Limitations/restrictions

of government lawyers in the

practice of law

Problem Areas in Legal Ethics

Arellano University School of Law – Arellano Law Foundation
2017-2018
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.
 C o rrect In terp retatio n

 The te rm " in te rvene" w h ich w e p rev io usly in te rp reted to

in c lude an act o f a person w ho has the pow er to in fluence
the p ro ceed ings.

 O therw ise stated , to fa ll w ith in the am b it o f Rule 6 .03 o f

the Code o f Pro fessiona l Responsib ility , the responden t m ust
have accep ted engagem en t o r em p loym en t in a m atter w h ich ,
by v irtue o f h is pub lic o ffice , he had p rev iou sly exerc ised
pow er to in flu ence the ou tcom e o f th e p ro ceed ings. - Olazo
v. Justice Tinga, A.M. No. 10-5-7-SC [2010]
 G eneral R ule

 Thus, law yers in governm en t se rv ice canno t hand le p riva te

cases fo r th ey a re expected to devo te them se lves fu ll-tim e
to the w o rk o f the ir respective o ffices. - 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. - Ol azo v. J usti ce Ti nga, A. M. No. 10-5-7-SC [ 2010]
 “
R evo lvin g d o o r”law p ractice

 “[T]he p rocess by w h ich law yers and o thers tem po rarily

en te r governm ent se rv ice from p riva te life and then leave it
fo r la rge fees in p riva te p ractice , where they can exp lo it
in fo rm ation , con tacts , and in fluence g arnered in governm en t
se rv ice .“ - PCCG v. Sandiganbayan and Tan, G.R. Nos.
151809-12 [April 12, 2005]

 These concerns w ere c lassified as adverse-in te rest

con flic ts" and "cong ruent-in te rest con flic ts .

7
 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. Tho mas
Nebel, and Tho mas Whi te Br ot hers 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. Tho mas Nebel, and Tho mas Whi te Br ot hers 856 F. Supp. 370
(1992)
D efin itio n o f “
su b stan tial resp o n sib ility”

 W ith these com peting po lic ie s in m ind , the Cou rt tu rn s to

the requ irem en ts o f C anon 9 w h ich p roh ib it a fo rm er
governm en t atto rney from accep ting priva te em p loym en t in a
m atte r in w hich he had "sub stan tia l responsib ility" w h ile
work ing fo r the governm en t. A cco rd ing to the Am erican Bar
A ssocia tion , a "sub stan tia l responsib ility" is "a
responsib ility requ iring the o ffic ia l to becom e persona lly
in vo lved to an im po rtan t, m ate ria l d eg ree , in th e
in vestig ative o r de lib e rative p rocesses regard ing the
tran sactions o r facts in question ." - U S v.Russell W hite
BROTH ERS, Jr., G. Thomas Nebel, and Thomas W hite 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 lawyers“shall apply to lawyers in
government service in the discharge of their official tasks.” Thus,
where a lawyer’s 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. - Pi ment el , Jr. v. Attys.
Ll or ent e and Sal ayon, 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.
Guti errez, A. C. No. 6707 [2006]
C o d e o f Ethical Stand ard s fo r Pub lic O fficials and
Em ployees
R A 6713 R ule X
 Section 7 . Proh ib ited A cts and T ransactions. - In add ition
to acts and om issions o f pub lic o ffic ia ls and em p loyees now
p rescribed in the Constitu tion and ex isting law s, the
fo llow ing sha ll constitu te p roh ib ited acts and tran saction s
o f any pub lic o ffic ia l and em p loyee and are hereby decla red
to be un law fu l:
 (b ) O u tsid e em p loym en t and o ther activ itie s re lated there to .
- Pub lic o ffic ia ls and em p loyees du ring the ir in cum bency
sha ll no t:
 (2 ) Engage in the p riva te p ractice of the ir p ro fession
un less au thorized by the Constitu tio n o r law , p rovided , that
such p ractice w ill no t con flic t o r tend to con flic t w ith
the ir o ffic ia l functions;
C ont…

 These p roh ibition s sha ll con tinue to app ly fo r a period o f

one (1 ) year a fte r resig nation , re tirem en t, o r separa tion
from pub lic o ffice , excep t in the case o f subparag raph (b )
(2) above , b u t the p ro fessiona l concerned canno t p ractice
h is p ro fession in connection w ith any m atte r b efo re the
o ffice he u sed to be w ith , in w h ich case the one-year
p roh ib ition sha ll likew ise app ly .
 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;
C ont…

 These acts sha ll con tinue to be p rohib ited fo r a period o f

one (1 ) year a fte r resig nation , re tirem en t, o r separa tion
from pub lic o ffice , excep t in the case o f parag raph (c )
above , bu t the p ro fessio na l concerned canno t p ractice h is
p ro fession in connection w ith any m atte r be fo re the o ffice
he u sed to be w ith , w ith in one year afte r su ch resignation ,
re tirem en t, o r separa tio n , p rov ided that any v io la tion
hereo f sha ll be a g round fo r adm in istra tive d iscip lina ry
action upon re-en try to the governm en t se rv ice .
 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 m ay be w e ll to say that the p roh ib ition w as

in tended to avo id any im p rop rie ty o r the appearance o f
im p rop rie ty wh ich m ay occu r in any tran saction betw een the
re tired governm en t em p loyee and h is fo rm er co lle agues,
subo rd inates o r superio rs b rough t abou t by fam ilia rity ,
m ora l ascendancy o r undue in fluence , as the case m ay 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. J udge Medi odea, A. M . No. MTJ-02-1459.
Oct ober 14, 2003
 Various ways a government lawyer
leaves government service

1. retirement
2. resignation
3. expiration of the term of office
4. dismissal
5. abandonment
 Pro se litigant

 The r ai son d’etr e 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. -
Ma der ada v. J udge Medi odea, A. M. No. MTJ-02-1459. Oct ober
14, 2003
 Under the Rule s o f Cou rt, p a rtie s to a case in a first-leve l
cou rt m ay -- w ithou t having to resig n from the ir po sts --
conduct the ir ow n litig ation in person as w e ll as appear fo r
and on the ir ow n beha lf as p la in tiffs o r de fendan ts.
 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 co-plaintiff in the case below, for which act the former
cannot be completely exonerated. Representing oneself is
different from appearing on behalf of someone else.-
Ma der ada v. J udge Medi odea, A. M. No. MTJ-02-1459. Oct ober
14, 2003
Tw o th eo ries o n th e d isq u alificatio n o f fo rm er
g o vern m en t law yers in rep resen tin g a clien t

 “Adverse-in te rest con flic t ”

 “Cong ruen t-in te rest represen ta tion con flic ts ."

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 "A d verse-in terest co n flicts"

 "Adverse-in terest con flicts" ex ist w here the m atte r in w h ich

the fo rm er governm en t law yer rep resen ts a c lien t in p riva te
p ractice is sub stan tia lly re la ted to a m atte r th at the
law yer dea lt w ith w h ile em p loyed by the governm en t and the
in te rests o f the cu rren t and fo rm er 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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 C o n g ru en t-in terest co n flict

 In “cong ruen t-in te rest con flic t ”, the d isqua lifica tion
does no t really in vo lve a con flic t at a ll, b ecause it
p roh ib its th e law yer fro m rep resen ting a p riva te p ractice
c lien t even if the in te rests o f the fo rm er governm ent c lien t
and the new c lien t a re en tire ly p aralle l. The “cong ruen t-
in te rest represen ta tion con flic t ”, un like the “adverse-
in te rest conflic t ”, is un ique to fo rm er governm en t law yers .

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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.
 PA O law yer should not accept any
rem uneration for his services
 A s a PAO law yer, responden t shou ld no t have accep ted
atto rney 's fees from the com p la inan t as th is w as
in consisten t w ith the o ffice 's m ission . Responden t v io la ted
the p roh ib ition aga in st accep ting lega l fees o ther than h is
sa la ry .
 A cceptance of m oney by a g overnm ent
law yer
 Accep tance of m oney from a c lien t estab lishes an a tto rney-
c lien t re la tion sh ip . Responden t's adm ission that he accep ted
m oney from the com p la inan t and the rece ip t con firm ed the
p resence o f an a tto rney-c lien t re la tion sh ip betw een h im and
the com p la in an t. M o reover, the rece ip t show ed that he
accep ted the com p la inan t's case w h ile he w as still a
governm en t law yer. Responden t c lea rly v io la ted the
p roh ib ition on p riva te practice o f p ro fession . - Ramos v.
Atty. Jose R. Imbang, A.C. no. 6788 [2007]
 Query

 W hy m ay an incum ben t engage in p rivate p ractice under

(b )(2 ), assum ing the sam e does no t con flic t o r tend to
con flic t w ith h is o ffic ia l du ties, b u t a non-in cum ben t like
m yse lf cannot, as is apparen tly p rohib ited by the last
parag raph o f Sec . 7?

 W hy is the fo rm er a llow ed , w ho is still o ccupy ing the ve ry

pub lic po sition that he is liab le to exp lo it, but a non-
in cum ben t like m yse lf – who is no lo nger in a position o f
possib le abuse/exp lo ita tion – canno t?"
 A tty . Bu ffe a lleged that Section 7 (b )(2 ) o f R .A . N o . 6713
g ives p re fe ren tia l trea tm ent to an incum ben t public
em p loyee , w ho m ay engage in the p rivate p ractice o f h is
p ro fession so long as th is p ractice does no t conflic t o r
tend to con flic t w ith h is o ffic ia l functions.
 In con trast, a pub lic o ffic ia l o r em p loyee w ho has re tired ,
resigned , o r has been separa ted from governm en t se rv ice like
her, is p rohib ited from engag ing in p riva te p ractice on any
m atte r be fo re the o ffice w here she used to w o rk , fo r a
period o f one (1) year from the date o f her separa tion from
governm en t em p loym en t.
 The in te rp reta tion that Section 7 (b ) (2 ) generally
p roh ib its in cum ben t pub lic o ffic ia ls and em p loyees from
engag ing in the p ractice o f law , w h ich is decla red there in a
p roh ib ited and un law fu l act, acco rd s w ith the constitu tiona l
po licy on accoun tab ility o f pub lic o ffice rs sta ted in
A rtic le X I o f the Constitu tion …
 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.
 In terp retatio n

 The Section 7 p roh ib itio ns con tinue to app ly fo r a period o f

one year a fter the pub lic o ffic ia l o r em p loyee’s
resignation , re tirem en t, o r separa tion from pub lic o ffice ,
excep t fo r the p riva te practice o f p ro fession under
sub section (b )(2 ), w h ich can a lready be undertaken even
w ith in the one-year p rohib ition period . A s an excep tion to
th is excep tion , the one-year p roh ib ited period app lies w ith
respect to any m atte r befo re the o ffice the pub lic o ffice r
o r em p loyee used to w o rk w ith .
 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 personnel’s 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.
 N o law yer in the Judiciary
can practice law
 No chance exists fo r law yers in the Jud ic ia ry to p ractice
the ir p ro fession , as they a re in fact exp ressly p roh ib ited
by Section 5, C anon 3 o f the Code o f Conduct fo r Cou rt
Personne l from do ing so .
 C lerk o f C o u rt statu s after sep aratio n
fro m g o vern m en t
 A c le rk o f cou rt can a lready engage in the p ractice o f law
im m ed ia te ly afte r he r separa tion from the se rv ice and w ithou t any
period lim itation that applie s to o ther p roh ib ition s under Sectio n
7 o f R .A . No . 6713 .

 The c le rk o f cou rt’s lim ita tion is that she canno t p ractice her
p ro fession w ith in one year be fo re the o ffice w here he o r she u sed
to w o rk w ith . In a com parison betw een a resigned , retired o r
separa ted o ffic ia l o r em p loyee , on the one hand , and an in cum ben t
o ffic ia l o r em p loyee , on the o ther, the fo rm er has the advan tage
because the lim ita tion is on ly w ith respect to the office he o r
she u sed to w o rk w ith and on ly fo r a p eriod o f one year.

 The in cum ben t canno t p ractice a t a ll, save on ly w here specifica lly
a llow ed by th e Constitu tio n and the law and on ly in areas w here no
con flic t o f in te rests ex ists .
 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. - Sa mont e v.
Att y. Gat dul a, 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 leg al docum ent
[A ssurance] after separation from
g overnm ent service
 The com p la in an t, too , failed to su ffic ien tly estab lish that
the responden t w as engaged in the p ractice o f la w . A t face
va lue , the lega l se rv ice rendered by the responden t w as
lim ited on ly in the p reparation o f a s ing le docum ent.
 W e specifically described p riva te p ractice o f la w as one
that con tem pla tes a su ccession o f acts o f the sam e natu re
hab itua lly o r cu stom arily ho ld ing one’s se lf to the pub lic
as a law yer.
 In any even t, even g ran ting that responden t’s act fe ll
w ith in the de fin ition o f p ractice o f law , the ava ilab le
p ieces o f evid ence a re insu ffic ien t to show that the lega l
rep resen tation w as m ade befo re the Comm ittee on Aw ard s, o r
that the Assu rance w as in tended to be p resen ted befo re it.-
Olazo v. Justice Tinga, A.M. No. 10-5-7-SC [2010]
Thank you for your attention!!

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