Binalay vs. Lelina, Jr.

A judge under preventive suspension remains prohibited from engaging in the private practice of law, the constitutional and statutory proscription applying to anyone holding judicial office whether active or suspended, and financial necessity does not excuse such violation.

Respondent Judge Elias O. Lelina, Jr. was preventively suspended and subsequently detained from 1998 to 2005 due to criminal charges of rape and abduction. Following his release and acquittal, but while still under preventive suspension pending the resolution of the administrative aspect of those charges, he sought permission to practice law or to be considered resigned. Before this motion could be resolved, he represented clients in a criminal case and a civil case, signing pleadings as a partner of a law firm.

• Preventive Suspension and Detention: Respondent was preventively suspended and detained from November 18, 1998, to July 28, 2005, following criminal complaints for rape and abduction. He was acquitted after the RTC, Branch 27, Manila reversed its earlier conviction upon the conduct of a new trial.
• Engagement in Private Practice: While under preventive suspension, respondent filed a manifestation seeking permission to practice law or to be considered resigned. Prior to filing this manifestation, he had already engaged in private practice, representing clients in Criminal Case No. 5192 and Civil Case No. 632-2006.
• Use of Law Firm Name: Respondent signed pleadings as a partner of the "Bartolome Lelina Calimag Densing & Associates Law Offices," holding himself out to the public as a practicing lawyer.

• Violation of Prohibition: Complainant charged respondent with violating the prohibition against the private practice of law under Section 35, Rule 138 of the Rules of Court and the Code of Judicial Conduct.
• Refutation of Ill Motive: Complainant denied respondent's claim of ill motive, asserting that respondent had advised his client to file an Ombudsman complaint against complainant to hinder his law enforcement duties.

• Inapplicability of Prohibition: Respondent argued that the prohibition against private practice of law applies only to judges in active service and does not cover those under suspension.
• Financial Necessity: Respondent maintained that he was forced to practice law due to his impoverished condition and the suffering of his family, it being his only profession.
• Ill Motive of Complainant: Respondent claimed the administrative case was ill-motivated, driven by complainant's grudge over respondent's failure to convince a client to drop a case against the complainant.

• Applicability of Prohibition: Whether a judge under preventive suspension is prohibited from engaging in the private practice of law.
• Justification of Necessity: Whether financial necessity justifies a suspended judge's engagement in private practice.
• Indirect Practice of Law: Whether permitting one's name to remain in a law firm's name while holding judicial office constitutes unauthorized practice of law.

• Applicability of Prohibition: The prohibition applies to suspended judges. Applying the principle of ubi lex non distinguit nec nos distinguire debemos, since Section 35, Rule 138 of the Rules of Court and Section 11, Canon 4 of the New Code of Judicial Conduct make no distinction between active and suspended judges, no distinction should be made in their application; a suspended judge remains a holder of judicial office.
• Justification of Necessity: Financial necessity does not excuse the violation. A suspended judge remains bound by the Rules and the New Code of Judicial Conduct, and respondent's attempt to secure authorization to practice law demonstrated his awareness of the proscription.
• Indirect Practice of Law: Permitting one's name to remain in a law firm's name while holding judicial office constitutes indirect practice of law. Under the maxim quando aliquid prohibitur ex directo, prohibitur et per obliquum, a judge cannot do indirectly what the Constitution prohibits directly, as it creates the impression of improper influence.

• Ubi lex non distinguit nec nos distinguire debemos — Where the law does not distinguish, courts should not distinguish. Applied to hold that the prohibition on the private practice of law applies to all judges holding judicial office, whether active or suspended, because the rules make no distinction between the two.
• Quando aliquid prohibitur ex directo, prohibitur et per obliquum — What is prohibited directly is prohibited indirectly. Applied to hold that a judge violates the prohibition against private practice of law indirectly by allowing a law firm to continue carrying his name in its firm name, as it creates an impression of improper influence.

• "Since Section 35, Rule 138 of the Rules of Court and Section 11, Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary does not make any distinction in prohibiting judges from engaging in the private practice of law while holding judicial office, no distinction should be made in its application."
• "Additionally, a judge should not permit a law firm, of which he was formerly an active member, to continue to carry his name in the firm name as that might create the impression that the firm possesses an improper influence with the judge which consequently is likely to impel those in need of legal services in connection with matters before him to engage the services of the firm."

• Tabao v. Judge Asis, 322 Phil. 630 (1996) — Followed. Established that the prohibition against private practice of law by judges is based on public policy and the inherent incompatibility between the functions of an attorney and a judge, ensuring impartiality and full attention to judicial duties.
• Dulay v. Lelina, Jr., A.M. No. RTJ-99-1516, July 14, 2005, 463 SCRA 269 — Considered. Respondent's prior administrative case where he was found guilty of gross misconduct and warned of stiffer penalties, which justified the imposition of the penalty in the present case.
• Guerrero v. COMELEC, 391 Phil. 344 (2000) — Followed. Cited for the principle of ubi lex non distinguit nec nos distinguire debemos.

• Section 35, Rule 138 of the Rules of Court — Prohibits judges from engaging in the private practice of law. Applied to include judges under preventive suspension, as they remain holders of judicial office.
• Section 11, Canon 4 of the New Code of Judicial Conduct for the Philippine Judiciary (A.M. No. 03-05-01-SC) — Provides that judges shall not practice law whilst the holder of judicial office. Applied to reinforce the prohibition against suspended judges practicing law.
• Sections 9 and 11(B), Rule 140 of the Rules of Court, as amended by A.M. No. 01-8-10 SC — Classifies unauthorized practice of law as a less serious charge, punishable by suspension from office without salary and other benefits for not less than one nor more than three months, or a fine of more than ₱10,000 but not exceeding ₱20,000. Applied to determine the penalty for respondent's violation.

Leonardo A. Quisumbing, Minita V. Chico-Nazario, Teresita J. Leonardo-De Castro, Diosdado M. Peralta.