RECENT JURISPRUDENCE – LEGAL AND JUDICIAL ETHICS

PCGG v. SANDIGANBAYAN, et. al.

GR No. 151809-12, 12 April 2005, En Banc (Puno, J.)

“Matter” is defined any discrete, isolatable act as well as identifiable transaction or conduct involving a particular
situation and specific party, and not merely an act of drafting, enforcing or interpreting government or agency procedures,
regulations or laws, or briefing abstract principles of law. The act of advising the Central Bank, on how to proceed with the
said bank’s liquidation and even filing the petition for its liquidation with the CFI of Manila is not the “matter”
contemplated by Rule 6.03 of the Code of Professional Responsibility.

On July 17, 1987, pursuant to its mandate under Executive Order No. 1 of then President
Corazon C. Aquino, the PCGG, on behalf of the Republic of the Philippines, filed with the
Sandiganbayan a complaint for “reversion, reconveyance, restitution, accounting and damages” against
respondents Lucio Tan, then President Ferdinand E. Marcos and Imelda R. Marcos and others referred
to as dummies of the Marcoses. The case was docketed as Civil Case No. 0005 of the Sandiganbayan
(Second Division). In connection therewith, the PCGG issued several writs of sequestration on
properties allegedly acquired by the above-named persons by means of taking advantage of their close
relationship and influence with former President Marcos. Shortly thereafter, respondents Tan, et al. filed
with this Court petitions for certiorari, prohibition and injunction seeking to, among others, nullify the
writs of sequestration issued by the PCGG. After the filing of the comments thereon, this Court
referred the cases to the Sandiganbayan (Fifth Division) for proper disposition.

In all these cases, respondents Tan, et al. are represented by their counsel Atty. Estelito P.
Mendoza, who served as the Solicitor General from 1972 to 1986 during the administration of former
President Marcos. The PCGG opined that Atty. Mendoza’s present appearance as counsel for
respondents Tan, et al. in the case involving the sequestered shares of stock in Allied Banking Corp. runs
afoul of Rule 6.03 of the Code of Professional Responsibility proscribing former government lawyers
from accepting “engagement or employment in connection with any matter in which he had intervened
while in said service.”

ISSUES:

Whether or not the present engagement of Atty. Mendoza as counsel for respondents Tan, et al. in Civil
Cases Nos. 0096-0099 violates the interdiction embodied in Rule 6.03 of the Code of Professional
Responsibility

HELD:

The petition is denied.

The key to unlock Rule 6.03 lies in comprehending first, the meaning of “matter” referred to in
the rule and, second, the metes and bounds of the “intervention” made by the former government
lawyer on the “matter.” The American Bar Association in its Formal Opinion 342, defined “matter” as
any discrete, isolatable act as well as identifiable transaction or conduct involving a particular situation
and specific party, and not merely an act of drafting, enforcing or interpreting government or agency
procedures, regulations or laws, or briefing abstract principles of law.

Beyond doubt, the “matter” or the act of respondent Mendoza as Solicitor General involved in
the case at bar is “advising the Central Bank, on how to proceed with the said bank’s liquidation and
 RECENT JURISPRUDENCE – LEGAL AND JUDICIAL ETHICS

even filing the petition for its liquidation with the CFI of Manila.” We hold that this advice given by
respondent Mendoza on the procedure to liquidate GENBANK is not the “matter” contemplated by
Rule 6.03 of the Code of Professional Responsibility. ABA Formal Opinion No. 342 is clear as daylight
in stressing that the “drafting, enforcing or interpreting government or agency procedures, regulations or
laws, or briefing abstract principles of law” are acts which do not fall within the scope of the term
“matter” and cannot disqualify.

It goes without saying that Code 6.03 of the Code of Professional Responsibility cannot apply to
respondent Mendoza because his alleged intervention while a Solicitor General in Sp. Proc. No. 107812
is an intervention on a matter different from the matter involved in Civil Case No. 0096.

The evils sought to be remedied by the Rule do not exist where the government lawyer does an
act which can be considered as innocuous such as “x x x drafting, enforcing or interpreting government
or agency procedures, regulations or laws, or briefing abstract principles of law.”

The petition in the special proceedings is an initiatory pleading; hence, it has to be signed by
respondent Mendoza as the then sitting Solicitor General. For another, the record is arid as to the actual
participation of respondent Mendoza in the subsequent proceedings. Similarly, the Court in interpreting
Rule 6.03 was not unconcerned with the prejudice to the client which will be caused by its
misapplication. It cannot be doubted that granting a disqualification motion causes the client to lose not
only the law firm of choice, but probably an individual lawyer in whom the client has confidence The
client with a disqualified lawyer must start again often without the benefit of the work done by the latter

The Court has to consider also the possible adverse effect of a truncated reading of the rule on
the official independence of lawyers in the government service. The case at bar involves the position of
Solicitor General, the office once occupied by respondent Mendoza. It cannot be overly stressed that
the position of Solicitor General should be endowed with a great degree of independence. It is this
independence that allows the Solicitor General to recommend acquittal of the innocent; it is this
independence that gives him the right to refuse to defend officials who violate the trust of their office.
Any undue diminution of the independence of the Solicitor General will have a corrosive effect on the
rule of law.

Mr. Justices Panganiban and Carpio are of the view, among others, that the congruent interest
prong of Rule 6.03 of the Code of Professional Responsibility should be subject to a prescriptive period.
Mr. Justice Tinga opines that the rule cannot apply retroactively to respondent Mendoza. Obviously,
and rightly so, they are disquieted by the fact that (1) when respondent Mendoza was the Solicitor
General, Rule 6.03 was not yet adopted by the IBP and approved by this Court, and (2) the bid to
disqualify respondent Mendoza was made after the lapse of time whose length cannot, by any standard,
qualify as reasonable.