FRANCISCO LORENZANA, COMPLAINANT, VS. ATTY. CESAR G. FAJARDO, RESPONDENT.

Lorenzana versus Fajardo

The Case

This is an administrative complaint for disbarment filed by Francisco Lorenzana against Attorney Cesar G. Fajardo. The complainant charges the respondent with violating the Civil Service Law and Canon 6 of the Code of Professional Responsibility, and asks that he be disbarred from the practice of law. The case matters because it gathers in one decision the constitutional and statutory rules on dual appointment of government lawyers, the limits on a public officer's private practice of law, and the professional duty of every lawyer to obey the law. It is a compact review of the ethical and civil service constraints that bind a lawyer who serves in government.

Procedural History

The complaint, verified and dated May 27, 2002, was filed directly with the Supreme Court. The Court referred it to the Integrated Bar of the Philippines for investigation, report, and recommendation. Investigating Commissioner Doroteo B. Aguila conducted the investigation and found that the respondent's appointment as a member of the Lupong Tagapamayapa was lawful, but that his appointment as a member of the People's Law Enforcement Board was not an exception to the prohibition against dual appointments. The Commissioner also found that the court appearances did not constitute private practice of law, since no compensation was shown, but that the respondent was still liable for failing to obtain permission from his office to appear as counsel. The Board of Governors adopted and approved the Commissioner's report and recommended suspension for one month for accepting the prohibited appointment, and reprimand for failing to obtain written permission to appear as counsel. The case then came before the Supreme Court for final action on that recommendation.

Facts

At the time material to the complaint, Attorney Cesar G. Fajardo was employed as Legal Officer V at the Urban Settlement Office in Manila, a position he held until his retirement on May 15, 2002. While so employed, he was also a member of the People's Law Enforcement Board of Quezon City, representing the non-governmental organization sector, and received a monthly honorarium of 4,000 pesos. He was likewise a member of the Lupong Tagapamayapa of Barangay Novaliches Proper, for which he received a monthly allowance or honorarium. The complainant also alleged that the respondent engaged in the private practice of law, receiving acceptance fees ranging from 20,000 pesos to 50,000 pesos, and that he lived on a house and lot owned by the complainant's family without paying rent.

In his comment, the respondent answered that his membership in the People's Law Enforcement Board was without fixed compensation, that he reported only once a week and received only per diems allowed under Republic Act Number 6975, and that his Lupong Tagapamayapa designation and allowance were authorized by the Local Government Code of 1991. He admitted appearing as private counsel in several cases, but claimed that his clients were relatives and friends, including the complainant's father and brother, and that his services were rendered for free. He denied that the lot belonged to the complainant's family, saying it was the subject of an action for recovery of possession filed against him before the Regional Trial Court of Quezon City.

The investigation showed more than isolated appearances. While employed as a Legal Officer, the respondent maintained a law office, and the pleadings he signed as counsel for his clients listed his office address at a building on General Luis Street in Novaliches, Quezon City. His letters and envelopes carried a letterhead describing him as an attorney and counsellor at law at that address. He sought to justify his appearances by saying his office was not strict about employees appearing in private cases, but he never showed any written permission from his chief.

Issues

• Whether or not the respondent's concurrent membership in the People's Law Enforcement Board while employed as Legal Officer V violated the constitutional and statutory prohibition against dual appointment.
• Whether or not the respondent's membership in the Lupong Tagapamayapa was lawful.
• Whether or not the respondent engaged in the private practice of law while in government service.
• Whether or not the respondent's alleged unlawful stay on the complainant's property may be taken up in the administrative proceeding.
• Whether or not the penalty recommended by the Integrated Bar of the Philippines should be imposed or increased.

Applicable Provisions

Section 7, Article IX-B of the Constitution provides:

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

This is the fundamental rule the respondent transgressed when he accepted the board membership while still an appointive official.

Section 43, paragraph (c) of Republic Act Number 6975 provides:

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.

The Court held that this provision speaks only of compensation and cannot be read as an exception to the prohibition against dual appointment.

Section 406, paragraph (b) of the Local Government Code of 1991 provides:

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 to judiciously 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 phrase "whether in public or private employment" expressly allows government employees to sit as lupon members.

Section 12, Rule XVIII of the Revised Civil Service Rules provides:

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 the Department.

The respondent never obtained such written permission for his court appearances.

Canon 1 of the Code of Professional Responsibility provides:

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

This canon, together with the Attorney's Oath, is the professional standard the respondent breached.

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

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 is 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 practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

This is the authority under which the Court imposed the suspension.

Ruling

On the first issue, the Court held that the respondent's membership in the People's Law Enforcement Board while concurrently employed as Legal Officer V was prohibited. Section 43, paragraph (c) of Republic Act Number 6975 concerns only compensation and cannot be construed as an exception to the constitutional and statutory prohibition against dual or multiple appointments. The respondent also failed to show that his primary functions as Legal Officer allowed the appointment. In accepting it, he transgressed the Constitution, the Administrative Code of 1987, and the Local Government Code of 1991. Being contrary to law, the act also violated the Code of Professional Responsibility and the Attorney's Oath, for the lawyer is most sacredly bound to uphold the laws.

On the second issue, the Court agreed with the Investigating Commissioner that the Lupong Tagapamayapa membership was in order. Section 406, paragraph (b) of the Local Government Code allows government officials and employees to sit as lupon members, and the phrase "whether in public or private employment" sustains the respondent's position.

On the third issue, the Court held that the respondent did engage in the private practice of law. Private practice contemplates a succession of acts of the same nature, habitually or customarily holding one's self out to the public as a lawyer, and demanding payment for such services. His appearances were not isolated: he maintained a law office, and his pleadings and letterhead held him out as counsel at a fixed address. His claim that his office was not strict about private appearances did not excuse him, for at the very least he should have obtained written permission from his chief under the Revised Civil Service Rules.

On the fourth issue, the Court held that any discussion of the respondent's stay on the complainant's property was premature, since the case was still pending before the Regional Trial Court.

On the fifth issue, the Court held that a heavier penalty than the one recommended was warranted, because the respondent transgressed not only the statutes but the fundamental law itself, in violation of his Attorney's Oath and Canon 1 of the Code of Professional Responsibility.

Doctrine

A lawyer in the government service may not hold any other office or employment unless the law expressly allows it or the primary functions of his position require it. A statute that merely fixes compensation for a position, such as the per diem provision for board members, is not a law allowing the appointment within the meaning of the constitutional prohibition.

Membership in the Lupong Tagapamayapa is an exception, because the Local Government Code expressly contemplates lupon members "whether in public or private employment."

Private practice of law means a succession of acts of the same nature, habitually or customarily holding one's self out to the public as a lawyer and demanding payment for such services. A government lawyer who maintains a law office and repeatedly appears as counsel engages in such practice, and he must first obtain written permission from the head of his department.

Every lawyer is bound by Canon 1 and the Attorney's Oath to uphold the Constitution and obey the laws. A violation of the Constitution and the statutes by a lawyer is itself a violation of his professional oath, and is a ground for suspension under Section 27, Rule 138 of the Revised Rules of Court.

Disposition

The Supreme Court suspended Attorney Cesar G. Fajardo from the practice of law for six months effective from notice, reprimanded him, and warned that any repetition of similar acts would be dealt with more severely.

Remember This

Memorize this line: a statute that merely provides for compensation is not a law allowing a dual appointment, and a lawyer's paramount duty to society is to obey the law. Examiners use this case on the constitutional prohibition against dual appointment, on the distinction between the People's Law Enforcement Board and the Lupong Tagapamayapa, and on what counts as the private practice of law by a government lawyer.