as a ploy to prevent the proclamation of the winning vice mayoralty candidate. Complainant questioned his appearance on two grounds: (1) respondent had not taken his oath as a lawyer; and (2) he was an employee of the government. In his Comment, respondent admits that Bunan sought his “specific assistance” to represent him before the MBEC. Respondent claims that “he decided to assist and advice Bunan, not as a lawyer but as a person who knows the law.” Respondent admits signing the pleading that objected to the inclusion of certain votes in the canvassing. He explains, however, that he did not sign the pleading as a lawyer or represented himself as an “attorney” in the pleading. Respondent prays that the complaint be dismissed for lack of merit and that he be allowed to sign the Roll of Attorneys.
ISSUE
WON respondent engaged in the unauthorized practice of law and thus does not deserve admission to the Philippine Bar.
HELD
The records show that respondent appeared as counsel for Bunan and has also retained by a mayoralty candidate as her counsel. All these happened even before respondent took the lawyer’s oath. Clearly, respondent engaged in the practice of law without being a member of the Philippine Bar. In Cayetano v. Monsod, the Court held that “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 acts which are usually performed by members of the legal profession. Generally, to practice law is to render any kind of service which requires the use of legal knowledge or skill. Verily, respondent was engaged in the practice of law when he appeared in the proceedings before the MBEC and filed various pleadings, without license to do so. Evidence clearly supports the charge of unauthorized practice of law. Respondent called himself “counsel” knowing fully well that he was not a member of the Bar. Having held himself out as “counsel” knowing that he had no authority to practice law, respondent has shown moral unfitness to be a member of the Philippine Bar. A bar candidate does not acquire the right to practice law simply by passing the bar examinations. The practice of law is a privilege that can be withheld even from one who has passed the bar examinations, if the person seeking admission had practiced law without a license. Passing the bar is not the only qualification to become an attorney-at-law.8 Respondent should know that two essential requisites for becoming a lawyer still had to be performed, namely: his lawyer’s oath to be administered by this Court and his signature in the Roll of Attorneys On the charge of grave misconduct and misrepresentation, evidence shows that Bunan indeed authorized respondent to represent him as his counsel before the MBEC and similar bodies. While there was no misrepresentation, respondent nonetheless had no authority to practice law.
DECISION
WHEREFORE, respondent Edwin L. Rana is DENIED admission to the Philippine Bar.
Respondent Edwin L. Rana was among those who passed the 2000 Bar Examinations. One day before the scheduled mass oath-taking of successful bar examinees as members of the Philippine Bar, complainant Donna Marie Aguirre filed against the respondent. Complainant charged respondent with unauthorized practice of law, grave misconduct, violation of law, and grave misrepresentation. The Court allowed respondent to take his oath as a member of the Bar. However, the Court ruled that respondent could not sign the Roll of Attorneys pending the resolution of the charge against him. Thus, respondent took the lawyer’s oath on the scheduled date but has not signed the Roll of Attorneys up to now. Complainant alleges that respondent, while not yet a lawyer, appeared as counsel for a candidate in the May 2001 elections before the Municipal Board of Election Canvassers (“MBEC”) of Mandaon, Masbate. Complainant further alleges that respondent filed with the MBEC a pleading wherein the respondent represented himself as counsel for and in be Vice Mayoralty Candidate and signed the pleading as counsel for him. Complainant claims that respondent filed the pleading as a ploy to prevent the proclamation of the winning vice mayoralty candidate. Complainant questioned his appearance on two grounds: (1) respondent had not taken his oath as a lawyer; and (2) he was an employee of the government. In his Comment, respondent admits that Bunan sought his “specific assistance” to represent him before the MBEC. Respondent claims that “he decided to assist and advice Bunan, not as a lawyer but as a person who knows the law.” Respondent admits signing the pleading that objected to the inclusion of certain votes in the canvassing. He explains, however, that he did not sign the pleading as a lawyer or represented himself as an “attorney” in the pleading. Respondent prays that the complaint be dismissed for lack of merit and that he be allowed to sign the Roll of Attorneys.
ISSUE
WON respondent engaged in the unauthorized practice of law and thus does not deserve admission to the Philippine Bar.
HELD
The records show that respondent appeared as counsel for Bunan and has also retained by a mayoralty candidate as her counsel. All these happened even before respondent took the lawyer’s oath. Clearly, respondent engaged in the practice of law without being a member of the Philippine Bar. In Cayetano v. Monsod, the Court held that “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 acts which are usually performed by members of the legal profession. Generally, to practice law is to render any kind of service which requires the use of legal knowledge or skill. Verily, respondent was engaged in the practice of law when he appeared in the proceedings before the MBEC and filed various pleadings, without license to do so. Evidence clearly supports the charge of unauthorized practice of law. Respondent called himself “counsel” knowing fully well that he was not a member of the Bar. Having held himself out as “counsel” knowing that he had no authority to practice law, respondent has shown moral unfitness to be a member of the Philippine Bar. A bar candidate does not acquire the right to practice law simply by passing the bar examinations. The practice of law is a privilege that can be withheld even from one who has passed the bar examinations, if the person seeking admission had practiced law without a license. Passing the bar is not the only qualification to become an attorney-at-law.8 Respondent should know that two essential requisites for becoming a lawyer still had to be performed, namely: his lawyer’s oath to be administered by this Court and his signature in the Roll of Attorneys On the charge of grave misconduct and misrepresentation, evidence shows that Bunan indeed authorized respondent to represent him as his counsel before the MBEC and similar bodies. While there was no misrepresentation, respondent nonetheless had no authority to practice law.
DECISION
WHEREFORE, respondent Edwin L. Rana is DENIED admission to the Philippine Bar.
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