MOTION
TO DISQUALIFY
THE PRIVATE
COMPLAINANTS AND THE PROSECUTION, by undersigned
private prosecutor, respectfully state:
1. Atty. xxx xxx, the new defense counsel,
is the incumbent MUNICIPAL LEGAL OFFICER
of the Municipality of xxx, xxx.
2. As
per the 2017 Municipal Budget of xxx, xxx (“Personnel Schedule CY 2017”), Atty.
xxx receives a salary of P695,688.00 for the year 2017 (Item No. – “Legal o1”).[1]
3. A
government lawyer employed in a local government unit is prohibited from engaging in private law practice unless duly authorized
in writing by (a) the chief executive of such local government unit, (b) the
Secretary of the Department of Interior and Local Government, and/or (c) the
Office of the President.
4. There
is no showing in the record of the instant case that the new defense counsel
has been duly authorized in writing to engage in private law practice. Hence,
it is just and proper that he be DISQUALIFIED from continuing to engage in
private law practice in connection with this case.
5. The
herein private complainants and the prosecution do not have any malicious
intent to malign or offend the new defense counsel in filing this motion. This
motion is being filed solely in the spirit of truth, fairness and justice and
to insure that the laws and jurisprudence on the Civil Service Law and on Legal
Ethics are duly complied with by the parties and their lawyers.
6. The
case of FELIPE E. ABELLA, Complainant,
vs. ATTY. ASTERIA E. CRUZABRA,
Respondent, A.C. No. 5688, June 4, 2009,
is relevant and on all fours to this motion, to wit:
“x x x.
Felipe E. Abella (complainant) filed a complaint for
violation of Canon 1 of the Code of Professional Responsibility and Section
7(b)(2) of Republic Act No. 6713[1] (RA 6713)
or the Code of Conduct and Ethical Standards for Public Officials and Employees
against Atty. Asteria E. Cruzabra (respondent). In his affidavit-complaint [2] dated 8 May 2002, complainant charged respondent with engaging in
private practice while employed in the government service.
X x x.
Section 7(b) (2) of RA 6713 provides:
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
Memorandum Circular No. 17[18] of the Executive
Department allows government employees to engage directly in the private
practice of their profession provided there is a written permission from the
Department head. It provides:
“The authority to grant permission to any official
or employee shall be granted by the head of the ministry or agency in
accordance with Section 12, Rule XVIII of the Revised Civil Service Rules,
which provides:
Sec. 12. No officer or employee shall engage
directly in any private business, vocation, or profession or be connected with
any commercial, credit, agricultural, or industrial undertaking without a
written permission from the head of Department; Provided, That this prohibition
will be absolute in the case of those officers and employees whose duties and
responsibilities require that their entire time be at the disposal of the Government:
Provided, further, That if an employee is granted permission to engage in
outside activities, the time so devoted outside of office hours should be fixed
by the chief of the agency to the end that it will not impair in any way the
efficiency of the other officer or employee: And provided, finally, That no
permission is necessary in the case of investments, made by an officer or
employee, which do not involve any real or apparent conflict between his
private interests and public duties, or in any way influence him in the
discharge of his duties, and he shall not take part in the management of the
enterprise or become an officer or member of the board of directors,
Subject to any additional conditions which the head
of the office deems necessary in each particular case in the interest of the
service, as expressed in the various issuances of the Civil Service
Commission”. (Boldfacing supplied)
It is clear that when respondent filed her petition
for commission as a notary public, she did not obtain a written permission from
the Secretary of the DOJ. Respondent’s superior, the Register of Deeds, cannot
issue any authorization because he is not the head of the Department. And even
assuming that the Register of Deeds authorized her, respondent failed to present
any proof of that written permission. Respondent cannot feign ignorance or good
faith because respondent filed her petition for commission as a notary public
after Memorandum Circular No. 17 was issued in 1986.
In Yumol, Jr. v. Ferrer Sr.,[19] we suspended a
lawyer employed in the Commission on Human Rights (CHR) for failing to obtain a
written authority and approval with a duly approved leave of absence from the
CHR. We explained:
Crystal clear from the foregoing is the fact that
private practice of law by CHR lawyers is not a matter of right.
Although the Commission allows CHR lawyers to engage
in private practice, a written request and approval thereof, with a duly
approved leave of absence for that matter are indispensable.
In the case at bar, the record is bereft of any such
written request or duly approved leave of absence.
Neither written authority nor approval of the
practice and approved leave of absence by the CHR was ever presented by
respondent. Thus, he cannot engage in private practice.
As to respondents act of notarizing documents,
records show that he applied for commission as notary public on 14 November
2000, before the Regional Trial Court (RTC) of San Fernando, Pampanga, Branch
42. This was granted by RTC Executive Judge Pedro M. Sunga, Jr., on 01 December
2000. However, the CHR authorized respondent to act as notary public only on 29
October 2001. Considering the acts of notarization are within the ambit of the
term practice of law, for which a prior written request and approval by the CHR
to engage into it are required, the crucial period to be considered is the
approval of the CHR on 29 October 2001 and not the approval of the RTC on 04
December 2000. [20]
In Muring, Jr. v. Gatcho, [21] we suspended a lawyer
for having filed petitions for commission as a notary public while employed as
a court attorney. We held:
Atty. Gatcho should have known that as a government
lawyer, he was prohibited from engaging in notarial practice, or in any form of
private legal practice for that matter.
Atty. Gatcho cannot now feign ignorance or good faith, as he did not seek to
exculpate himself by providing an explanation for his error. Atty. Gatcho's
filing of the petition for commission, while not an actual engagement in the
practice of law, appears as a furtive attempt to evade the prohibition. [22]
Under the Uniform Rules on Administrative Cases in
the Civil Service, engaging in the private practice of profession, when unauthorized,
is classified as a light offense punishable by reprimand. [23]
X x x.”
7. Further,
we respectfully refer the Honorable Court to the following jurisprudence in
support of this motion:
·
[A.M. No. MTJ-99-1203. June 10, 2003]
NELIA A. ZIGA, complainant, vs. JUDGE RAMON A.
AREJOLA, respondent.
·
[A.M. No. MTJ-02-1459. October 14, 2003]
IMELDA Y. MADERADA,
complainant, vs. Judge ERNESTO H. MEDIODEA, 12th Municipal Circuit Trial Court,
Cabatuan and Maasin, Iloilo, respondent.
·
[A.M. No. MTJ-99-1203. June 10, 2003]
NELIA A. ZIGA, complainant,
vs. JUDGE RAMON A. AREJOLA, respondent.
·
[A.C. No. 6585. April 21, 2005]
TOMAS B. YUMOL, JR., FELIX
S. VENTIC, ELMER L. MANIEGO and JAKE M. MAGCALAS, complainants, vs. ATTY.
ROBERTO R. FERRER, SR., respondent.
·
DIANA RAMOS vs. ATTY. JOSE R. IMBANG, A. C. No. 6788 (Formerly, CBD
382), August 23, 2007.
·
WILFREDO M. CATU, ATTY. VICENTE G. RELLOSA, A.C. No. 5738, February 19,
2008.
·
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. A.M. No. 08-6-352-RTC, August
19, 2009.
WHEREFORE,
premises considered, it is respectfully prayed that the new defense counsel Atty. xxx xxx be DISQUALIFIED from
litigating the instant case in behalf of the accused-appellants considering his
lack of legal authority to engage in private law practice.
FURTHER, the movants respectfully pray for such and other
reliefs as may be deemed just and equitable in the premises.
Las Pinas
City, July 21, 2017.
LASERNA
CUEVA-MERCADER
LAW OFFICES
Private Prosecutor
Xxx x x x x x x
By:
X x x x x x x
X x x x x x x
Conformer/Noted:
OFFICE OF THE PROSECUTOR
Hall of Justice
xxx, xxx
NOTICE OF HEARING
BRANCH CLERK OF
COURT
RTC xxx, xxx, xxx
ATTY. xxx xxx
New Counsel for Accused-Appellants
OFFICE OF THE
PROSECUTOR
Hall of Justice
xxx, xxx
MABUHAY:
Greetings of peace!
We shall submit the foregoing Motion to the Court on xxx , 2017, xxx, at 8:30 AM for
its kind consideration and approval. It is a previously scheduled motion
hearing (continuation of the hearing on the pending motion for reconsideration
of the prosecution).
Xxx
xxxx
Private
Prosecutor
cc:
Atty. xxx xxx
New Counsel for
Accused-Appellants
Xxx
xxxx xxx Law Offices
Xxx
xxx xxx
Reg. Rec. No.
Date PO
OFFICE OF THE PROSECUTOR
Hall
of Justice
Xxx,
xxx
Reg. Rec. No.
Date PO
EXPLANATION
A copy hereof is served on
opposing counsel via registered mail due to the distance of his law firm
address, due to the lack of field staff of undersigned counsel at this time,
and due to the urgency of filing the same.
Xxxx
xxxx
[1] As per
the Law List of the Supreme Court website (sc.judiciary.gov.ph), the following
personal data appear: “xxx xxx xxx”,
born in “xxxx City”, admitted to the Bar on “xxx”, and with “Roll No. xxx”.
