Dilemna 4

Declaration of Presumptive Death for Purposes of

Remarriage
The legal issues in the case:
I. Lawyers duty of confidentiality after termination of lawyer-client relationship.
II. What is meant by well-founded belief in Art. 41 of the Family Code?
III. Whether it is proper for a lawyer to insinuate that he has influence over the family
court judge.
I.
1. DEFINITION - PERSPECTIVE
The attorney-client privilege is a disqualifying rule under the Philippine Rules of Court
(the Rules), which precludes an attorney from testifying against his client on certain
matters. As a disqualification, the attorney is ethically obliged to claim the privilege for
the client as it is not self-enforcing.

Moreover, the party asserting the privilege carries
the burden of proving that the privilege applies and that mere assertions of the privilege
are not enough.

The privilege is intended to promote freedom of consultation and confidentiality between
the attorney and the client, in view of its rationale:
In order to promote freedom of consultation of legal advisors by clients, the
apprehension of compelled disclosure from the legal advisors must be removed.

The purpose of the rule of confidentiality is to protect the client from possible breach of
confidence as a result of a consultation with an attorney.


2. SOURCES
Rule 130.24(b) of the Rules expressly provides:
Section 24. Disqualification by reason of privileged communication. The
following persons cannot testify as to matters learned in confidence in the
following cases:
(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[.]
The Philippine Supreme Court has time and again discussed the privilege. In Burbe vs.
Magulta,
the Philippine Supreme Court summarized the governing principles for the
privilege:
1. An attorney-client relationship is established from the very first moment the client
asked the attorney for legal advice regarding the former's business. To constitute
professional employment, it is not essential that the client employed the attorney
professionally on any previous occasion.
2. It is not necessary that any retainer be paid, promised, or charged; nor is it material
that the attorney consulted did not afterward handle the case for which his service had
been sought.
3. If a person, in respect to business affairs or troubles of any kind, consults an attorney
with a view to obtaining professional advice or assistance, and the attorney voluntarily
permits or acquiesces with the consultation, then the professional employments is
established.
4. Likewise, an attorney-client relationship exists notwithstanding the close personal
relationship between the attorney and the client or the non-payment of the former's
fees.
Furthermore, the duty of a lawyer to preserve his client's secrets and confidence outlasts
the termination of the attorney-client relationship, and continues even after the client's
death.( Mercado vs. Vitriolo, A.C. No. 5108, May 26, 2005.)
3. SCOPE/LIMITS
For the attorney-client privilege to apply, the following requisites
(Rules, Rule 130.24(b).
must be present:
1. Relationship of attorney and client;
2. Communication made by the client to the attorney, or advice given by the
latter to the former;
3. Communication or advice must have been made confidentially;
4. Such communication must have been made in the course of professional
employment.
Absent the existence of all these requisites, the privilege does not apply.
The privilege, however, is neither automatic nor unrestricted. Communications between a
lawyer and another individual does not automatically mean that the communications are
covered by the attorney-client privilege. The requisites mentioned above must be present.
If the lawyer is a mere employee or agent, and not acting in his professional capacity, the
privilege will not apply. The fact that the employee or agent is also an attorney does not
protect the communications attending the acts with the privilege; hence, the
communications may be testified to by him or by any other agent.
More specifically, the
communication made by a client to his attorney must not be intended for mere
information, but for the purpose of seeking legal advice from his attorney as to his rights
or obligations. Otherwise, the privilege does not attach to the communication.

Also, as a general rule, the privilege may not be invoked to refuse to divulge the
identity of the client. However, there are exceptions, which are: (a) when a strong
probability exists that revealing the name would implicate that person in the very
same activity for which he sought the lawyers advice; (b) when disclosure would open
the client to liability; and (c) when the name would furnish the only link that would form
the chain of testimony necessary to convict.

The client may waive the attorneys confidentiality obligations such that the attorney, if he
chooses to, may disclose the information in accordance with the waiver. In giving the
waiver, the client should be fully aware of the circumstance and possible consequences
that may arise. A waiver by the client must be given before any disclosure.
The privilege does not prevent the attorney from discussing the confidential information
with members of his law office if it is for the purpose of finding solutions to the clients
concerns.
The privilege likewise applies to the staff of attorney who assisted the latter in handling
the confidential information given by the client.
4. INHOUSE LAWYERS
The same principles apply to in-house lawyers as they are treated in the same way as
attorneys who have their private practice.
5. PROSPECTIVE
The Philippine Supreme Court has been consistent in its position regarding the privilege.
The Rule and jurisprudence are updated regularly with such updates including minor
modifications to the doctrine.
II.
In Nolasco, petitioner Republic sought the reversal of the CAs affirmation of the RTCs
grant of respondents Petition for Declaration of Presumptive Death of his absent spouse, a
British subject who left their home in the Philippines soon after giving birth to their son while
respondent was on board a vessel working as a seafarer. Petitioner Republic sought the reversal
of the ruling on the ground that respondent was not able to establish his well-founded belief
that the absentee is already dead, as required by Article 41 of the Family Code. In ruling
thereon, this Court recognized that this provision imposes more stringent requirements than
does Article 83 of the Civil Code.
[13]
The Civil Code provision merely requires either that there
be no news that the absentee is still alive; or that the absentee is generally considered to be
dead and is believed to be so by the spouse present, or is presumed dead under Articles 390
and 391 of the Civil Code. In comparison, the Family Code provision prescribes a well-founded
belief that the absentee is already dead before a petition for declaration of presumptive death
can be granted. As noted by the Court in that case, the four requisites for the declaration of
presumptive death under the Family Code are as follows:
1. That the absent spouse has been missing for four consecutive years, or two consecutive
years if the disappearance occurred where there is danger of death under the circumstances
laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of presumptive
death of the absentee.
In evaluating whether the present spouse has been able to prove the existence of a well-
founded belief that the absent spouse is already dead, the Court in Nolasco cited United States
v. Biasbas,
[14]
which it found to be instructive as to the diligence required in searching for a
missing spouse.


In Biasbas, the Court held that defendant Biasbas failed to exercise due diligence in ascertaining
the whereabouts of his first wife, considering his admission that that he only had a suspicion
that she was dead, and that the only basis of that suspicion was the fact of her absence.
Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic sought the reversal of
the CA ruling affirming the RTCs grant of the Petition for Declaration of Presumptive Death of
the absent spouse on the ground that the respondent therein had not been able to prove a
well-founded belief that his spouse was already dead. The Court reversed the CA, granted the
Petition, and provided the following criteria for determining the existence of a well-founded
belief under Article 41 of the Family Code:
For the purpose of contracting the subsequent marriage under the preceding paragraph, the
spouse present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.

The spouse present is, thus, burdened to prove that his spouse has been absent and that he has
a well-founded belief that the absent spouse is already dead before the present spouse may
contract a subsequent marriage. The law does not define what is meant by a well-grounded
belief. Cuello Callon writes that es menester que su creencia sea firme se funde en motivos
racionales.

Belief is a state of the mind or condition prompting the doing of an overt act. It may be proved
by direct evidence or circumstantial evidence which may tend, even in a slight degree, to
elucidate the inquiry or assist to a determination probably founded in truth. Any fact or
circumstance relating to the character, habits, conditions, attachments, prosperity and objects
of life which usually control the conduct of men, and are the motives of their actions, was, so
far as it tends to explain or characterize their disappearance or throw light on their
intentions, competence [sic] evidence on the ultimate question of his death.

The belief of the present spouse must be the result of proper and honest to goodness inquiries
and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse
is still alive or is already dead. Whether or not the spouse present acted on a well-founded
belief of
death of the absent spouse depends upon the inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of the absent spouse and the
nature and extent of the inquiries made by present spouse. (Footnotes omitted, underscoring
supplied.)
Applying the foregoing standards to the present case, petitioner points out that respondent
Yolanda did not initiate a diligent search to locate her absent husband. While her brother
Diosdado Cadacio testified to having inquired about the whereabouts of Cyrus from the latters
relatives, these relatives were not presented to corroborate Diosdados testimony. In short,
respondent was allegedly not diligent in her search for her husband. Petitioner argues that if
she were, she would have sought information from the Taiwanese Consular Office or assistance
from other government agencies in Taiwan or the Philippines. She could have also utilized mass
media for this end, but she did not. Worse, she failed to explain these omissions.
The Republics arguments are well-taken. Nevertheless, we are constrained to deny the
Petition.
The RTC ruling on the issue of whether respondent was able to prove her well-founded belief
that her absent spouse was already dead prior to her filing of the Petition to declare him
presumptively dead is already final and can no longer be modified or reversed. Indeed,
*n+othing is more settled in law than that when a judgment becomes final and executory, it
becomes immutable and unalterable. The same may no longer be modified in any respect, even
if the modification is meant to correct what is perceived to be an erroneous conclusion of fact
or law.
III.
3. Attempts to exert personal influence of the court
Marked attention and unusual hospitality on the part of a lawyer to a judge, uncalled for by
the personal relations of the parties, subject both the judge and the lawyer to
misconstructions of motive and should be avoided. A lawyer should not communicate or
argue privately with the judge as to the merits of a pending cause and deserves rebuke and
denunciation for any device or attempt to gain from a judge special personal consideration
or favor. A self-respecting independence in the discharge of professional duty, without
denial or diminution of the courtesy and respect due the judge's station, is the only proper
foundation for cordial personal and official relations between bench and bar.