Saturday, July 22, 2017

MOTION TO DISQUALIFY (a government lawyer from handling a private case due to absence of legal authority to engage in private law practice)


          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]

·         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.


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.

Private Prosecutor
Xxx x x x  x x x


X x x   x x x x
X x x   x x x x


Hall of Justice
xxx, xxx


RTC xxx, xxx, xxx

ATTY.  xxx xxx
New Counsel for Accused-Appellants

Hall of Justice
xxx, xxx


          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

Atty. xxx xxx
New Counsel for Accused-Appellants
Xxx xxxx xxx Law Offices
Xxx xxx xxx
            Reg. Rec. No.
            Date                                       PO

Hall of Justice
Xxx, xxx
            Reg. Rec. No.
            Date                                       PO


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 (, the following personal data appear: “xxx xxx xxx”, born in “xxxx City”, admitted to the Bar on “xxx”, and with “Roll No. xxx”