Just recently, the Makati police arrested three lawyers – Jan Vincent Soliven, Lenie Rocel Rocha, and Romulo Bernard Alarkon – while they were documenting the implementation of a search warrant in a popular bar that had been tagged as a drug den. The police charged the lawyers with obstruction of justice, among other crimes.
The owner of the bar engaged their law firm to protect its rights. Among their lawyers’ responsibilities were to make sure that the search was implemented properly, to guard against planting or tampering of evidence, and to document the chain of custody.
One of the most basic things a law student learns is that an establishment owner has a right to be present during the search. That right transfers to lawyers. Lawyers may appear on behalf of their clients or represent them. They can act for them in ways that other agents cannot. This is part of the law profession. There is no need for letter of consent or a special power of attorney to do this.
Let’s look at the facts surrounding the case:
The facts according to the Makati police
The police reported that the lawyers just entered the police line without any permission and without introducing themselves. The policemen supposedly asked them to identify themselves, but they refused to do so.
“Pumasok na lang nang di nagpapaalam. They were cautioned by the police there. They were asked identification pero they refused… They interfered with the procedure.”
-Metro Manila Police director Chief Supt. Guillermo Eleazar
After that, the lawyers started to take pictures and write down notes. In one report, the police said that the lawyers were preventing them from searching other areas in the club.
The police arrested the lawyers allegedly because they did not identify themselves, did not coordinate with them, started taking photos and writing notes, and threatened and intimidated them. The police charged the lawyers with:
- Obstruction of justice
- Resistance and disobedience
- Constructive possession of dangerous drugs (Sec. 11 RA 9165)
- Violation of Makati City Ordinance No. 96-298 – unlawful for unauthorized persons to cross a police line.
The police released the three lawyers on August 17, Friday, after 8:00PM, after they received a release order from the Makati Office of the City Prosecutor. The release order even required the police to “clear out some matters” because their charges did not include the specific acts complained of, “chief among which are: the specific actions that respondents allegedly did that constitute the crimes complained of, and importantly, what actions they did to constitute constructive possession of drugs seized in the premises.”
In other words, the Makati prosecutor’s office ordered the release of the lawyers because the police did not even say what actions of theirs constituted crimes.
The facts according to the lawyers
The accused lawyers claimed to have clearly identified themselves as lawyers. They informed the police that their client was an owner of the establishment. They told the police that they were acting on behalf of their client. They were just writing down notes on what was transpiring at the time and taking photographs and were in no way impeding the search or the taking of evidence.
The facts established by the videos covering the arrest
The videos clearly showed that the lawyers identified themselves as lawyers. One of them even identified themselves as associates of a law firm. The policeman questioning them was asking who their client was. The lawyers refused to give the name, but they did indicate that he was one of the owners of the establishment.
The videos show that at the time they were being arrested, the lawyers did not resist arrest or disobey the policemen. So obviously, the charge that they resisted arrest and were being disobedient is not very convincing.
What’s the law here?
Lawyers are NOT your ordinary representatives.
The Supreme Court declared that when lawyers execute their legal duties, they are more than just your ordinary representatives. Because of their profession, they have powers superior to those of an ordinary agent or representative. Moreover, the Supreme Court declared that lawyers are actual officers of the court. They may be considered a “quasi-judicial office.” Theoretically, if you attack a lawyer executing his legal duty, he can sue you for assault under the Revised Penal Code.
“In modern day perception of the lawyer-client relationship, an attorney is more than a mere agent or servant, because he possesses special powers of trust and confidence reposed on him by his client. A lawyer is also as independent as the judge of the court, thus his powers are entirely different from and superior to those of an ordinary agent. Moreover, an attorney also occupies what may be considered as a “quasi-judicial office” since he is in fact an officer of the Court and exercises his judgment in the choice of courses of action to be taken favorable to his client.”
-Supreme Court in Regala v. Sandiganbayan (1996)
This means that lawyers may cross a police line if they do it as part of their legal duty to their client.
The owner of the establishment has the right to be present in searches and seizures. If he hires a lawyer to represent him, then that lawyer has the right to be present there as well.
The three lawyers are not “unauthorized persons” who are prohibited from entering a police line. In fact, they even have a legal obligation to be there! If they did not enter the premises, their client may sue them in disciplinary proceedings for negligence in execution of their legal duties.
Lawyers do not need written authorization of the client
Among the reasons the Makati police arrested the lawyers is that they had no written authorization from their client.
First of all, there is no law or rule that requires lawyers to submit authorization from their client before they could represent legally them.
Secondly, if you look at related jurisprudence and legal provisions with regard to legal representation, you will find provisions that presume that a lawyer who says that he represents a client is presumed to actually represent him. Section 21 of Rule 138 (authority of the attorney to appear in cases) states that a lawyer is presumed to be properly authorized to represent any cause in which he appears, and no written power of attorney is required to authorize him to appear in court for his client.
Lastly, the work of a lawyer includes appearing for their client during emergencies. In emergent circumstances, it is unreasonable to expect a client to provide lawyers with any paperwork. That is the nature of an emergency – it crops up all of a sudden. That is why lawyers have are legally authorized by their very profession to appear and are presumed to have the full authority of their client to act in their client’s interest.
In certain cases, lawyers do not need to disclose who their client is
The general rule is that a lawyer is required to disclose who his client is. A client’s identity should never be shrouded in mystery. But there is an exception to this rule:
“The court emphasized the exception that a clients name is privileged when so much has been revealed concerning the legal services rendered that the disclosure of the clients identity exposes him to possible investigation and sanction by government agencies.”
-Supreme Court in Regala v. Sandiganbayan (1996)
The lawyer may withhold the client’s identity if disclosing it may open him up to liability. When a client thinks that he may incur criminal liability, consults his attorney about it, and retains his services to help with with that problem, then the name of the client is privileged information that can be legally withheld.
In this instance, disclosing the client’s name to policemen searching the bar for illegal drugs could expose their client to criminal liability. This seems to be what happened in this incident. Disclosing the client’s name might expose him to investigation, legal action, and sanction. If indeed the lawyers refused to name their client, then there is nothing wrong with that. It is their job. In fact, their refusal to disclose the client’s name is a legal duty which the Supreme Court recognizes as valid.
The Supreme Court discussed this issue thoroughly in Regalado v. Sandiganbayan (September 20, 1996). It recognized that it was the duty of the lawyers not to reveal the identity of their clients. And if the lawyers violated that duty, they would expose themselves to litigation by their clients.
“We have no choice but to uphold petitioners’ right not to reveal the identity of their clients under pain of the breach of fiduciary duty owing to their clients, because the facts of the instant case clearly fall within recognized exceptions to the rule that the clients name is not privileged information.” – Supreme Court
Threat and intimidation
Whether there were actual threats and intimidation is not clear. But we have working legal definitions for threats and intimidation.
In legal terms, threats are made when somebody threatens another with wrong-doing against his person, honor, or property. There is intimidation when there is a reasonable and well-grounded fear of an imminent and grave evil a person’s person or property. To determine the degree of the intimidation, the age, sex and condition of the person shall be borne in mind. The same is true with threats.
Something that nobody disputes is that the three lawyers were unarmed. The policemen present during the search outnumber them, and have guns. The policemen were within their territorial jurisdiction and can easily call for backup.
It is hard to imagine three unarmed lawyers making threats against, or intimidating a large number of armed policemen in public, while cameras and videos capture the moment.
However, since we do not know all the facts, it is prudent to keep an open mind. Stranger things have happened in real life.
Lawyering is not obstruction of justice
Writing down notes and taking pictures is not obstruction of justice.
Neither is objecting to searches that are outside what is written in a search warrant. Search warrants details exactly where to search for contraband. If the place that the authorities want to search is outside that described, then they cannot continue their search there. This is true whether it is just an upstairs floor.
Presidential Decree 1829 describes the acts that are considered as obstruction of justice. The acts described there are the ONLY acts that constitute the crime of Obstruction of Justice. Writing down notes and taking pictures cannot be placed under any of those acts. In fact, none of the acts enumerated so far by the police or the lawyers fall under any of those provisions.
Even the Makati prosecutor’s office thought so, which was why it ordered the Makati police to release of the detained lawyers without bail. In the same order, it even asked the police to describe what acts of the lawyers constituted the crimes they were complaining of.
So as long as the lawyers do not impede the search, their presence is not a crime. The can come close as they want to take pictures, as long as they do not disturb the officers.There is no obstruction of justice there. The police officers are performing a public function, and all public functions may be witnessed. If there is anything objectionable in the way that the search warrant is implemented, the lawyer has the same right as his client to object to its implementation.
In fact, if a lawyer was present while the police document the evidence, this could be brought up during trial just to show that lawyers of the in the chain of evidence, and that the lawyers even properly documented search. The charges would surely stick.
Lawyers cannot be charged for any crime of their client
Due to the special relationship between the law and lawyers, they cannot be charged for any crime that their client committed, unless they themselves committed the crime. The police therefore cannot charge the lawyers of constructive possession of illegal drugs. This is something so basic, that it is a wonder why it was even charged.
Under the law, “constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary.”
Did the lawyers exercise any dominion or control of the bar? Did they even have the right to exercise any control over the bar? Let’s put it this way… Can they take their friends there and give them drinks on the house? No.
The lawyers were present at the search area for two reasons: (1) to ensure that the search warrant is correctly implemented, and (2) to document search and note the chain of custody. The lawyers were not managing the bar. I’m sure that nobody could order cocktails from them, and that they would have to buy their own beer from the place. They did not have any right to exercise control or dominion over the place. They were there only to witness and document the implementation of the search warrant.
Perhaps a reason the police charged them that was to justify their detention for more than 18 hours. Otherwise, the lawyers can charge the officers involved for arbitrary detention. The officers can be sacked or even jailed for this.
The lawyers should have been subject to inquest just like any arrested detainee. Instead, the Office of the City Prosecutor sent a release order to the police station. The order required the police to release the three lawyers because they did not state what acts of the lawyers constituted crimes. But instead of dismissing the case outright, the prosecutor gave the police another chance to charge them. We’ll see how this develops.
An additional complication here is that any evidence found AFTER the policemen arrested the lawyers could be put into question. The police removed the lawyers while they were observing implementation of the warrant. So, any evidence that turned up after can questioned. A judge can even dismiss the case for reasonable doubt because of how the evidence was gathered. Those accused can even question the motives of the police in removing legal counsel during the search itself.