How Can a Company Hire a Private Prosecutor?

Introduction

A company that is the victim of a crime may retain its own lawyer to assist in prosecuting the criminal case. This lawyer is commonly called a private prosecutor. The private prosecutor may actively participate in hearings, examine witnesses, present evidence, and protect the company’s civil interests.

However, the company does not control the criminal case. Criminal actions are prosecuted in the name of the People of the Philippines and remain under the direction and control of the public prosecutor. The private prosecutor’s authority is therefore secondary and subject to the supervision of the fiscal or public prosecutor.

What Is a Private Prosecutor?

A private prosecutor is a lawyer engaged by the offended party to participate in the prosecution of a criminal action. In most cases, the offended party may intervene because the criminal case also includes the civil action for the recovery of civil liability arising from the offense.

For a company, the lawyer may be retained to protect the corporation’s property, financial, or other legally recognized interests. The company must act through a duly authorized officer or representative, such as the president, general manager, board-authorized representative, or another person authorized under its corporate rules.

Who Controls the Criminal Case?

Under Section 5, Rule 110 of the Rules of Criminal Procedure, criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the public prosecutor.

This rule exists because a criminal offense is considered an offense against the People of the Philippines, not merely against the private complainant. The public prosecutor represents the State and determines how the criminal case should proceed.

In Punzalan, et al. v. Plata, et al., G.R. No. 160316, 2013, the Supreme Court emphasized that the prosecution of crimes is an executive function and that the public prosecutor has broad discretion in determining whether probable cause exists and whether a person should be charged.

Similarly, Pinote v. Ayco, A.M. No. RTJ-5-1944, 2005, held that the presence and participation of the public prosecutor are necessary to protect the State’s interest in the enforcement of criminal laws. The right of the accused to a speedy trial does not authorize the court to disregard the public prosecutor’s role.

When May a Private Prosecutor Actively Prosecute?

A private prosecutor may actively prosecute the criminal case when the following conditions are present:

• The offended party has retained or engaged the private prosecutor;
• The private prosecutor is authorized in writing by the proper prosecution authority;
• The court approves the authority to prosecute; and
• The private prosecutor acts under the direction and control of the public prosecutor.

Under Section 5, Rule 110, the written authority is ordinarily issued by the Chief of the Prosecution Office or the Regional State Prosecutor in cases involving the heavy workload or lack of public prosecutors. Once authorized, the private prosecutor may continue prosecuting the case until the end of trial, even in the absence of a public prosecutor, unless the authority is revoked or withdrawn.

For trafficking and OSAEC or CSAEM cases, the applicable implementing rules contain substantially similar provisions. Section 85, Rule V of the 2022 Revised Rules and Regulations Implementing Republic Act No. 9208, as amended, permits the Prosecutor General or the head of the local prosecution office to authorize a private prosecutor in writing, subject to court approval. Section 63, Rule IV of the Implementing Rules of Republic Act No. 11930 likewise permits written authorization by the Prosecutor General or the head of the local prosecution office.

What Does “Under the Fiscal’s Direction” Mean?

The private prosecutor may handle the day-to-day presentation of the prosecution’s evidence, but the public prosecutor retains ultimate authority over the criminal aspect of the case.

In Ampatuan v. Families of the Murdered Victims, et al., G.R. No. 200106, 2023, the Supreme Court stated that the fiscal must continue appearing for the People even when the presentation of evidence is entrusted to a private prosecutor. The private prosecutor may present evidence, but only under the public prosecutor’s direction and control.

The public prosecutor may therefore:

• Approve or oppose procedural motions;
• Decide whether evidence should be presented;
• Determine the witnesses to be called;
• Object to improper questions or evidence;
• Recommend dismissal, amendment, or continuation of the case; and
• Revoke or withdraw the authority of the private prosecutor.

The private prosecutor cannot independently compromise, withdraw, dismiss, or otherwise terminate the criminal case without the conformity of the public prosecutor and the approval of the court when required.

Why Is Written Authority Necessary?

Written authority confirms that the private lawyer is not acting solely by virtue of the company’s private engagement. It establishes that the lawyer is authorized to participate in the prosecution of the public criminal action.

Without the required authority and court approval, the private lawyer may lack legal capacity to conduct the criminal prosecution. In Valderrama v. People of the Philippines, et al., G.R. No. 220054, 2017, the Supreme Court reiterated that a private party does not have independent personality to prosecute the criminal aspect of a case because the People of the Philippines are the real party in interest.

The private lawyer may still assist the company in protecting its civil claims, but active participation in the criminal prosecution must comply with Rule 110 and the court’s directives.

What Role Does the Company Play?

The company is generally the offended party or private complainant. It may provide documents, identify witnesses, preserve evidence, and support the prosecution’s presentation of the case.

The company should designate a responsible representative who can:

• Execute affidavits and verify corporate records;
• Coordinate with the private prosecutor and public prosecutor;
• Authenticate business documents;
• Attend hearings when required; and
• Approve litigation decisions affecting the company’s civil claims.

Corporate authority should be documented through a board resolution, secretary’s certificate, or other appropriate instrument. This avoids challenges concerning the authority of the person who retained counsel or executed the complaint-affidavit.

Can the Private Prosecutor Handle the Entire Trial?

Yes, subject to the required authorization, court approval, and continuing supervision of the public prosecutor. The private prosecutor may examine and cross-examine witnesses, offer documentary evidence, make objections, file appropriate pleadings, and participate in trial proceedings.

Nevertheless, the private prosecutor does not become an independent representative of the State. The prosecutor remains responsible for the criminal action and must retain sufficient participation to ensure that the prosecution is conducted in accordance with law.

In Office of the Court Administrator v. Yu, A.M. No. MTJ-12-1813, 2016, the Supreme Court stressed that the exception permitting private prosecution must be strictly applied because criminal prosecution is a public function entrusted to officers trained for that responsibility.

What Happens If the Public Prosecutor Is Absent?

When a private prosecutor has been properly authorized and the court has approved the authority, the private prosecutor may continue prosecuting the case until the end of trial even if the public prosecutor is not physically present at a particular hearing.

This does not mean that the public prosecutor’s control has ended. The private prosecutor continues to act pursuant to the authority granted and remains subject to the public prosecutor’s supervision. If the authority is revoked or withdrawn, the private prosecutor may no longer continue prosecuting the criminal action in that capacity.

Special Rule for Municipal Trial Courts

Section 5, Rule 110 also recognizes a limited rule for criminal cases before Municipal Trial Courts or Municipal Circuit Trial Courts. When the prosecutor assigned to the case is unavailable, the offended party, a peace officer, or a public officer charged with enforcing the violated law may prosecute the case.

This authority ends upon the actual intervention of the prosecutor or upon the elevation of the case to the Regional Trial Court. The rule should not be treated as a general license for private parties to prosecute criminal cases independently.

What Does the Company’s Lawyer Actually Prosecute?

The private prosecutor may participate in both the criminal and civil aspects of the case, but the criminal aspect remains under the public prosecutor’s control. The lawyer may also pursue restitution, reparation, indemnification, or damages arising from the offense, subject to the Rules of Criminal Procedure and the company’s litigation objectives.

In Mobilia Products, Inc. v. Umezawa, et al., G.R. No. 149357, 2005, the Supreme Court explained that the offended party may intervene by counsel when the civil action is instituted with the criminal action. The civil action and criminal action proceed in a composite proceeding, with the criminal action predominating.

Common Situations Involving Corporate Victims

Employee theft. A company may retain counsel in a qualified theft or estafa case involving company funds, inventory, or property. The private prosecutor may present corporate records and witnesses while coordinating all decisions with the public prosecutor.

Fraud against the company. The company’s lawyer may assist in presenting contracts, payment records, electronic communications, audit findings, and other evidence relevant to the alleged fraud.

Trafficking or online exploitation cases. In cases covered by the implementing rules of Republic Act No. 9208, as amended, or Republic Act No. 11930, the private prosecutor must comply with the special written-authorization and court-approval requirements under the applicable rule.

Criminal case with a separate corporate dispute. A pending civil, corporate, or administrative dispute does not automatically prevent the filing or prosecution of a criminal case. The criminal liability of an accused is distinct from the company’s other claims, although related proceedings must be assessed for possible procedural consequences.

Practical Steps Before Hiring Private Counsel

1. Confirm corporate authority. Secure a board resolution, secretary’s certificate, or equivalent authorization identifying the company representative and retained counsel.
2. Preserve evidence. Maintain original documents, electronic records, audit trails, photographs, access logs, and communications relevant to the offense.
3. Coordinate with the public prosecutor. The private prosecutor should meet with the assigned prosecutor, clarify the scope of participation, and avoid taking positions inconsistent with the prosecution’s theory.
4. Obtain written authority. Request the appropriate authorization from the Chief of the Prosecution Office, Regional State Prosecutor, Prosecutor General, or local prosecution head, depending on the applicable rule.
5. Secure court approval. File the authority and the necessary appearance or motion before the trial court and obtain an order recognizing the private prosecutor’s participation.
6. Separate criminal and civil objectives. Clearly identify whether the company seeks restitution, damages, recovery of property, or another civil remedy in addition to the criminal prosecution.

Limits on the Private Prosecutor’s Authority

The private prosecutor cannot substitute personal judgment for that of the public prosecutor on matters belonging exclusively to the State. The lawyer cannot independently determine probable cause, file or withdraw an information, agree to an invalid dismissal, or compromise the criminal liability of the accused.

The private prosecutor must also observe the accused’s constitutional rights, the rules on evidence, the right to a fair trial, and all orders of the court. Improper conduct may result in the withdrawal of authority or other appropriate sanctions.

Conclusion

A company may hire a private prosecutor to actively assist in a criminal case, but the arrangement does not transfer control of the prosecution from the State to the company. The public prosecutor remains responsible for the criminal action, while the private prosecutor acts as counsel for the offended party under the fiscal’s direction and supervision.

Companies should document their authority, preserve evidence, obtain written prosecutorial authorization, secure court approval, and coordinate closely with the public prosecutor. These steps protect the company’s interests while ensuring that the prosecution remains legally valid and consistent with the public nature of criminal proceedings.

About Nicolas and De Vega Law Offices

 Nicolas and de Vega Law Offices is a full-service law firm in the Philippines.  You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines.  You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at [email protected]. Visit our website https://ndvlaw.com.