Arthur O. Monares vs. Atty. Levi P. Muñoz
A.C. No. 5582 / A.C. No. 5604 / A.C. No. 5652
January 24, 2017
Facts:
For resolution is the Joint Petition for Review with Prayer for Absolution and/or Clemency2 (Joint Petition) dated May 14, 2009 filed by respondent Atty. Levi P. Muñoz (Muñoz), in connection with the complaints for disbarment filed by Arthur 0. Monares (Monares), Atty. Oliver 0. Olaybal (Olaybal) purportedly representing Albay Electric Cooperative, Inc. (ALECO), and Benjilieh M. Constante (Constante), dated January 17, 2002, February 4, 2002 and March 21, 2002, respectively.
Monares is the plaintiff in Civil Case No. 9923 filed against Ludolfo Muñoz (Ludolfo) before the Regional Trial Court (RTC) ofLegazpi City. In his complaint, Monares alleged that Muñoz represented his brother Ludolfo in the said case during regular government hours while employed as Provincial Legal Officer of Albay City.
Under the chairmanship of Olaybal, ALECO's old board of directors (BOD) engaged Muñoz as retained counsel sometime in June 1998. Olaybal averred that Muñoz did not inform ALECO's old BOD that he was employed as Provincial Legal Officer at such time. Olaybal raised that after its administrator, the National Electrification Administration (NEA), deactivated the old BOD on the ground of mismanagement, Muñoz served as retained counsel of the NEA-appointed team which took over the management of ALECO. Moreover, Olaybal alleged that Muñoz illegally collected payments in the form of notarial and professional fees in excess of what was agreed upon in their retainer agreement.
Constante is the Executive Assistant for Legal Affairs of Sunwest Construction and Development Corporation (Sunwest). Constante claimed that Mufi oz filed ten ( 10) cases against Sun west on Ludolfo' s behalf before the Office of the Ombudsman (Ombudsman) while he was serving as Provincial Legal Officer.
All three (3) complaints prayed that Muñoz be disbarred for unlawfully engaging in private practice. In addition, Olaybal sought Muñoz's disbarment for acts of disloyalty, particularly, for violating the rule against conflict of interest.
To support their position, the complainants raised that Muñoz had been previously disciplined by the Ombudsman for two (2) counts of unauthorized practice of profession in OMB-ADM-1-01-0462, and was meted the penaltyof removal and dismissal from service. The complainants further manifested that Muñoz had been convicted by the Municipal Trial Court in Cities (MTCC) ofLegazpi City in Criminal Case Nos. 25568 and 25569 for violation of Section 7(b)(2) in relation to Section 11 of Republic Act No. 6713. Muñoz's conviction has since become final pursuant to the Court's Resolution dated June 14, 2004 in G.R. No. 160668.
In his respective comments to the complaints,9 Muñoz claimed that he had requested Governor Al Francis C. Bichara (Governor Bichara) for authority to continue his private practice shortly after his appointment. This request was granted on July 18, 1995.10 Thereafter, Muñoz submitted the same request to Rafael C. Alunan III, then Secretary of the Department of the Interior and Local Government (DILG).11 On September 8, 1995, Acting Secretary Alexander P. Aguirre granted Mufi oz' s request, under the following conditions:
1. That no government time, personnel, funds or supplies shall be utilized in connection (sic) and that no conflict of interest with your present position as Provincial Legal Officer shall arise thereby;
2. That the time so devoted outside of office hours, the place(s) and under what circumstances you can engage in private employment shall be fixed by the Governor of Albay to the end that it will not impair in any way your efficiency; and.
3. That any violation of the above restrictions will be a ground for the cancellation and/or revocation of this authority.
Pursuant to the DILG's authorization, Governor Bichara imposed the following conditions upon Muñoz:
a. You cannot handle cases against the Province of Albay;
b. You will be on call and you will have no fix working hours provided that the efficiency of the Provincial Legal Office shall not be prejudiced;
c. You are exempted in accomplishing your Daily Time Record considering the limitation already mentioned above; and
d. In addition to the above enumeration, you are to perform functions subject to limitations in Sec. 481 of RA 7160.
Issue
Whether or not Atty. Levi Muñoz may practice privately even though a he is a government employee?
Held
In his Appeal, Muñoz insisted that when he served as Provincial Legal Officer from June 1995 to May 2002, he engaged in private practice pursuant to the three (3) written authorities issued by Governor Bichara, and the written authority of the DILG issued during his first term, which he claims had never been revoked. Mufi.oz also argued that no conflict of interest existed between ALECO's old BOD and th'e NBA management team, since he was engaged as retained counsel of ALECO as an institution, not its management teams.
Muñoz violated the conditions of his DILG authorization. Muñoz's DILG authorization prohibited him from utilizing government time for his private practice. As correctly observed by Commissioner Aguila, Rule XVII of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws (Omnibus Rules), requires government officers and employees of all departments and agencies, except those covered by special laws, to render not less than eight (8) hours of work a day for five (5) days a week, or a total of forty (40) hours a week. The number of required weekly working hours may not be reduced, even in cases where the department or agency adopts a flexible work schedule. Notably, Mufi.oz did not deny Monares' allegation that he made at least eighty-six (86) court appearances in connection with at least thirty (30) cases from April 11, 1996 to August 1, 2001.32 He merely alleged that his private practice did not prejudice the functions of his office. Court appearances are necessarily made within regular government working hours, from 8:00 in the morning to 12:00 noon, and 1:00 to 5:00 in the aftemoon. Additional time is likewise required to study each case, draftpleadings and prepare for trial. The sheer of cases handled by Muñoz clearly indicates that government time was necessarily utilized in pursuit of his private practice, in clear violation of the DILG authorization and Rule 6.0234 of the CPR. Muñoz should have requested for authority to engage in private practice from the Secretary of DILG for his second and third terms. Acting Secretary Aguirre's grant of authority cannot be unreasonably construed to have been perpetual. Moreover, Muñoz cannot claim that he believed in good faith that the authority granted by Governor Bichara for his second and third terms sufficed. Memorandum No. 17 dated September 4, 1986 (Memorandum 17), which Muñoz himself cites in his Joint Petition, is clear and leaves no room for interpretation. The power to grant authority to engage in the practice of one's profession to officers and employees in the public service lies with the head of the department, in accordance with Section 12, Rule XVIII of the Revised Civil Service Rules which provides, in part: Sec.
Sec 12. No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural, or industrial undertaking without a written permission from the head of Department: Provided, That this prohibition will be absolute in the case of those officers and employees whose duties and responsibilities require that their entire time be at the disposal of the Government: Provided, further, That if an employee is granted permission to engage in outside activities, the time so devoted outside of office hours should be fixed by the chief of the agency to the end that it will not impair in any way the efficiency of the officer or employee.
Muñoz represented conflicting interests. Muñoz cannot elude Olaybal's allegations of disloyalty. In Mabini Colleges, Inc. v. Pajarillo, the Court explained the tests to determine the existence of conflict of interest, thus: There is conflict of interest when a lawyer represents inconsistent interests of two or more opposing parties. The test is "whether or not in behalf of one client, it is the lawyer's duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues for one client, this argument will be opposed by him when he argues for the other client." This rule covers not only cases in which confidential communications have been confided, but also those in which no confidence has been bestowed or will be used. Also, there is conflict of interest if the acceptance of the new retainer will require the attorney to perform an act which will injuriously affect his first client in any matter in which he represents him and also whether he will be called upon in his new relation to use against his first client any knowledge acquired through their connection. Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.
Ruling
WHEREFORE, Atty. Levi P. Muñoz is found GUILTY of gross misconduct and violation of Rules 1.01, 6.02, 15.01 and 15.03 of the Code of Professional Responsibility. He is hereby SUSPENDED from the practice of law for a period of three (3) years effective upon receipt of this Decision, with a STERN WARNING that a repetition of any violation hereunder shall be dealt with more severely.
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