CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT

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SECOND DIVISION

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,

vs.

CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in

his capacity as Secretary of Budget and Management, respondents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, 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 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-

born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a

college degree, and must not have been candidates for any elective position in the immediately preceding -elections.

However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged

in the practice of law for at least ten years. (Emphasis supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides:

There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born

citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree.

However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of

law for at least ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive

office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to serve the

interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of

litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings,

conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It

embraces all advice to clients and all actions taken for them in matters connected with the law. An attorney engages

in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describing

himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation,

and fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken,129 Ohio St. 23, 193

N.E. 650) A person is also considered to be in the practice of law when he:

... for valuable consideration engages in the business of advising person, firms, 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, commissioner, referee, board, body, committee, or commission constituted by law or

authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose

of obtaining or defending the rights of their clients under the law. Otherwise 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 performs

any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel.

Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings

and other papers incident to actions and special proceedings, the management of such actions and proceedings on

behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action

taken for them in mattersconnected with the law incorporation services, assessment and condemnation services

contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim

in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and

guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where

the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am.

Jr. p. 262, 263). (Emphasis supplied)

Practice of law under modem conditions consists in no small part of work performed outside of any court and having

no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety

of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust

relations and other affairs. Although these transactions may have no direct connection with court proceedings, they

are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide

experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These

customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the

courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of

the work of the lawyer which involves appearance in court and that part which involves advice and drafting of

instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be

performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times

under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court,

Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar

Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the

practice of law in even broader terms as advocacy, counselling and public service.

One may be a practicing attorney in following any line of employment in the profession. If what he does exacts

knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he

follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of

the statute. (Barr v. Cardell, 155 NW 312)

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)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of

law."

MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during

our review of the provisions on the Commission on Audit. May I be allowed to make a very brief

statement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit.

Among others, the qualifications provided for by Section I is that "They must be Members of the

Philippine Bar" — I am quoting from the provision — "who have been engaged in the practice of

law for at least ten years".

To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the

COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding

members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret

this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent

in their respective work within COA, then they are qualified to be considered for appointment as members or

commissioners, even chairman, of the Commission on Audit.

This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important

to take it up on the floor so that this interpretation may be made available whenever this provision on the

qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken

up.

MR. OPLE. Will Commissioner Foz yield to just one question.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the

requirement of a law practice that is set forth in the Article on the Commission on Audit?

MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily

involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now

would have the necessary qualifications in accordance with the Provision on qualifications under

our provisions on the Commission on Audit. And, therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of

law.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the

Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members

of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many

lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary

Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization

engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of

lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as

professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys.

In most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice

of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The

practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State

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SECOND DIVISION G.R. No. 100113 September 3, 1991 RENATO CAYETANO, petitioner, vs. CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents. Renato L. Cayetano for and in his own behalf. Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner. PARAS, 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 1987 Constitution provides in Section 1 (1), Article IX-C: There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied) The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides: There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and, ...
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