Monthly Archives: October 2013

Cayetano v. Monsod Revisited

Ask any law student to describe what “practice of law” means, and he or she will invariably quote the definition given by the Supreme Court in Renato L. Cayetano v. Christian Monsod, et al. (201 SCRA 210 [1991]):

“Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. ‘To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill.’ (111 ALR 23)” (at p. 214)

The issue in the case was whether or not the respondent Monsod, a lawyer, was qualified for appointment as Chair of the Commission on Elections (COMELEC), since Art. IX-C, Sec. 1[1] of the 1987 Constitution requires that, inter alia, a majority of the COMELEC, “including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years”.

The Court, thru Justice Paras, stated that there “seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive office” (at p.212), determined that the practice of law is not limited to the conduct of cases in court (at pp. 216-217) and pursuant thereto, found that Monsod was qualified for appointment as COMELEC Chair:

“Interpreted in the light of the various definitions of the term ‘practice of law’, particularly the modern concept of law practice, and taking into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod’s past work experiences as lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich and the poor – verily more than satisfy the constitutional requirement – that he has been engaged in the practice of law for at least ten years.” (at pp. 225-226, Italics supplied)

The Court cited its definition of “practice of law” in various other Decisions, calling the same as “broad” (Lim-Santiago v. Atty. Sagucio [486 SCRA 10 [2006]; In Re Letter of UP Law Faculty Entitled “Restoring Integrity…” [AM No. 10-10-4-SC, March 8, 2011]). In the latter case, it held that lawyers when they teach law are considered engaged in the practice of law, primarily to underscore their ethical and professional responsibilities:

“Unlike professors in other disciplines and more than lawyers who do not teach law, respondents are bound by their oath to uphold the ethical standards of the legal profession. Thus, their actions as law professors must be measured against the same canons of professional responsibility applicable to acts of members of the Bar as the fact of their being law professors is inextricably entwined with the fact that they are lawyers.”

What are less well-known, but very thought-provoking, are the opinions of Supreme Court Justices Padilla, Cruz, and Gutierrez who dissented from the ponencia of Justice Paras in Cayetano v. Monsod. Justice Paras remarked that the dissent of Justice Padilla:

“…is the traditional or stereotyped notion of law practice, as distinguished from the modern concept of the practice of law, which modern connotation is exactly what was intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla’s definition would require generally a habitual law practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the constitutional intent.” (at p. 227; Italics supplied. The dissent is at pp. 230-233)

With respect to the dissent of Justice Cruz, Justice Paras said that:

“Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making uses of the law, or in advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practicing law for over ten years. This is different from the acts of persons practicing law, without first becoming lawyers.” (at p. 227; Italics supplied. The dissent is at pp. 234-236)

Parenthetically, the comment of Justice Paras about “the acts of persons practicing law, without first becoming lawyers” appears to open the practice of law to non-lawyers. This brings to mind a priest (not Fr. Bernas) with a penchant to pontificate about the law (civil, not canon) even though he is not a lawyer:

“…I have been informed that someone who has taken a perpetual vow to dislike me has asked why I am repeatedly interviewed and asked for opinions on questions of law. I have never held myself out to be a lawyer. I do not need the title. I do not make my living from representing the gripes of others in court, and engorging myself by others’ quest for the vindication of their rights. It is not my doing that I am interviewed and he is not, that my opinions are sought, and that none care for his! I have studied the law as a scholar of a discipline. For that, you do not need a license. You need intelligence and diligence, and you need the recognition of fellow-academics that you know of what you speak…” (Fr. Ranhilio Aquino, For the Sake of Rationality. September 30, 2013, Manila Standard Today)

“…Legal ethics is an oxymoron. It was not so much a swipe at the law as at lawyers, and the fact is that in the Philippines, as well as in other jurisdictions as well, they suffer a trust-deficit. People it seems trust embalmers more than they trust lawyers. This is no laughing matter, at least not for those who care passionately about serving the ends of justice. x-x-x” (Fr. Ranhilio Aquino, Legal Ethics – An Oxymoron? June 17, 2013, Manila Standard Today)

The priest’s acts of rendering legal opinions very well fall within the broad definition of practice of law. As a non-lawyer, he is engaged in the unauthorized practice of law, which constitutes indirect contempt (Rule 71, Sec. 3[e]; Ciocon-Reer v. Lubao, AM No. OCA IPI No. 09-3210-RTC [June 20, 2012]; In re Joaquin T. Borromeo, 241 SCRA 405[1995]).

For some reason, Justice Paras did not address the dissent of Justice Gutierrez (at pp. 236-243):

When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stated that he did not practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one on official leave with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision.
x-x-x
Inspite of my high regard for Mr. Monsod, I cannot shirk from my constitutional duty. He has never engaged in the practice of law for even one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all lower courts. What kind of Judges or Justices will we have if their main occupation is selling real estate, managing a business corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the law, whether in Government or private practice, except that in one joyful moment in the distant past, they happened to pass the bar examinations?
The Constitution uses the phrase ‘engaged in the practice of law for at least ten years.’ The deliberate choice of words shows that the practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To be ‘engaged’ in an activity for ten years requires committed participation in something which is the result of one’s decisive choice. It means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the ten-year period.
x-x-x
I regret that I cannot join in playing fast and loose with a term, which even an ordinary laymen accepts as having a familiar and customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly assert that as such, they are engaged in the practice of law?
The Constitution requires having been ‘engaged in the practice of law for at least ten years.’ It is not satisfied with having been ‘a member of the Philippine Bar for at least ten years.’” (Italics supplied, underscoring ours.)

In his annotation to Cayetano v. Monsod (at pp. 244-252), Judge Nitafan raised concerns similar to those of the dissenters, Justices Padilla, Cruz, and Gutierrez:

Practice of law is referred to no less than three times in Article VIII of the Constitution. First, in reference to the rule-making power of the Supreme Court authorizing it to ‘promulgate rules concerning xxx pleading, practice, and procedure in all courts, the admission to the practice of law xxx Secondly, it has reference to the qualification of Members of the Supreme Court, who ‘must have been for fifteen years or more a judge of a lower court or engaged in the practice of law in the Philippines.’ In both instances, the ‘practice’ referred to has always reference to practice in the courts, in fact the rules promulgated by the Supreme Court under its rule-making power is called ‘Rules of Court of the Philippines’. In the second instance practice of law is equated with judgeship in the lower courts.” (Italics supplied, underscoring ours)

The dissenters, as well as Judge Nitafan, were concerned about the broad definition of “practice of law” in Cayetano v. Monsod, an interpretation affirmed by the Supreme Court (see Lim-Santiago v. Atty. Sagucio, In Re Letter of UP Law Faculty Entitled “Restoring Integrity…” [supra]). The definition is now applied not just to the position of COMELEC Chair or to other Constitutional offices, but to all government positions requiring practice of law as a legal qualification for appointment thereto.

While the Court (at pp. 212-213) held that the practice of law is not limited to the conduct of cases in court, common sense requires that appointees/applicants to those positions involving the same – which Justice Paras calls the “traditional or stereotyped notion of law practice” (at p. 227), should have the necessary exposure to, if not experience in litigation. As well as a practical, and not just theoretical/academic familiarity with the interplay between substantive and procedural laws.

As the Court held in OCA v. Ladaga (350 SCRA 326, 331 [2001]), private practice of a profession, specifically the legal profession, does not pertain to isolated court appearances; rather, it contemplates a succession of acts of the same nature habitually or customarily holding one’s self to the public as a lawyer. And in Maderada v. Mediodea (413 SCRA 313, 325 [2003]), the practice of law, though impossible to define exactly, involves the exercise of a profession or vocation usually for gain, mainly as attorney by acting in a representative capacity and as counsel by rendering legal advise to others.

Otherwise, “The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely) connected with some law, ordinance or regulation. The possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions.” (dissent of Justice Cruz, at p. 235)

But at the end of the day, appointment to these offices is essentially a political process.

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