Confidentiality & privilege

communications between
lawyers and clients
Problem Areas in Legal Ethics
Arellano University School of Law Arellano Law Foundation
2015-2016

CANON 15 - A lawyer shall observe candor, fairness

and loyalty in all his dealings and transactions with
his clients

Rule 15.02. - A lawyer shall be bound by the rule on privilege

communication in respect of matters disclosed to him by a prospective
client.

Rule 130 Sec. 24.Disqualification by reason of privileged

communication. The following persons cannot testify as to matters
learned in confidence:
(b)An attorney cannot, without the consent of his client, be examined as to
any communication made by the client to him, or his advice given
thereon in the course of, or with a view to, professional employment, nor
can an attorney's secretary, stenographer, or clerk be examined, without
the consent of the client and his employer, concerning any fact the
knowledge of which has been acquired in such capacity;

Canon 21 A lawyer shall preserve the confidence and

secrets of his client even after the
attorney-client relation is terminated
Rule 21.01 - A lawyer shall not reveal the confidences or secrets of his client
except;
(a) When authorized by the client after acquainting him of the consequences
of the disclosure;
(b) When required by law;
(c) When necessary to collect his fees or to defend himself, his employees or
associates or by judicial action.
Rule 21.02 - A lawyer shall not, to the disadvantage of his client, use
information acquired in the course of employment, nor shall he use the
same to his own advantage or that of a third person, unless the client
with full knowledge of the circumstances consents thereto.
Rule 21.03 - A lawyer shall not, without the written consent of his client,
give information from his files to an outside agency seeking such
information for auditing, statistical, bookkeeping, accounting, data
processing, or any similar purpose.

Cont

Rule 21.04 - A lawyer may disclose the affairs of a client of the firm
to partners or associates thereof unless prohibited by the client.
Rule 21.05 - A lawyer shall adopt such measures as may be
required to prevent those whose services are utilized by him, from
disclosing or using confidences or secrets of the clients.
Rule 21.06 - A lawyer shall avoid indiscreet conversation about a
client's affairs even with members of his family.
Rule 21.07 - A lawyer shall not reveal that he has been consulted
about a particular case except to avoid possible conflict of interest.

Rule 138 of the Rules of Court

Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the

confidence, and at every peril to himself, to preserve the secrets
of his client, and to accept no compensation in connection with
his client's business except from him or with his knowledge and
approval.

Canon 17. A lawyer owes fidelity to the cause of his client and he
shall be mindful of the trust and confidence reposed in him.

Revised Penal Code

Art. 209. Betrayal of trust by an attorney or solicitor. Revelation of

secrets. In addition to the proper administrative action, xxx
shall be imposed upon any attorney-at-law or solicitor ( procurador
judicial) who, by any malicious breach of professional duty or of
inexcusable negligence or ignorance, shall prejudice his client, or
reveal any of the secrets of the latter learned by him in his
professional capacity.
The same penalty shall be imposed upon an attorney-at-law or
solicitor (procurador judicial) who, having undertaken the defense
of a client or having received confidential information from said
client in a case, shall undertake the defense of the opposing
party in the same case, without the consent of his first client.

Confidentiality is not the same as the

attorney-client privilege
The lawyers duty of confidentiality (an ethical duty) is not
the same as the clients right to assert the attorney client
privilege (a rule of evidence).
The attorney/client privilege extends only to
communications between lawyers and clients relating to
legal services and which the client reasonably believes is
confidential.
Any disclosure may waive the attorney/client privilege as to
other otherwise protected matters; not so with the duty of
confidentiality.
The privilege applies only to limiting testimony in a legal
proceeding. The duty of confidentiality limits voluntary
disclosures anywhere.
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Why lawyer-client relationships requires

confidentiality

Considerations favoring confidentially in lawyer-client relationships

are many and serve several constitutional and policy concerns. In the
constitutional sphere, the privilege gives flesh to one of the most
sacrosanct rights available to the accused, the right to counsel. If a client
were made to choose between legal representation without effective
communication and disclosure and legal representation with all his
secrets revealed then he might be compelled, in some instances, to either
opt to stay away from the judicial system or to lose the right to
counsel. If the price of disclosure is too high, or if it amounts to self
incrimination, then the flow of information would be curtailed thereby
rendering the right practically nugatory. The threat this represents against
another sacrosanct individual right, the right to be presumed innocent
is at once self-evident. - Regala et. al. v. Sandiganbayan, G. R. No. 105938
[1996]

Extent of Confidentiality Rule

The confidentiality rule, for example, applies not only to matters

communicated in confidence by the client but also to all
information relating to the representation, whatever its source. A
lawyer may not disclose such information except as authorized or
required by the Rules of Professional Conduct or other law.

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Lawyers duty to keep the confidentiality

An effective lawyer-client relationship is largely dependent upon

the degree of confidence which exists between lawyer and
client which in turn requires a situation which encourages a
dynamic and fruitful exchange and flow of information. It
necessarily follows that in order to attain effective representation,
the lawyer must invoke the privilege not as a matter of option
but as a matter of duty and professional responsibility. Regala et. al. v. Sandiganbayan, G. R. No. 105938 [1996]

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Duty of lawyer when receiving a

material not intended for him

A lawyer who receives on an unauthorized basis materials of an

adverse party that she knows to be privileged or confidential
should, upon recognizing the privileged or confidential nature of
the materials, either refrain from reviewing such materials or
review them only to the extent required to determine how
appropriately to proceed;

She should notify her adversary's lawyer that she has such
materials and should either follow instructions of the adversary's
lawyer with respect to the disposition of the materials, or refrain
from using the materials until a definitive resolution of the proper
disposition of the materials is obtained from a court. - ABA Comm.
on Ethics and Prof'l Responsibility, Formal Op. 382 (1994).

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General Rule on clients identity

As a matter of public policy, a client's identity should not be

shrouded in mystery. Under this premise, the general rule in our
jurisdiction as well as in the United States is that a lawyer may not
invoke the privilege and refuse to divulge the name or identity of
this client. - Regala et. al. v. Sandiganbayan, G. R. No. 105938
[1996]

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Reasons advanced for the general rule

First, the court has a right to know that the client whose privileged
information is sought to be protected is flesh and blood.
Second, the privilege begins to exist only after the attorney-client
relationship has been established. The attorney-client privilege does
not attach until there is a client.
Third, the privilege generally pertains to the subject matter of the
relationship.
Finally, due process considerations require that the opposing party
should, as a general rule, know his adversary. "A party suing or sued
is entitled to know who his opponent is." He cannot be obliged to grope in
the dark against unknown forces.

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Exceptions
1) Client identity is privileged where a strong probability exists that
revealing the client's name would implicate that client in the very
activity for which he sought the lawyer's advice.
2) Where disclosure would open the client to civil liability; his identity
is privileged.
3) Where the government's lawyers have no case against an attorney's
client unless, by revealing the client's name, the said name would
furnish the only link that would form the chain of testimony
necessary to convict an individual of a crime, the client's name is
privileged. - Regala et. al. v. Sandiganbayan, G. R. No. 105938
[1996]

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Summarizing these exceptions, information relating to the identity

of a client may fall within the ambit of the privilege when the
client's name itself has an independent significance, such
that disclosure would then reveal client confidences. - Regala
et. al. v. Sandiganbayan, G. R. No. 105938 [1996]

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Communication to commit crime or fraud not

privileged

"The reason of the principle which holds such communications not to be

privileged is that it is not within the professional character of a lawyer to
give advice upon such subjects, and that it is no part of the profession of an
attorney or counselor at law to be advising persons as to how they may
commit crimes or frauds, or how they may escape the consequences of
contemplated crimes and frauds.

The relation of attorney and client cannot exist for the purpose of counsel in
concocting crimes.

The protection which the law affords to communications between attorney

and client has reference to those which are legitimately and properly within
the scope of a lawful employment, and does not extend to communications
made in contemplation of a crime, or perpetration of a fraud. -Dissenting
opinion, Regala et. al. v. Sandiganbayan, G. R. No. 105938 [1996]

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It does not extend to those made in contemplation of a crime or

perpetration of a fraud. If the unlawful purpose is avowed, as in
this case, the complainants alleged intention to bribe government
officials in relation to his case, the communication is not covered
by the privilege as the client does not consult the lawyer
professionally. It is not within the profession of a lawyer to
advise a client as to how he may commit a crime as a lawyer
is not a gun for hire. Thus, the attorney-client privilege does not
attach, there being no professional employment in the strict sense.
- Genato v. Atty. Silapan, A.C. No. 4078. July 14, 2003

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Cause of client defense is not absolute

Whatever the contours of the line between traditional lawyering

and criminal conduct, they must inevitably be drawn case-by-case.
We refuse to accept the notion that lawyers may do anything,
including violating the law, to zealously advocate their clients'
interests and then avoid criminal prosecution by claiming that
they were "just doing their job." - United States v. Cueto (7th
Cir. 1998) 151 F.3d 620, 634

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Permanent nature of duty to keep

confidentiality

The duty to maintain inviolate the clients confidences and secrets

is not temporary but permanent. It is in effect perpetual for "it outlasts
the lawyers employment" (Canon 37, Code of Professional Responsibility)
which means even after the relationship has been terminated, the duty to
preserve the clients confidences and secrets remains effective.

This obligation to preserve the confidences and secrets of a client arises at

the inception of their relationship. The protection given to the client is
perpetual and does not cease with the termination of the litigation ,
nor is it affected by the partys ceasing to employ the attorney and
retaining another, or by any other change of relation between them. It
even survives the death of the client. Genato v. Atty. Silapan, A.C. No.
4078. July 14, 2003

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Secrets or confidential communications must

be obtained in a lawyer-client relationship

The alleged "secrets" of complainant were not specified by him in his

affidavit-complaint. Whatever facts alleged by respondent against
complainant were not obtained by respondent in his professional
capacity but as a redemptioner of a property originally owned by his
deceased son and therefore, when respondent filed the complaint for
estafa against herein complainant, which necessarily involved alleging
facts that would constitute estafa, respondent was not, in any way,
violating Canon 21. xxx To hold otherwise would be precluding any lawyer
from instituting a case against anyone to protect his personal or
proprietary interests. Uy v. Atty. Gonzales, A.C. No. 5280, March 30, 2004
It must be stressed, however, that the privilege against disclosure of
confidential communications or information is limited only to
communications which are legitimately and properly within the
scope of a lawful employment of a lawyer. - Genato v. Atty. Silapan,
A.C. No. 4078. July 14, 2003

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Starting point of duty of confidentiality

The moment complainant approached the then receptive

respondent to seek legal advice, a veritable lawyer-client
relationship evolved between the two. Such relationship imposes
upon the lawyer certain restrictions circumscribed by the ethics of
the profession. Among the burdens of the relationship is that
which enjoins the lawyer, respondent in this instance, to keep
inviolate confidential information acquired or revealed
during legal consultations. - Hadjula v. Atty. Madianda, A.C. No.
6711 [2007]

This duty of confidentiality also extends to prospective clients even

though an attorney-client relationship is never established.

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Not a defense to justify breaching the

duty of confidentiality
1.
2.
3.

Lawyer not inclined to handle the client's case after consultation.

no formal professional engagement follows the consultation.
no contract whatsoever was executed by the parties to
memorialize the relationship.
- Hadjula v. Atty. Madianda, A.C. No. 6711 [2007]

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The essential factors to establish the existence of the

attorney-client privilege communication
(1) Where 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 the protection be waived.
- Hadjula v. Atty. Madianda, A.C. No. 6711 [2007]

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Characteristics of the Attorney-Client

Privilege
1. A-C privilege where legal advice is professionally sought from an
attorney.
2. The client must intend the above communication to be
confidential.
3. A-C privilege embraces all forms of communication and action.
4. As a general rule, A-C privilege also extends to the attorneys
secretary, stenographer, clerk or agent with reference to any fact
required in such capacity.
5. The above duty is perpetual and is absolutely privileged from
disclosure.

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Attorney-Client Privilege cannot be

invoked
1. There is consent or waiver or client.
2. Such is required by law.
3.
Such is made to protect the lawyers rights (i.e. to collect his
fees or associates or by judicial action).
4.
When such communication are made in contemplation of a
crime or the perpetuation of a fraud.

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The principle of client-lawyer confidentiality

is given effect
by related bodies of law
1.the attorney-client privilege,
2.the work product doctrine and
3.the rule of confidentiality established in professional ethics.

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The attorney-client privilege and work-product doctrine apply in

judicial and other proceedings in which a lawyer may be called
as a witness or otherwise required to produce evidence concerning
a client.

The rule of client-lawyer confidentiality applies in situations other

than those where evidence is sought from the lawyer through
compulsion of law.

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Confidentiality does not extend to

partners and associates

Lawyers in a firm may, in the course of the firm's practice, disclose

to each other information relating to a client of the firm, unless
the client has instructed that particular information be
confined to specified lawyers.

Rule 21.04 - A lawyer may disclose the affairs of a client of the

firm to partners or associates thereof unless prohibited by the
client.

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Protection from third party

This prohibition also applies to disclosures by a lawyer that do not

in themselves reveal protected information but could reasonably
lead to the discovery of such information by a third person.

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Disclosure of the Client's Identity and

Whereabouts

The general rule is that a client's identity and whereabouts are not
covered by the attorney-client privilege, as opposed to the
ethical duty of confidentiality.
However, exceptions have been made if disclosure would
implicate the client in the criminal activity for which legal advice
was sought or "if the net effect of the disclosure would be to reveal
the nature of a client communication." - Charles McCormick,
McCormick on Evidence 90 (5th ed. 1999)

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Lawyer must testify about identity of client who paid with

counterfeit $100 bill.

Client's name not considered confidential unless "intertwined"

with confidential information or last link tying client to crime. Alexiou v. United States), 39 F.3d 973 (9th Cir. 1994)

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Client identity is privileged in exceptional cases when disclosure

would provide "last link" in chain of evidence leading to
conclusion that client committed crime, and would reveal
confidential communication between lawyer and client;

Client who accused divorce lawyer of improper sexual advances

may not obtain client list in discovery. - Brett v. Berkowitz, 706
A.2d 509 (Del. 1998)

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Lawyer for client sought in hit-and-run accident may withhold

client's identity when disclosure would implicate client in
criminal activity for which legal advice sought. - Dietz v. Doe, 935
P.2d 611 (Wash. 1997)

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Certain instances where a court order is not involved ,

courts have held the client's whereabouts protected
Lawyer may not be compelled to disclose address
of defendant father in child custody proceeding when he specifically
requested that lawyer not reveal the home address and telephone
number of the father and the name and address of the school the
children were attending; information that the client requests
be kept confidential is protected unless protection permits a
fraud or crime or clearly frustrates the administration of justice. Brennan v. Brennan, 422 A2d 510 (Pa SuperCt 1980)

Domestic relations case where confidentiality of address was

necessary for client safety. - Waldman v. Waldman,358 NE2d 521
(1976)
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As a rule a lawyer should challenge an

order to disclose information
about client

In sum, the attorney-client privilege ordinarily will not cover the

information sought by a subpoena directed to a lawyer. Yet even
when faced with a subpoena seeking fee information or a
client's identity, the lawyer should generally assert the
attorney-client privilege and obtain a court ruling rather than
make his own determination whether the information is
privileged. The existence of exceptions to the general rule holding
that fee and client identity are not privileged, as well as the
lawyer's ethical duty to oppose disclosure of information
learned during a client's representation, make it advisable to
follow this course of action.

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A lawyer faced with a subpoena for information about a client

must resist the subpoena if the lawyer's testimony or the
document production would violate either the attorney-client
privilege or the ethical duty of confidentiality and the client
does not consent to the disclosure. - In re Grand Jury Witness,
695 F2d 359 (CA 9 1982); In re Grand Jury Subpoena (U.S.), 831 F2d
225 (CA 11 1987

A lawyer who receives a subpoena to testify about a client may file

a motion to quash asserting the attorney-client privilege, along
with any other possible grounds for refusing to comply.

A subpoena duces tecum issued to a lawyer that makes no

attempt whatsoever to confine its scope to relevant, nonprivileged matters is unenforceable and must be quashed. - U.S. v.
Horn, 976 F2d 1314 (CA9 1992)

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Representing a fugitive

Assuming the client is indeed properly characterized as a fugitive,

defense counsel must take into account the boundaries of
permissible advocacy. It bears noting that any physical act
intended to harbor or conceal a fugitive so as to prevent his
discovery or arrest arguably could constitute a separate criminal
violation.

A lawyer is free to continue to give legal advice to [a fugitive]

client and to represent him before the authorities, as long as [the
lawyer] does nothing to aid the client to escape trial.

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Client is under conditions of bail

Where a client is under conditions of bail and defies a lawful

court order to appear, his 'whereabouts' are not
unqualifiedly protected by the attorney-client privilege, and the
attorney may be compelled to disclose information of the client's
whereabouts." - Commonwealth v. Maguigan,511 A2d 1327 (Pa
SupCt 1986)
Lawyer who learned from client's wife that client had left with
suitcase for "parts unknown" had firm factual basis for believing
client jumped bond and did not intend to appear for trial, thus had
duty to advise court to avoid assisting in criminal act. - U.S. v.
DelCarpio-Cotrina,733 FSupp 95 (DC SFla 1990)

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An attorney representing an individual who has violated the

terms of bail and fled the jurisdiction arguably has an even
greater obligation as an officer of the court to seek the prompt
return of the client in compliance with a judicial release order.

An attorney may not assist the [fugitive] client in any way that the
lawyer knows will further an illegal or fraudulent purpose.Association of the Bar of the City of New York Formal Opinion
1999-02

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Where an attorney believes, but does not know, conduct to be

illegal or fraudulent, the attorney may act on behalf of the fugitive
client, but only after assuring him or herself that there is
reasonable support for an argument that the clients intended use
of the fruits of the representation will not further a criminal
scheme or act. - Association of the Bar of the City of New York
Formal Opinion 1999-02

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Can the metal filing cabinet containing the

records and documents of clients be subject
of a search warrant?

It is clear that the court could not and can not order the opening of
the art metal filing cabinet in question because, it having been
proven that it belongs to the appellant attorney and that in it he
keeps the records and documents of his clients, to do so would be
in violation of his right as such attorney, since it would be
tantamount to compelling him to disclose or divulge facts or things
belonging to his clients, which should be kept secret, unless she is
authorized by them to make such disclosure, it being a duty
imposed by law upon an attorney to strictly preserve the secrets or
communications made to him. - PP v. Sy Juco, G.R. No. L-41957
August 28, 1937

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Thank you for your attention!!

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