Limitations/restrictions

of government lawyers in the

practice of law
Problem Areas in Legal Ethics
Arellano University School of Law Arellano Law Foundation
2015-2016

Canon 6 These canons shall apply to

lawyers in government services in the
discharge of their tasks.

Rule 6.01 - The primary duty of a lawyer engaged in public

prosecution is not to convict but to see that justice is done. The
suppression of facts or the concealment of witnesses capable of
establishing the innocence of the accused is highly reprehensible
and is cause for disciplinary action.
Rule 6.02 - A lawyer in the government service shall not use his
public position to promote or advance his private interests,
nor allow the latter to interfere with his public duties.
Rule 6.03 - A lawyer shall not, after leaving government service,
accept engagement or employment in connection with any
matter in which he had intervened while in said service.

Rule 15.06. - A lawyer shall not state or imply that he is able to

influence any public official, tribunal or legislative body.

Rule 3.03 - Where a partner accepts public office, he shall

withdraw from the firm and his name shall be dropped from the
firm name unless the law allows him to practice law currently.

RRC Rule 138 Sec. 35. Certain attorneys not to practice. - No

judge or other official or employee of the superior courts or of the
Office of the Solicitor General, shall engage in private practice as a
member of the bar or give professional advice to clients.

Correct Interpretation

The term "intervene" which we previously interpreted to include

an act of a person who has the power to influence the proceedings.

Otherwise stated, to fall within the ambit of Rule 6.03 of the Code
of Professional Responsibility, the respondent must have
accepted engagement or employment in a matter which, by
virtue of his public office, he had previously exercised power to
influence the outcome of the proceedings. - Olazo v. Justice
Tinga, A.M. No. 10-5-7-SC [2010]

General Rule

Thus, lawyers in government service cannot handle private

cases for they are expected to devote themselves full-time to the
work of their respective offices. - Ramos v. Atty. Jose R. Imbang,
A.C. no. 6788 [2007]

Admonition to government lawyers

A lawyer in the government service shall not use his public

position to promote or advance his private interests, nor allow the
latter to interfere with his public duties.

The above provision prohibits a lawyer from using his or her public
position to: (1) promote private interests; (2) advance private
interests; or (3) allow private interest to interfere with his or her
public duties.

We previously held that the restriction extends to all government

lawyers who use their public offices to promote their private
interests. - Olazo v. Justice Tinga, A.M. No. 10-5-7-SC [2010]

In fact, his professional obligations should make him more

sensitive to his official obligations because a lawyers disreputable
conduct is more likely to be magnified in the public eye. - Assistant
Provincial Prosecutor Robert M. Visbal v. Judge Marino S. Buban,
A.M. No. MTJ-02-1432, September 3, 2004

 Revolving door law practice

[T]he process by which lawyers and others temporarily enter

government service from private life and then leave it for large fees
in private practice, where they can exploit information, contacts,
and influence garnered in government service. - PCCG v.
Sandiganbayan and Tan, G.R. Nos. 151809-12 [April 12, 2005]

These concerns were classified as adverse-interest conflicts" and

"congruent-interest conflicts.

Special considerations, both for and against

disqualification of former government
attorney

If service with the government will tend to sterilize an attorney in

too large an area of law for too long a time, or will prevent him
from engaging in practice of the very specialty for which the
government sought his service and if that sterilization will
spread to the firm with which he becomes associated the
sacrifices of entering government service will be too great for
most men to make. As for those men willing to make these
sacrifices, not only will they and their firms suffer a restricted
practice thereafter, but clients will find it difficult to obtain
counsel, particularly in those specialties and suits dealing with the
government. - US v.Russell White BROTHERS, Jr., G. Thomas
Nebel, and Thomas White Brothers 856 F.Supp. 370 (1992)

Favors disqualification of former

government lawyers

On the other hand, policy considerations underlying DR 9-101(B)

which militate toward disqualification include [t]he treachery of
switching sides; the safeguarding of confidential governmental
information from future use against the government; the need to
discourage government lawyers from handling particular
assignments in such a way as to encourage their own future
employment in regard to those particular matters after leaving
government service; and the professional benefit derived from
avoiding the appearance of evil.- US v.Russell White BROTHERS,
Jr., G. Thomas Nebel, and Thomas White Brothers 856 F.Supp. 370
(1992)

Definition of substantial
responsibility

With these competing policies in mind, the Court turns to the

requirements of Canon 9 which prohibit a former government
attorney from accepting private employment in a matter in which
he had "substantial responsibility" while working for the
government. According to the American Bar Association, a
"substantial responsibility" is "a responsibility requiring the
official to become personally involved to an important, material
degree, in the investigative or deliberative processes regarding the
transactions or facts in question." - US v.Russell White BROTHERS,
Jr., G. Thomas Nebel, and Thomas White Brothers 856 F.Supp. 370
(1992)

Application of C.P.R.
on a government lawyer

The Code of Professional Responsibility does not cease to apply to a

lawyer simply because he has joined the government service. In
fact, by the express provision of Canon 6 thereof, the rules
governing the conduct of lawyersshall apply to lawyers in government
service in the discharge of their official tasks. Thus, where a lawyers
misconduct as a government official is of such nature as to affect
his qualification as a lawyer or to show moral delinquency, then
he may be disciplined as a member of the bar on such grounds.

Although the general rule is that a lawyer who holds a government

office may not be disciplined as a member of the bar for
infractions he committed as a government official, he may,
however, be disciplined as a lawyer if his misconduct constitutes a
violation of his oath a member of the legal profession. - Ali v. Atty.
Bubong, A.C. No. 4018 [2005]

Now, a lawyer who holds a government position may not be

disciplined as a member of the bar for misconduct in the discharge
of his duties as a government official. However, if the misconduct
also constitutes a violation of the Code of Professional
Responsibility or the lawyer's oath or is of such character as to
affect his qualification as a lawyer or shows moral delinquency on
his part, such individual may be disciplined as a member of the bar
for such misconduct. - Pimentel, Jr. v. Attys. Llorente and Salayon,
A.C. no. 4680 [2000]

We begin with the veritable fact that lawyers in government service

in the discharge of their official task have more restrictions than
lawyers in private practice. Want of moral integrity is to be more
severely condemned in a lawyer who holds a responsible
public office.
Otherwise said, a lawyer in government service is a keeper of the
public faith and is burdened with high degree of social
responsibility, perhaps higher than his brethren in private practice.
It bears stressing also that government lawyers who are public
servants owe fidelity to the public service, a public trust. As such,
government lawyers should be more sensitive to their professional
obligations as their disreputable conduct is more likely to be
magnified in the public eye - Huyssen v. Atty. Gutierrez, A.C. No.
6707 [2006]

Code of Ethical Standards for Public Officials and

Employees
RA 6713 Rule X

Section 7. Prohibited Acts and Transactions. - In addition to acts

and omissions of public officials and employees now prescribed in
the Constitution and existing laws, the following shall constitute
prohibited acts and transactions of any public official and
employee and are hereby declared to be unlawful:
(b) Outside employment and other activities related thereto. Public officials and employees during their incumbency shall not:
(2) Engage in the private practice of their profession unless
authorized by the Constitution or law, provided, that such practice
will not conflict or tend to conflict with their official functions;

Cont

These prohibitions shall continue to apply for a period of one (1)

year after resignation, retirement, or separation from public office,
except in the case of subparagraph (b) (2) above, but the
professional concerned cannot practice his profession in
connection with any matter before the office he used to be
with, in which case the one-year prohibition shall likewise
apply.

IRR of RA 6713
Rule X
Grounds for Administrative Disciplinary Action
Section 1. In addition to the grounds for administrative disciplinary action
prescribed under existing laws, the acts and omissions of any official or
employee, whether or not he holds office or employment in a casual,
temporary, hold-over, permanent or regular capacity, declared unlawful
or prohibited by the Code, shall constitute the grounds for administrative
disciplinary action, and without prejudice to criminal and civil liabilities
provided herein, such as:

(c) Engaging in the private practice of his profession unless authorized by

the, Constitution, law or regulation, provided that such practice will
not conflict or tend to conflict with his official functions;

Cont

These acts shall continue to be prohibited for a period of one (1)

year after resignation, retirement, or separation from public office,
except in the case of paragraph (c) above, but the professional
concerned cannot practice his profession in connection with any
matter before the office he used to be with, within one year after
such resignation, retirement, or separation, provided that any
violation hereof shall be a ground for administrative disciplinary
action upon re-entry to the government service.

Correct Interpretation

[s]uch practice" - refer to practice "authorized by the Constitution

or law" or the exception to the prohibition against the practice of
profession.

The term "law" was intended by the legislature to include "a

memorandum or a circular or an administrative order issued
pursuant to the authority of law.
- Query of Atty. Silverio-Buffe, A.M. No. 08-6-352-RTC [2009]

Purpose of the Law

Thus, it may be well to say that the prohibition was intended to

avoid any impropriety or the appearance of impropriety which
may occur in any transaction between the retired government
employee and his former colleagues, subordinates or superiors
brought about by familiarity, moral ascendancy or undue
influence, as the case may be.

Private practice of law

Private practice has been defined by this Court as follows:

x x x. Practice is more than an isolated appearance, for it consists in

frequent or customary action, a succession of acts of the same
kind. In other words, it is frequent habitual exercise. Practice of
law to fall within the prohibition of statute [referring to the
prohibition for judges and other officials or employees of the
superior courts or of the Office of the Solicitor General from
engaging in private practice] has been interpreted as
customarily or habitually holding one's self out to the public,
as a lawyer and demanding payment for such services. x x x.Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459. October 14,
2003

Various ways a government lawyer

leaves government service
1.
2.
3.
4.
5.

retirement
resignation
expiration of the term of office
dismissal
abandonment

Pro se litigant

The raison detre for allowing litigants to represent themselves in

court will not apply when a person is already appearing for
another party. Obviously, because she was already defending the
rights of another person when she appeared for her co-plaintiff, it
cannot be argued that complainant was merely protecting her
rights. That their rights may be interrelated will not give
complainant authority to appear in court. The undeniable fact
remains that she and her co-plaintiff are two distinct individuals.
The former may be impairing the efficiency of public service once
she appears for the latter without permission from this Court. Maderada v. Judge Mediodea, A.M. No. MTJ-02-1459. October 14,
2003

Under the Rules of Court, parties to a case in a first-level court may

-- without having to resign from their posts -- conduct their
own litigation in person as well as appear for and on their own
behalf as plaintiffs or defendants.

The law allows persons who are not lawyers by profession to

litigate their own case in court. The right of complainant to litigate
her case personally cannot be taken away from her. Her being an
employee of the judiciary does not remove from her the right
to proceedings in propria persona or to self-representation.
To be sure, the lawful exercise of a right cannot make one
administratively liable. xxx However, it was also clearly
established that complainant had appeared on behalf of her coplaintiff in the case below, for which act the former cannot be
completely exonerated. Representing oneself is different from
appearing on behalf of someone else.- Maderada v. Judge
Mediodea, A.M. No. MTJ-02-1459. October 14, 2003

Two theories on the disqualification of

former government lawyers in representing a
client

Adverse-interest conflict
Congruent-interest representation conflicts."

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"Adverse-interest conflicts"

"Adverse-interest conflicts" exist where the matter in which the

former government lawyer represents a client in private practice is
substantially related to a matter that the lawyer dealt with
while employed by the government and the interests of the
current and former are adverse.- PCCG v. Sandiganbayan and
Tan, G.R. Nos. 151809-12 [April 12, 2005]

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Adverse-interest conflict

In the adverse-interest conflict a former government lawyer is

enjoined from representing a client in private practice when the
matter is substantially related to a matter that the lawyer dealt with
while employed by the government and if the interests of the
current and former clients are adverse.
It must be observed that the adverse-interest conflict applies to
all lawyers in that they are generally disqualified from accepting
employment in a subsequent representation if the interests of the
former client and the present client are adverse and the matters
involved are the same or substantially related.

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Congruent-interest conflict

In congruent-interest conflict, the disqualification does not

really involve a conflict at all, because it prohibits the lawyer from
representing a private practice client even if the interests of the
former government client and the new client are entirely parallel.
The congruent-interest representation conflict, unlike the
adverse-interest conflict, is unique to former government
lawyers.

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Grounds for Disqualification arising

from COI

The fatal taint which would require disqualification arises in two types of
cases:
(1) where an attorney's conflict of interests in violation of [Canons]
undermines the court's confidence in the vigor of the attorney's
representation of his client, or more commonly
(2) where the attorney is at least potentially in a position to use
privileged information concerning the other side through prior
representation xxx thus giving his present client an unfair advantage. US v.Russell White BROTHERS, Jr., G. Thomas Nebel, and Thomas White
Brothers 856 F.Supp. 370 (1992)

PAO to provide free legal assistance

The PAO was created for the purpose of providing free legal
assistance to indigent litigants.[27] Section 14(3), Chapter 5, Title
III, Book V of the Revised Administrative Code provides:
Sec. 14. xxx

The PAO shall be the principal law office of the Government in

extending free legal assistance to indigent persons in criminal,
civil, labor, administrative and other quasi-judicial cases.

PAO lawyer should not accept any

remuneration for his services

As a PAO lawyer, respondent should not have accepted attorney's

fees from the complainant as this was inconsistent with the office's
mission. Respondent violated the prohibition against accepting
legal fees other than his salary.

Acceptance of money by a government lawyer

Acceptance of money from a client establishes an attorney-client

relationship. Respondent's admission that he accepted money
from the complainant and the receipt confirmed the presence of
an attorney-client relationship between him and the complainant.
Moreover, the receipt showed that he accepted the complainant's
case while he was still a government lawyer. Respondent clearly
violated the prohibition on private practice of profession. - Ramos
v. Atty. Jose R. Imbang, A.C. no. 6788 [2007]

Query

Why may an incumbent engage in private practice under (b)(2),

assuming the same does not conflict or tend to conflict with his
official duties, but a non-incumbent like myself cannot, as is
apparently prohibited by the last paragraph of Sec. 7?

Why is the former allowed, who is still occupying the very public
position that he is liable to exploit, but a non-incumbent like
myself who is no longer in a position of possible
abuse/exploitation cannot?"

Atty. Buffe alleged that Section 7(b)(2) of R.A. No. 6713 gives
preferential treatment to an incumbent public employee, who may
engage in the private practice of his profession so long as this
practice does not conflict or tend to conflict with his official
functions.
In contrast, a public official or employee who has retired, resigned,
or has been separated from government service like her, is
prohibited from engaging in private practice on any matter
before the office where she used to work, for a period of one (1)
year from the date of her separation from government
employment.

The interpretation that Section 7 (b) (2) generally prohibits

incumbent public officials and employees from engaging in the
practice of law, which is declared therein a prohibited and
unlawful act, accords with the constitutional policy on
accountability of public officers stated in Article XI of the
Constitution

Exception

As an exception, a public official or employee can engage in the

practice of his or her profession under the following conditions:

1. the private practice is authorized by the Constitution or by the law;

and
2.the practice will not conflict, or tend to conflict, with his or her
official functions.

By way of exception, they can practice their profession if the

Constitution or the law allows them, but no conflict of interest
must exist between their current duties and the practice of their
profession.

Interpretation

The Section 7 prohibitions continue to apply for a period of one

year after the public official or employees resignation, retirement,
or separation from public office, except for the private practice of
profession under subsection (b)(2), which can already be
undertaken even within the one-year prohibition period. As an
exception to this exception, the one-year prohibited period applies
with respect to any matter before the office the public officer or
employee used to work with.

Section 5, Canon 3 of the Code of Conduct

for Court Personnel
Outside employment may be allowed by the head of office provided it complies with all of
the following requirements:
(a) The outside employment is not with a person or entity that practices law before the
courts or conducts business with the Judiciary;
(b) The outside employment can be performed outside of normal working hours and is
not incompatible with the performance of the court personnels duties and responsibilities;
(c) That outside employment does not require the practice of law; Provided, however,
that court personnel may render services as professor, lecturer, or resource person in
law schools, review or continuing education centers or similar institutions ;
(d) The outside employment does not require or induce the court personnel to disclose
confidential information acquired while performing officials duties;
(e) The outside employment shall not be with the legislative or executive branch of
government, unless specifically authorized by the Supreme Court.

No lawyer in the Judiciary

can practice law

No chance exists for lawyers in the Judiciary to practice their

profession, as they are in fact expressly prohibited by Section 5,
Canon 3 of the Code of Conduct for Court Personnel from doing
so.

Clerk of Court status after separation

from government

A clerk of court can already engage in the practice of law immediately after
her separation from the service and without any period limitation that
applies to other prohibitions under Section 7 of R.A. No. 6713.

The clerk of courts limitation is that she cannot practice her profession
within one year before the office where he or she used to work with .
In a comparison between a resigned, retired or separated official or
employee, on the one hand, and an incumbent official or employee, on
the other, the former has the advantage because the limitation is only
with respect to the office he or she used to work with and only for a
period of one year.

The incumbent cannot practice at all, save only where specifically allowed
by the Constitution and the law and only in areas where no conflict of
interests exists.

Inclusion of name in a business card is

private practice of law
"Baligod, Gatdula, Tacardon, Dimailig and Celera"
with office at Rm. 220 Mariwasa Bldg., 717 Aurora Blvd., Cubao, Quezon City

While respondent denied having assumed any position in said

office, the fact remains that his name is included therein which
may therefore tend to show that he has dealings with said office.
Thus, while he may not be actually and directly employed with the
firm, the fact that his name appears on the calling card as a partner
in the Baligod, Gatdula, Tacardon, Dimailig & Celera Law Offices
give the impression that he is connected therein and may
constitute an act of solicitation and private practice which is
declared unlawful under Republic Act No. 6713. - Samonte v.
Atty. Gatdula, A.M. No. P-99-1292 [1999]

Section 7 sub-par. (b)(2) of Republic Act No. 6713, otherwise

known as "Code of Conduct and Ethical Standards for Public
Officials and Employees" which declares it unlawful for a public
official or employee to, among others:

"(2) Engage in the private practice of their profession unless

authorized by the Constitution or law, provided that such practice
will not conflict or tend to conflict with official functions."

Preparation of a legal document

[Assurance] after separation from
government service

The complainant, too, failed to sufficiently establish that the

respondent was engaged in the practice of law. At face value, the
legal service rendered by the respondent was limited only in
the preparation of a single document.
We specifically described private practice of law as one that
contemplates a succession of acts of the same nature habitually
or customarily holding ones self to the public as a lawyer.
In any event, even granting that respondents act fell within the
definition of practice of law, the available pieces of evidence are
insufficient to show that the legal representation was made before
the Committee on Awards, or that the Assurance was intended to
be presented before it.-Olazo v. Justice Tinga, A.M. No. 10-5-7-SC
[2010]

Thank you for your attention!!

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