cases legprof
TRANSCRIPT
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EDUARDO J. BERENGUER, complainant, vs. PEDRO B. CARRANZA,respondent.
SYLLABUS
1.LEGAL ETHICS; ATTORNEYS-AT-LAW; VIOLATION OF OATH OF OFFICE; INTRODUCING FALSE AFFIDAVIT
OF ADJUDICATION AND TRANSFER. A complaint against respondent was filed for deception practicedon the Court of First Instance of Sorsogon, in that aware of the falsity of an Affidavit of Adjudication and
Transfer wherein he had no hand in the making of said affidavit, he introduced the same in evidence.
Held. For failure to exercise greater care in the discharge of his duties as a lawyer consistent with his
oath of office, confusion and prolongation of a cadastral suit has resulted. Under the circumstances, it
would be to err on the side of leniency if he would be held blameless. He had incurred liability. His
fidelity to his oath as attorney was less than entire.
2.ID.; ID.; DUTIES; FIDELITY TO CLIENTS AND CANDOR TOWARDS THE COURT. Every member of the
bar must be on his guard, lest through oversight or inadvertence, the way he conducts his case or the
evidence he presents could conceivably result in a failure of justice. Time and time again, lawyers have
been admonished to remember that they are officers of the court, and that while they owe their clients
the duty of complete fidelity and the utmost diligence, they are likewise held to strict accountability
insofar as candor and honesty towards the court is concerned.
3.ID.; ID.; CARELESSNESS DOES NOT FREE A LAWYER FROM LIABILITY AS CHARGED. Even if there be
no intent to deceive, a lawyer whose conduct betrays inattention or carelessness should not be allowed
to free himself from a charge thereafter instituted against him by the mere plea that his conduct was
not willful and that he has not consented to the doing of the falsity.
4.ID.; ID.; LAWYER'S OATH IS IMPRESSED WITH UTMOST SERIOUSNESS, MUST NOT BE TAKEN LIGHTLY.
A lawyer's oath is one impressed with the utmost seriousness; it must not be taken lightly. Everylawyer must do his best to live up to it. There would be a failure of justice if courts cannot rely on the
submission as well as the representations made by lawyers, insofar as the presentation of evidence,
whether oral or documentary, is concerned. Even without any intent on the part of a member of the bar
to mislead the court, such deplorable event did occur, he must not be allowed to escape the
responsibility that justly attaches to a conduct far from impeccable.
D E C I S I O N
FERNANDO,J p:
The law is an exacting taskmaster. Membership in the bar, as so appropriately put, is a privilegeburdened with conditions.1A lawyer is called upon by virtue of his oath of office to "do no falsehood,
nor consent to the doing of any in court; . . . [and to] conduct [himself] as a lawyer according to the best
of [his] knowledge and discretion with all good fidelity . . . to the courts . . ."2The question, one that has
an element of novelty, is whether respondent Pedro B. Carranza, duly admitted to the practice of the
law, did get entangled in the complexity of the strands in the web of obligation such an oath imposes?
More specifically, did he manifest the utmost fealty to the trust reposed in him as an officer of the Court
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by taking all necessary measures to avoid the court being misled, even if such were the result not of
design but of inadvertence?
A complaint against respondent Pedro B. Carranza was filed on July 15, 1966, for deception practiced on
the Court of First Instance of Sorsogon, in that aware of the falsity of an Affidavit of Adjudication and
Transfer executed by the mother of his client to the effect that her own mother left no legitimateascendants or descendants or any other heirs except herself, when, as a matter of fact, the deceased
was survived by four other daughters and one son, father of the complainant, he introduced the same in
evidence.3
Respondent Carranza was required in our resolution of July 22, 1966, to file an answer. Thereafter, on
August 17, 1966, he did so, alleging as the truth of the matter that the aforesaid Affidavit of
Adjudication and Transfer was introduced in evidence only to prove the fact of such transfer of the
property in question to his client, respondent having "no hand in the making of said affidavit nor of the
petition, both of which were prepared in Pasay City."4
On September 1, 1966, the matter was referred by us to the Solicitor General for investigation, report
and recommendation. Such investigation was had wherein both complainant and respondent were duly
heard. The issue in the opinion of the then Solicitor General, the Honorable Antonio Barredo, now a
member of this Court, as set forth in his report of March 18, 1968, is whether respondent "consented in
violation of his oath, to the doing of any falsehood in court."
It was admitted in said report: "If respondent had anything to do with the preparation of the Petition or
of the Affidavit of Adjudication, his participation does not appear from the evidence presented in this
case. The Petition was subscribed and sworn to in Pasay City before one Atty. A. Mendoza, while the
Affidavit was subscribed under oath in Pasay before Notary Public Ernesto V. Ventura. The foregoing
documents were posted from Pasay to the Clerk of Court, Sorsogon. . . ."5
It was likewise noted that respondent testified as to his being "not `very meticulous about the petition'
because there was neither private nor government opposition thereto; that if he had intended to
deceive the court by virtue of the documents, he could have told his client to answer his questions at
the cadastral hearing to conform to the controverted paragraph in the Affidavit of Adjudication
concerning the statement reproduced from the tax declaration that the decedent left no legitimate
ascendants or descendants or any other heirs except the affiant . . ."6
There is this admission in the aforesaid report. Thus: "As the evidence stands, there is no apparent
causal link between the falsehood and the fact that respondent is the lawyer handling the cadastral case
at the Sorsogon end."7Nonetheless, while recognizing the absence of evidence that such falsehood in
the Affidavit of Adjudication could be traced to respondent, the report would hold him liable for
discretionary action as the circumstance that various estates are involved "certainly warranted a greater
exercise of diligence on respondent's part."8
Moreover, as likewise stated therein, the fact "that he did not even bother to read the entirety of the
affidavit runs counter to respondent's inescapable duty to clear up doubts and inconsistencies."9For he
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could have been aware "of the family litigations between his client and complainant which are rooted in
successional rights. . . ."10If only for the above fact then, as stated in the report, "he should precisely
have taken the bother to read the entirety of the Affidavit of Adjudication when the cadastral case was
heard on January 17, 1966. . . ."11
From which, in the light of the above, it was the conclusion of the then Solicitor General AntonioBarredo, assisted by Assistant Solicitor General Frine Zaballero: "If he did not, he cannot be relieved
from the consequences of his acts as a lawyer, and disclaim responsibility therefor. To allow respondent
relief from his duty is to ignore what is obvious from the nature of the litigations in which he entered his
appearance . . .. Actually, respondent's failure to read the affidavit proves that he did not properly
inform himself of the evidence he was going to present in court, thereby exhibiting an indifference to
proof inconsistent with facts he definitely knows. Thus, respondent has contributed to confusion and
the prolongation of the cadastral suit, which pends as a petition for Relief. . . ."12
It was the recommendation that the corresponding complaint for the violation of his oath against
respondent be instituted. Such complaint was filed by the two above officials on March 18, 1968.
Respondent was charged with "violation of his oath of office, [having] caused confusion and
prolongation of the cadastral suit for presenting evidence therein containing a false statement
inconsistent with facts he definitely knows by reason of the family litigations between his client and
complainant herein, which are rooted in successional rights [and that] respondent's failure to discharge
his duties as a lawyer consistent with his oath of office finds sanction in Rule 138, Section 27, Revised
Rules of Court. . . ."13
Respondent in his answer, dated March 16, 1968, raised no issue as to the facts. He would allege in
justification however "that while it is true that the .. respondent was the counsel who appeared for the
petitioner in Cadastral Case No. 2, LRC Cadastral Record No. 869 of Sorsogon Cadastre, yet he had
nothing to do with the making of the petition and the annexes thereto attached; for the same were
made in Pasay City and that when [he] accepted to represent the petitioner in the Cadastral Case
mentioned above, there was no opposition from anybody .. not even from the Bureau of Lands nor from
the Honorable Solicitor General, making, therefore, the hearing therein a mere formality. Such being the
case, the [respondent] presented the petitioner's case on January 17, 1966, without meticulously going
over the documents, and the alleged Affidavit of Adjudication and Transfer was presented to show the
fact of transfer of the land described therein from the affiant to her son. The stenographic notes in that
proceeding will bear this matter out. [Respondent's] failure to notice the existence of an incorrect
statement in the said affidavit was a mere oversight. It was not [willful], for he has not consented to the
doing of the falsity therein made, since the same was prepared by petitioner's lawyer in Pasay City; nor
did [respondent] willingly do falsehood in the hearing mentioned above; . . ."14
There is something unique in this proceeding then. With the finding of the then Solicitor General
Barredo that there was nothing willful in the conduct pursued by respondent in thus introducing in
evidence the Affidavit of Adjudication and Transfer which turned out to be false, in the preparation of
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which, however, he had nothing to do, the charge of deliberate deception obviously cannot be
sustained.
Would that of itself entirely exculpate him from any responsibility? The answer must be in the negative.
As was correctly pointed out in the complaint, his failure to exercise greater care did result in the
"confusion and prolongation of the cadastral suit." Under the circumstances, it would be to err on theside of undue leniency if he would be held blameless. He had incurred liability. His fidelity to his oath as
attorney was less than entire.
Every member of the bar must be on his guard, lest through oversight or inadvertence, the way he
conducts his case or the evidence he presents could conceivably result in a failure of justice. Time and
time again, lawyers have been admonished to remember that they are officers of the court, and that
while they owe their clients the duty of complete fidelity and the utmost diligence, they are likewise
held to strict accountability insofar as candor and honesty towards the court is concerned.
Even if there be no intent to deceive, therefore, a lawyer whose conduct, as in this case, betrays
inattention or carelessness should not be allowed to free himself from a charge thereafter instituted
against him by the mere plea that his conduct was not willful and that he has not consented to the doing
of the falsity.
A lawyer's oath is one impressed with the utmost seriousness; it must not be taken lightly. Every lawyer
must do his best to live up to it. There would be a failure of justice if courts cannot rely on the
submission as well as the representations made by lawyers, insofar as the presentation of evidence,
whether oral or documentary, is concerned. If, as unfortunately happened in this case, even without any
intent on the part of a member of the bar to mislead the court, such deplorable event did occur, he
must not be allowed to escape the responsibility that justly attaches to a conduct far from impeccable.
WHEREFORE, respondent Pedro B. Carranza is reprimanded and warned that a repetition of an offense
of this character would be much more severely dealt with. The Court of First Instance of Sorsogon,
through any of the district judges, is hereby directed to administer in public the reprimand thus imposed
on respondent Pedro B.Carranza. The complainant, Eduardo J. Berenguer, must be duly informed of the
date when such reprimand is to be administered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro,
Capistrano and Teehankee, JJ., concur.
Barredo, J., did not take part.
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IN RE: DISBARMENT PROCEEDINGS AGAINST ATTY. DIOSDADO Q. GUTIERREZ, respondent.
Victoriano A. Savellano for complaint.
Nestor M. Andrada for respondent.
MAKALINTAL, J.:
Respondent Diosdado Q. Gutierrez is a member of the Philippine Bar, admitted to it on October 5, 1945.
In criminal case No. R-793 of the Court of First Instance of Oriental Mindoro he was convicted of the
murder of Filemon Samaco, former municipal mayor of Calapan, and together with his co-conspirators
was sentenced to the penalty of death. Upon review by this Court the judgment of conviction wasaffirmed on June 30, 1956 (G.R. No. L-17101), but the penalty was changed to reclusion perpetua. After
serving a portion of the sentence respondent was granted a conditional pardon by the President on
August 19, 1958. The unexecuted portion of the prison term was remitted "on condition that he shall
not again violate any of the penal laws of the Philippines."
On October 9, 1958 the widow of the deceased Filemon Samaco, victim in the murder case, filed a
verified complaint before this Court praying that respondent be removed from the roll of lawyers
pursuant to Rule 127, section 5. Respondent presented his answer in due time, admitting the facts
alleged by complainant regarding pardon in defense, on the authority of the decision of this Court in the
case of In re Lontok, 43 Phil. 293.
Under section 5 of Rule 127, a member of the bar may be removed suspended from his office as
attorney by the Supreme Court by reason of his conviction of a crime insolving moral turpitude. Murder
is, without doubt, such a crime. The term "moral turpitude" includes everything which is done contrary
to justice, honesty, modesty or good morals. In re Carlos S. Basa, 41 Phil. 275. As used in disbarment
statutes, it means an act of baseness, vileness, or depravity in the private and social duties which a man
owes to his fellowmen or to society in general, contrary to the accepted rule of right and duty betweenman and man. State ex rel. Conklin v. Buckingham, 84 P. 2nd 49; 5 Am. Jur. Sec. 279. pp. 428-429.
The only question to be resolved is whether or not the conditional pardon extended to respondent
places him beyond the scope of the rule on disbarment aforecited. Reliance is placed by him squarely on
the Lontok case. The respondent therein was convicted of bigamy and thereafter pardoned by the
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Governor-General. In a subsequent viction, this Court decided in his favor and held: "When proceedings
to strike an attorney's name from the rolls the fact of a conviction for a felony ground for disbarment, it
has been held that a pardon operates to wipe out the conviction and is a bar to any proceeding for the
disbarment of the attorney after the pardon has been granted."
It is our view that the ruling does not govern the question now before us. In making it the Court
proceeded on the assumption that the pardon granted to respondent Lontok was absolute. This is
implicit in the ratio decidendi of the case, particularly in the citations to support it, namely. In Re
Emmons, 29 Cal. App. 121; Scott vs. State, 6 Tex. Civ. App. 343; and Ex parte Garland, 4 Wall, 380. Thus
in Scott vs. State the court said:
We are of opinion that after received an unconditional pardon the record of the felony conviction could
no longer be used as a basis for the proceeding provided for in article 226. The record, when offered inevidence, was met with an unconditional pardon, and could not, therefore, properly be said to afford
"proof of a conviction of any felony." Having been thus cancelled, all its force as a felony conviction was
taken away. A pardon falling short of this would not be a pardon, according to the judicial construction
which that act of executive grace was received. Ex parte Garland, 4 Wall, 344; Knote v. U.S., 95 U.S. 149,
and cases there cited; Young v. Young, 61 Tex. 191.
And the portion of the decision in Ex parte Garland quoted with approval in the Lontok case is as
follows:
A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and
when the pardon is full, it releases the punishment and blots out the existence of guilt, so that in the eye
of the law the offender is as innocent as if he had never committed the offense. It granted before
conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching;
if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights
it makes him, as it were, a new man, and gives him a new credit and capacity.
The pardon granted to respondent here is not absolute but conditional, and merely remitted the
unexecuted portion of his term. It does not reach the offense itself, unlike that in Ex parte Garland,
which was "a full pardon and amnesty for all offense by him committed in connection with rebellion
(civil war) against government of the United States."
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The foregoing considerations rendered In re Lontok are inapplicable here. Respondent Gutierrez must
be judged upon the fact of his conviction for murder without regard to the pardon he invokes in
defense. The crime was qualified by treachery and aggravated by its having been committed in hand, by
taking advantage of his official position (respondent being municipal mayor at the time) and with the
use of motor vehicle. People vs. Diosdado Gutierrez, supra. The degree of moral turpitude involved is
such as to justify his being purged from the profession.
The practice of law is a privilege accorded only to those who measure up to certain rigid standards of
mental and moral fitness. For the admission of a candidate to the bar the Rules of Court not only
prescribe a test of academic preparation but require satisfactory testimonials of good moral character.
These standards are neither dispensed with nor lowered after admission: the lawyer must continue to
adhere to them or else incur the risk of suspension or removal. As stated in Ex parte Wall, 107 U.S. 263,
27 Law ed., 552, 556: "Of all classes and professions, the lawyer is most sacredly bound to uphold the
laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws,
to trample them under foot and to ignore the very bonds of society, argues recreancy to his position and
office and sets a pernicious example to the insubordinate and dangerous elements of the body politic.
WHEREFORE, pursuant to Rule 127, Section 5, and considering the nature of the crime for which
respondent Diosdado Q. Gutierrez has been convicted, he is ordered disbarred and his name stricken
from the roll of lawyers.
Bengzon, C.J., Labrador, Concepcion, Barrera, Paredes, Dizon and Regala, JJ., concur.
Padilla, J., took no part.
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G.R. No. L-12426 February 16, 1959
PHILIPPINE LAWYER'S ASSOCIATION, petitioner,
vs.
CELEDONIO AGRAVA, in his capacity as Director of the Philippines Patent Office, respondent.
Arturo A. Alafriz for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent.
MONTEMAYOR,J.:
This is the petition filed by the Philippine Lawyer's Association for prohibition and injunction against
Celedonio Agrava, in his capacity as Director of the Philippines Patent Office.
On may 27, 1957, respondent Director issued a circular announcing that he had scheduled for June 27,
1957 an examination for the purpose of determining who are qualified to practice as patent attorneys
before the Philippines Patent Office, the said examination to cover patent law and jurisprudence and the
rules of practice before said office. According to the circular, members of the Philippine Bar, engineers
and other persons with sufficient scientific and technical training are qualified to take the said
examination. It would appear that heretofore, respondent Director has been holding similar
examinations.
It is the contention of the petitioner Philippine Lawyer's Association that one who has passed the bar
examinations and is licensed by the Supreme Court to practice law in the Philippines and who is in good
standing, is duly qualified to practice before the Philippines Patent Office, and that consequently, the cat
of the respondent Director requiring members of the Philippine Bar in good standing to take and pass an
examination given by the Patent Office as a condition precedent to their being allowed to practice
before said office, such as representing applicants in the preparation and prosecution of applications for
patent, is in excess of his jurisdiction and is in violation of the law.
In his answer, respondent Director, through the Solicitor General, maintains that the prosecution of
patent cases "does not involve entirely or purely the practice of law but includes the application of
scientific and technical knowledge and training, so much so that, as a matter of actual practice, the
prosecution of patent cases may be handled not only by lawyers, but also engineers and other persons
with sufficient scientific and technical training who pass the prescribed examinations as given by the
Patent Office; . . . that the Rules of Court do not prohibit the Patent Office, or any other quasi-judicial
body from requiring further condition or qualification from those who would wish to handle cases
before the Patent Office which, as stated in the preceding paragraph, requires more of an application ofscientific and technical knowledge than the mere application of provisions of law; . . . that the action
taken by the respondent is in accordance with Republic Act No. 165, otherwise known as the Patent Law
of the Philippines, which similar to the United States Patent Law, in accordance with which the United
States Patent Office has also prescribed a similar examination as that prescribed by respondent. . . .
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Respondent further contends that just as the Patent law of the United States of America authorizes the
Commissioner of Patents to prescribe examinations to determine as to who practice before the United
States Patent Office, the respondent, is similarly authorized to do so by our Patent Law, Republic Act No.
165.
Although as already stated, the Director of Patents, in the past, would appear to have been holding testsor examinations the passing of which was imposed as a required qualification to practice before the
Patent Office, to our knowledge, this is the first time that the right of the Director of Patents to do so,
specially as regards members of the bar, has been questioned formally, or otherwise put in issue. And
we have given it careful thought and consideration.
The Supreme Court has the exclusive and constitutional power with respect to admission to the practice
of law in the Philippines1
and to any member of the Philippine Bar in good standing may practice law
anywhere and before any entity, whether judicial or quasi-judicial or administrative, in the Philippines.
Naturally, the question arises as to whether or not appearance before the patent Office and the
preparation and the prosecution of patent applications, etc., constitutes or is included in the practice of
law.
The practice of law is not limited to the conduct of cases or litigation in court; it embraces the
preparation of pleadings and other papers incident to actions and social proceedings, the management
of such actions and proceedings on behalf of clients before judges and courts, and in addition,
conveying. In general, alladvice to clients, and all action taken for them in matters connected with the
lawcorporation services, assessment and condemnation services contemplating an appearance before a
judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and
insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice as do the preparation and drafting of legal
instruments, where the work done involves the determination by the trained legal mind of the legal
effect of facts and conditions. (5 Am. Jur. p. 262, 263). (Emphasis supplied).
Practice of lawunder modern conditions consists in no small part of work performed outside of any
court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of
legal advice on a large variety of subjects, and the preparation and execution of legal instruments
covering an extensive field of business and trust relations and other affairs.Although these transactions
may have no direct connection with court proceedings, they are always subject to become involved in
litigation. They require in many aspects a high degree of legal skill, a wide experience with men and
affairs, and great capacity for adaptation to difficult and complex situations. These customary functions
of an attorney or counselor at law bear an intimate relation to the administration of justice by the
courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between
that part which involves advice and drafting of instruments in his office. It is of importance to the
welfare of the public that these manifold customary functions be performed by persons possessed of
adequate learning and skill, of sound moral character, and acting at all times under the heavy trust
obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3
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(1953 ed.), p. 665-666, citing In re Opinion of the Justices (Mass.), 194 N.E. 313, quoted in Rhode Is. Bar
Assoc. vs. Automobile Service Assoc. (R. I. ) 179 A. 139, 144). (Emphasis ours).
In our opinion, the practice of law includes such appearance before the Patent Office, the
representation of applicants, oppositors, and other persons, and the prosecution of their applications
for patent, their oppositions thereto, or the enforcement of their rights in patent cases. In the firstplace, although the transaction of business in the Patent Office involves the use and application of
technical and scientific knowledge and training, still, all such business has to be rendered in accordance
with the Patent Law, as well as other laws, including the Rules and Regulations promulgated by the
Patent Office in accordance with law. Not only this, but practice before the Patent Office involves the
interpretation and application of other laws and legal principles, as well as the existence of facts to be
established in accordance with the law of evidence and procedure. For instance: Section 8 of our Patent
Law provides that an invention shall not be patentable if it is contrary to public order or morals, or to
public health or welfare. Section 9 says that an invention shall not be considered new or patentable if it
was known or used by others in the Philippines before the invention thereof by the inventor named in
any printed publication in the Philippines or any foreign country more than one year before theapplication for a patent therefor, or if it had been in public use or on sale in the Philippines for more
than one year before the application for the patent therefor. Section 10 provides that the right to patent
belongs to the true and actual inventor, his heirs, legal representatives or assigns. Section 25 and 26
refer to connection of any mistake in a patent. Section 28 enumerates the grounds for cancellation of a
patent; that although any person may apply for such cancellation, under Section 29, the Solicitor
General is authorized to petition for the cancellation of a patent. Section 30 mentions the requirements
of a petition for cancellation. Section 31 and 32 provide for a notice of hearing of the petition for
cancellation of the patent by the Director of Patents in case the said cancellation is warranted. Under
Section 34, at any time after the expiration of three years from the day the patent was granted, any
person patent on several grounds, such as, if the patented invention is not being worked in thePhilippines on a commercial scale, or if the demand for the patented article in the Philippines on a
commercial scale, or if the demand for the patented article in the Philippines is not being met to an
adequate extent and reasonable terms, or if by reason of the patentee's refusal to grant a license on
reasonable terms or by reason of the condition attached by him to the license, purchase or use of the
patented article or working of the patented process or machine of production, the establishment of a
new trade or industry in the Philippines is prevented; or if the patent or invention relates to food or
medicine or is necessary to public health or public safety. All these things involve the applications of
laws, legal principles, practice and procedure. They call for legal knowledge, training and experience for
which a member of the bar has been prepared.
In support of the proposition that much of the business and many of the act, orders and decisions of the
Patent Director involve questions of law or a reasonable and correct evaluation of facts, the very Patent
Law, Republic Act No. 165, Section 61, provides that:
. . . . The applicant for a patent or for the registration of a design, any party to a proceeding to cancel a
patent or to obtain a compulsory license, and any party to any other proceeding in the Office may
appeal to the Supreme Court from any final order or decision of the director.
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In other words, the appeal is taken to this Tribunal. If the transaction of business in the Patent Office
and the acts, orders and decisions of the Patent Director involved exclusively or mostly technical and
scientific knowledge and training, then logically, the appeal should be taken not to a court or judicial
body, but rather to a board of scientists, engineers or technical men, which is not the case.
Another aspect of the question involves the consideration of the nature of the functions and acts of theHead of the Patent Office.
. . . . The Commissioner, in issuing or withholding patents, in reissues, interferences, and extensions,
exercises quasi-judicial functions. Patents are public records, and it is the duty of the Commissioner to
give authenticated copies to any person, on payment of the legal fees. (40 Am. Jur. 537). (Emphasis
supplied).
. . . . The Commissioner has the only original initiatory jurisdiction that exists up to the granting and
delivering of a patent, and it is his duty to decide whether the patent is new and whether it is the proper
subject of a patent; and his action in awarding or refusing a patent is a judicial function. In passing on an
application the commissioner should decide not only questions of law, but also questions of fact, as
whether there has been a prior public use or sale of the article invented. . . . (60 C.J.S. 460). (Emphasis
supplied).
The Director of Patents, exercising as he does judicial or quasi-judicial functions, it is reasonable to hold
that a member of the bar, because of his legal knowledge and training, should be allowed to practice
before the Patent Office, without further examination or other qualification. Of course, the Director of
Patents, if he deems it advisable or necessary, may require that members of the bar practising before
him enlist the assistance of technical men and scientist in the preparation of papers and documents,
such as, the drawing or technical description of an invention or machine sought to be patented, in the
same way that a lawyer filing an application for the registration of a parcel of land on behalf of hisclients, is required to submit a plan and technical description of said land, prepared by a licensed
surveyor.
But respondent Director claims that he is expressly authorized by the law to require persons desiring to
practice or to do business before him to submit an examination, even if they are already members of the
bar. He contends that our Patent Law, Republic Act No. 165, is patterned after the United States Patent
Law; and of the United States Patent Office in Patent Cases prescribes an examination similar to that
which he (respondent) has prescribed and scheduled. He invites our attention to the following
provisions of said Rules of Practice:
Registration of attorneys and agents. A register of an attorneys and a register agents are kept in the
Patent Office on which are entered the names of all persons recognized as entitled to represent
applicants before the Patent Office in the preparation and prosecution of applicants for patent.
Registration in the Patent Office under the provisions of these rules shall only entitle the person
registered to practice before the Patent Office.
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(a)Attorney at law. Any attorney at law in good standing admitted to practice before any United
States Court or the highest court of any State or Territory of the United States who fulfills the
requirements and complied with the provisions of these rules may be admitted to practice before the
Patent Office and have his name entered on the register of attorneys.
x x x x x x x x x
(c) Requirement for registration. No person will be admitted to practice and register unless he shall
apply to the Commissioner of Patents in writing on a prescribed form supplied by the Commissioner and
furnish all requested information and material; and shall establish to the satisfaction of the
Commissioner that he is of good moral character and of good repute and possessed of the legal and
scientific and technical qualifications necessary to enable him to render applicants for patent valuable
service, and is otherwise competent to advise and assist him in the presentation and prosecution of
their application before the Patent Office. In order that the Commissioner may determine whether a
person seeking to have his name placed upon either of the registers has the qualifications specified,
satisfactory proof of good moral character and repute, and of sufficient basic training in scientific and
technical matters must be submitted and an examination which is held from time to time must be taken
and passed. The taking of an examination may be waived in the case of any person who has served for
three years in the examining corps of the Patent Office.
Respondent states that the promulgation of the Rules of Practice of the United States Patent Office in
Patent Cases is authorized by the United States Patent Law itself, which reads as follows:
The Commissioner of Patents, subject to the approval of the Secretary of Commerce may prescribe rules
and regulations governing the recognition of agents, attorneys, or other persons representing applicants
or other parties before his office, and may require of such persons, agents, or attorneys, before being
recognized as representatives of applicants or other persons, that they shall show they are of goodmoral character and in good repute, are possessed of the necessary qualifications to enable them to
render to applicants or other persons valuable service, and are likewise to competent to advise and assist
applicants or other persons in the presentation or prosecution of their applications or other business
before the Office. The Commissioner of Patents may, after notice and opportunity for a hearing,
suspend or exclude, either generally or in any particular case from further practice before his office any
person, agent or attorney shown to be incompetent or disreputable, or guilty of gross misconduct, or
who refuses to comply with the said rules and regulations, or who shall, with intent to defraud in any
matter, deceive, mislead, or threaten any applicant or prospective applicant, or other person having
immediate or prospective applicant, or other person having immediate or prospective business before
the office, by word, circular, letter, or by advertising. The reasons for any such suspension or exclusion
shall be duly recorded. The action of the Commissioner may be reviewed upon the petition of the
person so refused recognition or so suspended by the district court of the United States for the District
of Columbia under such conditions and upon such proceedings as the said court may by its rules
determine. (Emphasis supplied)
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Respondent Director concludes that Section 78 of Republic Act No. 165 being similar to the provisions of
law just reproduced, then he is authorized to prescribe the rules and regulations requiring that persons
desiring to practice before him should submit to and pass an examination. We reproduce said Section
78, Republic Act No. 165, for purposes of comparison:
SEC. 78. Rules and regulations. The Director subject to the approval of the Secretary of Justice, shallpromulgate the necessary rules and regulations, not inconsistent with law, for the conduct of all
business in the Patent Office.
The above provisions of Section 78 certainly and by far, are different from the provisions of the United
States Patent Law as regards authority to hold examinations to determine the qualifications of those
allowed to practice before the Patent Office. While the U.S. Patent Law authorizes the Commissioner of
Patents to require attorneys to show that they possess the necessary qualifications and competence to
render valuable service to and advise and assist their clients in patent cases, which showing may take
the form of a test or examination to be held by the Commissioner, our Patent Law, Section 78, is silent
on this important point. Our attention has not been called to any express provision of our Patent Law,
giving such authority to determine the qualifications of persons allowed to practice before the Patent
Office.
Section 551 of the Revised Administrative Code authorizes every chief of bureau to prescribe forms and
make regulations or general orders not inconsistent with law, to secure the harmonious and efficient
administration of his branch of the service and to carry into full effect the laws relating to matters within
the jurisdiction of his bureau. Section 608 of Republic Act 1937, known as the Tariff and Customs Code
of the Philippines, provides that the Commissioner of Customs shall, subject to the approval of the
Department Head, makes all rules and regulations necessary to enforce the provisions of said code.
Section 338 of the National Internal Revenue Code, Commonwealth Act No. 466 as amended, states that
the Secretary of Finance, upon recommendation of the Collector of Internal Revenue, shall promulgate
all needful rules and regulations for the effective enforcement of the provisions of the code. We
understand that rules and regulations have been promulgated not only for the Bureau of Customs and
Internal Revenue, but also for other bureaus of the Government, to govern the transaction of business
in and to enforce the law for said bureaus.
Were we to allow the Patent Office, in the absence of an express and clear provision of law giving the
necessary sanction, to require lawyers to submit to and pass on examination prescribed by it before
they are allowed to practice before said Patent Office, then there would be no reason why other
bureaus specially the Bureau of Internal Revenue and Customs, where the business in the same area are
more or less complicated, such as the presentation of books of accounts, balance sheets, etc.,
assessments exemptions, depreciation, these as regards the Bureau of Internal Revenue, and the
classification of goods, imposition of customs duties, seizures, confiscation, etc., as regards the Bureau
of Customs, may not also require that any lawyer practising before them or otherwise transacting
business with them on behalf of clients, shall first pass an examination to qualify.
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In conclusion, we hold that under the present law, members of the Philippine Bar authorized by this
Tribunal to practice law, and in good standing, may practice their profession before the Patent Office,
for the reason that much of the business in said office involves the interpretation and determination of
the scope and application of the Patent Law and other laws applicable, as well as the presentation of
evidence to establish facts involved; that part of the functions of the Patent director are judicial or
quasi-judicial, so much so that appeals from his orders and decisions are, under the law, taken to the
Supreme Court.
For the foregoing reasons, the petition for prohibition is granted and the respondent Director is hereby
prohibited from requiring members of the Philippine Bar to submit to an examination or tests and pass
the same before being permitted to appear and practice before the Patent Office. No costs.
Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and
Endencia, JJ., concur.
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G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON.
GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.
PARAS,J.:p
We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are
involved, the Court's decision in this case would indubitably have a profound effect on the political
aspect of our national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be
natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of
age, holders of a college degree, and must not have been candidates for any elective position in the
immediately preceding -elections. However, a majority thereof, including the Chairman, shall be
members of the Philippine Bar who have been engaged in the practice of law for at least ten years.
(Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which
similarly provides:
There shall be an independent Commission on Elections composed of a Chairman and eight
Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age and holders of a college degree. However, a majority
thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the
practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a
legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal principles and technique
to serve the interest of another with his consent. It is not limited to appearing in court, or advising and
assisting in the conduct of litigation, but embraces the preparation of pleadings, and other papers
incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all
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kinds, and the giving of all legal advice to clients. It embraces all advice to clients and all actions taken
for them in matters connected with the law. An attorney engages in the practice of law by maintaining
an office where he is held out to be-an attorney, using a letterhead describing himself as an attorney,
counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing
and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v.
Dworken,129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when he:
... for valuable consideration engages in the business of advising person, firms, associations or
corporations as to their rights under the law, or appears in a representative capacity as an advocate in
proceedings pending or prospective, before any court, commissioner, referee, board, body, committee,
or commission constituted by law or authorized to settle controversies and there, in such representative
capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients
under the law. Otherwise stated, one who, in a representative capacity, engages in the business of
advising clients as to their rights under the law, or while so engaged performs any act or acts either in
court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick
v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case ofPhilippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:
The practice of lawis not limited to the conduct of cases or litigation in court; it embraces the
preparation of pleadings and other papers incident to actions and special proceedings, the management
of such actions and proceedings on behalf of clients before judges and courts, and in addition,
conveying. In general, all advice to clients, and all action taken for them in mattersconnected with the
lawincorporation services, assessment and condemnation services contemplating an appearance before
a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy andinsolvency proceedings, and conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by the trained legal mind of the legal
effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis supplied)
Practice of lawunder modem conditions consists in no small part of work performed outside of any
court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of
legal advice on a large variety of subjects, and the preparation and execution of legal instruments
covering an extensive field of business and trust relations and other affairs.Although these transactions
may have no direct connection with court proceedings, they are always subject to become involved inlitigation. They require in many aspects a high degree of legal skill, a wide experience with men and
affairs, and great capacity for adaptation to difficult and complex situations. These customary functions
of an attorney or counselor at law bear an intimate relation to the administration of justice by the
courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between
that part of the work of the lawyer which involves appearance in court and that part which involves
advice and drafting of instruments in his office. It is of importance to the welfare of the public that these
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manifold customary functions be performed by persons possessed of adequate learning and skill, of
sound moral character, and acting at all times under the heavy trust obligations to clients which rests
upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re
Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc.
[R.I.] 179 A. 139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-
1975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and
public service.
One may be a practicing attorney in following any line of employment in the profession. If what he does
exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their
profession, and he follows some one or more lines of employment such as this he is a practicing
attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. "To engage in the practice of law is to perform those
acts which are characteristics of the profession. Generally, to practice law is to give notice or render any
kind of service, which device or service requires the use in any degree of legal knowledge or skill." (111
ALR 23)
The following records of the 1986 Constitutional Commission show that it has adopted a liberal
interpretation of the term "practice of law."
MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our
review of the provisions on the Commission on Audit. May I be allowed to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among
others, the qualifications provided for by Section I is that "They must be Members of the Philippine Bar"
I am quoting from the provision "who have been engaged in the practice of law for at least ten
years".
To avoid any misunderstanding which would result in excluding members of the Bar who are now
employed in the COA or Commission on Audit, we would like to make the clarification that this provision
on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of
law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in
the COA are using their legal knowledge or legal talent in their respective work within COA, then they are
qualified to be considered for appointment as members or commissioners, even chairman, of the
Commission on Audit.
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This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it
important to take it up on the floor so that this interpretation may be made available whenever this
provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law
for at least ten years is taken up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the requirement of a
law practice that is set forth in the Article on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily involve
legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now would have
the necessary qualifications in accordance with the Provision on qualifications under our provisions on
the Commission on Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two
Commissioners of the Commission on Audit (COA) should either be certified public accountants with not
less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in
thepractice of lawfor at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word
"lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the
majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career
Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to defineprivate practice. The term, as commonly understood, means
"an individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who
practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is
usually a partnership and members of the firm are the partners. Some firms may be organized asprofessional corporations and the members called shareholders. In either case, the members of the firm
are the experienced attorneys. In most firms, there are younger or more inexperienced salaried
attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law practice is essentially
tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W.
Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is
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defined as the performance of any acts . . . in or out of court, commonly understood to be the practice
of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958]
[quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform
almost every function known in the commercial and governmental realm, such a definition would
obviously be too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for
lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in
courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593).
Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much of both
the public image and the self perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.).
Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the
importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed
laymen whose concept of an attorney is one who principally tries cases before the courts. The members
of the bench and bar and the informed laymen such as businessmen, know that in most developed
societies today, substantially more legal work is transacted in law offices than in the courtrooms.
General practitioners of law who do both litigation and non-litigation work also know that in most cases
they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling
than in trying cases. The business lawyer has been described as the planner, the diagnostician and the
trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be
avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11,
1989, p. 4).
In the course of a working day the average general practitioner wig engage in a number of legal tasks,
each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other
interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at
least some legal services outside their specialty. And even within a narrow specialty such as tax practice,
a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such
as representing a client before an administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types
a litigator who specializes in this work to the exclusion of much else. Instead, the work will require
the lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving,
document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and
mediation are both effective for many clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very
important ways, at least theoretically, so as to remove from it some of the salient features of adversarial
litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers' work the
constraints are imposed both by the nature of the client and by the way in which the lawyer is organized
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into a social unit to perform that work. The most common of these roles are those of corporate practice
and government legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are emerging trends in
corporate law practice, a departure from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary transformation in corporate law
practice. Lawyers and other professional groups, in particular those members participating in various
legal-policy decisional contexts, are finding that understanding the major emerging trends in
corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an accurate understanding of
the nature and implications of the corporate law research function accompanied by an accelerating rate
of information accumulation. The recognition of the need for such improved corporate legal policy
formulation, particularly "model-making" and "contingency planning," has impressed upon us the
inadequacy of traditional procedures in many decisional contexts.
In a complex legal problem the mass of information to be processed, the sorting and weighing of
significant conditional factors, the appraisal of major trends, the necessity of estimating the
consequences of given courses of action, and the need for fast decision and response in situations of
acute danger have prompted the use of sophisticated concepts of information flow theory, operational
analysis, automatic data processing, and electronic computing equipment. Understandably, an improved
decisional structure must stress the predictive component of the policy-making process, wherein a
"model", of the decisional context or a segment thereof is developed to test projected alternative
courses of action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in predicting and projecting the trendsof the law, the subject of corporate finance law has received relatively little organized and formalized
attention in the philosophy of advancing corporate legal education. Nonetheless, a cross-disciplinary
approach to legal research has become a vital necessity.
Certainly, the general orientation for productive contributions by those trained primarily in the law can
be improved through an early introduction to multi-variable decisional context and the various
approaches for handling such problems. Lawyers, particularly with either a master's or doctorate degree
in business administration or management, functioning at the legal policy level of decision-making now
have some appreciation for the concepts and analytical techniques of other professions which are
currently engaged in similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would require the services of an
astute attorney because of the complex legal implications that arise from each and every necessary step
in securing and maintaining the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11,
1989, p. 4).
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In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de
campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the
tycoons and magnates of business and industry.
Despite the growing number of corporate lawyers, many people could not explain what it is that a
corporate lawyer does. For one, the number of attorneys employed by a single corporation will varywith the size and type of the corporation. Many smaller and some large corporations farm out all their
legal problems to private law firms. Many others have in-house counsel only for certain matters. Other
corporation have a staff large enough to handle most legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a
corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research, tax
laws research, acting out as corporate secretary (in board meetings), appearances in both courts and
other adjudicatory agencies (including the Securities and Exchange Commission), and in other capacities
which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business
of the corporation he is representing. These include such matters as determining policy and becoming
involved in management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from the action, or not
understanding how one's work actually fits into the work of the orgarnization. This can be frustrating to
someone who needs to see the results of his work first hand. In short, a corporate lawyer is sometimes
offered this fortune to be more closely involved in the running of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation
(MNC). Some large MNCs provide one of the few opportunities available to corporate lawyers to enterthe international law field. After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is perceived by many as glamorous, tills
is an area coveted by corporate lawyers. In most cases, however, the overseas jobs go to experienced
attorneys while the younger attorneys do their "international practice" in law libraries. (Business Star,
"Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of
Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a
good lawyer is one who perceives the difficulties, and the excellent lawyer is one who surmounts them."
(Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are
we talking of the traditional law teaching method of confining the subject study to the Corporation Code
and the Securities Code but an incursion as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of
insights into current advances which are of particular significance to the corporate counsel; (2) an
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introduction to usable disciplinary skins applicable to a corporate counsel's management
responsibilities; and (3) a devotion to the organization and management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with a shared area linking them.
Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for the
corporate counsel's total learning.
Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the
corporate lawyer reviews the globalization process, including the resulting strategic repositioning that
the firms he provides counsel for are required to make, and the need to think about a corporation's;
strategy at multiple levels. The salience of the nation-state is being reduced as firms deal both with
global multinational entities and simultaneously with sub-national governmental units. Firms
increasingly collaborate not only with public entities but with each other often with those who are
competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly
changing. The modem corporate lawyer has gained a new role as a stakeholder in some cases
participating in the organization and operations of governance through participation on boards and
other decision-making roles. Often these new patterns develop alongside existing legal institutions and
laws are perceived as barriers. These trends are complicated as corporations organize for global
operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with governmental policies toward the promotion and
management of technology. New collaborative arrangements for promoting specific technologies or
competitiveness more generally require approaches from industry that differ from older, more
adversarial relationships and traditional forms of seeking to influence governmental policies. And there
are lessons to be learned from other countries. In Europe, Esprit, Eureka and Race are examples ofcollaborative efforts between governmental and business Japan's MITI is world famous. (Emphasis
supplied)
Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct
group within the managerial structure of all kinds of organizations. Effectiveness of both long-term and
temporary groups within organizations has been found to be related to indentifiable factors in the
group-context interaction such as the groups actively revising their knowledge of the environment
coordinating work with outsiders, promoting team achievements within the organization. In general,
such external activities are better predictors of team performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial
mettle of corporations are challenged. Current research is seeking ways both to anticipate effective
managerial procedures and to understand relationships of financial liability and insurance
considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors are apropos:
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First System Dynamics. The field of systems dynamics has been found an effective tool for new
managerial thinking regarding both planning and pressing immediate problems. An understanding of the
role of feedback loops, inventory levels, and rates of flow, enable users to simulate all sorts of
systematic problems physical, economic, managerial, social, and psychological. New programming
techniques now make the system dynamics principles more accessible to managers including
corporate counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions involving complexity and
uncertainty. In the context of a law department, it can be used to appraise the settlement value of
litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a portfolio
of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can be used directly by parties
and mediators in all lands of negotiations. All integrated set of such tools provide coherent and effective
negotiation support, including hands-on on instruction in these techniques. A simulation case of an
international joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function, concern three pointed areas
of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the
general counsel's responsibilities. They differ from those of remedial law. Preventive lawyering is
concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at
that time when transactional or similar facts are being considered and made.
Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm
to which legal consequences attach. It needs to be directly supportive of this nation's evolving economicand organizational fabric as firms change to stay competitive in a global, interdependent environment.
The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to
make a global economy work.
Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the
last decade as one of the most vibrant subsets of the legal profession. The corporate counsel hear
responsibility for key aspects of the firm's strategic issues, including structuring its global operations,
managing improved relationships with an increasingly diversified body of employees, managing
expanded liability exposure, creating new and varied interactions with public decision-makers, coping
internally with more complex make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is not enough to make one a
good general corporate counsel nor to give him a full sense of how the legal system shapes corporate
activities. And even if the corporate lawyer's aim is not the understand all of the law's effects on
corporate activities, he must, at the very least, also gain a working knowledge of the management issues
if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation.
"Business Star", "The Corporate Counsel," April 10, 1991, p. 4).
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The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of
financial law affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of
the financial law territory. What transpires next is a dilemma of professional security: Will the lawyer
admit ignorance and risk opprobrium?; or will he feign understanding and risk exposure? (Business Star,
"Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of
Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on
April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the
required qualification of having been engaged in the practice of law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman
of the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as
Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of Monsod's
nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition
praying that said confirmation and the consequent appointment of Monsod as Chairman of the
Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960
with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines
since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more
than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar,Atty. Monsod worked in the
law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as anoperations officer for about two years in Costa Rica and Panama, which involved getting acquainted with
the laws of member-countries negotiating loans and coordinating legal, economic, and project work of
the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief
executive officer of an investment bank and subsequently of a business conglomerate, and since 1986,
has rendered services to various companies as a legal and economic consultant or chief executive officer.
As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work involved
being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings before the
Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-Chairman of the
Bishops Businessmen's Conference for Human Development, has worked with the under privileged
sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in affirmativeaction for the agrarian reform law and lately the urban land reform bill. Monsod also made use of his
legal knowledge as a member of the Davide Commission, a quast judicial body, which conducted
numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987), and
Chairman of its Committee on Accountability of Public Officers, for which he was cited by the President of
the Commission, Justice Cecilia Muoz-Palma for "innumerable amendments to reconcile government
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functions with individual freedoms and public accountability and the party-list system for the House of
Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately
constituted to meet the various contingencies that arise during a negotiation. Besides top officials of the
Borrower concerned, there are the legal officer (such as the legal counsel), the finance manager, and
an operations officer(such as an official involved in negotiating the contracts) who comprise the
members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for Developing Country
Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the
loan transaction is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into
five (5) fundamental parts: (1) business terms; (2) borrower's representation; (3) conditions of closing;
(4) covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring program. For aside from
performing the tasks of legislative drafting and legal advising, they score national development policies
as key factors in maintaining their countries' sovereignty. (Condensed from the work paper, entitled
"Wanted: Development Lawyers for Developing Nations," submitted by L. Michael Hager, regional legal
adviser of the United States Agency for International Development, during the Session on Law for the
Development of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the World Peace
Through Law Center on August 26-31, 1973). ( Emphasis supplied)
Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand
expertise in the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily,a sovereign lawyer may work with an international business specialist or an economist in the
formulation of a model loan agreement. Debt restructuring contract agreements contain such a mixture
of technical language that they should be carefully drafted and signed o