403 Phil. 228
KAPUNAN, J.:
Sec. 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:In our Resolution, dated February 9, 1999, we required respondent to comment on the administrative complaint.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;
There is no question that Atty. Misael Ladaga appeared as counsel for and in behalf of his cousin, Narcisa Naldoza Ladaga, an accused in Criminal Case No. 84-885 for "Falsification of Public Documents" before the METC of Quezon City. It is also denied that the appearance of said respondent in said case was without the previous permission of the Court.We agree with the recommendation of the investigating judge.
An examination of the records shows that during the occasions that the respondent appeared as such counsel before the METC of Quezon City, he was on official leave of absence. Moreover, his Presiding Judge, Judge Napoleon Inoturan was aware of the case he was handling. That the respondent appeared as pro bono counsel likewise cannot be denied. His cousin-client Narcisa Ladaga herself positively declared that the respondent did not receive a single centavo from her. Helpless as she was and respondent being the only lawyer in the family, he agreed to represent her out of his compassion and high regard for her.
It may not be amiss to point out, this is the first time that respondent ever handled a case for a member of his family who is like a big sister to him. He appeared for free and for the purpose of settling the case amicably. Furthermore, his Presiding Judge was aware of his appearance as counsel for his cousin. On top of this, during all the years that he has been in government service, he has maintained his integrity and independence.
RECOMMENDATION
In the light of the foregoing, it appearing that the respondent appeared as counsel for his cousin without first securing permission from the court, and considering that this is his first time to do it coupled with the fact that said appearance was not for a fee and was with the knowledge of his Presiding Judge, it is hereby respectfully recommended that he be REPRIMANDED with a stern warning that any repetition of such act would be dealt with more severely.[6]
SEC. 35. Certain attorneys not to practice.- 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 advise to clients.However, it should be clarified that "private practice" of a profession, specifically the law profession in this case, which is prohibited, does not pertain to an isolated court appearance; rather, it contemplates a succession of acts of the same nature habitually or customarily holding one's self to the public as a lawyer.
We believe that the isolated appearance of City Attorney Fule did not constitute private practice, within the meaning and contemplation of the Rules. Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is frequent habitual exercise (State vs. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, N.S. 768) Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644, 647). The appearance as counsel on one occasion, is not conclusive as determinative of engagement in the private practice of law. The following observation of the Solicitor General is noteworthy:Based on the foregoing, it is evident that the isolated instances when respondent appeared as pro bono counsel of his cousin in Criminal Case No. 84885 does not constitute the "private practice" of the law profession contemplated by law."Essentially, the word private practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for a compensation, as a source of his livelihood or in consideration of his said services."For one thing, it has never been refuted that City Attorney Fule had been given permission by his immediate superior, the Secretary of Justice, to represent the complainant in the case at bar, who is a relative.[8]
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 the 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, time so devoted outside of office hours should be fixed by the agency to the end that it will not impair in any way the efficiency of the 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 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 of the board of directors.[9]Respondent entered his appearance and attended court proceedings on numerous occasions, i.e., May 4-15, 1998, June 18, 1998, July 13, 1998 and August 5, 1998, as borne out by his own admission. It is true that he filed leave applications corresponding to the dates he appeared in court. However, he failed to obtain a prior permission from the head of the Department. The presiding judge of the court to which respondent is assigned is not the head of the Department contemplated by law.