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G.R. No. 100113 September 3, 1991 Cayetano vs Monsod

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G.R. No. 100113 September 3, 1991 Cayetano vs Monsod
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  1 G.R. No. 100113 September 3, 1991 Cayetano vs MonsodRENATO CAYETANO,  petitioner, vs. CR!ST!AN MONSO , ON. #O$!TO R. SA%ONGA, COMM!SS!ON ON A&&O!NTMENT, and ON. G'!%%ERMO CARAG'E, (n )(s *apa*(ty as Se*retary o+ -det and Manaement, respondents .  Renato L. Cayetano for and in his own behalf.Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.  &ARAS,  J.:p We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence.The 19! Constitution provides in ection 1 #1$, %rticle &-C(There shall be a Co))ission on *lections co)posed of a Chair)an and six Co))issioners who shall be natural-born citi+ens of the hilippines and, at the ti)e of their appoint)ent, at least thirty-five years of age, holders of a college degree, and )ust not have been candidates for any elective position in the i))ediately preceding -elections. owever, a )aority thereof, including the Chair)an, shall be )e)bers of the hilippine /ar who have been engaged in the practice of law for at least ten years. #*)phasis supplied$The afore0uoted provision is patterned after ection l#l$, %rticle &&-C of the 19! Constitution which si)ilarly provides(There shall be an independent Co))ission on *lections co)posed of a Chair)an and eight Co))issioners who shall be natural-born citi+ens of the hilippines and, at the ti)e of their appoint)ent, at least thirty-five years of age and holders of a college degree. owever, a )aority thereof, including the Chair)an, shall be )e)bers of the hilippine /ar who hae been en!a!ed in the practice of law for at least ten years. ' #*)phasis supplied$2egrettably, however, there see)s to be no urisprudence as to what constitutes  practice of law as a legal 0ualification to an appointive office./lac3 defines 4practice of law4 as(The rendition of services re0uiring the 3nowledge and the application of legal principles and techni0ue to serve the interest of another with his consent. &t is not li)ited to appearing in court, or advising and assisting in the conduct of litigation, but e)braces the preparation of pleadings, and other  papers incident to actions and special proceedings, conveyancing, the preparation of legal instru)ents of all 3inds, and the giving of all legal advice to clients. &t e)braces all advice to clients and all actions ta3en for the) in )atters connected with the law. %n attorney engages in the practice of law by )aintaining an office where he is held out to be-an attorney, using a letterhead describing hi)self as an attorney, counseling clients in legal )atters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate. #   lac#$s Law %ictionary , rd ed.$The practice of law is not li)ited to the conduct of cases in court. #  Land &itle  Abstract and &rust Co. . %wor#en,  159 6hio t. 5, 19 7.*. 8:$ % person is also considered to be in the practice of law when he(... for valuable consideration engages in the business of advising person, fir)s, associations or corporations as to their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, co))issioner, referee, board, body, co))ittee, or co))ission constituted by law or authori+ed to settle controversies and there, in such representative capacity  perfor)s any act or acts for the purpose of obtaining or  2 defending the rights of their clients under the law. 6therwise stated, one who, in a representative capacity, engages in the  business of advising clients as to their rights under the law, or while so engaged perfor)s any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. # State e'. rel. Mc#ittric# ..C.S. %udley and Co.,  1:5 .W. 5d 9, ;: <o. 5$This Court in the case of  (hilippine Lawyers Association .A!raa, #1: hil. 1!,1!8-1!!$ stated( &he practice of law  is not li)ited to the conduct of cases or liti!ation in court  = it e)braces the preparation of pleadings and other papers incident to actions and special proceedings, the )anage)ent of such actions and proceedings on behalf of clients before udges and courts, and in addition, conveying. &n general, all adice to clients , and all action ta3en for the) in )atters connected with the law  incorporation services, assess)ent and conde)nation services conte)plating an appearance before a udicial body, the foreclosure of a )ortgage, enforce)ent of a creditor's clai) in ban3ruptcy and insolvency proceedings, and conducting proceedings in attach)ent, and in )atters of estate and guardianship have beenheld to constitute law practice, as do the preparation and drafting of legal instru)ents, where the wor# done inoles the deter)ination by the trained le!al )ind of the le!al effect of  facts and conditions . # %). >r. p. 585, 58$. #*)phasis supplied$  (ractice of law  under )ode) conditions consists in no s)all  part of wor3 perfor)ed outside of any court and having no i))ediate relation to proceedings in court. &t e)braces conveyancing, the giving of legal advice on a large variety of subects, and the preparation and execution of legal instru)ents covering an extensive field of business and trust relations and other affairs.  Althou!h these transactions )ay hae no direct connection with court proceedin!s, they are always sub*ect to beco)e inoled in liti!ation . They re0uire in )any aspects a high degree of legal s3ill, a wide experience with )en and affairs, and great capacity for adaptation to difficult and co)plex situations. These custo)ary functions of an attorney or counselor at law bear an inti)ate relation to the ad)inistration of ustice by the courts. 7o valid distinction, so far as concerns the 0uestion set forth in the order, can be drawn between that  part of the wor3 of the lawyer which involves appearance in court and that part which involves advice and drafting of instru)ents in his office. &t is of i)portance to the welfare of the public that these )anifold custo)ary functions be  perfor)ed by persons possessed of ade0uate learning and s3ill, of sound )oral character, and acting at all ti)es under the heavy trust obligations to clients which rests upon all attorneys. #<oran, Co))ents on the Rules of Court  , ?ol.  @19 ed.A , p. 88-888, citing  +n re pinion of the Justices  @<ass.A, 19; 7.*. 1, 0uoted in  Rhode +s. ar Assoc. . Auto)obile Serice  Assoc . @2.&.A 1!9 %. 19,1;;$. #*)phasis ours$The Bniversity of the hilippines aw Center in conducting orientation briefing for new lawyers #19!;-19!$ listed the di)ensions of the practice of law in even broader ter)s as advocacy, counselling and public service.6ne )ay be a practicing attorney in following any line of e)ploy)ent in the profession. &f what he does exacts 3nowledge of the law and is of a 3ind usual for attorneys engaging in the active practice of their profession, and he follows so)e one or )ore lines of e)ploy)ent such as this he is a practicing attorney at law within the )eaning of the statute. #   arr . Cardell  , 1 7W 15$ractice of law )eans any activity, in or out of court, which re0uires the application of law, legal procedure, 3nowledge, training and experience. 4To engage in the practice of law is to perfor) those acts which are characteristics of the profession. Denerally, to practice law is to give notice or render any 3ind of service, which device or service re0uires the use in any degree of legal 3nowledge or s3ill.4 #111 %2 5$The following records of the 198 Constitutional Co))ission show that it has adopted a liberal interpretation of the ter) 4practice of law.4  3 <2. E6F. /efore we suspend the session, )ay & )a3e a )anifestation which & forgot to do during our review of the provisions on the Co))ission on %udit. <ay & be allowed to )a3e a very brief state)entGT* 2* &H&7D 6EE&C*2 #<r. >a)ir$.The Co))issioner will please proceed.<2. E6F. &his has to do with the ualifications of the )e)bers of the Co))ission on Audit. A)on! others, the ualifications proided for by Section + is that &hey )ust be Me)bers of the (hilippine ar  / + a) uotin! fro) the proision / who hae been en!a!ed in the practice of law for at least ten years  .To avoid any )isunderstanding which would result in excluding)e)bers of the /ar who are now e)ployed in the C6% or Co))ission on %udit, we would li#e to )a#e the clarification that this proision on ualifications re!ardin! )e)bers of the   ar does not necessarily refer or inole actual practice of law outside the CA 0e hae to interpret this to )ean that as lon! as the lawyers who are e)ployed in the CA are usin! their le!al #nowled!e or le!al talent in their respectie wor# within CA, then they are ualified to be considered for appoint)ent as )e)bers or co))issioners, een chair)an, of the Co))ission on Audit  .This has been discussed by the Co))ittee on Constitutional Co))issions and %gencies and we dee) it i)portant to ta3e it up on the floor so that this interpretation )ay be )ade availablewhenever this provision on the 0ualifications as regards )e)bers of the hilippine /ar engaging in the practice of law for at least ten years is ta3en up.<2. 6*. Will Co))issioner Eo+ yield to  ust one 0uestion.<2. E6F. Ies, <r. residing 6fficer.<2. 6*.  +s he, in effect, sayin! that serice in the CA by a lawyer is euialent to the reuire)ent of a law practice that is set forth inthe Article on the Co))ission on Audit1 <2. E6F. 0e )ust consider the fact that the wor# of CA, althou!h it is auditin!, will necessarily inole le!al wor#2 it will inole le!al wor#. And, therefore, lawyers who are e)ployed in CA now would hae the necessary ualifications in accordance with the (roision on ualifications under our  proisions on the Co))ission on Audit. And, therefore, the answer is yes. <2. 6*. Ies. o that the construction given to this is that this is e0uivalent to the practice of law.<2. E6F. 3es, Mr. (residin! fficer  .<2. 6*.  &han# you .... # *)phasis supplied$ ection 1#1$, %rticle &-H of the 19! Constitution, provides, a)ong others, that the Chair)an and two Co))issioners of the Co))ission on %udit #C6%$ should either be certified public accountants with not less than ten years of auditing practice, or )e)bers of the hilippine /ar who have been engaged in the  practice of law  for at least ten years. #e)phasis supplied$Corollary to this is the ter) 4private practitioner4 and which is in )any ways synony)ous with the word 4lawyer.4 Today, although )any lawyers do not  4 engage in private practice, it is still a fact that the )aority of lawyers are private practitioners. #Dary <unne3e, pportunities in Law Careers  @?D< Career ori+ons( &llinoisA, @198A, p. 1$.%t this point, it )ight be helpful to define  priate practice . The ter), as co))only understood, )eans 4an individual or organi+ation engaged in the  business of delivering legal services.4 #  +bid  .$. awyers who practice alone are often called 4sole practitioners.4 Droups of lawyers are called 4fir)s.4 The fir) is usually a partnership and )e)bers of the fir) are the partners. o)e fir)s )ay be organi+ed as professional corporations and the )e)bers called shareholders. &n either case, the )e)bers of the fir) are the experienced attorneys. &n )ost fir)s, there are younger or )ore inexperienced salaried attorneyscalled 4associates.4 #  +bid. $.The test that defines law practice by loo3ing to traditional areas of law practice is essentially tautologous, unhelpful defining the practice of law as that which lawyers do. #Charles W. Wolfra),  Modern Le!al Ethics  @West ublishing Co.( <innesota, 198A, p. 9$. The practice of law is defined as the perfor)ance of any acts . . . in or out of court, co))only understood to be the practice of law. # State ar Ass$n . Connecticut an# 4 &rust Co ., 1; Conn. 555, 1;: %.5d 8,!: @19A @0uoting Grieance Co)). . (ayne , 15 Conn. 5, 55 %.5d 85, 858 @19;1A$. /ecause lawyers perfor) al)ost every function 3nown in the co))ercial and govern)ental real), such a definition would obviously be too global to be wor3able.#Wolfra), op. cit. $.The appearance of a lawyer in litigation in behalf of a client is at once the )ost  publicly fa)iliar role for lawyers as well as an unco))on role for the average lawyer. <ost lawyers spend little ti)e in courtroo)s, and a large percentage spend their entire practice without litigating a case. #  +bid  ., p. 9$. 7onetheless, )any lawyers do continue to litigate and the litigating lawyer's role colors )uchof both the public i)age and the self perception of the legal profession. #  +bid  .$.&n this regard thus, the do)inance of litigation in the public )ind reflects history, not reality. #  +bid  .$. Why is this soG 2ecall that the late %lexander yCip, a corporate lawyer, once articulated on the i)portance of a lawyer as a business counselor in this wise( 4*ven today, there are still uninfor)ed lay)en whose concept of an attorney is one who principally tries cases before the courts. The )e)bers of the bench and bar and the infor)ed lay)en such as business)en, 3now that in )ost developed societies today, substantially )ore legal wor3 is transacted in law offices than in the courtroo)s. Deneral practitioners of law who do both litigation and non-litigation wor3 also 3now that in )ost cases theyfind the)selves spending )ore ti)e doing what @isA loosely desccribe@dA as  business counseling than in trying cases. The business lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. &@tA need not @beA stress@edA that in law, as in )edicine, surgery should be avoided where internal )edicine can be effective.4 #   usiness Star  , 4Corporate Einance aw,4 >an. 11, 199, p. ;$.&n the course of a wor3ing day the average general practitioner wig engage in a nu)ber of legal tas3s, each involving different legal doctrines, legal s3ills, legal  processes, legal institutions, clients, and other interested parties. *ven the increasing nu)bers of lawyers in speciali+ed practice wig usually perfor) at least so)e legal services outside their specialty. %nd even within a narrow specialty such as tax practice, a lawyer will shift fro) one legal tas3 or role suchas advice-giving to an i)portantly different one such as representing a client  before an ad)inistrative agency. #Wolfra),  supra , p. 8!$./y no )eans will )ost of this wor3 involve litigation, unless the lawyer is one of the relatively rare types J a litigator who speciali+es in this wor3 to the exclusion of )uch else. &nstead, the wor3 will re0uire the lawyer to have )astered the full range of traditional lawyer s3ills of client counselling, advice-giving, docu)ent drafting, and negotiation. %nd increasingly lawyers find that the new s3ills of evaluation and )ediation are both effective for )any clients and a source of e)ploy)ent. #  +bid  .$.<ost lawyers will engage in non-litigation legal wor3 or in litigation wor3 that is constrained in very i)portant ways, at least theoretically, so as to re)ove fro) it so)e of the salient features of adversarial litigation. 6f these special roles, the )ost pro)inent is that of prosecutor. &n so)e lawyers' wor3 the constraints are i)posed both by the nature of the client and by the way in which the lawyer is organi+ed into a social unit to perfor) that wor3. The )ost co))on of these roles are those of corporate practice and govern)ent legal service. #  +bid  .$.&n several issues of the   usiness Star  , a business daily, herein below 0uoted are e)erging trends in corporate law practice, a departure fro) the traditional concept of practice of law.

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Jul 23, 2017
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