communication in respect of matters disclosed to him by a prospective client.
(2008 Bar Question)
and by means which, so far as the client is aware discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given.
Mere relation of attorney-client does not raise a presumption of confidentiality. (Pineda, 2009) For an information to be considered as privileged, it must be intended by the client as such. (CPR Annotated, PhilJA)
Q: What are the essential factors to establish the existence of the attorney-client privilege communication?
A:
1. Where the legal advice of any kind is sought
2. From a professional legal adviser in his capacity as such
3. The communications relating to that purpose
4. Made in confidence 5. By the client
6. Are at his instance permanently protected 7. From disclosure by himself or by the legal
advisor
8. Except if the protection be waived.
(Hadjula v. Madianda, A.C. No. 6711, July 3, 2007)
Q: what are the requisites of privilege communication?
A:
1. There is attorney-client relationship or a kind of consultancy requirement with a prospective client;
2. The communication was made by the client to the lawyer in the course of the lawyer’s professional employment;
3. The communication must be intended to be confidential.
Note: The privilege continues to exist even after the termination of the attorney-client relationship. It outlasts the lawyer’s engagement. The privileged character of the communication ceases only when waived by the client himself or after his death, by the heir or legal representative. (Baldwin v. CIR, 94 F. 2d 355, 20 AFTR 940)
Note: The party who avers that the communication is privileged has the burden of proof to establish the existence of the privilege unless from the face of the document itself, it clearly appears that it is privileged. The mere allegation that the matter is privileged is not sufficient. (People v. Sleeper, No.
22783, December 3, 1924; Lapena Jr., 2009)
Q: Rosa Mercado’s husband filed an annulment against her. Atty. Julito Vitriolo represented her.
Thereafter, a criminal action against her was filed by the latter for falsification of public document. According to Atty. Vitriolo, she indicated in the Certificates of Live Birth of her children that she is married to a certain Ferdinand Fernandez, and that their marriage was solemnized on April 11, 1979, when in truth, she is legally married to Ruben Mercado and their marriage took place on April 11, 1978.
Mercado claims that the criminal complaint disclosed confidential facts and information relating to the civil case for annulment handled by Vitriolo as her counsel.
Did Atty. Julito Vitriolo violate the rule on privileged communication between attorney and client?
A: Evidence on record fails to substantiate Mercado’s allegations. She did not even specify the alleged communication in confidence disclosed by Atty. Vitriolo. All of Mercado’s claims were couched in general terms and lacked specificity. Without any testimony from Mercado as to the specific confidential information allegedly divulged by Atty. Vitriolo without her consent, it is difficult, if not impossible to determine if there was any violation of the rule on privileged communication.
It is not enough to merely assert the attorney-client privilege. The burden of proving that the privilege applies is placed upon the party asserting the privilege. (Mercado v. Vitrilio, A.C.
No. 5108, May 26, 2005)
Q: What is the test in determining whether a communication to an attorney is covered by the rule on privilege communication?
A: Whether the communications are made to an attorney with view of obtaining from him personal assistance or advice regardless of whether there is a pending or merely impending litigation or any litigation.
Q: What are the purposes of making the communication privileged?
A:
1. To encourage a client to make a full disclosure of the facts of the case to his counsel without fear
2. To allow the lawyer freedom to obtain full information from his client.
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ACADEMICS CHAIR:LESTER JAY ALAN E.FLORES II
U N I V E R S I T Y O F S A N T O T O M A S Q: What are the characteristics of privileged
communication?
A:
1. Attorney- client privilege where legal advice is professionally sought from an attorney
2. The client must intend the above communication to be confidential 3. Attorney-client privilege embraces all
forms of communication and action 4. As general rule, attorney-client privilege
also extends to the attorney’s secretary, stenographer, clerk or agent with reference to any fact acquired in such capacity
5. The above duty is perpetual and communication is absolutely privilege from disclosure
6. Persons entitled to claim privileges Q: Who are the persons entitled to claim the privilege?
A: The attorney-client privilege covers:
1. Lawyer;
2. Client; and
3. Third persons who by reason of their work have acquired information about the case being handled such as:
a. Attorney’s secretary, stenographer and clerk;
b. Interpreter, messengers and agents transmitting communication; and c. An accountant, scientist, physician,
engineer who has been hired for effective consultation. (Sec. 24(b), Rule 130, RRC)
Q: Bureau of Immigration and Deportation (BID) Intelligence Agent Hernandez, together with a reporter, went to the house of Aoyagi, a Japanese national. He was told that there were complaints against him in Japan and that he was suspected to be a Yakuza big boss, a drug dependent and an overstaying alien. To prove that he had done nothing wrong, Aoyagi showed his passport to Hernandez who confiscated the same.
A Contract for Legal Services was entered into by Aoyagi and Atty. Acejas III. Aoyagi paid Atty.
Acejas P40,000.00, P25,000 of which is 50% of the acceptance fee, and the P15,000.00 is for filing/docket fee. Hernandez, in the presence of Atty. Acejas, proposed that Aoyagi pay the amount of P1 million in exchange for the help he
would extend to Takao in securing a permanent visa in the Philippines. Atty. Acejas did nothing.
Did Atty. Acejas violate the legal ethics of the profession?
A: Yes. The Court reminds lawyers to follow legal ethics when confronted by public officers who extort money. If the extortion is directed at the client, they must advise the client not to perform any illegal act. Moreover, they must report it to the authorities, without having to violate the attorney-client privilege. Naturally, they must not participate in the illegal act. Atty. Acejas did not follow these guidelines. Worse, he conspired with the extortionists. (Acejas III v. People, G.R. No.
156643, June 27, 2006)
Q: May a lawyer invoke privileged communication to refuse revealing his clients secrets in the course of professional employment?
A: Yes. Rule 15.02 of the Code provides that “A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him by a prospective client”.
Q: What is the duration of privilege communication?
A: The privilege continues to exist even after the termination of the attorney- client relationship.
Note: The privilege character of the communication ceases only when waived by the client himself or after his death, by his heir or legal representative.
(Lapena, Jr. 2009)
Q: When is communication not privileged?
A: A communication made by a client to a lawyer is not privileged:
1. After pleading has been filed.
Note: Pleading ceases to be privileged communication – becomes part of public records.
2. When communication was intended by the client to be sent to a third person through his counsel.
Note: It loses its confidential character as soon as it reaches the hands of a third person.
3. When the communication sought by client is intended to aid future crime or perpetration of fraud.
Note: Past crime is covered by the privilege.
4. When communication between attorney and client is heard by a third party.
Note: Third party testimony is admissible as evidence.
5. When there is consent or waiver of the client.
6. When the law requires disclosure.
7. When disclosure is made to protect the lawyer’s rights
Note: to collect his fees or defend himself, his employees or associates or by judicial action (Rule 21.01, CPR)
Note: Even if the communication is unprivileged, the rule of ethics prohibits lawyers from voluntarily revealing or using to his benefit or to that of a third person, to the disadvantage of the client, the said communication unless the client consents thereto.
.(Sec. 3, Rule 138-A, RRC)
c. Conflict of Interest
(1991, 1992, 1993, 1994, 1997, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008 Bar
Questions)
Q: What is “conflict search”?
A: It is examining the causes of action between the prospective client and the lawyer’s current clients.
Q: What is the purpose of “conflict search”?
A: By conducting a conflict search, the lawyer will be able to determine, in the first instance, if he is barred from accepting the representation through conflicts with his present clients or the lawyer’s own interest. (CPR Annotated, PhilJA)
Q: What are the three tests to determine the existence of conflicting interests?
A:
1. Conflicting Duties - When, on behalf of one client, it is the attorney’s duty to contest for that which his duty to another client requires him to oppose or when possibility of such situation will develop.
2. Invitation of Suspicion - Whether the acceptance of the new relation will prevent a lawyer from the full discharge of his duty of undivided fidelity and loyalty to his client or will invite suspicion of unfaithfulness or double-dealing in the performance thereof.
3. Use of Prior Knowledge Obtained - Whether a lawyer will be called upon in his new relation to use against the first client any knowledge acquired in the previous employment.
Q: What are the types of conflict of interest?
A:
1. Concurrent or multiple representations – Generally occurs when a lawyer represents clients whose objectives are adverse to each other, no matter how slight or remote such adverse interest may be.
The tests for concurrent or multiple representations are:
a. Whether a lawyer is duty-bound to fight for an issue or claim in behalf of one client and, at the same time, to oppose that claim for the other client;
b. Whether the acceptance of a new relation would prevent the full discharge of the lawyer’s duty of undivided fidelity or loyalty to the client;
c. Whether the acceptance of new relation would invite suspicion of unfaithfulness or double-dealing in the performance of the lawyer’s duty of undivided fidelity and loyalty; and d. Whether, in the acceptance of a new
relation, the lawyer would be called upon to use against a client confidential information acquired through their connection.
Rule 15.01, Canon 15, CPR - A lawyer, in