This is a sample "motion for disqualification" of a government lawyer who engages in the private practice of law without the formal authority to engaged in the private practice of law issued by the proper government department head. We are sharing this pleading for legal research purposes of our readers/followers.
REPUBLIC OF THE
PHILIPPINES
FOURTH JUDICIAL
REGION
REGIONAL TRIAL COURT
xxx, xxx
BRANCH xxx
Xxx x x x, Inc.
Civil Case No. xxx
Plaintiff,
For: INJUNCTION
-
Versus -
xxx, xxx,
xxx, xxx,
xxx, xxx,
xxx, xxx,
xxx, xxx,
xxx, xxx
xxx AND ALL OTHER
PERSONS
UNDER THEIR
EMPLOY, DIRECTION,
CONTROL AND
SUPERVISION,
Defendants.
x----------------------------------------------------x
OMNIBUS MOTION
FOR DISCLOSURE AND
DISQUALIFICATION OF COUNSEL
THE DEFENDANTS, by counsel,
respectfully state:
1. It
has recently come to the knowledge of the defendants that the counsel for the
plaintiff, Atty. xxx, is an employee
of the local government of xxx, xxx, classified as confidential
and coterminous employee reportedly
with a salary of Eighteen Thousand Pesos (P18,000.00) monthly.
2. A government lawyer employed in a local
government unit is prohibited
from engaging in private law practice unless duly authorized in writing by the
chief executive of such local government unit, the Secretary of the Department
of Interior and Local Government, and the Office of the President.
3. The
record shows that the counsel for the plaintiff is a name partner of the
private law firm xxx xxx & xxx LAW OFFICES with offices as xxx, xxx, xxx.
4. The record of this case does not show
that the counsel for the plaintiff has been duly authorized in writing to
engage in private law practice by the chief executive of the local government
of xxx, xxx, the Secretary of the Department of Interior and Local Government,
and the Office of the President.
5. There
is a need for the counsel for the plaintiff to DISCLOSE to the Court and to the defendants the true
facts related to the foregoing issue and the proofs thereof.
6. If the counsel for the plaintiff does
not possess a formal authority to engage in private law practice duly issued in writing by the chief executive of
the local government of Xxx, Xxx, the Secretary of the Department of Interior
and Local Government, and the Office of the President, in the interest of the
civil service, it is just and proper that the counsel for the plaintiff be
DISQUALIFIED from continuing to engage in private law practice in connection
with this case as such counsel for the
plaintiff.
7. The
herein defendants-movants do not have
any malicious intent to malign the good name of the counsel for the plaintiff
or to offend his sensibilities in filing this motion.
7.1.
This motion is being filed by them, with all due respect to the counsel for
the plaintiff, solely in the spirit of truth, fairness and justice and
to insure that the laws and jurisprudence on public service and on public and
legal ethics are duly complied with by all parties concerned.
8. The
case of FELIPE E. ABELLA,
Complainant, vs. ATTY. ASTERIA E.
CRUZABRA, Respondent, A.C. No. 5688, June 4, 2009, is relevant and on all
fours to this motion, to wit:
“x x x.
Felipe E. Abella (complainant) filed a complaint for
violation of Canon 1 of the Code of Professional Responsibility and Section
7(b)(2) of Republic Act No. 6713[1] (RA
6713) or the Code of Conduct and Ethical Standards for Public Officials and
Employees against Atty. Asteria E. Cruzabra (respondent). In his affidavit-complaint [2] dated 8 May 2002, complainant charged respondent with
engaging in private practice while employed in the government service.
X x x.
Section 7(b) (2)
of RA 6713 provides:
Section 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:
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;
or
x x x
Memorandum
Circular No. 17[18] of the Executive Department allows government employees
to engage directly in the private practice of their profession provided there is a written permission
from the Department head. It provides:
“The authority to grant permission to any official
or employee shall be granted by the
head of the ministry or agency in accordance with Section 12, Rule XVIII of the
Revised Civil Service Rules, which provides:
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 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, the time so devoted outside of office hours should be fixed by the chief of the
agency to the end that it will not impair in any way the efficiency of the
other 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 any 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
or member of the board of directors,
Subject to any additional conditions which the head
of the office deems necessary in each particular case in the interest of the
service, as expressed in the various issuances of the Civil Service
Commission”. (Boldfacing supplied)
It is clear that when respondent filed her petition
for commission as a notary public, she
did not obtain a written permission from the Secretary of the DOJ. Respondent’s superior, the Register of
Deeds, cannot issue any authorization because he is not the head of the
Department. And even assuming that the Register of Deeds authorized
her, respondent failed to present any
proof of that written permission. Respondent cannot feign
ignorance or good faith because respondent filed her
petition for commission as a notary public after
Memorandum Circular No. 17 was issued in 1986.
In Yumol, Jr.
v. Ferrer Sr.,[19] we suspended a
lawyer employed in the Commission on Human Rights (CHR) for failing to obtain a written authority
and approval with a duly approved leave of absence from the CHR. We
explained:
Crystal clear from the foregoing is the fact that private practice of law by CHR lawyers
is not a matter of right.
Although
the Commission allows CHR lawyers to engage in private practice, a written
request and approval thereof, with a duly approved leave of absence for that
matter are indispensable.
In the case
at bar, the record is bereft of any such written request or duly approved leave
of absence.
Neither written
authority nor approval of the practice and approved leave of absence by the CHR
was ever presented by respondent. Thus, he cannot engage in private practice.
As to respondents act of notarizing documents,
records show that he applied for commission as notary public on 14 November
2000, before the Regional Trial Court (RTC) of San Fernando, Pampanga, Branch
42. This was granted by RTC Executive Judge Pedro M. Sunga, Jr., on 01 December
2000. However, the CHR authorized respondent to act as notary public only on 29
October 2001. Considering the acts of notarization are within the ambit of the
term practice of law, for which a prior written request and approval by the CHR
to engage into it are required, the crucial period to be considered is the
approval of the CHR on 29 October 2001 and not the approval of the RTC on 04
December 2000. [20]
In Muring,
Jr. v. Gatcho, [21] we suspended
a lawyer for having filed petitions for commission as a notary public while
employed as a court attorney. We held:
Atty. Gatcho should have known that as a government lawyer, he was prohibited from engaging in
notarial practice, or in any form of
private
legal practice for that matter. Atty. Gatcho cannot now feign ignorance or good
faith, as he did not seek to exculpate himself by providing an explanation for
his error. Atty. Gatcho's filing of the petition for commission, while not an
actual engagement in the practice of law, appears as a furtive attempt to evade
the prohibition. [22]
Under the
Uniform Rules on Administrative Cases in the Civil Service, engaging in the
private practice of profession, when unauthorized, is classified as a light
offense punishable by reprimand. [23]
WHEREFORE, we find Atty. Asteria E. Cruzabra guilty
of engaging in notarial practice without the written authority from the
Secretary of the Department of Justice, and accordingly we REPRIMAND her. She
is warned that a repetition of the same or similar act in the future shall
merit a more severe sanction.
SO ORDERED.
X x x.”
WHEREFORE, premises considered, it is
respectfully prayed that:
1. An
Order be issued commanding the counsel for the plaintiff to file a FORMAL DISCLOSURE with the Court
on the foregoing legal issues; and
2. If
the counsel for the plaintiff discloses that he is indeed a salaried employee of the local
government of Xxx, Xxx and if he is unable
to prove that he is in possession of a FORMAL AUTHORITY ISSUED IN WRITING
TO ENGAGE IN PRIVATE LAW PRACTICE duly issued by the chief executive of the local government of Xxx, Xxx, the Secretary of
the Department of Interior and Local Government, and the Office of the
President, in the interest of the civil service, an Order be issued DISQUALIFYING THE COUNSEL FOR THE
PLAINTIFF from further engaging in private law practice in relation to this
case.
FURTHER,
the defendants respectfully pray for such and other reliefs as may be deemed
just and equitable in the premises.
Las Pinas
City, November 25, 2016.
LASERNA
CUEVA-MERCADER
LAW OFFICES
Counsel for Defendants
Unit 15, Star Arcade, C. V. Starr Ave.
Philamlife Village, Las Pinas City 1740
Tel. Nos. 8725443 & 8462539
Mobile: 09433425978
Emails: lcmlaw@gmail.com
Blog: lcmlaw1.blogspot.com
Twitter.com/lcmlaw_ph
Facebook.com/lcmlawlaspinascity
X x xx .
NOTICE OF HEARING
BRANCH CLERK OF
COURT
RTC xxx xxx
ATTY. xxx
Counsel for the
Plaintiff
MABUHAY:
Greetings of peace!
We shall
submit the foregoing Motion to the Court on December 2, 2016, at 8:30 AM, a
previously scheduled hearing, for its kind consideration and approval. Thank
you.
Xxx
cc:
ATTY. xxx
Counsel for the Plaintiff
Address:
LCB Express/Reg. Rec. No.
Date PO
EXPLANATION
Copies hereof
are served on the Court and on the opposing counsel via LBC Express/registered
mail due to the lack of field staff of undersigned counsel at this time, due to
the urgency of filing the same, and due to the great distances of their
respective offices from the law office of the undersigned counsel.
X
x x x.
