DOJ Opinion No. 012, s. 2002

DOJ OPINION NO. 012 , s. 2002 March 11, 2002 RADM Reuben S. Lista Commandant, Philippine Coast Guard Headquarters PCG 139 25th Street, Port Area Manila Sir : Reference is made to your request for opinion on whether or not the Philippine Coast Guard (PCG) could validly enter into a contract of consultancy with private lawyers for assignment as legal officers of various Coast Guard Districts. This request was made in view of the PCG's plan to hire private lawyers on consultancy basis to sit as law members of the Special Board of Marine Inquiry in each Coast Guard District to investigate maritime accidents and ultimately complement the present legal officers in the Philippine Coast Guard. You are, however, in a quandary in pursuing the said plan as there seems to be a restriction provided in the Administrative Code of 1987, specifically Section 35, Chapter 12, Title III, Book IV thereof, which provides, to wit: Sec. 35. Powers and Functions . The Office of the Solicitor General shall represent the Government of the Republic of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. When authorized by the President or head of the office concerned, it shall also represent government-owned and controlled corporations. The Office of the Solicitor General shall constitute the law office of the government and as such, shall discharge the duties requiring the services of lawyers. . . ." Nonetheless, you said that you were somehow enlightened upon perusal of this Department's Opinion No. 246, s. 1988 on the matter of consultancy contract where we held that: "A consultant is one who gives professional advice or services regarding matters in the field of his special knowledge or training in regard to a certain case or project (Webster's 3rd New International Dictionary, p. 490; 16 A CJS 1243). When the services of a consultant are engaged, an agreement or contract of consultancy is usually drawn up. And it has been said that a contract for the employment of services is necessarily limited in duration and specific in its objects (Hard v. State ex rel. Owen, 153 So. 725). Thus, while a consultancy may not be deemed an office because it is essentially limited in duration and specific in its purpose, it is at best an employment which is an agency for a temporary purpose and which ceases when the purpose is accomplished (Groves v. Barden, 84 S. E.1042). Accordingly, where the prohibition is against accepting or holding 'any office' such prohibition would not encompass a consultancy." This Department entertains serious doubts as to whether the PCG could legally hire private lawyers as legal officers on a consultancy basis. In Opinion No. 4, series of 2001, of this Department, the Secretary of Justice, in answer to a similar query posed by the Bureau of Internal Revenue (BIR) opined that the BIR cannot contract accredited private lawyers to handle the litigation of tax cases on their behalf. In supporting said opinion, the following pronouncements of the Supreme Court were quoted, to wit: "There are cases where a government agency declines the services of the Solicitor General or otherwise fails or refuses to forward the papers of the case to him for appropriate action. The court finds and so holds that this practice should be stopped. To repeat, the Solicitor General is the lawyer of the government, any of its agents and officials in any litigation, proceeding, investigation or matter requiring the services of a lawyer. aScIAC The exception is when such officials or agents are being charged criminally or are being civilly sued for damages arising from a felony. His services cannot be lightly rejected, much less ignored by the office or officials concerned. (Orbos vs. Civil Service Commission, 189 SCRA 459, 466-467[1990])" ". . . Aside from the legal provisions mandating that the Solicitor General is the lawyer of the government . . ., the national interest and fiscal considerations must be taken into account. The government must not be unnecessarily subjected to financial burdens which, in the first place, it need not incur at all. . . . (Supreme Court Resolution in Gonzales vs . Chaves, G . R . No . 97351, promulgated on March 17, 1992, clarifying its earlier Decision promulgated on February 4, 1992 in the same case) Moreover, the Secretary of Justice, in the same opinion, cited pertinent issuances of the Commission on Audit (COA) on the same subject matter, as follows: "Moreover, Commission on Audit (COA) Circular No. 86-255 dated April 2, 1986 (Inhibitions against employment by government agencies and instrumentalities, including government-owned or controlled corporations, of private lawyers to handle their legal cases) directs that 'the payment out of public funds, or retainer fees to private practitioners who are so hired or employed without the prior written conformity and acquiescence of the Solicitor General or the Government Corporate Counsel, as the case may be, as well as the written concurrence of the Commission on Audit shall be disallowed in audit and the same shall be a personal liability of the officials concerned.' The amendatory COA Circular No. 98-002, dated June 9, 1998, provides that 'public funds shall not be utilized for payment of the services of a private legal counsel or law firm to represent government agencies and instrumentalities, including government-owned or controlled corporations and local government units in court or to render legal services for them. In the event that such legal services cannot be avoided or is justified under extraordinary or exceptional circumstances for government agencies and instrumentalities including government-owned and controlled corporations, the written conformity and acquiescence of the Solicitor General or the Government Corporate Counsel as the case may be and the written concurrence of the Commission on Audit shall be secured before the hiring or employment of a private lawyer or law firm.' " (Emphasis supplied) In view of the foregoing, it appears that the solution to your problem is for the PCG to work for the creation of additional lawyer positions in the PCG, or in case there is a sufficient number of lawyer positions but there are no applicants because of low salary, to request for the upgrading of their salaries from the Department of Budget and Management. In the meantime, you may seek clearance to hire private counsel pursuant to COA Circular No. 98-002 dated June 9, 1998. EcTDCI Please be guided accordingly. Very truly yours, (SGD.) HERNANDO B. PEREZ Secretary