CANON 21

TEJANO, Click to edit TIONGCO, Master VALDEZ subtitle style Legal Profession Atty. Fina Tantuico

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CANON 21: A lawyer shall preserve the confidence and secrets of his client even after the attorneyClick to edit Master subtitle style client relationship is terminated.

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Duty to preserve clients confidence

Neither attorney nor client nor anyone who stands in a peculiar relation of confidence with either of them can be compelled to disclose any privileged communication.

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Duration of duty
General

rule: PERPETUAL

Outlasts:
Professional employment Death of client

Exception:

Some privileged communications lose privilege character by some supervening act pursuant to the purpose of communication

Communication intended to be sent to 3rd person loses privilege character upon reaching 3rd person Pleading privileged before but not after filing
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Reason for the rule

Two

reasons:

To encourage a client to make full disclosure to his attorney in matters affecting his rights and obligations. Information secured from client is sacred to legal employment.

Privilege

is founded on public policy

Benefits justify the risk of unjust decisions due to suppression of evidence.

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Requisites of privilege
Attorney-client

relationship Communication between client & attorney

Communication of client to attorney; or Legal advice of attorney to client
Confidentiality During

professional employment

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Requisites of privilege
Question

of privilege is for the court to determine, considering:

Nature of suit Circumstances & conditions of questions Circumstances & conditions of answers

Party

asserting privilege has burden of proof

Unless it appears from the face of the document that it is privileged

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Attorney-client relationship
General

rule: No privilege for communication between client and nonlawyer

Exception: If person poses as a lawyer

Must

be the reason for client to make the communication

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Confidentiality
Mere

attorney-client relationship does not raise presumption of confidentiality

Client should have intended the communication to be confidential

Privilege

not destroyed by eavesdropper Privilege not destroyed by representation later of client by other attorney

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Form of communication
Not

only oral or written, but also signs or other means of communication Communication may be transmitted by agency

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Persons entitled to claim privilege

Persons

covered by privilege:

Attorney Client Attorneys secretary, stenographer, clerk Interpreter, messenger, other agent of transmission of communication Experts hired for effective communication between attorney and client, e.g. accountant, scientist, engineer, physician

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Persons entitled to claim privilege

Privilege

attorney

primarily for client, incidentally for

Client is entitled primarily to assert privilege

For

attorneys secretary, stenographer, or clerk to reveal, client and attorney must waive privilege

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Application of rule
Attorney

may legally refuse to testify only on privileged but not unprivileged communication However, attorney may not volunteer both privileged and unprivileged communication

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Privileged matters
Work

product contained in files Document privileged upon delivery to attorney still privileged when with client Crimes or frauds committed in the past

Not crimes or frauds being committed or about to be committed

Identity

and name of client

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Unprivileged matters
Any

communication lacking any requisite Letter not made in the course of judicial proceedings Unprivileged document delivered to attorney Communications concerning creation of attorney-client relationship Contracts relating to attorneys fees

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RULE 21.01. Lawyer shall not reveal clients Click to edit Master subtitle style confidence

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RULE 21.01
A

lawyer shall not reveal the confidence 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. 3/18/13

RULE 21.01
If

lawyer requested for some records and opposing counsel sent even confidential files, lawyer must withdraw from action If witness is third party who illegally acquired privileged communication from other party, opposing counsel cannot use such witness Lawyer may not disclose clients funds to clients creditor for attachment Lawyer may disclose to corporations directors If client confides perjury, attorney should 3/18/13 retire from the case

RULE 21.01
Exceptions

Authorized by client
Attorneys implied power of waiver No partial waiver

Required by law Necessary to collect fees or defend himself Additional: commission of contemplated crime or fraud
Solution: restrain client If client does not know the act/omission is a crime and therefore desists upon knowledge: covered by privilege
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RULE 21.02. Lawyer shall not use clients secrets Click to edit Master subtitle style without consent

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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 advantage or that of a third person, unless the client with full knowledge of the circumstances consents thereto.

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RULE 21.02
Lawyer

may use privileged information to the disadvantage of client only when:

Client consented Collecting fees Defending self, employee, or associate

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RULE 21.03. Lawyer shall not give information Click to edit Master subtitle style from his files

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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.

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RULE 21.04. Lawyer may disclose to partners Click to edit Master subtitle style

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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. Partners and associates of a law firm are considered one person

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RULE 21.05. Lawyer shall adopt measures against Click to edit Master subtitle style disclosure

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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 client. Lawyer must prevent leaks of privileged communication known by clerical aids and hired experts

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Canon 21: Preservation of Client's Confidence

Involves the application of rules of evidence and of professional ethics, both of which seeks to safeguard the client's confidence Duration of the duty perpetual, unless removed by the client himself or his representatives or heirs.

Anything which may injure the client Disclose information acquired in a professional capacity

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Canon 21: Preservation of Client's Confidence

Reason for the Rule

Adequate legal representation requires a full disclosure of the facts by the client to his attorney. Without the privilege, the client will withhold information that he thinks to be unfavorable.

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Canon 21: Preservation of Client's Confidence

Requisites of the Rule

The attorney-client privilege exists where legal advice of any kind is sought form an attorney in his professional capacity with respect to communications relating to that purpose, made in confidence by the client so as to permanently protect such communication from disclosure by himself or by the attorney, unless the privilege is waived.

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Canon 21: Preservation of Client's Confidence

Requires an attorney client relationship The mere relation of attorney and client does not raise the presumption of confidentiality The client must have intended the communication to be confidential. Any form or mode Extended to experts and clerks

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Other Applicable Rules

Rule 138, Rules of Court

Section 20. Duties of attorneys - 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 clients business except from hm or with his knowledge and approval.

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Other Applicable Rules

Rule 130, Rules of Court

Section 24 (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 attorneys 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.

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Other Applicable Rules

Art. 208, Revised Penal Code:

Prosecution of offenses; negligence and tolerance. - The penalty of prision correccional in its minimum period and suspension shall be imposed upon any public officers or officer of the law, who , in dereliction of the duties of his office, shall maliciously refrain from instituting prosecution for the punishment of violators of the law, or shall tolerate the commission of offenses.

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Art. 208: Prosecution of Offenses; negligence and tolerance.

Acts punishable:

By maliciously refraining from instituting prosecution against violators of the law. By maliciously tolerating the commission of offenses.

Negligence here means neglect of the duties of his office. Malice is an important element.

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Art. 208. Prosecution of Offenses; negligence and tolerance.

Elements of dereliction of duty in the prosecution of offenses:

Offender is a public officer or officer of the law who has a duty to cause the prosecution of offenses. There is dereliction of the duties of his office, i.e., knowing the commission of the crime, he does not cause the prosecution of the criminal, or, knowing that a crime is to be committed, he tolerates its commission.

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Art. 208. Prosecution of Offenses; negligence and tolerance.

Applies to public officers and officers of the law with duty to prosecute. The fiscal or prosecutor, is under no compulsion to file information where he is not convinced that the evidence warrants the filing of an action.

A dereliction of duty caused by poor judgment or honest mistake is not punishable. Crime must be proved before conviction for dereliction
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Other Applicable Laws

Art. 209, Revised Penal Code:

Betrayal of trust by an attorney or solicitor. Revelation of secrets. - ... any attorney-at-law or solicitor 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. xxx (or) 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.
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Rule 21.06

A lawyer shall not avoid indiscreet conversations about a client's affairs even with members of his family.

Intended to better preserve the client's confidence and secrets. Indiscreet conversation can result in prejudice to the client and will lessen the respect due the legal profession.

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Rule 21.07

A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible conflict of interests.

Rule on privileged communication applies to matters disclosed to a layer by a prospective client. Reason: disclosure and the lawyer's opinions create an attorney-client relationship , even though the lawyer does not eventually accept the employment.

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HILADO v. DAVID
FACTS:
On 4/23/1945, Blandina Gamboa Hilado (Hilado) brought

an action against Selim Jacob Assad to ANNUL the sale of several houses and lots executed by the deceased Mr. Hilado On 1/28/1946, defendant Atty. Vicente Francisco (Dizon) entered as attorney of record for Assad. Atty. Dizon, counsel for petitioner, urged him to discontinue representing Assad Apparently Hilado communicated Francisco prior to the case, submitting expedientes, to which the latter gave his written opinion Hilado filed a motion for disqualification against Francisco

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HILADO v. DAVID
FACTS FOR THE DEFENSE:
A real estate broker introduced Hilados case to him, but

averred he would rather take the Syrians cause Petitioners case was as lost cause; Torrens title was in her husbands name Hilado came in with the expediente of her case, which Francisco returned He took Assads case when the latters lawyer went abroad

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HILADO v. DAVID
ISSUE:

Was there an attorney-client relationship established between Hilado and Francisco?

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HILADO v. DAVID
HELD: Motion for disqualification ALLOWED RATIO:
q

Professional attorney-client relationship established when attorney is employed either to give advice upon a legal point, to prosecute or defend an action in a court of justice, or to prepare and draft, in legal form such papers as deeds, bills, contracts and the like (Atkinson v. Howlett) Not necessary that client should have employed the attorney professionally on any previous occasion; immaterial whether the attorney took up the case on which he was consulted for Attorney is employed when he is engaged in his professional capacity as a lawyer or counselor when he is listening to his clients preliminary statement of his case, or when he is giving advice thereon Formality not an essential element of the employment 3/18/13 of an

HILADO v. DAVID
HELD: Motion for Disqualification ALLOWED RATIO: q that only copies of pleadings were furnished by Hilado is immaterial; nature of papers, either public/private, does not matter because mere relation of attorney and client ought to preclude the attorney from accepting opposing partys retainer q To make the passing of confidential communication a condition precedent; i.e. to make the employment conditioned on the scope and character of the knowledge 3/18/13 acquired by an attorney in determining his

HILADO v. DAVID
HELD: Motion for Disqualification ALLOWED RATIO: q retaining fee a preliminary fee given to an attorney or counsel to insure and secure his future services, and induce him to act for the client q Even if Francisco did not read the copy of proceedings, the fact that he gave his professional advice on the matter, from wherein arose the attorney-client relationship q Petitioners objection only after (4) months 3/18/13 from the date Francisco first appeared for

GENATO v. SILAPAN
FACTS for PROSECUTION:
On July 1992, Atty. Essex Silapan asked William Genato if

he could rent a small office space in the latters bulding in QC Silapan thereupon handled most of complainants cases start of attorney-client relationship Respondent borrowed P200,000 for the downpayment of a car. Respondent issued a P176,528 postdated check to answer for (6) mos. interest on the loan. Also mortgaged his house in QC but did not surrender title to complainant. Respondent purchased new car; title was in the name of complainant January 1993, respondent introduced complainant to a certain Emmanuel Romero, who borrowed money from complainant. 3/18/13 used Respondent earned commission from the transaction,

GENATO v. SILAPAN
FACTS for PROSECUTION:

Respondent failed to pay for his cars amortization Respondents postdated checks bounced Complainant filed a criminal case for violation of B.P. 22

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GENATO v. SILAPAN
RESPONDENT:

Complainant was involved in shady deals and shark loans Complainant wanted respondent to bribe members of the DOJ (judge, prosecutor) to acquit him in his criminal case It was complainant who offered the office space and engaged his legal services Real estate mortgage was only a formal requiremet so he could obtain P200,000 loan Postdated check was some kind of acknowledgment for attorneys fees and a form of assurance that he wont abandon complainants case Commission from Romero was in fact attorneys fees from the latter IBP: respondent guilty; suspended for (1) year
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GENATO v. SILAPAN
ISSUE:

Whether respondent committed a breach of trust and confidence by imputing to complainant illegal practices and disclosing complainants alleged intention to bribe govt officials in connection with a pending case

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GENATO v. SILAPAN
HELD: IBP Resolution AFFIRMED with MODIFICATION; (6) months SUSPENSION
q

Canon 17: A lawyer owes fidelity to the cause of his client and shal be mindful of the trust and confidence reposed on him. GENERAL RULE: An attorney is NOT permitted to disclose communications made to him in his professional character by a client, unless the latter consents. Protection is afforded the clients secrets at the inception of the relationship; protection 3/18/13 is perpetual and does not cease with

GENATO v. SILAPAN
HELD: IBP Resolution AFFIRMED with MODIFICATION; (6) months SUSPENSION
q

HOWEVER, such privilege against disclosure of confidential communications or information limited only to communications which are legitimately and properly within the scope of a lawful employment of the lawyer Does not extend to those made in contemplation of a crime or perpetration of a fraud 3/18/13 IF unlawful purpose is avowed,

GENATO v. SILAPAN
HELD: IBP Resolution AFFIRMED with MODIFICATION; (6) months SUSPENSION
q q q

Respondents disclosures were immaterial to the case and are thus disregarded Such statements were not the subject matter of litigation for foreclosure case To disclose such was a breach of fidelity sufficient to warrant (6) months of suspension
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