Re: Request for Authority to Appear as Private Counsel by Atty. Dyann Isabel M. Aguilar

An incumbent Clerk of Court is absolutely prohibited from engaging in the private practice of law, including appearing as assisting private counsel in any court, regardless of whether the case is pending before the clerk's own station or another court. The prohibition under Canon III, Section 5 of the Code of Conduct for Court Personnel is express and admits of no exception for appearances in courts other than the clerk's own station, nor for appearances on behalf of family members.

Atty. Dyann Isabel M. Aguilar is an incumbent Clerk of Court V of Branch 32, Regional Trial Court, Dumaguete City. Her grandfather, Atty. Wilfredo C. Martinez, is the counsel-on-record and attorney-in-fact for plaintiffs in Civil Case No. 2012-14746, a Nullification of Settlement, Quieting of Title and Damages case. The applicable legal framework consists of Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials), the Code of Conduct for Court Personnel, and the Code of Professional Responsibility and Accountability (CPRA), all of which govern lawyers in government service and court employees.

Atty. Dyann Isabel M. Aguilar, Clerk of Court V of Branch 32, Regional Trial Court, Dumaguete City, addressed a letter-query to the Office of the Court Administrator requesting authority to appear as assisting private counsel with her grandfather, Atty. Wilfredo C. Martinez, who is the counsel-on-record and attorney-in-fact for plaintiffs in Civil Case No. 2012-14746, a Nullification of Settlement, Quieting of Title and Damages case.

The underlying dispute traces back to February 15, 2006, when Annabelle Macion-Arbas and Laureano Macion-Fernando filed a complaint for partition and accounting against Elsa Macion-Vergara and Gil Vergara Jr. at Branch 40, RTC, Dumaguete City, docketed as Civil Case No. 13910. The subject matter involved the estate of Calixta Ojastro-Cansilan, consisting of a 197-square meter parcel of land denominated as Lot No. 982 under Original Certificate of Title No. 2495-A. Annabelle, Laureano, and Elsa were allegedly the only surviving heirs of Calixta. On August 5, 2008, RTC-Branch 40 directed the partition of the property in equal shares, without prejudice to the final determination of Calixta's true heirs in a special proceeding.

On November 27, 2012, Atty. Martinez, together with Thelma Martinez-Nieves, Aletha Martinez-Saile, Merulo Domingo, Lydia D. Minoza, Hespelo C. Domingo, Jaime Domingo, Noel Domingo, Gil C. Domingo, Lourdes Ariola Cansilan, Mercedito Cansilan, Elda C. Duran, Maribel C. Tayros, and Antonieta C. Cansilan, filed a nullification complaint against Annabelle, Laureano, Elsa, and Gil before RTC-Branch 39, claiming to be the successors-in-interest of Calixta's three children: Avelina Ojastro Cansilan-Martinez, Dolores Ojastro Cansilan-Domingo, and Esteban Ojastro Cansilan. On December 21, 2012, RTC-Branch 39 motu proprio dismissed the nullification complaint for lack of cause of action, ruling that Atty. Martinez et al. were not real parties-in-interest absent evidence of their filiation to Calixta, and that it had no authority to interfere with the rulings of a co-equal court.

After the denial of their motion for reconsideration, Atty. Martinez et al. filed a petition for certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 07588, with a prayer to remand the case for further proceedings. The CA dismissed the petition for being an improper remedy, finding that the RTC-Branch 40's order was a final order properly subject to appeal. On petition for review on certiorari before the Supreme Court, the Court ruled in favor of Atty. Martinez et al. in a Resolution dated July 27, 2022, holding that no appeal may be taken from an order dismissing an action without prejudice, and thus their recourse to certiorari was proper. The case was remanded to RTC-Branch 40 for further proceedings on the merits with dispatch.

In her letter-request, Atty. Aguilar claimed that the second level courts had not yet acted on the Court's directive to conduct further proceedings. The primary basis for her request was that her 90-year-old grandfather, Atty. Martinez, has difficulty hearing, thereby necessitating her assistance. She lamented that in some instances, the Court has granted requests of court personnel to appear as counsel on behalf of their immediate family members, provided that: (1) their representation will not conflict or tend to conflict with their official functions; (2) they must not use official time in preparing for the case; and (3) they file the corresponding leaves of absence on scheduled hearing dates. The Office of the Court Administrator recommended granting the request subject to these same conditions.

• Familial Necessity: Atty. Aguilar argued that her 90-year-old grandfather, Atty. Martinez, who has difficulty hearing, necessitated her assistance as assisting private counsel in Civil Case No. 2012-14746.
• Prior Precedent: Atty. Aguilar argued that the Court has previously granted requests of court personnel to appear as counsel on behalf of their immediate family members, provided that: (1) their representation will not conflict or tend to conflict with their official functions; (2) they must not use official time in preparing for the case; and (3) they file the corresponding leaves of absence on scheduled hearing dates.
• Statutory Basis: Atty. Aguilar cited Section 7(b)(2) of Republic Act No. 6713, which allows a public official to engage in the private practice of their profession during incumbency when authorized by the Constitution or law and when such practice will not conflict or tend to conflict with official functions.

• Recommendation to Grant: The Office of the Court Administrator recommended that the request be GRANTED, provided that: (1) her representation will not conflict or tend to conflict with her official functions; (2) she must not use official time in preparing for the case; and (3) she files the corresponding leaves of absence on the scheduled dates of hearing and/or every time she is required to attend to the case.

• Propriety of the Request: Whether an incumbent Clerk of Court may be authorized to appear as assisting private counsel in a civil case pending before a court other than her own station, on behalf of her grandfather who is the counsel-on-record.

• Propriety of the Request: No. The request for authority to appear as assisting private counsel was DENIED. An incumbent Clerk of Court is expressly prohibited from engaging in the private practice of law under Canon III, Section 5 of the Code of Conduct for Court Personnel, and the general rule under Section 7(b)(2) of Republic Act No. 6713 bars public officials from practicing their profession unless authorized by the Constitution or law, with no conflict of interest.

• Propriety of the Request: The Court applied the doctrine in In re: Silverio-Buffe, which clarified that the general rule under Section 7(b)(2) of Republic Act No. 6713 is to bar public officials and employees from the practice of their professions; it is unlawful for Clerks of Court to practice their profession. By way of exception, they can practice their profession if the Constitution or the law allows them, but no conflict of interest must exist between their current duties and the practice of their profession. The Court emphasized that no chance exists for lawyers in the Judiciary to practice their profession, as they are expressly prohibited by Section 5, Canon 3 of the Code of Conduct for Court Personnel from doing so. The Court distinguished the situation of an incumbent from that of a resigned, retired, or separated official: the former cannot practice at all, save only where specifically allowed by the Constitution and the law and only in areas where no conflict of interests exists, while the latter's limitation is only with respect to the office where they used to work and only for a period of one year.

The Court reasoned that although Atty. Aguilar's position as Clerk of Court does not necessarily give her the authority to influence the outcome of legal cases or make decisions, which is reserved for judges and justices, her knowledge and role are essential for the administration of justice, and she is expected to uphold the integrity and impartiality of the judiciary. Even appearing in court as private counsel in a court other than her station does not remove the potential influence she possesses as clerk, which constrains her to remain above any conflict of interest. The common objective under both Republic Act No. 6713 and the Code of Conduct for Court Personnel is to avoid any conflict of interest on the part of the employee who may wittingly or unwittingly use confidential information acquired from employment, or use familiarity with court personnel still with the previous office. The CPRA was also intentionally crafted to prevent such a situation; if lawyers themselves are expected to exercise restraint and avoid circumstances where they may be painted with impropriety, then with greater reason should the same standard be expected of court personnel.

The Court also noted that Atty. Aguilar has an immediate familial relationship to Atty. Martinez, and that the case she seeks to appear in involves the nullification of title over property from which her grandfather has a direct interest, from which she may benefit as a successor-in-interest. While the Court sympathized with the plight of Atty. Martinez et al., it reminded them that they are not prohibited or prevented from obtaining the services of another counsel outside of Atty. Aguilar.

• Prohibition on Court Personnel Practicing Law — An incumbent Clerk of Court is absolutely prohibited from engaging in the private practice of law. The general rule under Section 7(b)(2) of Republic Act No. 6713 bars public officials and employees from practicing their profession; the exception allowing practice requires authorization by the Constitution or law and absence of conflict of interest. For lawyers in the Judiciary, Canon III, Section 5 of the Code of Conduct for Court Personnel expressly prohibits the practice of law as outside employment. The Court applied this doctrine to deny Atty. Aguilar's request, holding that even appearing in a court other than her station does not remove the potential influence she possesses as clerk.

• Practice of Law Defined — The practice of law is any activity in and out of court that requires the application of law, legal procedure, knowledge, training and experience. To engage in the practice of law is to perform acts which are characteristics of the profession, that is, to give notice or render any kind of service requiring the use in any degree of legal knowledge or skill. The Court cited this definition from Cayetano vs. Monsod to establish that appearing as assisting private counsel constitutes the practice of law, which is prohibited for court personnel.

• Conflict of Interest Prevention — The common objective under Republic Act No. 6713 and the Code of Conduct for Court Personnel is to avoid any conflict of interest on the part of the employee who may wittingly or unwittingly use confidential information acquired from employment, or use familiarity with court personnel. The Court applied this principle to deny the request, noting that even appearing in a court other than her station does not remove the potential influence Atty. Aguilar possesses as clerk, and that her familial relationship and potential benefit as a successor-in-interest further militated against granting the request.

• "As we have explained above, the general rule under Section 7(b)(2) is to bar public officials and employees from the practice of their professions; it is unlawful under this general rule for Clerks of Court to practice their profession. By way of exception, they can practice their profession if the Constitution or the law allows them, but no conflict of interest must exist between their current duties and the practice of their profession. As we also mentioned above, no chance exists for lawyers in the Judiciary to practice their profession, as they are in fact expressly prohibited by Section 5, Canon 3 of the Code of Conduct for Court Personnel from doing so." — This passage from In re: Silverio-Buffe, quoted in the decision, articulates the controlling doctrine that incumbent Clerks of Court are absolutely prohibited from practicing law, and forms the basis for denying Atty. Aguilar's request.

• "The incumbent cannot practice at all, save only where specifically allowed by the Constitution and the law and only in areas where no conflict of interests exists." — This passage from In re: Silverio-Buffe distinguishes the situation of an incumbent court employee from that of a resigned, retired, or separated official, and was applied to deny Atty. Aguilar's request as an incumbent Clerk of Court.

• "Even to appear in court as private counsel, other than the one she is stationed, does not remove the potential influence she possesses as clerk, which constrains her to remain above any conflict of interest. This is what this Court seeks to prevent, an instance of conflict of interest or any semblance thereof, in relation to her current duties as a member of the legal profession and as court personnel." — This passage states the Court's rationale for denying the request, emphasizing that the prohibition applies regardless of whether the case is pending before the clerk's own station.

• In re: Silverio-Buffe, 613 Phil. 1 (2009) — Controlling precedent. The Court applied this case's doctrine that the general rule under Section 7(b)(2) of Republic Act No. 6713 bars public officials from practicing their profession, and that lawyers in the Judiciary are expressly prohibited from doing so by the Code of Conduct for Court Personnel. The case also established the distinction between incumbent and resigned/retired/separated officials.

• Cayetano vs. Monsod, 278 Phil. 235 (1991) — Cited for the definition of the practice of law as any activity in and out of court that requires the application of law, legal procedure, knowledge, training and experience.

• Atty. Malibago-Santos vs. Francisco, 787 Phil. 670 (2016) — Cited for the principle that those serving in the Judiciary must carry the heavy burden and duty of preserving public faith in our courts and justice system by maintaining high ethical standards.

• Martinez vs. Macion-Arbas, G.R. No. 212692, July 27, 2022 — Referenced as the prior Supreme Court Resolution that remanded the underlying civil case to RTC-Branch 40 for further proceedings, which forms the factual backdrop of Atty. Aguilar's request.

• Section 7(b)(2), Republic Act No. 6713 — The general rule prohibiting public officials and employees from engaging in the private practice of their profession during incumbency, with an exception when authorized by the Constitution or law and when such practice will not conflict or tend to conflict with official functions. The Court applied this provision to deny Atty. Aguilar's request, holding that no exception applies to lawyers in the Judiciary.

• Canon III, Section 5, Code of Conduct for Court Personnel — Provides for "outside employment" that a court official or court employee may undertake, requiring that such employment does not require the practice of law. The Court applied this provision to hold that court personnel are expressly prohibited from practicing law.

• Canon II, Sections 28 and 29, Code of Professional Responsibility and Accountability (CPRA) — Section 28 requires lawyers in government service to observe the standard of conduct under the CPRA, the Code of Conduct and Ethical Standards for Public Officials and Employees, and other related laws. Section 29 restricts lawyers formerly in government service from engaging in private practice pertaining to matters before their former office within one year of separation. The Court cited these provisions to emphasize the ethical standards expected of lawyers in government service.

• Canon III, Section 21, Code of Professional Responsibility and Accountability (CPRA) — Provides that a lawyer currently serving in the government shall not practice law privately unless otherwise authorized by the Constitution, the law, or applicable Civil Service rules and regulations, and that if allowed, private practice shall be upon the express authority of the lawyer's superior, for a stated specified purpose or engagement, and only during an approved leave of absence. The Court cited this provision to reinforce the prohibition on private practice by government lawyers.

• Section 46, Republic Act No. 296 (Judiciary Act of 1948) — Historical provision categorizing Clerks of Court under the Department of Justice for administrative purposes, while subject to the supervision of Judges in the performance of their duties. The Court cited this provision for historical context on the role of Clerks of Court.

• Section 35, Rule 138, Rules of Court — Prior to the effectivity of the CPRA, this provision stated that no judge or other official or employee of the superior courts or of the Office of the Solicitor General shall engage in private practice as a member of the bar or give professional advice to clients, which include Clerks of Court. The Court cited this provision to show the historical prohibition on court officials practicing law.

• Article XI, Section 1, 1987 Constitution — The constitutional principle that public office is a public trust, which serves as the basis for the prohibitions on public officials engaging in private practice. The Court cited this provision to explain the rationale behind the restrictions.

Leonen (Acting C.J.), Hernando, Lazaro-Javier, Inting, Zalameda, Gaerlan, Rosario, Dimaampao, Marquez, Kho, Jr., Singh, and Villanueva, JJ., concurred. Gesmundo, C.J., was on official leave. Caguioa, J., was on official business.