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DECISION
PUNO, J.:
Substantive Issue
A lawyer should not accept employment as an advocate in any matter upon the merits
of which he has previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the public employ
should not, after his retirement, accept employment in connection with any
matter he has investigated or passed upon while in such office or employ.
Over the next thirty years, the ABA continued to amend many of the
canons and added Canons 46 and 47 in 1933 and 1937, respectively.[31]
In 1946, the Philippine Bar Association again adopted as its own
Canons 33 to 47 of the ABA Canons of Professional Ethics.[32]
By the middle of the twentieth century, there was growing consensus
that the ABA Canons needed more meaningful revision. In 1964, the ABA
President-elect Lewis Powell asked for the creation of a committee to study
the adequacy and effectiveness of the ABA Canons. The committee
recommended that the canons needed substantial revision, in part because
the ABA Canons failed to distinguish between the inspirational and the
proscriptive and were thus unsuccessful in enforcement. The legal profession
in the United States likewise observed that Canon 36 of the ABA Canons of
Professional Ethics resulted in unnecessary disqualification of lawyers for
negligible participation in matters during their employment with the
government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969
ABA Model Code of Professional Responsibility.[33] The basic ethical
principles in the Code of Professional Responsibility were supplemented by
Disciplinary Rules that defined minimum rules of conduct to which the lawyer
must adhere.[34] In the case of Canon 9, DR 9-101(b)[35]became the applicable
supplementary norm. The drafting committee reformulated the canons into the
Model Code of Professional Responsibility, and, in August of 1969, the ABA
House of Delegates approved the Model Code.[36]
Despite these amendments, legal practitioners remained unsatisfied with
the results and indefinite standards set forth by DR 9-101(b) and the Model
Code of Professional Responsibility as a whole. Thus, in August 1983, the
ABA adopted new Model Rules of Professional Responsibility. The Model
Rules used the restatement format, where the conduct standards were set-out
in rules, with comments following each rule. The new format was intended to
give better guidance and clarity for enforcement because the only enforceable
standards were the black letter Rules. The Model Rules eliminated the broad
canons altogether and reduced the emphasis on narrative discussion, by
placing comments after the rules and limiting comment discussion to the
content of the black letter rules. The Model Rules made a number of
substantive improvements particularly with regard to conflicts of interests.[37] In
particular, the ABA did away with Canon 9, citing the hopeless
dependence of the concept of impropriety on the subjective views of
anxious clients as well as the norms indefinite nature.[38]
In cadence with these changes, the Integrated Bar of the Philippines
(IBP) adopted a proposed Code of Professional Responsibility in 1980
which it submitted to this Court for approval. The Code was drafted to
reflect the local customs, traditions, and practices of the bar and to conform
with new realities. On June 21, 1988, this Court promulgated the Code of
Professional Responsibility.[39] Rule 6.03 of the Code of Professional
Responsibility deals particularly with former government lawyers, and
provides, viz.:
Rule 6.03 A lawyer shall not, after leaving government service, accept engagement or
employment in connection with any matter in which he had intervened while in said
service.
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.
Firstly, it is critical that we pinpoint the matter which was the subject of
intervention by respondent Mendoza while he was the Solicitor General. The
PCGG relates the following acts of respondent Mendoza as constituting
the matter where he intervened as a Solicitor General, viz:[40]
The PCGG imputes grave abuse of discretion on the part of the Sandiganbayan (Fifth
Division) in issuing the assailed Resolutions dated July 11, 2001 and December 5,
2001 denying the motion to disqualify Atty. Mendoza as counsel for respondents
Tan, et al. The PCGG insists that Atty. Mendoza, as then Solicitor General, actively
intervened in the closure of GENBANK by advising the Central Bank on how to
proceed with the said banks liquidation and even filing the petition for its liquidation
with the CFI of Manila.
As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared
by certain key officials of the Central Bank, namely, then Senior Deputy Governor
Amado R. Brinas, then Deputy Governor Jaime C. Laya, then Deputy Governor and
General Counsel Gabriel C. Singson, then Special Assistant to the Governor Carlota
P. Valenzuela, then Asistant to the Governor Arnulfo B. Aurellano and then Director
of Department of Commercial and Savings Bank Antonio T. Castro, Jr., where they
averred that on March 28, 1977, they had a conference with the Solicitor General
(Atty. Mendoza), who advised them on how to proceed with the liquidation of
GENBANK. The pertinent portion of the said memorandum states:
Immediately after said meeting, we had a conference with the Solicitor General and he
advised that the following procedure should be taken:
2. If the said report is confirmed by the Monetary Board, it shall order the
liquidation of the bank and indicate the manner of its liquidation and
approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of Genbank of the
foregoing decision to liquidate the bank and the liquidation plan approved
by the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First Instance
reciting the proceedings which had been taken and praying the assistance
of the Court in the liquidation of Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary
Board where it was shown that Atty. Mendoza was furnished copies of pertinent
documents relating to GENBANK in order to aid him in filing with the court the
petition for assistance in the banks liquidation. The pertinent portion of the said
minutes reads:
...
2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust
Co., dated March 23, 1977;
...
If the Monetary Board shall determine and confirm within the said
period that the bank or non-bank financial intermediary performing quasi-
banking functions is insolvent or cannot resume business with safety to its
depositors, creditors and the general public, it shall, if the public interest
requires, order its liquidation, indicate the manner of its liquidation and
approve a liquidation plan. The Central Bank shall, by the Solicitor General,
file a petition in the Court of First Instance reciting the proceedings which
have been taken and praying the assistance of the court in the liquidation of
such institution. The court shall have jurisdiction in the same proceedings to
adjudicate disputed claims against the bank or non-bank financial
intermediary performing quasi-banking functions and enforce individual
liabilities of the stockholders and do all that is necessary to preserve the assets
of such institution and to implement the liquidation plan approved by the
Monetary Board. The Monetary Board shall designate an official of the
Central Bank, or a person of recognized competence in banking or finance, as
liquidator who shall take over the functions of the receiver previously
appointed by the Monetary Board under this Section. The liquidator shall,
with all convenient speed, convert the assets of the banking institution or non-
bank financial intermediary performing quasi-banking functions to money or
sell, assign or otherwise dispose of the same to creditors and other parties for
the purpose of paying the debts of such institution and he may, in the name of
the bank or non-bank financial intermediary performing quasi-banking
functions, institute such actions as may be necessary in the appropriate court
to collect and recover accounts and assets of such institution.
II
III
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 has 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. At bottom, the point they make relates
to the unfairness of the rule if applied without any prescriptive period and
retroactively, at that. Their concern is legitimate and deserves to be initially
addressed by the IBP and our Committee on Revision of the Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions dated July 11,
2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan in
Civil Case Nos. 0096-0099 is denied.
No cost.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona and Garcia, JJ., concur.
Panganiban and Tinga, JJ., Please see separate opinion.
Carpio-Morales and Callejo, Sr., JJ., Please see dissenting opinion.
Azcuna, J., I was former PCGG Chair.
Chico-Nazario, J., No part.