OCA CIRCULAR NO. 121-2005, November 25, 2005

For the information and guidance of all concerned, quoted
hereunder is the Decision of the Third Division dated June 29, 2005 in
Administrative Case No. 5712, entitled “Francisco Lorenzana vs. Atty.
Cesar G. Fajardo”, to wit:

“Francisco Lorenzana, complainant, charges respondent . Atty.
Cesar G. Fajardo with violation of.the Civil Service Law and Canon 6 of
the Code of Professional Responsibility and seeks his disbarment from
the practice of the law profession.

In a verified complaint dated May 27. 2002, complainant alleged
that respondent, while employed as Legal Officer V at the Urban
Settlement Office in Manila, until his retirement on May 15 2002, was a
member of the People’s Law Enforcement . Board (PLEB) of Quezon City,
receiving a monthly honorarium of P4,000 00. He was also a member of the Lupong Tagapamayapa of Barangay Novaliches Proper, also receiving a monthly allowance/honorarium.^[2]

Complaint also alleged that respondent was engaged in the private
practice of law, receiving acceptance fees ranging from P20,000.00 to
P50,000.00. he lives in a house and lot owned by complaint’s family
without paying any rental and refuses to leave the place despite the
latter’s demands.

Asked to comment to the complaint, respondent countered that his
membership in the PLEB of Quezon City, representing the NGO, was
without fixed compensation.He reported only once a week in the afternoon
for which he received only per diems allowed under Section 43 par. (c)
of Republic Act No. 6975.^[3]
As regards his resignation as a member of the Lupang Tagapamayapa, the
same is authorized under Section 406 of the Local Government Code of
1991; and his monthly allowance/honorarium is allowed under Section 393.

While he received allowances, honoraria and other emoluments as member of the PLEB and of the Lupong Tagapamayapa,
even as he is in the government service, the same is authorized by law.
Hence, there was no double compensation. He admitted having appeared as
private counsel in several cases. However, his clients were his
relatives and brother Ricardo. He emphasized that his services were pro bono.

Respondent denied that the lot on which his house is built
belongs to complainant’s family. In fact, it is now the subject of an “Accion Publiciana” filed against him by one Dionisio delos Reyes before the Regional Trial Court of Quezon City, Branch 100.

In a Resolution dated January 20, 2003, we referred the
complaint to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.

IBP Commissioner Doroteo B. Aguila. who conducted the investigation, found that respondent’s appointment as a member of the Lupong Tagapamayapa of
Barangay Town Proper. Novaliches, Quezon City, while concurrently
employed as a legal officer of the Manila Urban Settlements Office is
not unlawful. Such appointment is in accordance with the Local
Government Code of 1991 Nor could respondent be found liable tor
receiving honoraria as a Lupon member, since the Local Government Code of 1991 authorizes Lupon members
to receive honoraria, allowances, and other emoluments. With respect to
respondent’s appointment as PLEB member. IBP Commissioner Aguila stated
that the same is not an exception to-foe prohibition against dual
appointments or employment of government officials or employees.

IBP Commissioner Aguila found that respondent’s court appearances
as counsel for litigants do not constitute private practice of law since
complaint failed to show that he received compensation. However,
respondent should still be held liable
or violation o Cwil Service Rules and Regulations sin el
tailed to show that he was permitted by his Office to appear as
counsel for his clients. F

On August 30, 2003, the IBP Board of Governors passed Resolution No. XV1-2003-93 quoted as follows:

RESOLVED to ADOPT and APPROVE as it is hereby ADOPTED and
APPROVED, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this
Resolution/Decision as Annex “A”, and finding the recommendation fully
supported by the evidence on record and the applicable laws and rules
and in view of respondent’s accepting appointment as Board Member of the
People’s Law Enforcement Board of Quezon City while he was still
employed as Legal Officer V of the Manila Urban Settlement Office, Atty.
Cesar G. Fajardo is hereby SUSPENDED from the practice of law for one
(1) month and hereby REPRIMANDED with stern WARNING for failing to
obtain written permission from his superiors to appear as counsel to
certain relatives and friends as required by Sec. 12, Rule XVIII of the
Revised Civil Service Rules.

The prohibition against government officials and employees,
whether elected or appointed, from concurrently holding any other office
or position in the government is contained in Section 7, Article 1X-B
of the Constitution which provides:

“Unless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other office or
2employment in the Government, or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.”^[4]

In trying to justify his appointment as PLEB member respondent
invoked Section 43 (c) of RA No. 6975 quote below which, according to
him. is the law allowing mm to b appointed as such member of the Quezon
City PLEB.

“Section 43. People’s Law Enforcement Board-

xxx

xxx

xxx

(c) Compensation, Membership in the PLEB is a civic duty.
However, PLEB members may be paid per diem as may be determined by the
city or municipal council from city or municipal funds.”

It is clear that this provision pertains only to the
compensation of PLEB members. It cannot be construed as n exception to
the Constitutional and statutory prohibition againTt dual or multiple
appointments of appointive public employees.

Respondent also failed to establish that his primary functions
as Legal Officer of the Manila Urban Settlements Office allow his
appointment as PLEB member, an exception to dual appointment prohibited
by the Constitution and the statutes. Indeed, respondent, in accepting
such appointment, has transgressed the Constitution, the Administrative
Code of 1987. and the Local Government Code of 1991. Being contra leges, . respondent also violated the Code of Professional Responsibility and the Attorney’s Oath.

Canon 1 of the Code of Professional Responsibility states:

CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND, PROMOTE RESPECT FOR LAW AND LEGAL PROCESSES.

These duties are further enshrined in the Attorney’s Oath, which
every lawyer in this jurisdiction has to take before he is allowed to
practice law. The Attorney’s Oath states in part that every lawyer
“shall support the Constitution and obey the laws as well as the legal
orders of the duly constituted authorities…”

The lawyer’s paramount duty to society is to obey the
law For of all classes and professions, it is the lawyer who is most
sacredly bound to uphold the laws, for he is their sworn servant.^[6] Sadly, respondent foiled to fulfill this exacting duty.

On respondent’s appointment as a member of the Lupong Tagapamavapa
of Barangay Novaliches Proper, while serving as Leeal Officer V of the
Manila Urban Settlements Office. we agree with the IBP Investigating
Commissioner that the same is in order, being allowed by law.

‘Sectiom 406. Character of Office and Service of Lupon Members-

xxx

xxx

xxx

(b) The lupon or pangkat members shall serve
without compensation, except as provided for in Section 393 and without
prejudice to incentives as provided for in this Section and in Book IV
of this Code. The Department of Interior and Local Government shall
provide for a system of granting economic or other incentives to the lupon or pangkat members who adequately demonstrate the ability tojudiciously and expeditiously resolve cases referred to them. While
in the performance of their duties, the lupon or pangkat members,
whether in public or private employment, shall be deemed to be on
official time, and shall not suffer from any diminution in compensation
or allowance from said employment by reason thereof.”

The above provision allows government officials and employees to sit as lupon or pangkat members. The phrase “whether in public or private employment” sustains respondent’s posture.

We now determine whether respondent engaged in the practice of
law while employed as Legal Officer V in the Manila Urban Settlement
Office. Private practice of law contemplates a succession of acts of the
same nature habitually or customarily holding one’s self to the public
as a lawyer.^[7] Practice is
more than an isolated appearance for it consists in frequent or
customary action a succession of acts of the same kind. The practice of
law by attorneys employed in the government, to tall within the
prohibition of statutes has been interpreted as customarily habitually
holding one’s self out to the public, as a lawyer and demanding payment
for such services.^[8]

In the case at bar, respondent’s appearance as counsel is not
merely isolated. Evidence presented by complainant shows that he had an
extensive practice of law. While employed as a Legal Officer in the
Urban Resettlement Office of Manila, he maintained a law office. The
pleadings he signed as -counsel’ for his clients filed with the courts
indicate his office address as “Room 201 7 JA Building, 244 Gen. Luis
St. , Novaliches, Quezon City .” Following is the letter head appearing
on the letters and envelopes^[9] sent to his clients:

. “Cesar G. Fajardo

Attorney and Counsellor-at-Law

Room 201 7 J & A Building 244

Gen. Luis St., Novaliches

Quezon City

Respondent cannot justify his practice of law by claiming that
his office (the Manila Urban Resettlement) is UZ strict when it comes to
appearing m some private cases as they (employees) were sometimes
called to render service even on holidays without additional
compensation.” At most, he should have asked written permission from his
chief as required by Section 12, Rule XV111 of the Revised Civil
Service Rules that (n)o 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 the Department;’ “

As to respondent’s alleged unlawful stay on complainant’s
property affecting his conduct as a member of the Bar, suffice it to
state that any discussion on this issue is premature since the case is
still pending in the RTC, Branch 100, Quezon City .

Anent the penalty to be imposed, as mentioned earlier, the IBP
Board of Governors recommended that respondent be suspended for one (1)
month tor accepting a prohibited appointment as a member of the PLEB of
Quezon City and be reprimanded for failing to obtain a written
permission from his “superiors” to appear as counsel “for certain
friends and relatives.” We believe that a heavier penalty should be
imposed upon him for he transgressed not only the statutes but the very
fundamental law itself, in violation of his Attorney’s Oath and Canon 1
of the Code of Professional Responsibility.

Section 27, Rule 138 of the Revised Rules of Court reads:

SEC. 27. Disbarment or suspension of attorneys by Supreme
Court, grounds therefore.- A member of the bar may be disbarred or
suspended from his office as attorney by the Supreme Court for any
deceit, malpractice, or other gross misconduct in such office grossly
immoral conduct, or by reason of his conviction of a crime involving
moral turpitude or for any violation of the oath which he is required to take before admission to practice, for a willful disobedience of any lawful order of a superior court or for corruptly and willfully appearing as an attorney for a party to a case without authority to do so. The racrtce of soliciting cases at law for the purpose of ganger personally or through paid agents or brokers, constitutes malpractice (Stress supplied).

WHEREFORE, for accepting employment as a member
of the PLEB of Quezon City while concurrently employed as Legal Officer V
of the Manila Urban Settlement Office, in violation of the Constitution
and the statutes, which in turn contravene his Attorney’s Oath and Code
of Professional Responsibility; and by engaging in the illegal practice
of law Atty. Cesar G. Fajardo is hereby SUSPENDED from the practice of
law for a period of six (6) months effective from notice and is REPRIMANDED and WARNED that any repetition of similar acts would be dealt with more severely.

Let copies of this Decision be furnished the Office of the Bar
Confidant to be spread upon the records of Atty. Cesar G. Fajardo; the
Office of the Court Administrator to be furnished to the courts of the
land for their information and guidance.

SO ORDERED.”

Copy of the resolution was received by respondent on August 15, 2005 as shown by Registry Return Receipt Nos. 12632 and 12634.

__25__ November 2005.

	PRESBITERO J. VELASCO, JR.
	Court Administrator

^[2] annex “C”, Certification dated May 21,2002, issued by Barangay Captain Antonio M. Lazaro.

^[3] An Act Establishing
the Philippine National Police Under a Recognized Department of the
Interior and Local Government and for Other Purposes.

^[4] Similar provision is
found in Section 54 (30, Chapter 7, Title 1 (a), Book V of the
Administrative code of 1987 and Section 94 (a) of the Local Government
code of 1991.

^[5] Supra.

^[6] In Re: Gutierez, 115 phil. 647 (1962)

^[7] Office of the Court Administrator vs. Lodaga, 350 SCRA 326, January 26, 2001.

^[8] People vs. Simplico Villanueva, 121 Phil. 894, May 27, 1965.

^[9] Rollo at 42, 55, and 63.