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Maestro Fredo Arquetekto ▶ CASE DIGEST(S)

A Report published of PM DIZON LAW: “The Arrest of the Three Lawyers”

Just recently, the Makati police arrested three lawyers – Jan Vincent Sambrano Soliven, Lenie
Rocel Elmido Rocha, and Romulo Bernard Bustamante Alarkon – while they were documenting
the implementation of a search warrant in a popular bar that had been tagged as a drug den. The
police charged the lawyers with obstruction of justice, among other crimes.

The owner of the bar engaged their law firm to protect its rights. Among their lawyers’
responsibilities were to make sure that the search was implemented properly, to guard against
planting or tampering of evidence, and to document the chain of custody.

One of the most basic things law students learn in basic political law class is that an establishment
owner has a right to be present during the search. That right readily transfers to lawyers. They may
appear on behalf of their clients or represent them. They can act for them in ways that other agents
cannot. This is part of the law profession. There is no need for letter of consent or a special power
of attorney to do this.

Let’s look at the facts surrounding the case:

The facts according to the Makati police

The police reported that the lawyers just entered the police line without any permission and
without introducing themselves. The policemen supposedly asked them to identify themselves, but
they refused to do so.

“Pumasok na lang nang di nagpapaalam. They were cautioned by the police there. They were
asked identification pero they refused… They interfered with the procedure.”

-Metro Manila Police director Chief Supt. Guillermo Eleazar

After that, the lawyers started to take pictures and write down notes. In one report, the police said
that the lawyers were preventing them from searching other areas in the club.

The police arrested the lawyers because they allegedly did not identify themselves, did not
coordinate with them, started taking photos and writing notes, and threatened and intimidated
them. The police charged the lawyers with:
- Obstruction of justice
- Resistance and disobedience
- Constructive possession of dangerous drugs (Sec. 11 RA 9165)
- Violation of Makati City Ordinance No. 96-298 – unlawful for unauthorized persons to cross a
police line.

The three lawyers were released on August 17, Friday, after 8pm. The Makati prosecutor’s office
sent a release order to the police station which stated that the police had to “clear out some
matters” because their charges did not include the specific acts complained of, “chief among
which are: the specific actions that respondents allegedly did that constitute the crimes complained
of, and importantly, what actions they did to constitute constructive possession of drugs seized in
the premises.”

The facts according to the lawyers:

The lawyers claimed to have identified themselves and that their client was an owner of the
establishment. They told the police that they were acting on behalf of their client. They were just
writing down notes on what was transpiring at the time and taking photographs.

The facts established by the videos covering the arrest:

The videos clearly showed that the lawyers identified themselves as lawyers. The policeman
questioning them was asking who their client was. The lawyers refused to give the name, but they
did indicate that he was one of the owners of the establishment.

The videos show that at the time they were being arrested, the lawyers did not resist arrest or
disobey the policemen. So obviously, the charge that they resisted arrest and were being
disobedient is not very convincing.

What’s the law here?

Lawyers are NOT your ordinary representatives.

The Supreme Court declared that when lawyers execute their legal duties, they are more than just
your ordinary representatives. Because of their profession, they have powers superior to those of
an ordinary agent or representative.Moreover, the Supreme Court declared that lawyers are actual
officers of the court. They may be considered a “quasi-judicialoffice.” Theoretically, if you attack
a lawyer executing his legal duty, he can sue you for assault under the Revised Penal Code.

“In modern day perception of the lawyer-client relationship, an attorney is more than a mere agent
or servant, because he possesses special powers of trust and confidence reposed on him by his
client. A lawyer is also as independent as the judge of the court, thus his powers are entirely
different from and superior to those of an ordinary agent. Moreover, an attorney also occupies
what may be considered as a “quasi-judicial office” since he is in fact an officer of the Court and
exercises his judgment in the choice of courses of action to be taken favorable to his client.”
-Supreme Court in Regala v. Sandiganbayan (1996)-

This means that lawyers may cross a police line if they do it as part of their legal duty to their
client.

The owner of the establishment has the right to be present in searches and seizures. If he hires a
lawyer to represent him, then that lawyer has the right to be present there as well.

The three lawyers are not “unauthorized persons” who are prohibited from entering a police line.
In fact, they even have a legal obligation to be there! If they did not enter the premises, their client
may sue them in disciplinary proceedings for negligence in execution of their legal duties.

Lawyers do not need written authorization of the client

One of the reasons the Makati police arrested the lawyers is that they have no written
authorization from their client.

First of all, there is no law or rule that requires lawyers to submit authorization from their client
before they could represent legally them.

Secondly, if you look at related jurisprudence and legal provisions with regard to legal
representation, you will find provisions that presume that a lawyer who says that he represents a
client is presumed to actually represent him. Section 21 of Rule 138 (authority of the attorney to
appear in cases) states that a lawyer is presumed to be properly authorized to represent any cause
in which he appears, and no written power of attorney is required to authorize him to appear in
court for his client.

In certain cases, lawyers do not need to disclose who their client is. The general rule is that a
lawyer is required to disclose who his client is. A client’s identity should never be shrouded in
mystery. But there is an exception to this rule:

“The court emphasized the exception that a clients name is privileged when so much has been
revealed concerning the legal services rendered that the disclosure of the clients identity exposes
him to possible investigation and sanction by government agencies.”
-Supreme Court in Regala v. Sandiganbayan (1996)-

The lawyer may withhold the client’s identity if disclosing it may open him up to liability. When a
client thinks that he may incur criminal liability, consults his attorney about it, and retains his
services to help with with that problem, then the name of the client is privileged information that
can be legally withheld.

In this instance, disclosing the client’s name to policemen searching the bar for illegal drugs could
expose the client to criminal liability. This seems to be what happened in this incident. Disclosing
the name might expose their client to investigation, legal action, and sanction. If indeed they
refused to name their client, then there is nothing wrong with that. It is their job. In fact, their
refusal to disclose the client’s name is a legal duty which the Supreme Court recognizes as valid.

The Supreme Court discussed this issue thoroughly in Regalado v. Sandiganbayan (September 20,
1996). It recognized that it was the duty of the lawyers not to reveal the identity of their clients.
And if the lawyers violated that duty, they would expose themselves to litigation by their clients.

“We have no choice but to uphold petitioners’ right not to reveal the identity of their clients under
pain of the breach of fiduciary duty owing to their clients, because the facts of the instant case
clearly fall within recognized exceptions to the rule that the clients name is not privileged
information.” – Supreme Court

Threat and intimidation:

Whether there were actual threats and intimidation is something that is not clear.

But we have working legal definitions for threats and intimidation. In legal terms, threats are made
when somebody threatens another with wrong-doing against his person, honor, or property. There
is intimidation when there is a reasonable and well-grounded fear of an imminent and grave evil a
person’s person or property. To determine the degree of the intimidation, the age, sex and
condition of the person shall be borne in mind.

Something that we all have to note is that the three lawyers were unarmed. The policemen present
during the search outnumber them, and have guns. The policemen are within their territory and
can easily call for backup.

It is hard to imagine three unarmed lawyers making threats against, or intimidating a large number
of armed policemen in public, while cameras and videos capture the moment.

However, since we do not know all the facts, it is prudent to keep an open mind. Stranger things
have happened in real life.

Lawyering is not obstruction of justice:

Writing down notes and taking pictures is not obstruction of justice. Neither is objecting to
searches that are outside what is written in a search warrant. Search warrants details exactly where
to search for contraband. If the place that the authorities want to search is outside that described,
then they cannot continue their search there. This is true whether it is just an upstairs floor.

Obstruction of Justice is governed by Presidential Decree 1829. The acts described there are the
ONLY acts that constitute the crime of Obstruction of Justice. Writing down notes and taking
pictures cannot be placed under any of those acts. In fact, none of the acts enumerated so far by
the police or the lawyers fall under any of those provisions.

Even the Makati prosecutor’s office thought so, which was why it ordered the Makati police to
release of the detained lawyers without bail. In the same order, it asked the police to describe what
acts of the lawyers constituted the crimes they were complaining of.

The lawyer’s has the same right to object as his client. So as long as the lawyers do not impede the
search, their presence is not a crime. The can come close as they want to take pictures, as long as
they do not disturb the officers.There is no obstruction of justice there. The police officers are
performing a public function, and all public functions may be witnessed.

In fact, it would even be helpful to the police because they would be assured that any evidence
found would be documented as well by the lawyers and they would be sure later on that their
charges would stick because lawyers were present at the time the search was made and evidence
was found.

Lawyers cannot be charged for any crime of their client

Due to the special relationship between the law and lawyers, they cannot be charged for any crime
that their client committed, unless they themselves committed the crime. The police therefore
cannot charge the lawyers of constructive possession of illegal drugs. This is something so basic,
that it is a wonder why it was even charged.

Under the law, “constructive possession exists when the drug is under the dominion and control of
the accused or when he has the right to exercise dominion and control over the place where it is
found. Exclusive possession or control is not necessary.”

The lawyers were present at the search area for two reasons: (1) to ensure that the search warrant
is correctly implemented, and (2) to document search and note the chain of custody. The lawyers
were not managing the bar. I’m sure that nobody could order cocktails from them, and that they
would have to buy their own beer from the place. They did not have any right to exercise control
or dominion over the place. They were there only to witness and document the implementation of
the search warrant.

Perhaps a reason why the police charged them that was to justify their detention for more than 18
hours. Otherwise, the officers involved could be sued and even terminated for arbitrary detention.

Conclusion:
The lawyers should have been subject to inquest just like any arrested detainee. Instead, the Office
of the City Prosecutor sent a release order to the police station to have the lawyers released
because the policemen did not indicate what acts of the lawyers supposedly constituted crimes.
What happened here was that the prosecutor gave the police another chance to charge them and
hold preliminary investigation instead. We’ll see how this develops.

An additional complication here is that any evidence found AFTER the policemen arrested the
lawyers could be put into question. Since the police removed the lawyers while they were
observing implementation of the warrant, any evidence that turned up after can questioned. A
judge can even dismiss the case for reasonable doubt because of how the evidence was gathered.
Those accused can even question the motives of the police in removing legal counsel during the
search itself.

PM Dizon Law

12 mins · CASE DIGEST(S)

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