In the case of “QUERY OF ATTY. KAREN M. SILVERIO-BUFFE, FORMER Clerk of Court – BRANCH 81, ROMBLON, ROMBLON – ON THE PROHIBITION FROM ENGAGING IN THE PRIVATE PRACTICE OF LAW, EN BANC, A.M. No. 08-6-352-RTC , August 19, 2009”, the Philippine Supreme Court fined Atty. Karen M. Silverio-Buffe in the amount of Ten Thousand Pesos for professional misconduct under Rule 1.01 of Canon 1 and Canon 7 of the Code of Professional Responsibility, with a stern warning that a repetition of the violation and the commission of other acts of professional misconduct shall be dealt with more severely by the Court.
The case involves the proper interpretation of Section 7(b) (2) of Republic Act (R.A.) No. 6713, as amended (Code of Conduct and Ethical Standards for Public Officials and Employees), which places a limitation on public officials and employees during their incumbency, and those already separated from government employment for a period of one (1) year after separation, in engaging in the private practice of their profession, to wit:
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:
x x x.
(b) Outside employment and other activities related thereto. – Public officials and employees during their incumbency shall not:
x x x.
(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; or
x x x.
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.
Atty. Buffe previously worked as Clerk of Court VI of the Regional Trial Court (RTC), Branch 81 of Romblon. She resigned from her position effective February 1, 2008. Thereafter (and within the one-year period of prohibition mentioned in the above-quoted provision), she engaged in the private practice of law by appearing as private counsel in several cases before RTC-Branch 81 of Romblon.
When asked by the Court for comment, the Court Administrator stated that general intent of the law was to uphold the time-honored principle of public office being a public trust. Section 4 thereof provides for the norms of conduct of public officials and employees, among others: (a) commitment to public interest; (b) professionalism; and (c) justness and sincerity. Of particular significance is the statement under professionalism that “they public officials and employees shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage. Thus, the prohibition was intended to avoid any impropriety or the appearance of impropriety which might 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.
When asked by the Court for comment, the Office of the Chief Attorney (OCAT) took the view that the law generally prohibits incumbent public officials and employees from engaging in the practice of law, which is declared therein a prohibited and unlawful act, which accords with the constitutional policy on accountability of public officers stated in Article XI of the Constitution. The policy requires public officials and employees to devote full time public service so that in case of conflict between personal and public interest, the latter should take precedence over the former.
With respect to lawyers in the judiciary, the OCAT pointed to Section 5, Canon 3 of the Code of Conduct for Court Personnel, which is the rule that deals with outside employment by an incumbent judicial employee and which limits such outside employment to one that “does not require the practice of law.” The prohibition to practice law with respect to any matter where they have intervened while in the government service is reiterated in Rule 6.03, Canon 6 of the Code of Professional Responsibility, which governs the conduct of lawyers in the government service.
The Court required the Executive Judge of the Regional Trial Court (RTC) of the province of Romblon to verify if Atty. Buffe had appeared as counsel during her incumbency as clerk of court and after her resignation in February 2008, and submit to the Court a report on his verification. In compliance therewith, the Executive Judge reported that Atty. Buffe had made appearances in at least four civil cases pending before the trial court.
The Court resolved that Atty. Buffe’s admitted appearances, before the very same branch she had served and immediately after her resignation, was a violation that it could not close its eyes to and that she could not run away from under the cover of the letter-query she had filed and her petition for declaratory relief. The Court noted that at the time she filed her letter-query (on March 4, 2008), Atty. Buffe had already appeared before Branch 81 in at least three (3) cases. The terms of Section 7 (b)(2) of R.A. No. 6713 did not deter her in any way and her misgivings about the fairness of the law cannot excuse any resulting violation she had committed. In other words, she took the risk of appearing before her own Branch and should suffer the consequences of the risk she took.
The Court held that Section 7 of R.A. No. 6713 generally provides for the prohibited acts and transactions of public officials and employees. Subsection (b)(2) prohibits them from engaging in the private practice of their profession during their incumbency. As an exception, a public official or employee can engage in the practice of his or her profession under the following conditions: first, the private practice is authorized by the Constitution or by the law; and second, the practice will not conflict, or tend to conflict, with his or her official functions.
The Section 7 prohibitions continue to apply for a period of one year after the public official or employee’s 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.
The Section 7 prohibitions are predicated on the principle that public office is a public trust; and serve to remove any impropriety, real or imagined, which may occur in government transactions between a former government official or employee and his or her former colleagues, subordinates or superiors. The prohibitions also promote the observance and the efficient use of every moment of the prescribed office hours to serve the public.
Parenthetically, in the case of court employees, Section 7(b)(2) of R.A. No. 6713 is not the only prohibition to contend with; Section 5, Canon 3 of the Code of Conduct for Court Personnel also applies. The latter provision provides the definitive rule on the “outside employment” that an incumbent court official or court employee may undertake in addition to his official duties:
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.
Where a conflict of interest exists, may reasonably appear to exist, or where the outside employment reflects adversely on the integrity of the Judiciary, the court personnel shall not accept outside employment. [Emphasis supplied]
In both the above discussed aspect of R.A. No. 6713 and the quoted Canon 3, the practice of law is covered; the practice of law is a practice of profession, while Canon 3 specifically mentions any outside employment requiring the practice of law. The practice of law is defined as any activity, in and out of court, that 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; 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. The objective is to avoid any conflict of interest on the part of the employee who may wittingly or unwittingly use confidential information acquired from his employment, or use his or her familiarity with court personnel still with the previous office.
After separation from the service, Section 5, Canon 3 of the Code of Conduct for Court Personnel ceases to apply as it applies specifically to incumbents, but Section 7 and its subsection (b)(2) of R.A. No. 6713 continue to apply to the extent discussed above. Atty. Buffe’s situation falls under Section 7.
To repeat, the Court held that 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 court’s 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.
A worrisome aspect of Atty. Buffe’s approach to Section 7 (b) (2) is her awareness of the law and her readiness to risk its violation because of the unfairness she perceived in the law, the Court stated. It found it disturbing that she first violated the law before making any inquiry. She also justified her position by referring to the practice of other government lawyers known to her who, after separation from their judicial employment, immediately engaged in the private practice of law and appeared as private counsels before the RTC branches where they were previously employed. The Court found this a cavalier attitude on Atty. Buffe’s part and, to its mind, only emphasized her own willful or intentional disregard of Section 7 (b)(2) of R.A. No. 6713.
By acting in a manner that R.A. No. 6713 brands as “unlawful,” Atty. Buffe contravened Rule 1.01 of Canon 1 of the Code of Professional Responsibility, which provides:
CANON 1 – A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES
x x x
Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
The Court stated that unlawful conduct under Rule 1.01 of Canon 1 does not necessarily require the element of criminality, although the Rule is broad enough to include it. Likewise, the presence of evil intent on the part of the lawyer is not essential to bring his or her act or omission within the terms of Rule 1.01, when it specifically prohibits lawyers from engaging in unlawful conduct.
The Court held that Atty. Buffe had failed to live up to her lawyer’s oath and thereby violated Canon 7 of the Code of Professional Responsibility when she blatantly and unlawfully practised law within the prohibited period by appearing before the RTC Branch she had just left. Canon 7 states:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR. [Emphasis supplied]
By her open disregard of R.A. No. 6713, she thereby followed the footsteps of the models she cited and wanted to replicate – the former court officials who immediately waded into practice in the very same court they came from. She, like they, disgraced the dignity of the legal profession by openly disobeying and disrespecting the law. By her irresponsible conduct, she also eroded public confidence in the law and in lawyers. Her offense is not in any way mitigated by her transparent attempt to cover up her transgressions by writing the Court a letter-query, which she followed up with unmeritorious petitions for declaratory relief, all of them dealing with the same Section 7 (b) (2) issue, in the hope perhaps that at some point she would find a ruling favorable to her cause. These are acts whose implications do not promote public confidence in the integrity of the legal profession.
Considering Atty. Buffe’s ready admission of violating Section 7(b) (2), the principle of res ipsa loquitur finds application, making her administratively liable for violation of Rule 1.01 of Canon 1 and Canon 7 of the Code of Professional Responsibility. In several cases, the Court has disciplined lawyers without further inquiry or resort to any formal investigation where the facts on record sufficiently provided the basis for the determination of their administrative liability.
The Court disbarred a lawyer without need of any further investigation after considering his actions based on records showing his unethical misconduct; the misconduct not only cast dishonor on the image of both the Bench and the Bar, but was also inimical to public interest and welfare. In this regard, the Court took judicial notice of several cases handled by the errant lawyer and his cohorts that revealed their modus operandi in circumventing the payment of the proper judicial fees for the astronomical sums they claimed in their cases. The Court held that those cases sufficiently provided the basis for the determination of respondents' administrative liability, without need for further inquiry into the matter under the principle of res ipsa loquitur. The Court has ruled in many cases that on the basis of this principle, no evidentiary hearing is required before the respondent may be disciplined for professional misconduct already established by the facts on record. The Court has punished a lawyer for grave professional misconduct solely based on his answer to a show-cause order for contempt and without going into a trial-type hearing. It had ruled then that due process is satisfied as long as the opportunity to be heard is given to the person to be disciplined. In a case, the respondent was disciplined and punished by the Court for contempt for his slurs regarding the Court’s alleged partiality, incompetence and lack of integrity on the basis of his answer in a show-cause order for contempt. The Court took note that the respondent did not deny making the negative imputations against the Court through the media and even acknowledged the correctness of his degrading statements.
The power to punish for contempt of court does not exhaust the scope of disciplinary authority of the Court over lawyers. The disciplinary authority of the Court over members of the Bar is but corollary to the Court's exclusive power of admission to the Bar. A lawyer is not merely a professional but also an officer of the court and as such, he is called upon to share in the task and responsibility of dispensing justice and resolving disputes in society. Any act on his part which visibly tends to obstruct, pervert, or impede and degrade the administration of justice constitutes both professional misconduct calling for the exercise of disciplinary action against him, and contumacious conduct warranting application of the contempt power.
The absence of any formal charge against and/or formal investigation of an errant lawyer do not preclude the Court from immediately exercising its disciplining authority, as long as the errant lawyer or judge has been given the opportunity to be heard. As stated earlier, Atty. Buffe had been afforded the opportunity to be heard on the present matter through her letter-query and Manifestation filed before this Court.
In this case, the Court could not discern any mitigating factors to apply, save OCAT’s observation that Atty Buffe’s letter-query may really reflect a misapprehension of the parameters of the prohibition on the practice of the law profession under Section 7 (b) (2) of R.A. No. 6713. Ignorance of the law, however, is no excuse, particularly on a matter as sensitive as practice of the legal profession soon after one’s separation from the service.
The Court stated that Atty. Buffe had no qualms about the simultaneous use of various fora in expressing her misgivings about the perceived unfairness of Section 7 of R.A. 6713. She formally lodged a query with the Office of the Court Administrator, and soon after filed her successive petitions for declaratory relief. Effectively, she exposed these fora to the possibility of embarrassment and confusion through their possibly differing views on the issue she posed. Although this was not strictly the forum-shopping that the Rules of Court prohibit, what she had done was something that the Court could not help but consider with disfavor because of the potential damage and embarrassment to the Judiciary that it could have spawned. This was a point against Atty. Buffe that cancelled out the leniency the Court might have exercised because of the OCAT’s observation about her ignorance of and misgivings on the extent of the prohibition after separation from the service.
