March 25, 1999

DAR OPINION NO. 29-99

Atty. Nestor C . Fernandez

Trial Attorney V

Provincial Agrarian Reform Office

Digos, Davao del Sur

Dear Atty. Fernandez:

This refers to your undated letter regarding the authority of DAR Trial Lawyers to represent the Secretary and other officials who are sued in their official capacity.

As stated, the plaintiff in the case of Guillermo D. Viacrucis vs. The Secretary of Agrarian Reform, et al., is questioning the authority of DAR Trial Lawyers to represent the Secretary when a new Secretary has already been appointed.

Your queries are summarized as follows:

a.         Whether or not the authority of DAR lawyers to represent the Secretary, in cases where the DAR Secretary is sued in his official capacity, ceases when the person occupying the post of DAR Secretary is replaced; and

b.         Whether or not a written authority from the new DAR Secretary is needed to represent the Secretary and other officials who are sued in their official capacity.

It is well-settled rule that the head of an executive department is not liable to a civil suit on account of official conduct made by him pursuant to law and in respect of matters within his authority. In cases wherein the head of an executive department or government officials are sued in their official capacity, it is mandatory upon the Office of the Solicitor General to act as counsel for the government official and agency. Pursuant to the provision of P.D. No. 478 entitled, "Defining the Powers and Functions of the Office of the Solicitor General", particularly Section 1(h) of the same law, the Solicitor General may deputize legal officers of the government, department, bureaus, agencies and offices to assist the Solicitor General and appear or represent the Government in cases involving the respective offices, brought before the courts.

Anent your first query, DAR lawyers duly deputized as Special Attorneys of the Office of the Solicitor General may represent the DAR Secretary, in all cases where the Secretary is impleaded as a party in his official capacity and must continue representing the Secretary even if a new person is appointed to the said Office, for the following reasons:

1.         the DAR lawyers concerned are not representing the individual holding the Office of DAR Secretary in the latter's private capacity;

2.         the lawyer-client relationship is not personally between the DAR lawyer and the DAR Secretary in a way that whenever the person occupying the post of DAR Secretary is replaced, the attorney-client relationship is severed; and

3.         the party impleaded in these cases is actually the Office of the DAR Secretary as occupied by the incumbent Official duly appointed and exercising the functions and powers of said Office, the exercise of which is necessarily continuous and uninterrupted no matter who is presently appointed as Secretary. Thus, a DAR Lawyer who was previously representing the Office of the Secretary in the person of then Secretary Ernesto D. Garilao (e.g., the case of Guillermo D. Viacrucis vs. the Secretary of Agrarian Reform) may continue to represent the new DAR Secretary in the person of Secretary Horacio R. Morales in the same case under the authority of his deputization from the OSG.

Anent your second query and in view of the aforementioned, as long as his OSG deputization is still in effect, there is therefore no need for a written authority from the new DAR Secretary in order that a DAR trial attorney may continue to represent the new DAR Secretary. The "Comment and/or Opposition" filed by the plaintiff's lawyer is clearly just a puerile dilatory technique and a desperate attempt to unduly delay the proceedings of the case to thwart the successful implementation of the Comprehensive Agrarian Reform Program.

Please be guided accordingly and we hope to have clarified the matter with you.

Very truly yours,

(SGD.) DANILO T. LARA

Undersecretary for Legal Affairs, and Policy and Planning