THE LAWYER AS COUNSEL DE OFFICIO

Sec. 7. Appointment of counsel de officio. – The court, considering the gravity of

the offense and the difficulty of the questions that may arise, shall appoint as
counsel de officio such members of the bar in good standing who, by reason of
their experience and ability, can competently defend the accused. But in
localities where such members of the bar are not available, the court may
appoint any person, resident of the province and of good repute for probity and
ability, to defend the accused.

Sec. 8. Time for counsel de officio to prepare for arraignment. – Whenever a

counsel de office is appointed by the court to defend he accused at the
arraignment, he shall be given a reasonable time to consult with the accused as to
his plea before proceeding with the arraignment.

WHAT IS A COUNSEL DE OFFICIO?

> A counsel de officio is the counsel appointed by the court to represent
and defend the accused in case he cannot afford to employ one himself

WHO CAN BE APPOINTED COUNSEL DE OFFICIO?

> The court, considering the gravity of the offense and the difficulty of the
questions that may arise shall appoint as counsel de officio
1. A member of the bar in good standing
2. And such member, by reason of his/her experience and ability, can
competently defend the accused
> ONLY DURING TRIAL: But, in localities where such members of the
bar are not available, the court may appoint any person who
is—
1. A resident of the province
2. And of good repute for probity and with ability to defend the accused

DUTY OF THE COURT TO APPOINT COUNSEL DE OFFICIO DURING

ARRAIGNMENT AND DURING TRIAL

WHAT IS THE DIFFERENCE BETWEEN THE DUTY OF THE COURT TO

APPOINT COUNSEL DE OFFICIO DURING ARRAIGNMENT
AND DURING TRIAL?
> During arraignment, the court has the affirmative duty to inform the accused of his
right to counsel and to provide him with one in case he cannot afford it
> The court must act on its own volition unless the right is waived by the accused
> On the other hand, during trial, it is the accused who must assert this right to
counsel. The court will not act unless the accused invokes his rights.
Sec. 13. Appointment of counsel de officio for accused on appeal. - It shall be the duty of the clerk of court of the trial
court, upon filing of a notice of appeal to ascertain from the appellant, if
confined in prison, whether he desires the Regional Trial Court, Court of Appeals or the Supreme Court to
appoint a counsel de officio to defend him and to transmit with the record on a form to
be prepared by the clerk of court of the appellate court, a certificate of compliance with this duty and of the response
of the appellate to his inquiry.

IS COUNSEL DE OFFICIO STILL REQUIRED TO REPRESENT HIS

CLIENT ON APPEAL?
Yes, the duty of counsel de officio doesn’t terminate upon judgment of the case
It continues until appeal

Section 6. Duty of court to inform accused of his right to counsel

4 Fold Duty Of Court When Accused Appears Without Counsel:

1. Inform the defendant that he has a right to an attorney before
being arraigned
2. After informing him, court must ask the defendant if he desires
to have the aid of an attorney.
3. If he desires but is unable to employ one, the court must assign
an attorney de oficio to defend him.
4. If the accused desires to procure an attorney of his own, the
court must grant him reasonable time to do so.

Failure to comply with this 4-fold duty amounts to a violation due

process.

Section 7. Appointment of counsel de oficio

Counsel De Oficio
- He is counsel appointed by the court to represent and defend the
accused in case he cannot afford to employ one himself.

Who May Be Appointed Counsel De Oficio:

1. Such members of the bar in good standing who can competently defend
the accused
2. In localities where such members of the bar are not available,
any resident of the province of good repute for probity and ability.

Duty of the Court to Appoint Counsel During Arraignment vs During Trial

- During arraignment, the court has an affirmative duty to inform
the accused of his right to counsel and to provide him with one
 in case he cannot afford it. The court must act on its own
volition unless the right is waived by the accused.

During trial, it is the accused who must assert his right to

counsel. The court will not act unless the accused invokes his
rights.

Section 8. Time for counsel de oficio to prepare for arraignment.

What Constitutes Reasonable Time

- It depends on the circumstances surrounding the case such as the
gravity of the offense, complexity of the allegations, whether a
motion to quash or a bill of particulars has to be filed, etc.

Generally, reasonable time to prepare for trial is 2-15 days.

Generally, reasonably time to prepare for arraignment is 30 mins

to 1 hour.

NOTE: Counsel for the accused must expressly demand the right to
be given reasonable time to consult with the accused. Only when
so demanded does denial thereof constitute reversible error and a
ground for new trial.

Q: Who is a counsel/attorney de officio?

A: A counsel/attorney de officio is an attorney appointed by the court to defend an indigent defendant
in a criminal action. (1998 Bar Question) Note: In a criminal action, if the defendant appears without an
attorney, he must be informed by the court that it is his right to have an attorney before being arraigned
and must be asked if he desires the aid of an attorney. If he desires and is unable to employ an attorney,
the court must assign a counsel de officio to defend him. He is also designated as counsel of indigent
litigants. The appointment of a counsel de officio in that instance is a matter of right on the part of the
defendant. On appeal in criminal cases, the appellate court must also appoint a counsel de officio if, as
shown by the certificate of the clerk of court of the trial court, a defendant is confined in prison or
without means to employ an attorney or desires to be defended de officio. (Secs. 6-8, Rule 116 and Sec.
13, Rule 122)

CANON 14, CPR - A LAWYER SHALL NOT REFUSE HIS SERVICES TO THE NEEDY
Rationale: The poor and indigent should not be further disadvantaged by lack of access to the Philippine
legal system. Q: Does a lawyer have a right to decline employment?
A: GR: A lawyer is not obliged to act as legal counsel for any person who may wish to
become his client.

He has the right to decline employment.

XPN: 1. A lawyer shall not refuse his services to the needy (Canon 14);
 2. He shall not decline to represent a person solely on account of the latter’s race, sex, creed or status of
life or because of his own opinion regarding the guilt of said person (Rule 14.01); (1990, 1993, 2000,
2002, 2006 Bar Questions)
3. He shall not decline, except for serious and efficient cause like a. If he is not in a position to carry out
effectively or competently; b. If he labors under a conflict of interest between him and the prospective
client (Rule 14.03).

Q: What is the rationale for the establishment and operation of legal aid offices in all chapters of the
IBP? A: Legal aid is not a matter of charity. It is a means for the correction of social imbalances that may
and often do lead to injustice, for which reason it is a public responsibility of the Bar. The spirit of public
service should, therefore, underlie all legal aid offices. The same should be so administered as to give
maximum possible assistance to indigent and deserving members of the community in all cases, matters
and situations in which legal aid may be necessary to forestall an injustice. (Public Service, Sec. 1, Art. 1,
IBP Guidelines on Legal Aid)

Q: Are there instances where a lawyer has the duty to decline employment?
A: A lawyer should decline no matter how attractive the fee offered may be if its acceptance will involve:
RACCAA
1. A violation of any of the Rules of the legal profession;
2. Advocacy in any manner in which he had intervened while in the government service;
3. Nullification of a Contract which he prepared;
4. Employment with a Collection agency which solicits business to collect claims;
5. Employment, the nature of which might easily be used as a means of Advertising his professional
services of his skill; or

Any matter in which he knows or has reason to believe that he or his partner will be an essential witness
for the prospective client. (1993 Bar Question) Q: What are the ethical considerations in taking a bad
case? A: 1. Criminal case – A lawyer may accept a losing criminal case because every accused is
presumed innocent until proven guilty and is entitled to counsel. 2. Civil case - The rules and ethics of
the profession enjoin a lawyer from taking a bad case. Q: What are the reasons why a lawyer may not
accept a “losing” civil case? A: 1. The attorney’s signature in every pleading constitutes a certificate by
him that there is good cause to support it and that it is not interposed for delay, and willful violation of
such rule shall subject him to disciplinary action; 2. It is the attorney’s duty to “counsel or maintain such
actions or proceedings only as appears to him to be just and only such defenses as he believes to be
honestly debatable under the law”; 3. A lawyer is not to encourage either the commencement or the
continuance of an action or proceeding, or delay any man’s cause, for any corrupt motive or interest; and
4. A lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended
merely to harass or injure the opposite party or to work oppression or wrong. Q: Is there an instance
when a lawyer may accept a losing civil case? A: Yes, provided that, in so doing, he must not engage in
dilatory tactics and must advise his client about the prospects and advantage of settling the case through
a compromise. (1996, 2001, 2002, 2005 Bar Question) a. Services Regardless of Person’s Status

Rule 14.01, Canon 14, CPR - A lawyer shall not decline to represent a person solely on account of the
latter’s race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person.
Rule 14.01 is applicable only in criminal cases. In criminal cases, a lawyer cannot decline to represent an
accused or respondent because of his opinion that the said person is guilty of the charge or charges filed
against him. In representing the accused or respondent, the lawyer must only use means which are fair
and honorable. (Sec. 20[I], Rule 138, RRC) Rule 14.01 is not applicable in civil cases because it is the duty
of an attorney to counsel or maintain such actions or proceedings only as appear to him to be just, and
such defenses only as he believes to be honestly debatable under the law.” (Sec. 20[c], Rule 138, RR

Q: Atty. DD’s services were engaged by Mr. BB as defense counsel in a lawsuit. In the course of the
proceedings, Atty. DD discovered that Mr. BB was an agnostic and a homosexual. By reason thereof, Atty.
DD filed a motion to withdraw as counsel without Mr. BB’s express consent. Is Atty. DD’s motion legally
tenable? Reason briefly. A: No. Atty. DD’s motion is not legally tenable. He has no valid cause to
terminate his services. His client, Mr. BB, being an agnostic and homosexual, should not be deprived of
his counsel’s representation solely for that reason. A lawyer shall not decline to represent a person solely
on account of the latter’s race, sex, creed or status of life or because of his own opinion regarding the
guilt of said person. (Canon 14, Rule 14.01, CPR)

Rule 14.02, Canon 14, CPR – A lawyer shall not decline, except for serious and sufficient cause, an
appointment as counsel de oficio or as amicus curiae, or a request from the Integrated Bar of the
Philippines or any of its chapters for rendition of free legal aid.
Q: What is the protection given by law to poor litigants who cannot afford the services of a lawyer?
A: A court may assign an attorney to render professional aid free of charge to any party in case, if upon
investigation it appears that the party is destitute and unable to employ an attorney, and that the
services of counsel are necessary to secure the ends of justice and to protect the rights of the party. It
shall be the duty of the attorney so assigned to render the required service, unless he is excused
therefrom by the court for sufficient cause shown. (Sec. 31, Rule 138, RRC) Q: Who may be appointed as
counsel de oficio? A: 1. Members of the bar in good standing; 2. Any person, resident of the province
and of good repute for probity and ability, in localities without lawyers. Q: What are considered in
appointing a counsel de oficio? A: 1. Gravity of offense; 2. Difficulty of questions that may arise; and 3.
Experience and ability of appointee. Q: A criminal complaint was filed against Bermas for the crime of
rape. The Second Assistant Prosecutor issued a certification that the accused has waived his right to
preliminary investigation. On the day of the scheduled arraignment, the accused was brought before the
trial court without counsel. The court assigned a PAO attorney to be the counsel de officio who, during
trial also made a request that she be relieved from the case. Another counsel was thereafter assigned as
the new counsel de officio. When said new counsel for the accused failed to appear before the court for
their presentation of evidence, the Court appointed another counsel de officio but, again, said counsel
asked to be relieved from the case. The newly appointed counsel also failed to appear before the court.
Despite the said events, the lower court convicted the accused of death penalty for the violation of the
crime of rape. The defense counsel claimed that the accused was deprived of due process, was denied
his Constitutional right to effective and vigilant counsel and his Constitutional right to be tried by an
impartial judge. Is there a violation of due process and was denied of his Constitutional right to effective
and vigilant counsel?

A: Yes. The right to counsel must be more than just the presence of a lawyer in the courtroom or the
mere propounding of standard questions and objections. The right to counsel means that the accused is
amply accorded legal assistance extended by a counsel who commits himself to the cause for the
defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings,
particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his
being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing
jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of
his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance
and not a simple perfunctory representation. It is never enough that accused be simply informed of his
right to counsel; he should also be asked whether he wants to avail himself of one and should be told
that he can hire a counsel of his own choice if he so desires or that one can be provided to him at his
request. A counsel de oficio is expected to do his utmost. A mere pro-forma appointment of de oficio
counsel who fails to genuinely protect the interests of the accused merits disapprobation. The exacting
demands expected of a lawyer should be no less than stringent when one is a counsel de officio. He must
take the case not as a burden but as an opportunity to assist in the proper dispensation of justice. No
lawyer is to be excused from this responsibility except only for the most compelling and cogent reasons.
Canon 18 of the Code of Professional Responsibility requires every lawyer to serve his client with utmost
dedication, competence and diligence. He must not neglect a legal matter entrusted to him, and his
negligence in this regard renders him administratively liable. Obviously, in the instant case, the
aforenamed defense lawyers did not protect, much less uphold, the fundamental rights of the accused.
Instead, they haphazardly performed their function as counsel de oficio to the detriment and prejudice
of the accused Sevilleno, however guilty he might have been found to be after trial. (People v. Bermas,
G.R. No. 120420. April 21, 1999)

c. Valid Grounds for Refusal Q: When may refusal of a counsel to act as counsel de oficio be justified on
grounds aside from the reasons of health, extensive travel abroad, or similar reasons of urgency? A:
Other justified grounds for refusal to act as a counsel de oficio are: 1. Too many de oficio cases assigned
to the lawyer; (People v. Daeng, G.R. No. L34091, Jan. 30, 1973) 2. Conflict of interest; (Rule 14.03, CPR)
3. Lawyer is not in a position to carry out the work effectively or competently; (supra) 4. Lawyer is
prohibited from practicing law by reason of his public office which prohibits appearances in court; and 5.
Lawyer is preoccupied with too many cases which will spell prejudice to the new clients.

Q: Atty. J. Bonanza, a semi-retired Metro Manila practitioner has a cattle ranch in the remote
municipality of Nueva Ecija. He attends to his law office in Manila on Mondays, Tuesdays and
Wednesdays, and the rest of the week he spends in his cattle ranch raising horses. In a criminal case
pending before the Municipal Trial Court of Carranglan, the only other licensed member of the bar in the
place is representing the complainant. The accused is a detention prisoner. The judge wants to expedite
proceedings. What must the judge do to expedite proceedings?
A: The judge may appoint attorney Bonanza as counsel de oficio considering that the accused is a
detention prisoner and therefore it is assumed that he has no financial means of engaging a paid
counsel. (1988 Bar Question)

Q: If Atty. Bonanza is requested to act as counsel for the accused, could he or should he refuse by saying
that in the province, he wants to do nothing except ride horses and castrate bulls? Explain.
A: The attorney cannot refuse to be appointed as counsel de oficio merely on the reason that he is a
semi-retired practicing lawyer. Precisely one of the reasons for the integration of the bar in the
Philippines is to compel all persons who have been admitted to the practice of law in the Philippines to
perform their duties to assist the courts in the administration of public. (Ibid)

Q: Assailed in a certiorari proceeding is an order of respondent Judge Climaco denying a motion filed by
petitioner Ledesma to be allowed to withdraw as counsel de oficio. One of the grounds for such a
motion was his allegation that with his appointment as Election Registrar by the COMELEC, he was not in
a position to devote full time to the defense of the two accused. The denial by respondent Judge of such
a plea, notwithstanding the conformity of the defendants, was due to “its principal effect of delaying the
case”. Is the denial of Judge Climaco correct?
A: Yes. The reluctance of Ledesma to comply with his responsibilities as counsel de oficio is not an
adequate ground for the motion of withdrawal. Membership in the bar is a privilege burdened with a
condition. For some lawyers especially the neophytes in the profession being appointed as a lawyer is an
irksome chore. Law is a profession dedicated to the ideal of service and not a mere trade. Thus is made
manifest the indispensable role of a member of the Bar in the defense of an accused. Such a
consideration could have sufficed for Ledesma not being allowed to withdraw as counsel de oficio.
For he did betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters
mildly. He did point though to his responsibility as an election registrar. Assuming his good faith, no such
excuse could be availed now. There is not likely at present, and in the immediate future, an exorbitant
demand on his time. (Ledesma v. Climaco, G.R. No. L-23815, June 28, 1974)
Q: Ferrer was accused of having raped his 11- year-old stepdaughter. Ferrer’s counsel of record was
PAO's Atty. Macabanding. During the pretrial, both of them failed to appear. Ferrer was considered by
the court as having jumped bail. Trial in absentia followed where Ferrer was assisted by another PAO
lawyer, Atty. Alonto. Atty. Macabanding did not appear in all the Rule 14.03, Canon 14, CPR – A lawyer
may not refuse to accept representation of an indigent client unless: a. He is in no position to carry out
the work effectively or competently; b. He labors under a conflict of interest between him and the
prospective client or between a present client and a prospective client.

subsequent hearings of the case. He did not inform the court of his whereabouts. Ferrer was found guilty
beyond reasonable doubt of the crime charged and imposed upon him the death penalty. Did Atty.
Macabanding live up to the demands expected from a counsel de oficio?
A: No. Ferrer was not properly and effectively accorded the right to counsel. Canon 18 of the CPR
requires every lawyer to serve his client with utmost dedication, competence and diligence. He must not
neglect a legal matter entrusted to him. For all intents, purposes and appearances, Atty. Macabanding
abandoned his client, an accused who stands to face the death penalty. While he faced the daunting task
of defending an accused that had jumped bail, this unfortunate development is not a justification to
excuse him from giving his heart and soul to the latter's defense. The exercise of their duties as counsel
de oficio meant rendering full meaning and reality to the constitutional precepts protecting the rights of
the accused. (People v. Ferrer, G.R. No. 148821, July 18, 2003)

Q: What is the rule on the appointment of counsel de oficio for an accused who was convicted by the
Regional Trial Court and is desirous of appealing from the judgment of conviction?
A: If an accused is found guilty by the trial court and makes his intention to appeal the decision, the
appellate court may appoint a counsel de oficio if it is shown by a certificate of the clerk of the court
that: 1. The defendant is confined in prison and not able to file a bail bond; 2. He is without means to
employ an attorney de parte; and 3. He desires to be represented by an attorney de oficio.
Note: An appellant who is not confined in prison is not entitled to an attorney de oficio unless a request
is made within ten days from notice to file the appellant’s brief and the right thereto is established by
affidavit of poverty. (Sec. 13, Rule 122, RRC) (1993 Bar Question)

Q: May a lawyer decline a request for free legal aid to an indigent accused made by a chapter of the
IBP? Explain.
A: Rule 14.02 of the CPR provides that “a lawyer shall not decline, except for serious and sufficient cause,
an appointment as counsel de oficio or as amicus curiae or a request from the IBP or any of its chapter
for rendition of free legal aid.” He may, therefore, decline such appointment for “serious and sufficient
cause”. For example, he may decline such appointment if it will involve a conflict of interest with another
client.
Q: Will your answer be different if the legal aid is requested in a civil case?
A: My answer will not be exactly the same, because in a civil case, the lawyer can also decline if he
believes the action or defense to be unmeritorious. He is ethically bound to maintain only actions and
proceedings which appear to him to be just and only such defenses which he believes to be honestly
debatable under the law. (2002 Bar Question) Note: A lawyer may refuse to handle cases due to these
valid reasons. However, Rule 2.02 requires him to give advice on preliminary steps if he is asked until the
client secures the services of counsel. He shall refrain from giving this preliminary advice if there is
conflict of interest between a present client and a prospective one for extending such legal advice will
create and establish an attorney-client relationship between them and may involve a violation of the rule
prohibiting a lawyer from representing conflicting interest.