A.M. No. RTJ-08-2132; July 31, 2009
Atty. Florencio Alay Binalay vs. Judge Elias O. Lelina, Jr.

FACTS

Respondent Judge Elias O. Lelina, Jr., presiding judge of the RTC of Cabarroguis, Quirino, was preventively suspended by the Court in 1998 due to an earlier administrative complaint and related criminal charges for Rape and Abduction. He was detained from 1998 until his acquittal in 2005. In early 2006, while still under preventive suspension, he filed a motion seeking permission to practice law during the remainder of his suspension or, alternatively, to be considered resigned. However, it was discovered that even before filing this motion, respondent had already engaged in private practice. He represented clients in Criminal Case No. 5192 in Bayombong, Nueva Vizcaya, and in Civil Case No. 632-2006 in Cabarroguis, Quirino, signing pleadings as a partner of a law firm.
In his defense, respondent argued that the prohibition against private practice applies only to judges in active service and not to those under suspension. He claimed economic necessity forced him to practice law to support his family. He also alleged the complaint was ill-motivated because the complainant bore a grudge against him. The Office of the Court Administrator (OCA) found respondent guilty of unauthorized practice and recommended a three-month suspension.

ISSUE

Whether a judge under preventive suspension is prohibited from engaging in the private practice of law.

RULING

Yes. The Supreme Court found respondent guilty of unauthorized practice of law. The legal logic is anchored on the principle “Ubi lex non distinguit nec nos distinguire debemos” (where the law does not distinguish, we should not distinguish). Section 35, Rule 138 of the Rules of Court and the relevant Canons of the Code of Judicial Conduct prohibit judges from engaging in private practice. These provisions do not make any exception or distinction for judges who are under suspension; the prohibition applies while one holds judicial office.
Since respondent was merely suspended and not dismissed from service, he remained a member of the judiciary and was therefore still bound by this absolute prohibition. The Court cited Tabao v. Judge Asis, which emphasizes that this rule is based on public policy, ensuring judges devote full attention to judicial duties, avoid conflicts of interest, and maintain public confidence in the judiciary. The defense of economic necessity is not a justifying circumstance. Considering respondent was not a first-time offender, having been previously suspended for gross misconduct, the Court imposed the OCA’s recommended penalty of a three-month suspension without pay and issued a stern warning.