Compilation 3-3 - Privileged Communications v. 1

EVIDENCE 3-II | 3A-2015 | ATTY. L.
ARROYO
PRIVILEGED COMMUNICATIONS
MARITAL DISQUALIFICATION RULE

1. PEOPLE V. CARLOS (RL)
G.R. No. L-22948| 03/17/1925 | OSTRAND, J.

Petitioner/s: People of the Philippine Islands, plaintiff-appelle
Respondent/s: Fausto V. Carlos, defendant-appellant

SUMMARY:
Dr. Pablo Sityar operated on Fausto Carlos wife for appendicitis and other
treatment. His wife continuously received treatment thereafter at his clinic in
Escolta. Fausto was then confined and received a letter from Dr. Sityar for the
payment of his professional services. When Fausto was released from the
hospital, he sought to confront the Dr. but to no avail. Eventually, he was able
to do so, which led to the death of the doctor. Prosecution submits that Fausto
attacked the Dr. with a knife and stabbed him 3 times but Fausto argues that it
was for self-defense. He then surrendered to the constabulary at Bulacan. The
LC convicted him of murder, with premeditation proved through a letter the
police obtained in his house while they were searching for him. Counsel of
defendant argues that such letter from the wife fearing that Fausto would
result to physical violence is inadmissible, as it constitutes privileged
communication. The SC agreed. It held that a privileged communication from
one spouse to the other comes into the hands of a third party, without
collusion or voluntary disclosure on the part of either of the spouses, the
privilege is thereby extinguished and the communication, if otherwise
competent, becomes admissible in evidence. Further, a letter written by a wife
to her husband is incompetent as evidence in a criminal case against the latter
where there is no indication of assent on his part to the statements contained
in the letter. The letter may, however, be admissible to impeach the testimony
of the wife if she goes upon the witness-stand in the trial of the case. The
letter is therefore nothing but pure hearsay and its admission in evidence
violates the constitutional right of the defendant in a criminal case to be
confronted with the witnesses for the prosecution and have the opportunity to
cross-examine them.

FACTS
On March 3, 1924, Dr. Pablo G. Sityar, in Mary Chiles Hospital,
performed a surgical operation upon the Fausto Carlos wife for
appendicitis and certain other ailments.

She stayed in the hospital until the 18th of the same month, but after
her release, she was required to go several times to the clinic of Dr.
Sityar at No. 40 Escolta, for the purpose of dressing the wounds from
the operation.
On one visit, Fausto was sent out by Dr. Sityar to buy some medicine.
o While he was out, Dr. Sityar outraged the wife. The wife told
him all about this after the visit.
o Fausto went there again for a lung trouble consultation, was
prescribed treatment and made at least one more visit after
the same.
On May 12, 1924, Fausto entered the Phil. General Hospital after
suffering from some stomach trouble.
He received a letter while he was confined asking for the immediate
settlement of the account for the professional services rendered to his
wife.
After being released from the hospital, he went to visit the Dr. several
times but to no avail.
During a visit, nurse Cabanera asked Fausto if he had come to settle his
account to which the latter responded that he did not owe the doctor
anything.
On May 26, he again went to the office and found him alone.
According to the prosecutions evidence, Fausto attacked the Dr. with
a fan-knife and stabbed him twice without any preliminary quarrel.
Dr. Sityo tried to escape but Fausto pursued him and inflicted another
wound (total of 3 wounds). The doctor died within minutes.
Fausto escaped but surrendered himself to the Constabulary at
Malolos, Bulacan the following day.
Fausto admitted that he killed the doctor due to self-defense.
o He explained that he went there to protest against the fee
charged and ask for an extension of time to pay.
o The doctor allegedly insulted him in a contemptuous manner
by telling him that he could send his wife to talk the matter
over as the latter was the one treated.
o Fausto took offense with such insolent treatment so he
challenged the doctor.
o The doctor took a pocket-knife from the center drawer and
attacked him.
o When he succeeded in taking the knife from the doctor, after
using his fencing skills (legit to ah), he stabbed the doctor in
1
EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO
the right side of the breast and in the epigastric region and
If they were obtained surreptitiously or otherwise
later on his back.
without the addressees consent, the privilege should
cease.
The testimony of Fausto and the evidence of the prosecution are

conflicting.
1. The letter in question was obtained through a search for which no
Assuming Faustos is true, it failed to establish self-defense.
warrant appears to have been issued.
Lower court found him guilty of murder. Premeditation was shown
Citing Boyd and Boyd vs. United States and Silverthorne Lumber Co.
through a letter (Exhibit L), which is a letter written to Fausto by his
and Silverthorne vs. United States, counsel for defendant argues that
wife and seized by the police.
that documents obtained by illegal searches of the defendants
o It was dated two days before the murder and shows that the
effects are not admissible in evidence in a criminal case.
writer feared that Fausto contemplated resorting to physicial
Professor Wigmore:
violence in dealing with the deceased.
o The doctrine that the admissibility of evidence is not affected
Counsel for the defendant argues that the letter was a privileged
by the illegality of the means through which the party has
communication and therefore not admissible in evidence.
been enabled to obtain the evidence was never doubted until
o The numerical weight of authority is, however, to the effect
the appearance of the ill-starred majority opinion of Boyd vs.
that where a privileged communication from one spouse to
US.
another comes into the hands of a third party, whether legally
Boyd remained unquestioned for 20 years but
or not, without collusion and voluntary disclosure on the part
received frequent disfavor in state courts.
of either of the spouses, the privilege is thereby extinguished
Adams vs. New York (1904) virtually repudiated in the
and the communication, if otherwise competent, becomes
Federal SC, and the orthodox precedents recorded in
admissible.
the State courts were expressly approved.

After another 20 years, the Federal SC, in Weeks vs. US,
ISSUE: W/N the letter made by the wife is admissible as evidence against the
reverted to the original doctrine of the Boyd Case, but
husband? NO.
with a condition that the illegality of the search and

seizure should first have been directly litigated and
HELD:
established by a motion, made before trial, for the
Meritorious.
return of the things seized; so that, after such a
The sentence appealed from is therefore modified by reducing the
motion, and then only, the illegality would be noticed
penalty to fourteen years, eight months and one day of reclusion
in the main trial and the evidence thus obtained
temporal, with the corresponding accessory penalties and with the
would be excluded.
costs against the appellant. So ordered.
o
In
the
Silverthorne
Lumber Co. case, the US SC adhered to its

decision in the Weeks Case.
RATIO
o
The doctrine laid down in these cases has been followed by
Professor Wigmore states the rule as follows:
some of the State courts but has been severely criticized and
o For documents of communication coming into the possession
does not appear to have been generally accepted.
of a third person, a distinction should obtain, analogous to
But
assuming
that it prevails in this jurisdiction it is, nevertheless,
that already indicated for a clients communications.
under the decisions in the Weeks and Silverthorne cases, inapplicable
If they were obtained from the addressee by
to the present case.
voluntary delivery, they should still be privileged (for
otherwise the privilege could by collusion be
practically nullified for written communications);

Here the illegality of the search and seizure was not directly litigated
and established by a motion, made before trial, for the return of the
things seized.
This may possibly be good law, though Wigmore cites no

authority in support of his assertion, but as far as we can see it
has little or nothing to do with the present case.
As we have already intimated, if Exhibit L is excluded, there is in our
opinion not sufficient evidence in the record to show that the crime
was premeditated.
The prosecution maintains that the crime was committed with alevosia.
o This contention is based principally on the fact that one of the
wounds received by the deceased showed a downward
direction indicating that the deceased was sitting down when
the wound was inflicted.
o We do not think this fact is sufficient proof. The direction of
the wound would depend largely upon the manner in which
the knife was held.
For the reasons stated we find the defendant guilty of simple
homicide, without aggravating or extenuating circumstances.
o
2. The letter Exhibit L must be excluded for reasons not discussed in the
briefs.
The letter was written by the wife and if she had testified at the trial
the letter might have been admissible to impeach her testimony, but
she was not put on the witness-stand and the letter was not offered
for that purpose.
If the defendant either by answer or otherwise had indicated his
assent to the statements contained in the letter it might also have
been admissible.
The fact that he had the letter in his possession is no indication of
acquiescence or assent on his part.

The letter is therefore nothing but pure hearsay and its admission in
evidence violates the constitutional right of the defendant to be
confronted with the witnesses for the prosecution and have the VILLAMOR, J., dissenting:
The judge who tried this case, inserts in his decision the testimony of
opportunity to cross-examine them.
the witness Lucio Javillonar, who testified (among others) that he went
In this respect there can be no difference between an ordinary
to Dr. Sityars office so they could go home together, but the latter was
communication and one originally privileged.
still busy.

He heard no exchange of hard words of any kind and later on
3. The question is radically different from that of the admissibility of
witnessed the deceased rushing bloodied. He also witnessed the
testimony of a third party as to a conversation between a husband and
accused stabbing the doctor.
wife overheard by the witness.
In deciding the question as to whether the act committed is murder,
Testimony of that character is admissible on the ground that it relates
with the qualifying circumstance of treachery, as claimed by the
to a conversation in which both spouses took part and on the further
Attorney-General, the trial judge says that the principal ground of the
ground that where the defendant has the opportunity to answer a
prosecution for holding that the commission of the crime was
statement made to him by his spouse and fails to do so, his silence
attended by the qualifying circumstance of treachery is a mere
implies assent.
inference from the testimony of Lucio Javillonar, and that the nature of
That cannot apply where the statement is contained in an
the wounds found on the epigastric region of the deceased and his
unanswered letter.
back do not mean anything, because they could have been inflicted
The Attorney-General in support of the contrary view quotes Wigmore,
while the deceased was standing, seated or inclined.
as follows:
A careful consideration of the testimony of Lucio Javillonar will show

o Communication to a husband or wife is always receivable to
thatthe deceased was with his arms lowered and about to fall to the
show probable knowledge by the other (except where they are
floor when the accused stabbed him on the right side of the chest with
living apart or are not in good terms), because there is always
the weapon he was carrying, thereby inflicting a wound on the right
some probability that one will tell the other,which is all that
nipple, and that, according to the doctor who examined the wounds,
can be fairly asked for admissibility.
anyone of them could have caused the death of the deceased.

These being the facts proven, I am of opinion that application must be

At the time of the fire "Uy Layco" was heavily indebted and
made here of the doctrine laid down by this court in the case of United
subsequent thereto the creditors petitioned for the appointment of an
States vs. Baluyot wherein it was held that Even though a deadly
administrator of the estate of the Uy Chico's father.
attack may be begun under conditions not exhibiting the feature of
During the course of these proceedings, Uy Chico's attorney
alevosia, yet if the assault is continued and the crime consummated
surrendered the policies of insurance to the administrator of the
with alevosia, such circumstance may be taken into consideration as a
estate, who compromised with the insurance company for one-half
qualifying factor in the offense of murder.
their face value, or P6,000. This money was paid into court and is now
It positively appears from the testimony of Lucio Javillonar that the
being held by the sheriff.
deceased was already wounded and about to fall to the floor, he
Uy Chico now brings this action, maintaining that the policies and
struck him with another mortal blow with the weapon he was carrying,
goods insured belong to him and not to the estate of his deceased
which shows that the accused consummated the crime with treachery.
father and alleges that he is not bound by the compromise effected by
For the foregoing, I am of opinion that the judgment appealed from must be
the administrator of his fathers estate.
affirmed, considering the act committed as murder, with the qualifying
Union Life Assurance sought to show that the plaintiff had agreed to
circumstance of treachery, and in this sense I dissent from the majority opinion
compromise settlement of the policies, and for that purpose
introduced evidence showing that Uy Chico's attorney had
ATTORNEY-CLIENT PRIVILEGE
surrendered the policies to the administrator with the understanding

that such a compromise was to be effected.
1. UY CHICO VS. UNION LIFE (CP)
G.R. No. L-9231 | January 6, 1915
While on the witness stand, Uy Chico was asked if he had any
SUMMARY: Uy Chico seeks to recover the value of two insurance policies upon
objection to his attorney's testifying concerning the surrender of the
a stock of dry goods destroyed by fire. With Uy Chico's consent, the attorney
policies, to which he replied in the negative. The attorney was then
surrendered the policies of insurance to the administrator of the estate, who
called for that purpose.
compromised with the insurance company for one-half their face value, or
The counsel for Uy Chico formally withdrew the waiver previously
P6,000. Subsequently, waiver (consent) was withdrawn. Issue is whether the
given by the plaintiff and objected to the testimony of the attorney
compromise of the insurance policies was valid and whether the act by the
on the ground that it was privileged. Counsel, on this appeal, base
counsel could be considered as privileged information. NO! The compromise
their argument of the proposition that a waiver of the client's privilege
(act by counsel with third person) was with knowledge and approval of Uy
may be withdrawn at any time before acted upon.
Chico.
ISSUE: WHETHER THE TESTIMONY BY COUNSEL IS CONSIDERED A PRIVILEGED
FACTS
COMMUNICATION - NO
The father of Uy Chico died in 1897, at which time he was conducting a RULING
business under his own name, Uy Layco.
Our practice Act provides: "A lawyer must strictly maintain inviolate
Uy Chico and his brother took over the business and continued it
the confidence and preserve the secrets of his client. He shall not be
under the same name, "Uy Layco."
permitted in any court, without the consent of his client, given in open
court, to testify to any facts imparted to him by his client in
In this case, Uy Chico seeks to recover the face value of two insurance
professional consultation, or for the purpose of obtaining advice upon
policies upon a stock of dry goods destroyed by fire.
legal matters." (Sec. 31, Act No. 190.)
Sometime before the date of the fire, Uy Chico purchased his brothers
It will be noted that the evidence in question concerned the dealings
interest in the business and continued to carry on the business under
of the plaintiff's attorney with a third person. Of the very essence of
the fathers name.
the veil of secrecy which surrounds communications made between
attorney and client, is that such communications are not intended for
the information of third persons or to be acted upon by them, put of
the purpose of advising the client as to his rights. It is evident that a

communication made by a client to his attorney for the express
purpose of its being communicated to a third person is essentially
inconsistent with the confidential relation.
When the attorney has faithfully carried out his instructions be
delivering the communication to the third person for whom it was
intended and the latter acts upon it, it cannot, by any reasoning
whatever, be classified in a legal sense as a privileged communication
between the attorney and his client.
It is plain that such a communication, after reaching the party for
whom it was intended at least, is a communication between the client
and a third person, and that the attorney simply occupies the role of
intermediary or agent.
It is manifest that the objection to the testimony of the plaintiff's
attorney as to his authority to compromise was properly overruled.
The testimony was to the effect that when the attorney delivered the
policies to the administrator, he understood that there was a
compromise to be effected, and that when he informed the plaintiff
of the surrender of the policies for that purpose the plaintiff made no
objection whatever. The evidence is sufficient to show that the
plaintiff acquiesced in the compromise settlement of the policies.
Having agreed to the compromise, he cannot now disavow it and
maintain an action for the recovery of their face value.

2. REGALA VS. SANDIGANBAYAN (RR)
GR 105938 | 09/20/1996 | KAPUNAN, J.

Petitioner/s: TEODORO REGALA, EDGARDO ANGARA, AVELINO CRUZ, JOSE
CONCEPCION, ROGELIO VINLUAN, VICTOR LAZATIN, AND EDUARDO ESCUETA
Respondent/s: SANDIGANBAYAN, REPUBLIC OF THE PHILIPPINES ACTING
THROUGH PCGG, AND RAUL ROCO

GR 108113

HAYUDINI V. SANDIGANBAYAN AND RP

SUMMARY: This is a controversial case involving high profile personalities. At
the height of the investigation with regard to ill-gotten wealth, esteemed
lawyers from ACCRA were made defendants in a case for allegedly being
accomplices in the acquisition of ill-gotten wealth. In their defense, they

alleged that said acts were done in furtherance of legitimate lawyering. Now
the main issue involves the fiduciary relationship between lawyer and client:
one of the defendants, Raul Roco, was excluded by the PCGG because he is
said to have agreed to furnish them information with regard to the identity of
his clients. The ACCRA lawyers who are defendants herein, however, refused
to divulge said information. The Sandiganbayan promulgated a decision in
favor of PCGG. The SC, however, took the side of the ACCRA lawyers. First, it
pointed out that it is quite apparent that PCGGs ploy was to implead the
ACCRA lawyers and then cut a deal with them to provide the names of their
clients. But considering the facts of the case at bar, this is violative of the
attorney-client privilege. Though as a general rule, identification of the client is
not privileged information, as held in a string of US jurisprudence, it may be
privileged where it can be shown that a strong probability exists that
disclosure of such information would implicate the client in the very criminal
activity for which legal advice was sought.

(Note: This is a looong case but the gist is easy to understand. The summary
says it all na. Its mainly long because of the string of cases cited in the
decision. ALSO, sorry for some long quotes mostly kasi ang ganda nung
wording ng SC and we know Sir likes hearing the exact words.)

FACTS
These cases touch the very cornerstone of every State's judicial system xxx -
the sanctity of fiduciary duty in the client-lawyer relationship. The fiduciary
duty of a counsel and advocate is also what makes the law profession a
unique position of trust and confidence xxx we have no recourse but to
uphold and strengthen the mantle of protection accorded to the
confidentiality that proceeds from the performance of the lawyer's duty to
his client.
This case is an offshoot of the Sandiganbayan case filed by the PCGG
against Eduardo Cojuangco Jr, for the recovery of alleged ill-gotten
wealth, which includes shares of stocks in corporations. This is PCGG
Case No. 33. (This case was filed July 1987)
Among the defendants named in the case are herein petitioners, who
all were then partners of the law firm Angara, Abello, Concepcion,
Regala and Cruz Law Offices (hereinafter referred to as the ACCRA Law
Firm).
ACCRA Law Firm performed legal services for its clients,
which included, among others:
5
- the organization and acquisition of business associations and/or

organizations
- its members acted as incorporators, or simply, as stockholders
- delivered to its client documents which substantiate the client's
equity holdings
- acquire information relative to the assets of clients as well as their
personal and business circumstances
Petitioners and private respondent Raul Roco admit that they assisted
in the organization and acquisition of the companies included in Civil
Case No. 33, and in keeping with the office practice, ACCRA lawyers
acted as nominees-stockholders of the said corporations involved in
sequestration proceedings
Now sometime in Aug. 1991, PCGG filed a motion excluding Raul Roco
from Civil Case No. 33 as party-defendant, basing its exclusion on the
latters undertaking that he will reveal the identity of the principal/s
for whom he acted as nominee/stockholder in the companies.
These are PCGGs allegations against the aforementioned ACCRA
lawyers:
1. The ACCRA lawyers plotted, devised, schemed. conspired and
confederated with each other in setting up, through the use of the
coconut levy funds, the financial and corporate framework and
structures that led to the establishment of UCPB, UNICOM,
COCOLIFE, COCOMARK, CIC, and more than twenty other coconut
levy funded corporations, including the acquisition of San Miguel
Corporation shares and its institutionalization through presidential
directives of the coconut monopoly.

2. Through insidious means and machinations, ACCRA, being the
wholly-owned investment arm, ACCRA Investments Corporation,
became the holder of approximately fifteen million shares
representing roughly 3.3% of the total outstanding capital stock of
UCPB, thereby ranking ACCRA the 44th biggest stockholder of ISSUE
1.
UCPB
For their part, the ACCRA lawyers alleged that:
1. Their participation in the said acts are part of legitimate lawyering
2.
2. In the course of rendering professional and legal services to clients,
defendants-ACCRA lawyers became holders of shares of stock in
the corporations listed under their respective names as
incorporating or acquiring stockholders only and, as such, they do
not claim any proprietary interest in the said shares of stock.
As for defendant Avelino Cruz:
he was one of the incorporators in 1976 of Mermaid Marketing

Corporation, which was organized for legitimate business purposes
not related to the allegations of the expanded Amended Complaint
- he has long ago transferred any material interest therein and
therefore denies that the shares appearing in his name are his
assets
As for petitioner Paraja Hayudini:
- he had separated from ACCRA law firm
- filed a separate answer denying the allegations in the complaint
implicating him in the alleged ill-gotten wealth.
PCGG set the ff. conditions for the exclusion of petitioners:
1. the disclosure of the identity of its clients
2. submission of documents substantiating the lawyer-client
relationship
3. submission of the deeds of assignments petitioners executed in
favor of its clients covering their respective shareholdings
As for Raul Rocos compliance with these, the ff. proof were adduced
by PCGG:
1. Letter of Rocos counsel to PCGG reiterating a previous request for
reinvestigation
2. Affidavit of Roco as attachment to aforesaid letter
3. Letter of the Roco, Bunag, and Kapunan Law Offices to PCGG in
behalf of private respondent Roco originally requesting the
reinvestigation and/or re-examination of the evidence of the PCGG
against Roco in its Complaint in PCGG Case No. 33
NOTE!!! respondent Roco did not refute petitioners' contention that
he did not actually reveal the identity of the client involved in PCGG
Case No. 33, nor had he undertaken to reveal the identity of the
client for whom he acted as nominee-stockholder
WN Sandiganbayan gravely abused its discretion in subjecting

petitioner ACCRA lawyers to the strict application of the law of agency
YES
WN Sandiganbayan gravely abused its discretion in not holding that
attorney-client privilege prohibits petitioner ACCRA lawyers from
revealing the identity of their clients and the other info requested by
PCGG YES
3. WN Sandiganbayan gravely abused its discretion in not considering

petitioner ACCRA lawyers and Mr. Roco as similarly situated and
therefore deserving of equal treatment YES

as lawyers; that their inclusion in the complaint is merely being used as

a leverage to compel them to name their clients
IN CONCLUSION: Respondent PCGG has no valid cause of action as
against petitioners and should exclude them from the Third
Amended Complaint

HELD:

SECOND ISSUE
MERITORIOUS
The nature of lawyer-client relationship is premised on the Roman Law
WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of
concepts of
respondent Sandiganbayan (First Division) promulgated on March 18,
- locatio conductio operarum (contract of lease of services): where
1992 and May 21, 1992 are hereby ANNULLED and SET
one person lets his services and another hires them without
ASIDE. Respondent Sandiganbayan is further ordered to exclude
reference to the object of which the services are to be performed
petitioners Teodoro D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose
*
- mandato (contract of agency): wherein a friend on whom reliance
C. Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U.
could be placed makes a contract in his name, but gives up all that
Escueta and Paraja G. Hayuduni as parties-defendants in SB Civil Case
he gained by the contract to the person who requested him
No. 0033 entitled "Republic of the Philippines v. Eduardo Cojuangco, Jr.,
BUT THE LAWYER-CLIENT RELATIONSHIP IS MORE THAN JUST
et al."
PRINCIPAL-AGENT AND LESSOR-LESSEE

An attorney is
RATIO
- more than a mere agent or servant, because he possesses special
FIRST ISSUE
powers of trust and confidence reposed on him by his client
It is quite apparent that petitioner ACCRA lawyers were impleaded not
- as independent as the judge of the court
really because the PCGG was after them, but rather, because it was
- occupies what may be considered as a "quasi-judicial office" since
after the bigger fish.
he is in fact an officer of the Court and exercises his judgment in
The SC even underscored a portion of the Sandiganbayan resolution:
the choice of courses of action to be taken favorable to his client
The ACCRA lawyers cannot excuse themselves from the consequences
Thus, there are rules, ethical conduct and duties that breathe life into
of their acts until they have begun to establish the basis for recognizing
it, among those, the fiduciary duty to his client which is of a very
the privilege; the existence and identity of the client. This is what
delicate, exacting and confidential character, requiring a very high
appears to be the cause for which they have been impleaded by the
degree of fidelity and good faith, that is required by reason of
PCGG as defendants herein.
necessity and public interest based on the hypothesis that abstinence
Primavera Farms v. PCGG: a closely related case wherein the PCGG
from seeking legal advice in a good cause is an evil which is fatal to
wanted to establish through ACCRA that:
the administration of justice.
- their so called client is Mr. Eduardo Cojuangco
It is also the strict sense of fidelity of a lawyer to his client that
- that it was Mr. Eduardo Cojuangco who furnished all the monies
distinguishes him from any other professional in society.
to those subscription payments in corporations
[not important] Stockton v. Ford: US SC held:

- that the ACCRA lawyers executed deeds of trust and deeds of
There are few of the business relations of life involving a higher trust
assignment, some in the name of particular persons, some in blank
and confidence than that of attorney and client, or generally speaking,
- that most of these corporations are really just paper corporations
one more honorably and faithfully discharged; few more anxiously
they have no permits from the municipal authorities in Makati.
guarded by the law, or governed by the sterner principles of morality
all their addresses now are care of Villareal Law Office
and justice; and it is the duty of the court to administer them in a
The SC pointed out that petitioners are being prosecuted solely on the
corresponding spirit, and to be watchful and industrious, to see that
basis of activities and services performed in the course of their duties

confidence thus reposed shall not be used to the detriment or

prejudice of the rights of the party bestowing it.
PROVISIONS RE: ATTORNEY-CLIENT RULE
- Sec. 383 of the 1901 Code of Civil Procedure: specifically forbids
counsel, without authority of his client to reveal any
communication made by the client to him or his advice given
thereon in the course of professional employment.
- Sec. 24 Rule 130 of the current Rules of Court: 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, 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.
- Sec. 20 Rule 138 of the current ROC: it is the duty of the attorney
xxx 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
him or with his knowledge and approval.
- Canon 17, Code of Professional Responsibility: A lawyer owes
fidelity to the cause of his client and he shall be mindful of the
trust and confidence reposed in him.
- Canon 15, Canon of Professional Ethics: lawyer owes "entire
devotion to the interest of the client, warm zeal in the
maintenance and defense of his rights and the exertion of his
utmost learning and ability," to the end that nothing be taken or
be withheld from him, save by the rules of law, legally applied. No
fear of judicial disfavor or public popularity should restrain him
from the full discharge of his duty. In the judicial forum the client is
entitled to the benefit of any and every remedy and defense that is
authorized by the law of the land, and he may expect his lawyer to
assert every such remedy or defense. But xxx the office of
attorney does not permit, much less does it demand of him for any
client, violation of law or any manner of fraud or chicanery. He
must obey his own conscience and not that of his client.
Constitutional aspect of the attorney-client privilege:
- 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 c
- ompelled, in some instances, to either opt to stay away from the
judicial system or to lose the right to counsel.
- another sacrosanct individual right: the right to be presumed
innocent
Policy concerns involved:
- a clients identity should not be shrouded in mystery
- THUS, THE GENERAL RULE IS (both here and in the US): a lawyer
may not invoke the privilege and refuse to divulge the name or
identity of his client, for the ff. reasons:
court has a right to know that the client whose privileged
information is sought to be protected is flesh and blood
privilege begins to exist only after the attorney-client
relationship has been established; it does not attach until
there is a client
privilege generally pertains to the subject matter of the
relationship
due process considerations require that the opposing party
should, as a general rule, know his adversary
- BUT THERE ARE IMPORTANT EXCEPTIONS: (each of these will be
discussed in detail later)
1. Client identity is privileged where a strong probability exists
that revealing the clients name would implicate that client in
the very activity for which he sought the lawyers advice
(MOST IMPORTANT PART OF THIS CASE)
2. Where disclosure would open the client to civil liability, his
identity is privileged.
3. Where the governments lawyers have no case against an
attorneys client unless, by revealing the clients 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 clients name is privileged.
SUMMARIZING THESE 3 IN A NUTSHELL: information relating
to the identity of a client may fall within the ambit of the
privilege when the clients name itself has an independent
significance, such that disclosure would then reveal client
confidences
DETAILED DISCUSSION ON EXCEPTION #1:
8
Ex-Parte Enzor:
lawyer came to know the name of the owner of the second cab
- the unidentified client, an election official, informed his attorney in
when a man, a client of the insurance company, prior to the
confidence that he had been offered a bribe to violate election
institution of legal action, came to him and reported that he was
laws or that he had accepted a bribe to that end
involved in a car accident.
- attorney averred that she could not remember whether her client
- apparent under the circumstances that the man was the owner of
had been, in fact, bribed
the second cab
- lawyer was cited for contempt for her refusal to reveal his clients
- Court held that all communications made by a client to his
identity
counsel, for the purpose of professional advice or assistance, are
- state supreme court held that under the circumstances of the
privileged, whether they relate to a suit pending or contemplated,
case, and under the exceptions described above, even the name
or to any other matter proper for such advice or aid
of the client was privileged
- whenever the communication made, relates to a matter so
U.S. v. Hodge and Zweig:
connected with the employment as attorney or counsel as to
- case involved federal grand jury proceedings inquiring into the
afford presumption that it was the ground of the address by the
activities of the Sandino Gang, a gang involved in the illegal
client, then it is privileged from disclosure
importation of drugs in the United States
Matter of Shawmut Mining Company:
- respondents, law partners, represented key witnesses and
- lawyer involved was required by a lower court to disclose whether
suspects including the leader of the gang, Joe Sandino
he represented certain clients in a certain transaction
- In connection with a tax investigation, IRS issued summons to
- purpose of the courts request was to determine whether the
Hodge and Zweig, requiring them to produce documents and
unnamed persons as interested parties were connected with the
information regarding payment received by Sandino on behalf of
purchase of properties involved in the action
any other person, and vice versa. The lawyers refused to divulge
- SC upheld the lawyers refusal to divulge said names
the names.
If it can compel the witness to state xxx that he represented
- Court upheld the non-disclosure; a strong probability exists that
certain persons in the purchase or sale of these mines, it has
disclosure of such information would implicate that client in the
made progress in establishing by such evidence their version of
very criminal activity for which legal advice was sought.
the litigation.
Baird v. Koerner: enunciated the principle that In order to promote
No case has ever gone to the length of compelling an
freedom of consultation of legal advisors by clients, the apprehension
attorney, at the instance of a hostile litigant, to disclose not
of compelled disclosure from the legal advisors must be removed;
only his retainer, but the nature of the transactions to which
hence, the law must prohibit such disclosure except on the clients
it related, when such information could be made the basis of
consent
a suit against his client.
DETAILED DISCUSSION ON EXCEPTION #2
DETAILED DISCUSSION ON EXCEPTION #3
Neugass v. Terminal Cab Corporation:
Baird v. Koerner:
- Neugass, the plaintiff, suffered injury when the taxicab she was
- lawyer was consulted by the accountants and the lawyer of certain
riding, owned by respondent corporation, collided with a second
undisclosed taxpayers regarding steps to be taken to place the
taxicab, whose owner was unknown.
undisclosed taxpayers in a favorable position in case criminal
- Plaintiff brought action both against defendant corporation and
charges were brought against them
the owner of the second cab, identified in the information only as
- appeared that the taxpayers returns of previous years were
John Doe.
probably incorrect and the taxes understated
- when the attorney of defendant corporation appeared on
preliminary examination, the fact was somehow revealed that the
clients themselves were unsure about whether or not they

violated tax laws and sought advice from Baird on the hypothetical
possibility that they had
- No investigation was then being undertaken by the IRS
- attorney of the taxpayers delivered to Baird the sum of $12,706.85,
which had been previously assessed as the tax due, and another
amount of money representing his fee for the advice given
- Baird then sent a check to the IRS in Maryland, with a note
explaining the payment but without naming his clients
- IRS demanded that Baird identify the lawyers, accountants, and
other clients involved
- Baird refused on the ground that he did not know their names,
and declined to name the attorney and accountants because this
constituted privileged communication
- Court held:
The voluntary nature of the payment indicates a belief by the
taxpayers that more taxes or interest or penalties are due than
the sum previously paid, if any. It indicates a feeling of guilt for
nonpayment of taxes, though whether it is criminal guilt is
undisclosed. But it may well be the link that could form the chain
of testimony necessary to convict an individual of a federal
crime.
OTHER EXCEPTIONS; SYNTHESIS
Other situations that could qualify as exceptions:
1. any client communication to a lawyer lies within the privilege if it is
relevant to the subject matter of the legal problem on which the
client seeks legal assistance
2. where the nature of the attorney-client relationship has been
previously disclosed and it is the identity which is intended to be
confidential, the identity of the client has been held to be
privileged, since such revelation would otherwise result in
disclosure of the entire transaction
The circumstances involving the engagement of lawyers in the case at
bench, therefore, clearly reveal that the instant case falls under at
least two exceptions to the general rule.
The link between the alleged criminal offense and the legal advice or
legal service sought was duly established in the case at bar, by no less
than the PCGG itself.
(From the facts of the case as narrated above) we can readily deduce
that the clients indeed consulted the petitioners, in their capacity as

lawyers, regarding the financial and corporate structure, framework

and set-up of the corporations in question.
- In turn, petitioners gave their professional advice.
- There is no question that the preparation of the aforestated
documents was part and parcel of petitioners legal service
- Petitioners, therefore, have a legitimate fear that identifying
their clients would implicate them in the very activity for which
legal advice had been sought, i.e., the alleged accumulation of ill-
gotten wealth in the aforementioned corporations. (MOST
IMPORTANT THING TO REMEMBER)
Revelation of the client's name would obviously provide the
necessary link for the prosecution to build its case, where none
otherwise exists.
NOTE THAT A DISCTINCTION HAS TO BE MADE:
a.) where a client takes on the services of an attorney for illicit
purposes
does not fall within the privilege because the same cannot be
invoked for illegal purposes
ratio: it is not within the professional character of a lawyer to
give advice on the commission of a crime
b.) where a client thinks he might have previously committed
something illegal and consults his attorney about it
his name cannot be used or disclosed if the disclosure leads to
evidence not yet in the hands of the prosecution
The Baird exception (as discussed above) is applicable in the present
case.
this has been sustained in In re Grand Jury Proceedings and
Tillotson v. Boughner
these cases unanimously seek to avoid the exploitation of the
general rule in what may amount to a FISHING EXPEDITION by the
prosecution
There are, after all, alternative sources of information available to the
prosecutor which do not depend on utilizing a defendant's counsel as
a convenient and readily available source of information
Otherwise, it would be tantamount to sanctioning fishing expeditions
by lazy prosecutors and litigants.
The crux of petitioners' objections ultimately hinges on their
expectation that if the prosecution has a case against their clients, the
latter's case should be built upon evidence painstakingly gathered by
them from their own sources and not from compelled testimony
10
[not important] Uberrimei fidei relationship between a lawyer and his

client therefore imposes a strict liability for negligence on the former.
[not important] Milbank, Tweed, Hadley and McCloy v. Boon:
- lawfirm helped its clients former agent in closing a deal for the
agent's benefit only after its client hesitated in proceeding with
the transaction
- Court ruled in favor of the client, stating that breaches of a
fiduciary relationship in any context comprise a special breed of
cases that often loosen normally stringent requirements of
causation and damages
[not important] Searcy, Denney, Scarola, Barnhart, and Shipley P.A. v.
Schelle:
- a contingent fee lawyer was fired shortly before the end of
completion of his work, and sought payment quantum meruit of
work done
- lawyer was fired for cause after he sought to pressure his client
into signing a new fee agreement
- US Court found that the lawyer involved was fired for cause, thus
deserved no attorney's fees at all
[not important] Meinhard v. Salmon: in the words of the infamous
Justice Cardozo
Not honesty alone, but the punctilio of an honor the most sensitive, is
then the standard of behavior."
[not important] Utmost zeal given by Courts to the protection of the
lawyer-client confidentiality privilege xxx extends even after the
termination of the relationship.
[not important] In the words of the great Oliver Wendell Holmes, the
law:
Every calling is great when greatly pursued. But xxx in what other
does one plunge so deep in the stream of life - so share its passions its
battles, its despair, its triumphs, both as witness and actor? x x x But
that is not all. What a subject is this in which we are united - this
abstraction called the Law, wherein as in a magic mirror, we see
reflected, not only in our lives, but the lives of all men that have
been. When I think on this majestic theme my eyes dazzle. If we are
to speak of the law as our mistress, we who are here know that she is
a mistress only to be won with sustained and lonely passion - only to
be won by straining all the faculties by which man is likened to God.
APPLYING THE FOREGOING TO THE FACTS OF THE CASE AT BAR
RECAP: Civil Case No. 33 alleged that the defendants therein, including
herein petitioners and Eduardo Cojuangco, Jr.:
- conspired with each other in setting up through the use of coconut
levy funds the financial and corporate framework and structures
that led to the establishment of UCPB, UNICOM and others
- that through insidious means and machinations, ACCRA, using its
wholly-owned investment arm, ACCRA Investments Corporation,
became the holder of approximately fifteen million shares
representing roughly 3.3% of the total capital stock of UCPB
PCGG wanted to establish through the ACCRA lawyers that Mr.
Cojuangco is their client and it was Cojuangco who furnished all the
monies to the subscription payment; hence, petitioners acted as
dummies, nominees and/or agents by allowing themselves, among
others, to be used as instrument in accumulating ill-gotten wealth
By compelling petitioners, the PCGG would exact from petitioners a
link that would inevitably form the chain of testimony necessary to
convict the (client) of a crime.

THIRD ISSUE
Respondents failed to show - and absolutely nothing exists in the
records of the case at bar - that private respondent actually revealed
the identity of his client(s) to the PCGG.
Since the undertaking happens to be the leitmotif of the entire
arrangement between Mr. Roco and the PCGG, an undertaking which is
so material as to have justified PCGG's special treatment exempting the
private respondent from prosecution, respondent Sandiganbayan
should have required proof of the undertaking more substantial than a
"bare assertion" that private respondent did indeed comply with the
undertaking.
The ff. were the only proof presented:
1. two requests for re-investigation
2. one document which disclosed certain clients which petitioners
(ACCRA lawyers) were themselves willing to reveal
clients to whom both petitioners and Roco rendered legal
services while all of them were partners at ACCRA; not the clients
which the PCGG wanted disclosed for the alleged questioned
transactions

SUMMING IT ALL UP
11
The condition precedent required by PCGG for the exclusion of

petitioners ACCRA lawyers:
- violates the lawyer-client confidentiality privilege
- constitutes a transgression by respondents Sandiganbayan and
PCGG of the equal protection clause
- PCGGs demand not only touches upon the question of the identity
of their clients but also on documents related to the suspected
transactions, not only in violation of the attorney-client privilege
but also of the constitutional right against self-incrimination.
Whichever way you look at it: FISHING EXPEDITION
An argument is advanced that the invocation of the attorney-client
privilege is premature and that they should wait until they are called to
testify and examine as witnesses as to matters learned in confidence.
- But petitioners are not mere witnesses. They are co-principals in
the case for recovery of alleged ill-gotten wealth.
- Constitutional right against self-incrimination and of their
fundamental legal right to maintain inviolate the privilege of
attorney-client confidentiality.
- The case hangs as a real and palpable threat, a proverbial Sword
of Damocles over petitioners' heads.
While we are aware of respondent PCGGs legal mandate to recover
ill-gotten wealth, we will not sanction acts which violate the equal
protection guarantee and the right against self-incrimination and
subvert the lawyer-client confidentiality privilege.

SEPARATE OPINION
Vitug
The legal profession, despite all the unrestrained calumny hurled against
it, is still the noblest of professions.
The protection of confidentiality of the lawyer-client relationship is one,
and it has since been an accepted firmament in the profession. It allows
the lawyer and the client to institutionalize a unique relationship based
on full trust and confidence essential in a justice system that works on
the basis of substantive and procedural due process.
The rule is not without its pitfalls but these problems are, in the ultimate
analysis, no more than mere tests of vigor that have made and will make
that rule endure.
I see in the case before us a situation of the Republic attempting to
establish a case not on what it perceives to be the strength of its own
evidence but on what it could elicit from a counsel against his client. I find
it unreasonable.

DISSENTING OPINIONS
DAVIDE, JR.
I strongly feel that this Court must confine itself to the key issue: whether
or not the Sandiganbayan acted with grave abuse of discretion in not
excluding the defendants, the petitioners herein, from the Third Amended
Complaint.
- That issue, unfortunately, has been simply buried under the avalanche
of authorities upholding the sanctity of lawyer-client relationship
which appears to me to be prematurely invoked.
- The prerogative to determine who shall be made defendants in a civil
case is initially vested in the plaintiff, or the PCGG in this case. The
control of the Court comes in only when the issue of "interest" (e.g.
w/n an indispensable party has not been joined, w/n theres a
misjoinder) is raised.
- The petitioners seek to be accorded the same benefit granted to or to
be similarly treated as Roco. Reason and logic dictate that they cannot,
unless they too would make themselves like Roco. They did not do so
because they believed that compliance thereof would breach the
sanctity of their fiduciary duty in a lawyer-client relationship.
- As a matter of fact, the PCGG presented evidence to substantiate
Roco's compliance. (these were the same ones cited in the majority
opinion, pls check na lang)
The rule of confidentiality under the lawyer-client relationship may only
be invoked at the appropriate time, i.e.: when a lawyer is under
compulsion to answer as witness, as when:
- having taken the witness stand, he is questioned as to such
confidential communication or advice
- he is being otherwise judicially coerced to produce, through
subpoenae duces tecum or otherwise, letters or other documents
containing the same privileged matter.
Hypothetically admitting the allegations in the complaint in Civil Case No.
0033, I find myself unable to agree with the majority opinion, which seeks
to expand the scope of the Philippine rule on the lawyer-client privilege by
copious citations of American jurisprudence.
From the plethora of cases cited, two facts stand out in bold relief.
12
1. the issue of privilege contested therein arose in grand jury

proceedings on different States, which are primarily proceedings
before the filing of the case in court, and we are not even told what
evidentiary rules apply in the said hearings.
In the present case, the privilege is invoked in the court where it
was already filed.
2. In the cases cited by the majority, the lawyers concerned were
merely advocating the cause of their clients but were not indicted
for the charges against their said clients.
Here, the counsel themselves are co-defendants duly charged in
court as co-conspirators in the offenses charged. The cases cited by
the majority evidently do not apply to them.
The lawyer-client privilege is not a shield for the commission of a crime or
against the prosecution of the lawyer therefor.
- Rule 1.02, Canon 1, Code of Professional Responsibility: lawyers are
mandated not to counsel or abet activities aimed at defiance of the
law or at lessening confidence in the legal system
- Rule 19.01, Canon 19: to employ only fair and honest means to attain
the lawful objectives of his client
- Canon 15, Canon of Professional Ethics: a lawyer must steadfastly
bear in mind that his great trust is to be performed within and not
without the bounds of the law
- Canon 32: his undertaking exact compliance with the strictest
principles of moral law
IN SUM: These canons strip a lawyer of the lawyer-client, privilege
whenever he conspires with the client in the commission of a crime or a
fraud.
Rationale of rule excepting communications with respect to
contemplated criminal or fraudulent act:
- The reason perhaps most frequently advanced is that in such cases
there is no professional employment, properly speaking.
- If his criminal object is avowed, the client does not consult his adviser
professionally, because it cannot be the solicitor's business to further
any criminal object.
- If the client does not avow his object, he reposes no confidence, for the
state of facts which is the foundation of the supposed confidence does
not exist. The solicitor's advice is obtained by a fraud.
- 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

They then partake of the nature of a conspiracy, or attempted

conspiracy, and it is not only lawful to divulge such communications,
but under certain circumstances it might become the duty of the
attorney to do so.
- It would be monstrous to hold that in such a case the lips of the
attorney would be sealed, when the facts might become important to
the ends of justice in the prosecution of crime. Public policy would
forbid it.
As to disclosing the identity of the client:
- Where an undisclosed client is a party to an action, the opposing party
has a right to know with whom he is contending or who the real party
in interest is, if not the nominal adversary. (Am Jur)
- A litigant cannot be obliged to struggle in the dark against unknown
forces.
- The privilege cannot be used to evade a client's responsibility for the
use of legal process
-

PUNO, J.
The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law.
In the case at bar, there is a TRILEMMA (haha may ganito pala)
1. One overriding policy consideration is the need for courts to
discover the truth for truth alone is the true touchstone of justice
2. Equally compelling is the need to protect the adversary system of
justice where truth is best extracted by giving a client broad privilege
to confide facts to his counsel
3. Similarly deserving of sedulous concern is the need to keep inviolate
the constitutional right against self-incrimination and the right to
effective counsel in criminal litigations.
These competing societal interests demand that application of the
privilege not exceed that which is necessary to effect the policy
considerations underlying the privilege, i.e., the privilege must be upheld
only in those circumstances for which it was created
The attorney-client privilege can never be used as a shield to commit a
crime or a fraud.
Communications to an attorney having for their object the commission of
a crime "x x x partake the nature of a conspiracy, and it is not only lawful
to divulge such communications, but under certain circumstances it might
become the duty of the attorney to do so. (American Law Reports
Annotated; YES, pareho sila ni Davide na nag-cite nito J )
13
As a general rule, the attorney-client privilege does not include the right *long, confusing case; copy of the contract uploaded to dropbox; please see
of non-disclosure of client identity. The general rule and its exceptions summary for the main points; highlighted important exhibits, but they dont
are accurately summarized in In re Grand Jury Investigation. (Ang haba have any bearing on the main doctrine since the latter relates to a piece of
evidence that first appears in the ratio.
guys, di ko na elaborate since this case is in the syllabus din naman)
I join the majority in holding that the Sandiganbayan committed grave
abuse of discretion by failing to recognize the exceptions discussed above. SUMMARY
I part ways with the majority when it ruled that petitioners need not Barton and Leyte entered into a contract, authorizing the former to sell the
bituminous limestone products of Leyte. Barton entered into sub-agency
prove they fall within the exceptions to the general rule.
- The attorney-client privilege is not a magic mantra whose invocation contracts with entities in the US, Australia and Japan, without informing Leyte
will ipso facto and ipso jure drape he who invokes it with its protection. of such sub-agency agreements. Negotiations ensued. The companys assistant
- The person claiming the privilege or its exception has the obligation to manager later informed Barton that no orders can be entertained unless cash
present the underlying facts demonstrating the existence of the has been actually deposited. Barton questioned the right of the company to
insist upon a cash deposit in Cebu before filling the orders. Barton filed a case
privilege
- In the case at bar, it cannot be gainsaid that petitioners have not for damages in the CFI-Manila for breach of contract. CFI ruled for Barton.
adduced evidence that they fall within any of the above mentioned ISSUE: WN the documents evidencing the orders made by Bartons alleged
exceptions for as aforestated, the Sandiganbayan did not recognize sub-agents are sufficient to support the judgment rendered by the trial court.
the exceptions, hence, the order compelling them to reveal the NO. Judgement reversed. SUBSTANTIVE MATTER: Article 267 of the Code of
Commerce declares that no agent shall purchase for himself or for another
identity of their client.
- It seems to me evident that "the very activity for which he sought the that which he has been ordered to sell. The law has placed its ban upon a
lawyer's advice" is a question of fact which must first be established broker's purchasing from his principal unless the latter with full knowledge of
all the facts and circumstances acquiesces in such course; and even then the
before there can be any ruling that the exception can be invoked.
- As to the exception "where the government's lawyers have no case broker's action must be characterized by the utmost good faith. A sale made
against an attorney's client unless, by revealing the client's name, the by a broker to himself without the consent of the principal is ineffectual
said name would furnish the only link that would form the chain of whether the broker has been guilty of fraudulent conduct or not. PROCEDURAL
st
MATTER: Exhibit 14 appears for the 1 time in the ratio; offered by the
testimony necessary to convict an individual of a crime:
(1) how can we determine that PCGG has "no case" against companys counsel. It is a carbon copy of a letter by Barton addressed to his
attorney Ingersoll stating, inter alia, Bartons potential profits from his US
petitioners without presentation of evidence?
(2) how can we determine that the name of the client is the only link contract. Bartons counsel objected to its allowance on the ground of atty-
client privilege. CFI sustained the objection. SC said this was error. Even
without presentation of evidence as to the other links?
- In the cited case of Baird, the factual basis for the ruling was properly supposing that the letter was within the privilege that protects
established by the parties. In the case at bar, there is no evidence communications between attorney and client, this privilege was lost when
about the subject matter of the consultation made by petitioners' the letter came to the hands of the adverse party. And it makes no difference
how the adversary acquired possession. The law protects the client from the
client.
effect of disclosures made by him to his attorney in the confidence of the

legal relation, but when such a document, containing admissions of the client,
3. BARTON VS. LEYTE ASPHALT & MINERAL OIL CO (RS)
comes to the hand of a third party, and reaches the adversary, it is
No. 21237|March 22, 1924|Street, J.
admissible in evidence. [Malcom, J. dissents]
Plaintiff-appellee: James Barton

Defendant-appellant: Leyte Asphalt & Mineral Oil Co., LTD. (Company)
FACTS

14
Case: Action instituted in the CFI-Manila by Barton to recover from

Leyte damages for breach of contract (USD 318,563.30), and to secure
judicial pronouncement as to plaintiffs entitlement to an extension of
the terms of the sales agencies specified in the contract (Exhibit A)
o Trial ct. absolved the company from 4 of the 6 causes of
action (COAs) in the complaint and gave judgment for Barton
to recover from the other 2 causes of action. Defendant
Corporation appealed from this order.
Barton is a US citizen, Manila resident, while Leyte Asphalt & Mineral
Oil Co., LTD. is a corporation organized under the laws of the Philippine
Islands with its principal office in Cebu City. Company appears to be
the owner of a valuable deposit of bituminous limestone and other
asphalt products, located on the Island of Leyte and known as the
Lucio mine.
4/21/1920 William Anderson, as president and general manager of
the company, addressed a letter (Exhibit B) to Barton, authorizing the
latter to sell the products of the Lucio mine in the Commonwealth of
Australia and New Zealand upon a scale of prices indicated in said
letter.
Exhibit A main contract upon which the suit is based; Companys
letter to Barton, making him the sole and exclusive sales agency for the
formers bituminous limestone in the territories of Australia, New Z.,
Tasmania, Saigon, India, Sumatra, Java, China, HK, Siam and the Straits
Settlements, also in the United States of America.
o So, the contract authorized Barton to sell the companys
bituminous limestones.
After contract (Exhibit A) became effective, Barton requested the
company to give him a similar selling agency for Japan. The company,
through its president, Anderson, replied:
o we are willing to give you, the same commission on all sales
made by you in Japan, on the same basis as your Australian
sales, but we do not feel like giving you a regular agency for
Japan until you can make some large sized sales there,
because some other people have given us assurances that they
can handle our Japanese sales, therefore we have decided to
leave this agency open for a time."
Meanwhile, Barton went to San Francisco; he entered into an
agreement with Ludvigsen & McCurdy, whereby the latter was
constituted a subagent and given the sole selling rights for the
bituminous limestone products of the company on terms stated in the
letter (Exhibit K). The territory assigned to Ludvigsen & McCurdy

included San Francisco and California.
o Barton also went to Australia, and made an agreement with
Frank B. Smith of Sydney, whereby the latter was to act as the
Bartons sales agent for bituminous limestone mined at the
companys quarry in Leyte. (Exhibit Q)
2/5/1921 Ludvigsen & McCurdy wrote to Barton advising him that he
might enter an order for 6K tons of bituminous limestone (Exhibit G).
Barton immediately indorsed his acceptance
3/2/1921 Barton returned to Manila; Anderson wrote to him to the
effect that the company was behind with construction and was not
able to handle big contracts (Exhibit FF)
3/12/1921 Anderson and Barton met in Manila Hotel; Barton
informed Anderson of the SanFran order; Anderson told Barton to hold
up in the matter of taking orders owing lack of capital.
3 days later, Barton notified the company to be prepared to ship 5K
tons of bituminous limestone to John Chapman Co., SanFran.
3/5/1921 - Frank B. Smith, of Sydney, cabled Barton for an order for 5K
tons of bituminous limestone
o 3/15 Barton advised the company to be prepared to ship
another 5K tons of bituminous limestone in addition to the
intended consignment for SanFran.
o Henry E. White was indicated as the name of the person
through whom this contract had been made, and it was stated
that the consignee would be named later, no destination for
the shipment being given.
o Barton explains that the name White, as used in this letter,
was based on an inference, which he had erroneously drawn
from the cable sent by Frank B. Smith, and his intention was to
have the second shipment consigned to Australia in response
to Smith's order.
o In the 3/15 letter, no mention was made of the names of the
person, or firm, for whom the shipments were really intended.
o The obvious explanation in connection with this is that Barton
did not then care to reveal the fact that the two orders had
originated from his own subagents in San Francisco and
Sydney.
3/25/1921 - To Bartons 3/15 letter, the assistant manager of the
company replied, acknowledging the receipt of an order for 5K tons of
bituminous limestone to be consigned to John Chapman Co., of San
15
Francisco, and 5K of the same to be consigned to Henry E. White; and

it was stated that "no orders can be entertained unless cash has been
actually deposited with either the International Banking Corporation or
the Chartered Bank of India, Australia and China, Cebu." (Exhibit Z)
3/29/1921 Barton replied, questioning the right of the company to
insist upon a cash deposit in Cebu prior to the filling of the orders.
o Barton: "I have arranged for deposits to be made on these
additional shipments if you will signify your ability to fulfill
these orders on the dates mentioned." No name was
mentioned as the purchaser, or purchasers, of these intended
Australian consignments.
After writing the 3/29 letter, Barton went to China and Japan.
o In Tokio, Japan, he came in contact with H. Hiwatari, who
appears to have been a suitable person for handling
bituminous limestone for construction work in Japan. In the
letter (Exhibit X), Hiwatari speaks of himself as if he had been
appointed exclusive sales agent for Barton in Japan, but no
document expressly appointing him such is in evidence.
While Barton was in Tokio, he procured the letter (Exhibit W),
addressed to himself, to be signed by Hiwatari.
o This letter contains an order for 1K tons of bituminous
limestone from the quarries of the company.
o Hiwatari states, "on receipt of the cable from you, notifying
me of date you will be ready to ship, and also tonnage rate, I
will agree to transfer through the Bank of Taiwan, of Tokio, to
the Asia Banking Corporation, of Manila, P. I., the entire
payment of $16,000 gold, to be subject to our order on
delivery of documents covering bill of lading of shipments, the
customs report of weight, and prepaid export tax receipt. I will
arrange in advance a confirmed or irrevocable letter of credit
for the above amounts so that payment can be ordered by
cable, in reply to your cable advising shipping date."
5/16/1921 - In a letter (Exhibit X), Hiwatari informs Barton that he had
shown the contract, signed by himself, to the submanager of the
Taiwan Bank who said that he would be able to issue, upon request of
Hiwatari, a credit note for the contracted amount, but he added that
the submanager was not personally able to place his approval on the
contract as that was a matter beyond his authority.
5/5/1921 letter containing Hiwatari's order for 1K tons of bituminous
limestone: stated that if the material should prove satisfactory, he
would contract with Barton for a minimum quantity of 10K additional

tons.
o The contents of the 5/5/1921 letter seems to have been
conveyed, though imperfectly, by Barton to his attorney, Mr.
Frank B. Ingersoll, of Manila (take note of Ingersoll);
o 5/17/1921 - Ingersoll addressed a note to the company in
Cebu, notifying the latter Barton had accepted an order from
Hiwatari, of Tokio, approved by the Bank of Taiwan, for a
minimum order of 10K tons of the stone annually for a period
of 5 years, the first shipment of 1K tons to be made as early
after July 1 as possible.
o This communication did not truly reflect the contents of
Hiwatari's letter, which called unconditionally for only 1K tons,
the taking of the remainder being contingent upon future
eventualities.
The only written communications between Barton and the company
in which the former gave notice of having any orders for the sale of
bituminous limestone are the four letters Exhibit Y, AA, BB, and II.
These are orders to be consigned to John Chapman, Co. of San
Francisco, Henry E. White, Hiwatari of Tokio and F. B. Smith
Barton filed a suit; he amended his complaint in which he stipulated
the orders that he claims to have received and upon which his letters
of notification to the company were based.
o Amended answer: the name of Ludvigsen & McCurdy appears
for the first time; and the name of Frank B. Smith, of Sydney, is
used for the first time as the source of the intended
consignments of the letters (Exhibits G, L, M, and W),
containing the orders from Ludvigen & McCurdy, Frank B.
Smith and H. Hiwatari.
The award by the trial judge in favor of Barton are all based upon the
orders given by Ludvigsen & McCurdy (Exhibit G), by Frank B. Smith
(Exhibit L and M), and by Hiwatari in Exhibit W.

ISSUE: WN the orders in Exhibit G, L, M, and W, in connection with the
subsequent notification thereof given by Barton to the company, are sufficient
to support the judgment rendered by the trial court. NO.

HELD: Our conclusion upon the entire record is that the judgment appealed
from must be reversed; and the defendant will be absolved from the
complaint.
16

had been in fact appointed to be such at the time he signed to order
RATIO
(Exhibit W) at Bartons request.
SUBSTANTIVE MATTERS
o It may be assumed, therefore, that he was at that time a
stranger to the contract of agency. It clearly appears, however,
The transaction indicated in the orders from Ludvigsen, & McCurdy
that he did not expect to purchase the thousand tons of
and from Frank B. Smith must be excluded from consideration as
bituminous limestone referred to in his order without banking
emanating from persons who had been constituted mere agents of
assistance; and although the submanager of the Bank of
Barton. The San Francisco order and the Australian orders are the
Taiwan had said something encouraging in respect to the
same in legal effect as if they were orders signed by Barton and drawn
matter, nevertheless that official had refrained from giving his
upon himself; and it cannot be pretended that those orders represent
approval to the order (Exhibit W). It is therefore not shown
sales to bona fide purchasers found by him.
affirmatively that this order proceeds from a responsible
The original contract [Exhibit A] by which Barton was appointed sales
source.
agent for a limited period of time in Australia and the United States
contemplated that he should find reliable and solvent buyers who
should be prepared to obligate themselves to take the quantity of PROCEDURAL MATTERS
The company, in its appellants brief, assigned errors having to do with
bituminous limestone contracted for upon terms consistent with the
the trial courts admitting certain evidence offered by Barton, and
contract.
rejecting pieces of evidence that the company itself offered.
o These conditions were not met by the taking of these orders
from Bartons own subagents, which was as if he himself had
[IMPORTANT] Exhibit 14 (first time that it appears in this case), which
bought the commodity which he was authorized to sell to
was offered in evidence by the company, consists of a carbon copy of
others.
a letter dated June 13, 1921, written by Barton to his attorney, Frank
o Article 267 of the Code of Commerce declares that no agent
B. Ingersoll, Esq., of Manila, and in which Barton states, among other
shall purchase for himself or for another that which he has
things, that his profit from the San Francisco contract would have been
been ordered to sell. The law has placed its ban upon a
at the rate of 85 cents (gold) per ton.
broker's purchasing from his principal unless the latter with
o The authenticity of this city document is admitted, and when
full knowledge of all the facts and circumstances acquiesces in
the companys attorney offered it in evidence, Bartons
such course; and even then the broker's action must be
counsel announced that he had no objection to the
characterized by the utmost good faith. A sale made by a
introduction of this carbon copy in evidence if the companys
broker to himself without the consent of the principal is
attorney would explain where this copy was secured.
ineffectual whether the broker has been guilty of fraudulent
o Companys attorney: he received the letter from the former
conduct or not.
attorneys of the company without explanation of the manner
in which the document had come into their possession.
Upon inspection of Bartons letters (Exhibit Y and AA), there will be
o Bartons counsel: "We hereby give notice at this time that
found ample assurance that deposits for the amount of each shipment
unless such an explanation is made, explaining fully how this
would be made with a bank in Manila provided the company would
carbon copy came into the possession of the defendant
indicated its ability to fill the orders; but these assurance rested upon
company, or any one representing it, we propose to object to
no other basis than the financial responsibility of Barton himself, and
its admission on the ground that it is a confidential
this circumstance doubtless did not escape the discernment of the
communication between client and lawyer."
companys officers.
o No further information was then given by the companys
With respect to the order from H. Hiwatari, we observe that while he
attorney as to the manner in which the letter had come to his
intimates that he had been promised the exclusive agency under
hands and the trial judge thereupon excluded the document,
Barton for Japan, nevertheless it does not affirmatively appear that he

17
on the ground that it was a privileged communication

between client and attorney.
[DOCRTRINE ALERT] This ruling was erroneous.
o Even supposing that the letter was within the privilege that
protects communications between attorney and client, this
privilege was lost when the letter came to the hands of the
adverse party.
o And it makes no difference how the adversary acquired
possession.
o The law protects the client from the effect of disclosures
made by him to his attorney in the confidence of the legal
relation, but when such a document, containing admissions
of the client, comes to the hand of a third party, and reaches
the adversary, it is admissible in evidence.
o Our good man, Mr. Wigmore says: The law provides
subjective freedom for the client by assuring him of
exemption from its processes of disclosure against himself or
the attorney or their agents of communication. This much,
but not a whit more, is necessary for the maintenance of the
privilege. Since the means of preserving secrecy of
communication are entirely in the client's hands, and since
the privilege is a derogation from the general testimonial
duty and should be strictly construed, it would be improper
to extend its prohibition to third persons who obtain
knowledge of the communications. One who overhears the
communication, whether with or without the client's
knowledge, is not within the protection of the privilege. The
same rule ought to apply to one who surreptitiously reads or
obtains possession of a document in original or copy.
Although the precedents are somewhat confusing, the better doctrine
is to the effect that when papers are offered in evidence, a court will
take no notice of how they were obtained, whether legally or
illegally, properly or improperly; nor will it form a collateral issue to
try that question.
court a quo on the facts, what is said relative to these two assignments is
absolutely unnecessary for a judgment, and even as obiter dicta, contains
unfortunate expressions. Exhibit 14, for example, is a letter addressed by the
plaintiff to his lawyer and probably merely shown to the counsel of the
defendant during negotiations to seek a compromise. Whether that exhibit be
considered improperly rejected or not would not change the result one iota.
The rule now announced by the Court that it makes no difference how the
adversary acquired possession of the document, and that a court will take no
notice of how it was obtained, is destructive of the attorney's privilege and
constitutes and obstacle to attempts at friendly compromise. In the case of Uy
Chico vs. Union Life Assurance Society (1915), it was held that communications
made by a client to his attorney for the purpose of being communicated to
others are not privileged if they have been so communicated. But here, there
is no intimation that Exhibit 14 was sent by the client to the lawyer for the
purpose of being communicated to others. The Supreme Court of Georgia in
the case of Southern Railway Co. vs. White, held that statements in a letter to a
party's attorney handed by the latter to the opponent's attorney, are
confidential communications and must be excluded.
Briefly, the decision of the majority appears to me to be defective in
the following particulars: (1) It sets aside without good reason the fair findings
of fact as made by the trial court and substitutes therefor other findings not
warranted by the proof; (2) it fails to stress plaintiff's main argument, and (3) it
lay downs uncalled for rules which undermine the inviolability of a client's
communications to his attorney.
Accordingly, I dissent and vote for an affirmance of the [trial courts]
judgment.

4. ORIENT INSURANCE VS. REVILLA (DU)
ORIENT INSURANCE COMPANY, petitioner,
vs.
E. P. REVILLA, Judge of First Instance of Manila, and TEAL MOTOR CO.,
INC., respondents.
G.R. No. 34098 September 17, 1930 EN BANC STREET, J
Gibbs
and
McDonough
for
petitioner.

Guevara, Francisco and Recto for respondents.
Separate Opinions
Summary:
MALCOLM, J., dissenting:
In a case filed by Teal to recover fire insurance policy from Orient, Teal
The majority decision incidentally takes up for consideration assignments of President, Mr Bachrach (EMB), was examined be Orient Lawyers. He was asked
error 1 and 2 having to do with either the admission or the rejection by the about the circumstances regarding the filing of the case. EMB said that Teal
trial court of certain exhibits. Having in mind that the Court reverses the Lawyers sent a letter advising them to file the case. Orient asked that said

18
letter be reproduced (Best Evidence Rule). EMB produced said letter and
o suit was not instituted on the policy until August 3, 1929
offered as evidence only the part of the letter which Teal Lawyers
Plaintiff-TEAL admitted that the claim was rejected on april 15, but
recommended the filing of the case. When Orient wanted to see the rest of the
Teal said that E. E. Elser, as representative of the Orient, expressly
letter, Teal lawyers objected based on irrelevance and that other parts of the
requested the plaintiff to defer judicial action until after the following
letter were client-lawyer privileged communications. Judge sustained the
July 31, stating that there were great possibilities that an extrajudicial
objection. Later Orient reiterated its request 3-5 more times including an MR
compromise might be arranged in the matter
and a subpoena but judge denied all and even quashed the subpoena. So
plaintiff had deferred action, relying upon this request.
Orient filed this mandamus and certiorari with the SC.
The issue of this case started when...
SC said that since part of the letter was introduced in behalf of the
witness E. M. Bachrach, president of the Teal Motor Co., Inc. was being
plaintiff, the whole of the letter could properly be examined by the other
examined by Orient Attorneys.
party, in accordance with the rules of court. Further, SC added that matters as
o Bachtrach (EMB for short) was being ask about circumstances
to the contract between lawyers and client are not considered privileged
surrounding the institution of the action
communication. Assuming it was indeed privileged, the privilege was waived
o EMB said that on the 13th of July, he received a letter from
by the introduction in evidence of part of the letter. As to w/n the proper
their attorneys, Guevara, Francisco & Recto, urging him to file
remedy was used, certiorari was proper since there is no other remedies
these cases.
available seeing that the judge, by his acts, has already decided not to admit
o Orient Attorneys asked that witness be required to produce
the whole letter as evidence. Mandamus lies also to compel the judge to
the letter referred to from Mr. Guevara, or else his answer be
admit the letter.
stricken out

What orient was actually demanding for the
FACTS (for basic facts, see summary)
production of "the best evidence,"
original petition for writs of certiorari and mandamus
Remember, witness cannot be permitted to give oral
o filed in this court by the Orient Insurance Company
testimony as to the contents of a paper writing which
o against the respondent judge of the Court of First Instance of
can be produced in court
Manila and the Teal Motor Co., Inc.
o no objection to show that part of the letter in which Guevara
this is based on a case, as of time of the decision, was still pending in
urged him to proceed with the cases
CFI Manila entitled: Teal Motor Co., Inc. vs. Orient Insurance Company
o BUT!!! Eto na...
civil case No. 35825
Upon being asked about the other part of the letter, the witness said
Teal Motor Co., Inc. vs. Orient Insurance Company civil case No. 35825
that the other part contained private matter, "between the attorney
Teal Motor Co., Inc. seeks to recover upon two fire insurance policies
and ourselves," (so ayaw niya ipa-basa)
issued by the Orient Insurance Company aggregating P60,000, upon a
o Orient attorney then asked the date of the letter which witness
stock of merchandise alleged to be of the value of P414,513.56, which,
said 13 july
with the exception of salvage valued at about P50,000, was destroyed
o Orient attorney suggested that he would like to have the letter
by a fire on or about January 6, 1929.
marked without his reading it, and it was accordingly marked
Policies stated that all benefit under the policy would be forfeited if, in
as Exhibit 49
case of loss, the claim should be rejected by the insurer and action or
o Orient attorney then withdrew his objections to the statement
suit should not be commenced within three months after such rejection
of EMB but asked the court that he (the attorney of orient) to
Defense of oriental was that Teal cant sue them anymore since the
read the letter for his information.
case was filed more than three months from the rejection by Oriental
o When asked by the court, Teal Attorney reiterated what EMB
of Teals claim.
said in his testimony that Orient attorneys can read the
o company rejected the claim and notified Teal on April 15, 1929

19
relevant parts only but not the other parts which contained
excerpt in question must therefore be considered as proof submitted
atty-client privileged communication
by the plaintiff
o The other part referred to by Teal Attorneys were about
there can be no question that, part of the letter having been
contract of fees, or retaining of the services of plaintiff's
introduced in behalf of the plaintiff, the whole of the letter could
attorneys in connection with said cases, so they insist it is
properly be examined by the other party
irrelevant for the case and that it is privileged
RE: Privilege Communication
o Orient Attorneys countered that inasmuch as all the letter
difficult to see how a contract for fees could be considered privileged.
refers to the case then in court, the entire document should be
contracts between attorneys and clients are inherently personal and
exhibited, in conformity with the rule that when part of a
private matters, but they are a constant subject of litigation, and
document is offered in evidence, the entire document must be
contracts relating to fees are essentially not of privileged nature.
presented
Privilege primarily refers to communications from client to attorney,
o Judge still did not accede to request of Orient Attorneys, but
an idea which of course includes communications from attorney to
the relevant parts, as mentioned by EMB, was read aloud in
client relative to privileged matters.
court so that it may form part of the records (please see full If it was Privilege, it was waived
text nalang)
the privilege was waived by the introduction in evidence of part of
o Again, Orient attorneys requested that the entire letter be
the letter.
produced which the judge denied
The provision in section 283 of the Code of Civil Procedure making the
o After further discussion, upon the suggestion of the attorney
whole of a declaration, conversation, or writing admissible when part
for the defendant and by agreement of the counsel for both
has been given in evidence by one party, makes no exception as to
parties, the second page of the letter was marked 49-A by the
privileged matter; and the jurisprudence on the subject does not
clerk court.
recognize any exception.
When the time for orient attorneys to cross EMB arrived, they
Kelly vs. Cummens citing Western Union Tel co v Baltimore
reiterated that EMB should formally offer the letter in evidence, again
o Issue of the case is whether a reissued patent upon which the
Teal Lawyers objected and Judge sustained
suit was founded was obtained for the legitimate purposes
Orient filed an MR with the judge but was rejected
o Complainant to fortify his theory made affidavits extracted
Orient then asked for a subpoena duces tecum to be issued by the
from communications between patent experts, Solgen
Clerk of court to require Teal to produce certain paper including the
Lawyers and company officers. (so meaning other parts of the
letter.
communication were not disclosed)
o Judge quashed the subpoena.
o So defendant sought to introduce in evidence the original
ISSUE: W/N a party can be prohibited from examining the whole document
communications (Full not just extracts) on the ground that the
presented as evidence. Otherwise stated, was the Judge correct to allow the
parts of the communication which were not disclosed had an
examination of just part of the letter which TEAL deemed relevant for the
important bearing upon the history of the application for a
testimony of its witness?
reissue
HELD: No! Once you present/introduce part of the letter/document, the whole
o Complainant said that the communication was privileged
of the letter/document could properly be examined by the other party.
communication
RATIO:
o Court said that assuming it was indeed privileged, it was
The letter was necessary support of the oral statement made by the
competent for the complainant to waive its privilege.
witness. Part of it was presented, in fact made part of the record, so
o A party cannot waive such a privilege partially. He cannot
that his testimony would not be striken off
remove the seal of secrecy from so much of the privileged
communications as makes for his advantage, and insist that it

20
shall not be removed as to so much as makes to the

advantage of his adversary, or may neutralize the effect of
such as has been introduced
o it cannot be material at what stage of the proceedings in a suit
a party waives his right to maintain the secrecy of privileged
communication
Back to the case... so we (the court) are led to the conclusion that the
attorney for the defendant in the court below was entitled to examine
the whole of the letter (Exhibit 49 and 49-A), with a view to the
introduction in evidence of such parts thereof as may be relevant to
the case on trial
RE: Admissibility of whole letter Premature
It is suggested in the argument for the respondents that the attorney
for the defendant should have waited until it became his turn to
present evidence in chief, when, as is supposed, the question could
have been properly raised
Court said that if the attorney for the defendant had a right to examine
the letter, it should have been produced when he asked for it on the
cross-examination of the witness
Besides, from the facts, there was not the slightest suggestion from the
court that the parts of the letter which were held inadmissible would
be admitted at any time (tapos the judge quashed the subpoena pa)
All in all it shows that court meant to rule that the letter could not be
inspected at all by the attorney for the defendant.
RE: Writ of Mandamus as the proper remedy/mode
The situation presented is, however, one where the herein petitioner
has no other remedy
Letter has been ruled inadmissible
respondent judge had not permitted the document to become a part of
the record in such a way that the petitioner could take advantage of
the error upon appeal to this court
idle to discuss whether other remedy would be speedy or adequate
when there is no remedy at all
this case has been pending before the respondent judge for a
considerable period of time, and undoubtedly the probatory period will
be necessarily extended much longer
Under these circumstances, the action of this court in entertaining the
present application will either be conductive to the speedy
determination of case, or at least will not appreciably extend the
proceedings

writ ofmandamus appropriate, since the right from the exercise of

which the petitioner is excluded is one to which it is entitled under the
law and the duty to be performed is one pertaining to the respondent
judge in his official capacity.
From what has been said it follows that the writ of mandamus prayed for will
be granted, and the respondent judge is directed to permit the attorney for the
defendant (petitioner here) to inspect the letter (Exhibit 49 and 49-A) with a
view to the introduction in evidence of such parts thereof as may be relevant to
the issues made by the pleadings in civil case No. 35825 and other cases which
have been consolidated with it for trial. So ordered, with costs against the
respondent Teal Motor Co., Inc.
Avancea, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur.
Separate Opinions
VILLA-REAL, J., concurring:
I concur solely on the ground that the portion of the letter alleged to be
privileged is not so.

5. PEOPLE VS. SANDIGANBAYAN (HV)
GR 115439-41 | 07/16/1997 | REGALADO, J.

Petitioner: PEOPLE OF THE PHILIPPINES
Respondents: MANSUETO V. HONRADA, CEFERINO S. PAREDES, JR. and
GENEROSO S. SANSAET

SUMMARY Sansaet was designated as a state witness in a case of falsification
charges as against Sansaet, Honrada and Paredes. Sansaet being the counsel of
Paredes, obtained information from privilege communication. However
Gelacio, a taxpayer, filed a case for falsification of documents alleging Paredes,
Honrada and Sansaet. Sansaet was made the state witness. The motion to
discharge Sansaet as state witness was dismissed by the Sandiganbayan and
thus was raised to the Supreme court. SC RULED: THE PERIOD TO BE
CONSIDERED IS THE DATE WHEN THE PRIVILEGED COMMUNICATION WAS
MADE BY THE CLIENT TO THE ATTORNEY IN RELATION TO EITHER A CRIME
COMMITTED IN THE PAST OR WITH RESPECT TO A CRIME INTENDED TO BE
COMMITTED IN THE FUTURE. IN OTHER WORDS, IF THE CLIENT SEEKS HIS
LAWYERS ADVICE WITH RESPECT TO A CRIME THAT THE FORMER HAS
THERETOFORE COMMITTED, HE IS GIVEN THE PROTECTION OF A VIRTUAL
CONFESSIONAL SEAL WHICH THE ATTORNEY-CLIENT PRIVILEGE DECLARES
CANNOT BE BROKEN BY THE ATTORNEY WITHOUT THE CLIENTS CONSENT.
THE SAME PRIVILEGED CONFIDENTIALITY, HOWEVER, DOES NOT ATTACH
21
WITH REGARD TO A CRIME WHICH A CLIENT INTENDS TO COMMIT

THEREAFTER OR IN THE FUTURE AND FOR PURPOSES OF WHICH HE SEEKS
THE LAWYERS ADVICE.
FACTS
Nature of the case: Through the special civil action for certiorari at bar,
petitioner seeks the annulment of the resolution of respondent
Sandiganbayan, promulgated on December 22, 1993, which denied
petitioners motion for the discharge of respondent Generoso S.
Sansaet to be utilized as a state witness, and its resolution of March 7,
1994 denying the motion for reconsideration of its preceding
disposition.
Honrada was the Clerk of Court and Acting Stenographer of the First
Municipal Circuit Trial Court, San Francisco-Bunawan-Rosario in
Agusan del Sur. Respondent Paredes was successively the Provincial
Attorney of Agusan del Sur, then Governor of the same province, and
is at present a Congressman. Respondent Sansaet was a practicing
attorney who served as counsel for Paredes in several instances
pertinent to the criminal charges involved in the present recourse.
The same records also represent that sometime in 1976, respondent
Paredes applied for a free patent over Lot No. 3097-A, Pls-67 of the
Rosario Public Land Subdivision Survey. His application was approved
and, pursuant to a free patent granted to him, an original certificate of
title was issued in his favor for that lot which is situated in the
poblacion of San Francisco, Agusan del Sur.
In 1985 the Director of Lands filed an action for the cancellation of
Paredes Patent and certificate of title since the land had been
designated and reserved as a school site in the aforementioned
subdivision survey.
Lower court Trial Court rendered judgment nullifying said patent
and title after finding that respondent Paredes had obtained the same
through fraudulent misrepresentations in his application. Pertinently,
respondent Sansaet served as counsel of Paredes in that civil case.
Consequent to the foregoing judgment of the trial court, upon the
subsequent complaint of the Sangguniang Bayan and the preliminary
investigation conducted thereon, an information for perjury was filed
against respondent Paredes in the Municipal Circuit Trial Court.
On November 27, 1985, the Provincial Fiscal was, however, directed by
the Deputy Minister of Justice to move for the dismissal of the case on
the ground inter alia of prescription, hence the proceedings were
terminated.

In this criminal case, respondent Paredes was likewise represented by

respondent Sansaet as counsel.
Nonetheless, Respondent Paredes was thereafter haled before the
Tanodbayan for preliminary investigation on the charge that, by using
his former position as Provincial Attorney to influence and induce the
Bureau of Lands officials to favorably act on his application for free
patent, he had violated Section 3(a) of Republic Act No. 3019, as
amended. For the third time, respondent Sansaet was Paredes
counsel of record therein.
On August 29, 1988, the Tanodbayan, issued a resolution
recommending the criminal prosecution of respondent Paredes. Atty.
Sansaet, as counsel for his aforenamed co-respondent, moved for
reconsideration.
A criminal case was subsequently filed with the Sandiganbayan.
charging respondent Paredes with a violation of Section 3(a) of
Republic Act No. 3019, as amended. However, a motion to quash filed
by the defense was later granted in respondent courts resolution of
August 1, 1991 and the case was dismissed on the ground of
prescription.
On January 23, 1990, one Teofilo Gelacio, a taxpayer who had initiated
the perjury and graft charges against respondent Paredes, sent a letter
to the Ombudsman seeking the investigation of the three respondents
herein for falsification of public documents.
Gelacio claimed that respondent Honrada, in conspiracy with his
herein co-respondents, simulated and certified as true copies certain
documents purporting to be a notice of arraignment, dated July 1,
1985, and transcripts of stenographic notes supposedly taken during
the arraignment of Paredes on the perjury charge. These falsified
documents were annexed to respondent Paredes motion for
reconsideration of the Tanodbayan resolution for the filing of a graft
charge against him, in order to support his contention that the same
would constitute double jeopardy.
In support of his claim, Gelacio attached to his letter a certification
that no notice of arraignment was ever received by the Office of the
Provincial Fiscal of Agusan del Sur in connection with that perjury
case; and a certification of Presiding Judge Ciriaco Ario that said
perjury case in his court did not reach the arraignment stage since
action thereon was suspended pending the review of the case by the
Department of Justice.
22
Ombudsman approved the filing of falsification charges against all the

herein private respondents. The basic postulate was that, except
for the eyewitness testimony of respondent Sansaet, there was no
other direct evidence to prove the confabulated falsification of
documents by respondents Honrada and Paredes.
Sandiganbayan ruled that: From the evidence adduced, the
opposition was able to establish that client and lawyer relationship
existed between Atty. Sansaet and Ceferino Paredes, Jr., before, during
and after the period alleged in the information. In view of such
relationship, the facts surrounding the case, and other confidential
matter must have been disclosed by accused Paredes, as client, to
accused Sansaet, as his lawyer in his professional capacity. Therefore,
the testimony of Atty. Sansaet on the facts surrounding the offense
charged in the information is privileged.
ISSUE
4. 1.) WN the projected testimony of respondent Sansaet, as proposed
state witness, is barred by the attorney-client privilege NO See
Ratio (Bold and underlined)
5. 2.) WN as a consequence thereof, he is eligible for discharge to testify
as a particeps criminis YES. See Ratio (Bold and underlined)
HELD:
Unmeritorious
WHEREFORE, the writ of certiorari prayed for is hereby granted
SETTING ASIDE the impugned resolutions and ORDERING that the
present reliefs sought in these cases by petitioner be allowed and
given due course by respondent Sandiganbayan.
RATIO
FIRST ISSUE: It may correctly be assumed that there was a confidential
communication made by Paredes to Sansaet in connection with
Criminal Cases Nos. 17791-93 for falsification before respondent court,
and this may reasonably be expected since Paredes was the accused
and Sansaet his counsel therein. Indeed, the fact that Sansaet was
called to witness the preparation of the falsified documents by
Paredes and Honrada was as eloquent a communication, if not more,
than verbal statements being made to him by Paredes as to the fact
and purpose of such falsification. It is significant that the evidentiary
rule on this point has always referred to any communication,
without distinction or qualification.
It is postulated that despite such complicity of Sansaet at the instance
of Paredes in the criminal act for which the latter stands charged, a

distinction must be made between confidential communications

relating to past crimes already committed, and future crimes intended
to be committed, by the client. Corollarily, it is admitted that the
announced intention of a client to commit a crime is not included
within the confidences which his attorney is bound to respect.
Respondent court appears, however, to believe that in the instant case
it is dealing with a past crime, and that respondent Sansaet is set to
testify on alleged criminal acts of respondents Paredes and Honrada
that have already been committed and consummated.
for the application of the attorney-client privilege, however, the
period to be considered is the date when the privileged
communication was made by the client to the attorney in relation to
either a crime committed in the past or with respect to a crime
intended to be committed in the future. In other words, if the client
seeks his lawyers advice with respect to a crime that the former has
theretofore committed, he is given the protection of a virtual
confessional seal which the attorney-client privilege declares cannot
be broken by the attorney without the clients consent. The same
privileged confidentiality, however, does not attach with regard to a
crime which a client intends to commit thereafter or in the future and
for purposes of which he seeks the lawyers advice.
Statements and communications regarding the commission of a
crime already committed, made by a party who committed it, to an
attorney, consulted as such, are privileged communications.
Contrarily, the unbroken stream of judicial dicta is to the effect that
communications between attorney and client having to do with the
clients contemplated criminal acts, or in aid or furtherance thereof,
are not covered by the cloak of privileges ordinarily existing in
reference to communications between attorney and client
the testimony sought to be elicited from Sansaet as state witness are
the communications made to him by physical acts and/or
accompanying words of Paredes at the time he and Honrada, either
with the active or passive participation of Sansaet, were about to
falsify, or in the process of falsifying, the documents which were later
filed in the Tanodbayan by Sansaet and culminated in the criminal
charges now pending in respondent Sandiganbayan. Clearly, therefore,
the confidential communications thus made by Paredes to Sansaet
were for purposes of and in reference to the crime of falsification
which had not yet been committed in the past by Paredes but which
he, in confederacy with his present co-respondents, later committed.
23
Having been made for purposes of a future offense, those

communications are outside the pale of the attorney-client privilege.
Sansaet was himself a conspirator in the commission of that crime of
falsification which he, Paredes and Honrada concocted and foisted
upon the authorities. It is well settled that in order that a
communication between a lawyer and his client may be privileged, it
must be for a lawful purpose or in furtherance of a lawful end. The
existence of an unlawful purpose prevents the privilege from attaching.
SECOND ISSUE: Parenthetically, respondent court, having arrived at a
contrary conclusion on the preceding issue, did not pass upon this
second aspect and the relief sought by the prosecution which are now
submitted for our resolution in the petition at bar:
1.) The fact that respondent Sandiganbayan did not fully pass upon the
query as to whether or not respondent Sansaet was qualified to be a state
witness need not prevent this Court from resolving that issue as prayed for
by petitioner. Where the determinative facts and evidence have been
submitted to this Court such that it is in a position to finally resolve the
dispute, it will be in the pursuance of the ends of justice and the expeditious
administration thereof to resolve the case on the merits, instead of
remanding it to the trial court.
2.) A reservation is raised over the fact that the three private respondents
here stand charged in three separate informations. It will be recalled that in
its resolution of February 24, 1992, the Ombudsman recommended the filing
of criminal charges for falsification of public documents against all the
respondents herein. That resolution was affirmed but, reportedly in order to
obviate further controversy, one information was filed against each of the
three respondents here, resulting in three informations for the same acts of
falsification.
Had it been intended that all the accused should always be indicted in
one and the same information, the Rules could have said so with
facility, but it did not so require in consideration of the circumstances
obtaining in the present case and the problems that may arise from
amending the information. After all, the purpose of the Rule can be
achieved by consolidation of the cases as an alternative mode.
Sansaet was a conspirator in the crime of falsification, and the rule is
that since in a conspiracy the act of one is the act of all, the same
penalty shall be imposed on all members of the conspiracy. Now, one
of the requirements for a state witness is that he does not appear to
be the most guilty.

Thus, We agree with the observations of the Solicitor General that the
rule on the discharge of an accused to be utilized as state witness
clearly looks at his actual and individual participation in the
commission of the crime, which may or may not have been
perpetrated in conspiracy with the other accused. Since Bermudez
was not individually responsible for the killing committed on the
occasion of the robbery except by reason of conspiracy, it cannot be
said then that Bermudez appears to be the most guilty. Hence, his
discharge to be a witness for the government is clearly warranted.
The rule of equality in the penalty to be imposed upon conspirators
found guilty of a criminal offense is based on the concurrence of
criminal intent in their minds and translated into concerted physical
action although of varying acts or degrees of depravity. Since the
Revised Penal Code is based on the classical school of thought, it is the
identity of the mens rea which is considered the predominant
consideration and, therefore, warrants the imposition of the same
penalty on the consequential theory that the act of one is thereby the
act of all.
Respondent Sansaet is the only cooperative eyewitness to the actual
commission of the falsification charged in the criminal cases pending
before respondent court, and the prosecution is faced with the
formidable task of establishing the guilt of the two other co-
respondents who steadfastly deny the charge and stoutly protest
their innocence. There is thus no other direct evidence available for
the prosecution of the case, hence there is absolute necessity for the
testimony of Sansaet whose discharge is sought precisely for that
purpose. Said respondent has indicated his conformity thereto and
has, for the purposes required by the Rules, detailed the substance of
his projected testimony in his Affidavit of Explanations and
Rectifications.
The Court is reasonably convinced, and so holds, that the other
requisites for the discharge of respondent Sansaet as a state witness
are present and should have been favorably appreciated by the
Sandiganbayan.
Respondent Sansaet is the only cooperative eyewitness to the actual
commission of the falsification charged in the criminal cases pending
before respondent court, and the prosecution is faced with the
formidable task of establishing the guilt of the two other co-
respondents who steadfastly deny the charge and stoutly protest
24
their innocence. There is thus no other direct evidence available for

client privilege and is not protected from discovery on that basis.
the prosecution of the case, hence there is absolute necessity for the
testimony of Sansaet whose discharge is sought precisely for that
Discovery of written materials obtained or prepared by opposing
purpose. Said respondent has indicated his conformity thereto and has, counsel in preparation for possible litigation may not be had unless the party
for the purposes required by the Rules, detailed the substance of his seeking discovery can establish that relevant and non-privileged facts remain
projected testimony in his Affidavit of Explanations and Rectifications. hidden in an attorneys file, and where production of those facts is essential to
the preparation of the partys case.

Rule 30(b) gives the trial judge the requisite discretion to make a
6. HICKMAN VS. TAYLOR (VG)
judgment as to whether discovery should be allowed as to written statements
Summary of Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).
secured from witnesses. In this case however there was no ground for the

exercise of that discretion in favor of the plaintiff.
FACTS
he District Court erred in holding the defendants in contempt for
A tugboat sank killing five crew members. Hickman (P) brought this T
wrongful death lawsuit as representative of one of the deceased against Taylor failure to produce that which was in the possession of their counsel, and in
et al. (Ds). The four survivors testified at a public hearing before the United holding their counsel in contempt for failure to produce that which he could
States Steamboat Inspectors and their testimony was recorded and made not be compelled to produce under either Rule 33 or Rule 34.
available to all of the parties. The defendants conducted their own interviews
Public Policy
of the survivors and others having information regarding the accident.
The general policy against invading the privacy of an attorneys course
The defendants answered all interrogatories except for a summary of
statements obtained in the course of their own interviews. The defendants of preparation is so essential to an orderly working of our system of legal
contended that the requested summary pertained to privileged matter procedure that a burden rests on the one who would invade that privacy to
establish adequate reasons to justify production through a subpoena or court
obtained in preparation for litigation and was therefore privileged.
Hickman objected and the district court held that the requested order. There must be some showing of necessity or justification by the party
information was not privileged and ordered the defendants to produce it. seeking its discovery. If relevant and nonprivileged facts remain hidden in an
Counsel for the defendants refused to comply and were held in contempt. The attorneys file and the production of those facts is essential to the preparation
of a case, discovery may be made.
Court of Appeals reversed and the Supreme Court granted certiorari.
Under the circumstances of this case, no showing of necessity could be

made which would justify requiring the production of oral statements made by
Issues
1. Do the Federal Rules of Civil Procedure pertaining to discovery require an witnesses to counsel for the defendants, whether presently in the form of his
attorney to produce oral and written statements or other information mental impressions or in the form of memoranda. Hickman had an adequate
obtained in preparation for possible litigation after a claim has arisen? opportunity to seek discovery of the same facts particularly by the direct
2. Is information prepared or obtained by counsel in preparation for litigation interviews of the witnesses and made no attempt to show why production was
necessary.
after a claim has arisen protected by the attorney-client privilege?

Disposition
Holding and Rule (Murphy)
1. No. In these circumstances, Rules 26, 33 and 34 of the Federal Rules of Civil Judgment affirmed.
Procedure do not require an attorney to produce oral and written
statements or other information obtained in preparation for possible Concurrence (Jackson)
The question is simply whether such a demand is authorized by the rules
litigation after a claim has arisen.
2. No. Information prepared or obtained by counsel in preparation for relating to various aspects of discovery. Discovery should provide a party
litigation after a claim has arisen is not protected by the attorney- access to anything that is evidence in his case. Discovery should not however

25
nullify the privilege of confidential communication between attorney and

client. But those principles give us no real assistance here because what is
sought is neither evidence nor a privileged communication between attorney
and client.
To consider first the most extreme aspect of the requirement in litigation here,
we find it calls upon counsel to set forth in detail the exact provision of any
such oral statements or reports. Thus, the demand is not for the production
of a transcript in existence, but calls for the creation of a written statement not
in being. The statement by counsel of what a witness told him is not evidence.
See Piper Aircraft v. Reyno for a law school civil procedure case brief holding
that access to evidence and the availability of witnesses are factors to be
considered in granting a motion to dismiss on forum non conveniens grounds.
The case involved a wrongful death lawsuit.

7. UPJOHN CO. VS. U.S (MB)
Petitioner: Upjohn Company
Respondent: United States

January 13, 1981
449 U.S. 383
Mr. Justice Rehnquist

SUMMARY:
When General Counsel Thomas for Upjohns pharmaceutical
manufacturing corporation was informed that one of its foreign subsidiaries
had made questionable payments to foreign government officials in order to
secure government business, an internal investigation of such payments was
initiated. Upjohn's attorneys sent a questionnaire to all foreign managers
seeking detailed information concerning such payments, and the responses
were returned to General Counsel Thomas. Subsequently, based on a report
voluntarily submitted by Upjohn disclosing the questionable payments, the
Internal Revenue Service (IRS) began an investigation to determine the tax
consequences of such payments and issued summonses demanding
production of the questionnaires, memoranda and notes of the interviews.
Upjohn refused to produce the documents on the grounds that they were
protected from disclosure by the attorney-client privilege and constituted
the work-product of attorneys prepared in anticipation of litigation. US then
filed a petition in Federal District Court seeking enforcement of the summons.
District Court ruled that the attorney-client privilege had been waived by
Upjohn and that the Government had made a sufficient showing of necessity

to overcome the protection of the work-product doctrine. The CA rejected the

finding of a waiver and held that under the "control group test" the privilege
did not apply to the extent that of communications made by officers and
agents not responsible for directing Upjohn's actions in response to legal
advice because the communications were not the 'client's.' CA also held that
the work-product doctrine did not apply to IRS summonses. SC held that:
(1) The communications by Upjohn's employees to counsel are covered by
the attorney-client privilege insofar as the responses to the
questionnaires and any notes reflecting responses to interview
questions are concerned. The communications concerned matters
within the scope of the employees' corporate duties, and the
employees themselves were sufficiently aware that they were being
questioned in order that the corporation could obtain legal advice.
(2) The work-product doctrine applies to IRS summonses. As Federal Rule
of Civil Procedure 26, which accords special protection from disclosure
to work product revealing an attorney's mental processes, make clear,
such work product cannot be disclosed simply on a showing of
substantial need or inability to obtain the equivalent without undue
hardship.

FACTS:
This is a petition for certiorari to address the scope of the attorney-
client privilege in the corporate context and the applicability of the
work-product doctrine in proceedings to enforce tax summonses.
Upjohn manufactures and sells pharmaceuticals in the US and abroad.
In January 1976, independent accountants conducting an audit of one
of Upjohns foreign subsidiaries discovered that the subsidiary made
payments to or for the benefit of foreign government officials in order
to secure government business.
o The accountants informed Mr. Gerard Thomas, Upjohn's Vice-
President, Secretary, and General Counsel for 20 years.
o It was decided that the company would conduct an internal
investigation of what were termed "questionable payments."
The attorneys prepared a letter containing a questionnaire which was
sent to "all foreign general and area managers."
o The questionnaire sought detailed information concerning
such payments.
o It noted recent disclosures that several American companies
made "possibly illegal" payments to foreign government
26
officials and emphasized that the management needed full

information concerning any such payments made by Upjohn.
o It identified Thomas as "the company's General Counsel" and
referred in its opening
o Any future agreements with foreign distributors or agents
were to be approved "by a company attorney" and any
questions concerning the policy were to be referred "to the
company's General Counsel."
o Managers were instructed to treat the investigation as "highly
confidential" and not to discuss it with anyone other than
Upjohn employees who might be helpful in providing the
requested information.
o Responses were to be sent directly to Thomas. Thomas and
outside counsel also interviewed the recipients of the
questionnaire and some 33 other Upjohn officers or
employees as part of the investigation.
o Thomas described his notes of the interviews as containing
"what I consider to be the important questions, the substance
of the responses to them, my beliefs as to the importance of
these, my beliefs as to how they related to the inquiry, my
thoughts as to how they related to other questions. In some
instances they might even suggest other questions that I
would have to ask or things that I needed to find elsewhere."
On March 26, 1976, the company voluntarily submitted a preliminary
report to the Securities and Exchange Commission on Form 8-K
disclosing certain questionable payments.
o Copy of the report was simultaneously submitted to the
Internal Revenue Service, which immediately began an
investigation to determine the tax consequences of the
payments.
The Service issued summons demanding production of:
1. All files relative to the investigation conducted under the
supervision of Gerard Thomas
2. Records should include but not be limited to the written
questionnaires, memoranda or notes of the interviews
conducted in the United States and abroad with officers and
employees of the Upjohn Company and its subsidiaries.
The company declined to produce the documents under #2 above on
the grounds that they were protected from disclosure by the attorney-
client privilege and constituted the work product of attorneys

prepared in anticipation of litigation.
The United States filed a petition seeking enforcement of the
summons in the United States District Court for the Western District of
Michigan.
District Court for the Western District of Michigan adopted a
magistrates finding and ruled that the summons should be enforced.
Upjohn appealed.
CA for the Sixth Circuit rejected the magistrate's finding of a waiver
of the attorney-client privilege, but agreed that the privilege did not
apply to the extent the communications were made by officers and
agents not responsible for directing Upjohn's actions in response to
legal advice for the simple reason that the communications were not
the 'client's.'
o Accepting Upjohn's claim for a broader application of the
privilege would encourage upper-echelon management to
ignore unpleasant facts and create too broad a "zone of
silence."
o Noting that Upjohn's counsel had interviewed officials such as
the Chairman and President, the Court of Appeals remanded
to the District Court so that a determination of who was within
the "control group" (see ratio) could be made.
o The work-product doctrine (see ratio) is not applicable to
administrative summonses issued.
Hence the present petition for certiorari.

ISSUES:
1. Scope of the attorney-client privilege in the corporate context
2. Applicability of the work product doctrine in proceedings to enforce
tax summonses

HELD: Upjohn wins. No dispositive. See Ratio.

RATIO:

1. Law and jurisprudence on attorney-client privilege
Federal Rule of Evidence 501 --- the privilege of a witness shall be
governed by the principles of the common law as they may be
interpreted by the courts of the United States in light of reason and
experience.
27
Wigmore --- The attorney-client privilege is the oldest of the privileges

for confidential communications known to the common law.
Its purpose is to encourage full and frank communication between
attorneys and their clients and thereby promote broader public
interests in the observance of law and administration of justice. The
privilege recognizes that sound legal advice or advocacy serves public
ends and that such advice or advocacy depends upon the lawyer being
fully informed by the client.
Trammel v. United States --- The attorney-client privilege rests on the
need for the advocate and counselor to know all that relates to the
client's reasons for seeking representation if the professional mission
is to be carried out.
Fisher v. United States --- the purpose of the privilege to is to
encourage clients to make full disclosures to their attorneys.
Complications in the application of the privilege arise when the client
is a corporation, which in theory is an artificial creature of the law, and
not an individual; but this Court has assumed that the privilege applies
when the client is a corporation, and the Government does not contest
the general proposition.

2. The CA erred in narrowly applying the attorney-client privilege.
CA considered the application of the privilege in the corporate context
to present a "different problem," since the client was an inanimate
entity and only the senior management, guiding and integrating the
several operations can be said to possess an identity analogous to the
corporation as a whole.
o CA applied the Control group test which asks: Is it the
corporation which is seeking the lawyer's advice when the
asserted privileged communication is made?
o If the employee making the communication, of whatever rank
he may be, is in a position to control or even to take a
substantial part in a decision about any action which the
corporation may take upon the advice of the attorney, ... then,
in effect, he is (or personifies) the corporation when he makes
his disclosure to the lawyer and the privilege would apply."
SC disagrees saying that such a view overlooks the fact that the
privilege exists to protect not only the giving of professional advice to
those who can act on it but also the giving of information to the lawyer
to enable him to give sound and informed advice.

Individual client --- the provider of information and the person

who acts on the lawyer's advice are one and the same.
o Corporate context --- it will frequently be employees beyond
the control group as defined by the CA who will possess the
information needed by the corporation's lawyers. Middle-
level--and indeed lower-level--employees can, by actions
within the scope of their employment, embroil the corporation
in serious legal difficulties, and it is only natural that these
employees would have the relevant information needed by
corporate counsel.
o The attorney dealing with a complex legal problem is thus
faced with a 'Hobson's choice.' If he interviews employees not
having 'the very highest authority' their communications to
him will not be privileged. If, on the other hand, he
interviews only those employees with the 'very highest
authority,' he may find it extremely difficult, if not impossible,
to determine what happened."
o The narrow scope given the attorney-client privilege by the
court below not only makes it difficult for corporate attorneys
to formulate sound advice when their client is faced with a
specific legal problem but also threatens to limit the valuable
effort of corporate counsel to ensure their client's compliance
with the law.
o Here, information not available from upper-echelon
management was needed to supply a basis for legal advice
concerning compliance with securities and tax laws, foreign
laws, currency regulations, duties to shareholders, and
potential litigation in each of these areas. The communications
concerned matters within the scope of the employees'
corporate duties, and the employees themselves were
sufficiently aware that they were being questioned in order
that the corporation could obtain legal advice.
The CA declined to extend the attorney-client privilege beyond the
limits of the control group test for fear that doing so would entail
severe burdens on discovery and create a broad "zone of silence" over
corporate affairs.
o The protection of the privilege extends only
to communications and not to facts. A fact is one thing and a
communication concerning that fact is an entirely different
thing. The client cannot be compelled to answer the question,
o
28
'What did you say or write to the attorney?' but may not
refuse to disclose any relevant fact within his knowledge
merely because he incorporated a statement of such fact into
his communication to his attorney.
o The courts have noted that a party cannot conceal a fact
merely by revealing it to his lawyer.
o Here the Government was free to question the employees
who communicated with Thomas and outside counsel. Upjohn
has provided the IRS with a list of such employees, and the IRS
has already interviewed some 25 of them. While it would
probably be more convenient for the Government to secure
the results of Upjohn's internal investigation by simply
subpoenaing the questionnaires and notes taken by Upjohn's
attorneys, such considerations of convenience do not
overcome the policies served by the attorney-client privilege.
o Justice Jackson --- Discovery was hardly intended to enable a
learned profession to perform its functions ... on wits
borrowed from the adversary.
The communications by Upjohn employees to counsel are covered by
the attorney-client privilege so far as the responses to the
questionnaire and any notes reflecting responses to interview
questions are concerned.
Seven of the 86 employees interviewed by counsel had terminated
their employment with Upjohn at the time of the interview. Upjohn
argues that the privilege should nonetheless apply to communications
by these former employees concerning activities during their period of
employment. Neither the District Court nor the Court of Appeals had
occasion to address this issue, and we decline to decide it without the
benefit of treatment below.

3. Applicability of the work-product doctrine
Thomas has testified that his notes and memoranda of interviews go
beyond recording responses to his questions.
To the extent that the material subject to the summons is not
protected by the attorney-client privilege as disclosing
communications between an employee and counsel, we must reach
the ruling by the CA that the work-product doctrine does not apply to
the summonses
The Governments arguments:

1. While conceding the applicability of the work-product

doctrine, the Government has made a sufficient showing of
necessity to overcome its protections.
2. Hickman --- We do not mean to say that all written materials
obtained or prepared by an adversary's counsel with an eye
toward litigation are necessarily free from discovery in all
cases. Where relevant and nonprivileged facts remain hidden
in an attorney's file and where production of those facts is
essential to the preparation of one's case, discovery may
properly be had ... [a]nd production might be justified where
the witnesses are no longer available or may be reached only
with difficulty.
3. The Government stresses that interviewees are scattered
across the globe and that Upjohn has forbidden its employees
to answer questions it considers irrelevant.
Hickman, however, did not apply to "oral statements made by
witnesses whether presently in the form of the attorney's mental
impressions or memoranda.
Forcing an attorney to disclose notes and memoranda of witnesses'
oral statements is particularly disfavored because it tends to reveal the
attorney's mental processes.
Rule 26 accords special protection to work product revealing the
attorney's mental processes.
o The Rule permits disclosure of documents and tangible things
constituting attorney work product upon a showing of
substantial need and inability to obtain the equivalent without
undue hardship.
o Rule 26 goes on, however, to state that in ordering discovery
of such materials when the required showing has been made,
the court shall protect against disclosure of the mental
impressions, conclusions, opinions or legal theories of an
attorney or other representative of a party concerning the
litigation.
Based on the foregoing, some courts have concluded that no showing
of necessity can overcome protection of work product which is based
on oral statements from witnesses. Those courts declining to adopt an
absolute rule have nonetheless recognized that such material is
entitled to special protection.
The SC does not decide the issue (or create a new standard) at this
time.
29
o
o
It is clear that the magistrate was wrong in applying the

"substantial need" and "without undue hardship" standard.
The notes and memoranda sought by the Government here
are work product based on oral statements. If they reveal
communications, they are, in this case, protected by the
attorney-client privilege.
While we are not prepared at this juncture to say that such
material is always protected by the work-product rule, we
think a far stronger showing of necessity and unavailability by
other means than was made by the Government or applied by
the magistrate in this case would be necessary to compel
disclosure.

8. IN RE GRAND JURY INVESTIGATION (JM)
723 F.2d 447 | 07/12/1983 | US Court of Appeals, Sixth Circuit

Petitioner/s: Attorney Richard Durant (Durant) (Petitioner-Appellant)
Respondent/s:

SUMMARY
Attorney Richard Durant (Durant) appeals a finding of contempt for
failure to disclose to the grand jury upon order of court the identity of his
client.
An FBI agent went to Durants office to inquire about stolen checks
that were made payable to IBM. Some checks were traced and deposited to
bank accounts of non-existent organizations. The agent brought with him a
photostatic copy of a check, drawn from one of these fictitious bank accounts,
made payable to Durants law firm. Durant said that the check was paid to him
for services rendered for a client in two cases, one finished and one open.
Durant refused to identify his client, asserting the attorney-client privilege. He
was subpoenaed in the District Court, wherein he repeatedly refused to
identify his client, despite an Order from the court. Among others, Durant
argued that the case falls under the legal advice exception, wherein the
name of the client will be considered privileged where the circumstances of
the case are such that the name of the client is material only for the purpose of
showing an acknowledgement of guilt on part of such client of the very
offenses on account of which the attorney was employed. He was then held in
contempt. He filed an appeal with the US Court of Appeals wherein it was held
that the identity of the client was not protected under the legal advice

exception and that Durant should have moved for an in camera ex parte
hearing instead of resting on his blanket assertion that his client initially sought
legal advice relating to matters involving the theft in question.

FACTS
On March 1, 1983, Special Agent Edwards of the FBI visited Durants
office and explained that the FBI was investigating the theft of
numerous checks made payable to International Business Machines
(IBM). A number of stolen checks had been traced and deposited to
various bank accounts under names of non-existent organizations, at
least one of which included the initials IBM. The FBI agent produced
a photostatic copy of a check drawn upon one of these fictitious
accountsthis check for $15,000 was made payable to Durants law
firm.
Durant conceded that this check was received and endorsed by his
firm for services rendered to a client in two cases, one of which was
finished and the other of which was open. Durant refused to
disclose the identity of his client to whose credit the proceeds had
been applied, asserting the attorney-client privilege.
Durant was subpoenaed to appear before the grand jury the
following day, March 2, 1983, where he again refused to identify his
client, asserting attorney-client privilege. The government immediately
moved the US District Court for an Order requiring Durant to provide
the requested information. At a hearing that same afternoon, Durant
informed the court that the disclosure of his clients identity would
incriminate that client in criminal activity, so as to justify invoking
attorney-client privilege. Durant also stated that I do not know any of
the facts about this theft or anything else and suggested that the
information be acquired through other methods. The court did not buy
his excuse and said that the privilege did not attach and ordered him
to identify his client. Durant refused to comply (super kulit lang) with
the Order and was held in contempt.
Durant proposed that the government should use other means to
trace the money and stated I should add that if the facts as the agents
have discussed them with me are correct and there is substantial
number of checks flowing around the city, all those checks come back
to the drawee bank with bank endorsements on the back. It should be,
it seems to me, equally possible, without violating the attorney-client
privilege, for the agents to find out who presented, who cashed and to
trace the money through normal commercial channels, to say nothing
30
of the fact that who opens he mail at IBM now obviously becomes of HELD:
significant importance.
The United States issued a second subpoena to Durant on March 9,
1983, ordering him to appear before the grand jury on March 16, and
produce the following documents:
o A list of all clients of his law firm as of Feb 8, 1983 including all
clients with active cases and clients who owe fees or have
provided a retainer to the firm

o All client ledger cards and other books, records and documents RATIO
reflecting or recording payments to the law firm for the period
of Feb 1 1983March 1 1983

Durant moved to quash this subpoena duces tecum, again citing
attorney-client privilege. At the hearing, Durant again argued that the

production of the requested documents could implicate his client in
criminal activity. He additionally observed that the FBI admitted before
Durant and the district court judge in-chambers that an arrest would
be effected by the FBI immediately following the disclosure. His client
would then be the last link of evidence necessary for an indictment.
o He also informed the court that the FBI, while the court was in
recess, told him to breach the attorney-client privilege to
identify his client without informing the said client. When he
rejected that suggestion, he was told that he could be printed
an dheld incommunicado for six or seven hours and
instructed his office that if they hadnt heard from him by
3:30 to come over to the court with a writ of habeas corpus.
Durant failed to move the court for an ex parte in camera submission
of evidence or testimony to establish that his client had indeed sought
legal advice relating to past criminal activity involving theft of IBM
checks. Nor did the district court, sua sponte, suggest an ex pate in
camera submission of evidence to probe Durants blanket statements.
Since the issues joined in the first and second subpoenas served upon
Durant were the same, the District Court decided to withhold the
decision of Durants motion to quash the second subpoena duces
tecum pending the appellate resolution of the courts contempt Order
of March 2, 1983.

ISSUE
WN Durant sufficiently established that the disclosure of the identity of his
client would be a violation of the attorney-client privilege. NO.

Unmeritorious.
DURANT has failed to establish the existence of any exception to the
general rule that disclosure of the identity of a client is not within the
protective ambit of the attorney-client privilege. Therefore, the
contempt Order of the district court issued against Durant is hereby
AFFIRMED.
The burden of establishing the existence of the privilege rests with the
person asserting it.
The attorney-client priv exists to protect confidential communications
between a lawyer and his client in matters that relate to the legal
interests of society and the client. In order to promote the freedom of
consultation of legal advisors by clients, the apprehension of
compelled disclosure from legal advisors must be removed; hence the
law must prohibit such disclosure except on the clients consent.
Since the attorney-client priv may serve as a mechanism to frustrate
the investigative or fact-finding process, it creates an inherent tension
with societys need for full and complete disclosure of all relevant
evidence during implementation of the judicial process. In particular,
invocation of the privilege before the grand jury may jeopardize an
effective and comprehensive investigation into alleged violations of
the law and thereby thwart that bodys dual functions of determining
of there is probable cause to believe that a crime has been committed
and of protecting citizens against unfounded criminal prosecutions.
These conflicting interests demand that application of the privilege
not exceed that which is necessary to effect the policy considerations
underlying the privilege.
General rule: the identity of a client is, with limited exceptions, not
within the protective ambit of the attorney-client privilege.
o This general rule applies equally to fee arrangements. The
receipt of fees from a client is not usually within the privilege
because the payment of a fee is not normally a matter of
confidence or a communication. The ministerial or clerical
services of an attorney in transferring funds to or from a client
is not a matter of confidence that is protected by the privilege.
Exceptions: (these are grounded on the case of Baird v Koerner; Just in
case sir asks: in this case the IRS received a letter from an attorney
saying that an enclosed check to the amount of $12,706 was being
31
tendered for additional amounts due from undisclosed taxpayers.

When the IRS summoned the attorney, he refused to identify the
delinquent taxpayers asserting the attorney-client priv)
o (1) The legal advice exception: The name of the client will be
considered privileged where the circumstances of the case are
such that the name of the client is material only for the
purpose of showing an acknowledgement of guilt on part of
such client of the very offenses on account of which the
attorney was employed.
(The identity of the Baird taxpayer was adjudged
within this exception to the general rule.)
However, the legal advice exception may be defeated
through a prima facie showing that the legal
representation was secured in furtherance of present
or intended continuing illegality, s where the legal
representation itself is part of a larger conspiracy.
o (2) Disclosure of the identity would be tantamount to
disclosing an otherwise protected confidential information. If
the identification of the client conveys information which
ordinarily would be conceded to be part of the usual privileged
communication between attorney and client, then the
privilege should extend to such identification in the absence of
other factors.
o (3) Where so much of the actual communication has already
been disclosed that the identification of the client amounts
to disclosure of a confidential communication.
It is the link between the client and the
communication, rather than the link between the
client and the possibility of potential criminal
prosecution, which serves to bring the clients identity
within the protective ambit of the attorney-client
privilege.

o
(4) Last-link exception: (note however that this was rejected

by the Court) when the disclosure of the clients identity by his
attorney would have supplied the last link in an existing chain
of incriminating evidence likely to lead to the clients
indictment.
The Court concludes that this exception mentioned in
the Baird case, it is simply not grounded upon the
preservation of confidential communications and

hence not justifiable to support the attorney-client
priv. The Court thus rejects the last link exception as
pronounced in the case of Pavlick and cited in Baird.
ARGUMENTS OF DURANT AND THE RESPONSE OF THE COURT:
o Durant: Disclosure might possibly implicate the client in
criminal activity
Court: As this justification has no roots in concepts of
confidentiality or communication, it cannot be
advanced to support an abdication of the general rule
that the identity of a client is not privileged.
o Durant: FBI informed him that an arrest would be effected
upon disclosure of the identity of the client.
Court: This is simply an assertion that disclosure would
provide the last link of evidence to support an
indictmenta precedent which was already rejected
by the Court as discussed above.
o Durant: Falls under legal advice exception.
Court: it is incumbent upon Durant to that a strong
possibility existed that disclosure would implicate the
client in the very matter for which Durants legal
advice had been sought in the first place.
A well recognized means for an attorney to
demonstrate the existence of an exception to the
general rule, while at the same time preserving the
confidentiality of the identity of his client, is to move
the court for an in camera ex parte hearing.
Since the burden of establishing the existence of the
privilege rests with the party asserting the privilege, it
was incumbent upon Durant to move for an in camera
ex parte hearing. Durant failed to do so. Rather, he
rested on his blanket assertion that his client had
initially sought legal advice relating to matters
involving the theft of IBM checks. Such unsupported
assertions of privilege are strongly disfavored.
Further, it should be observed that on the first hearing
on March 2, Durant said that he had no knowledge of
the existence of stolen IBM checks. This statement
diminished the credibility of his subsequent statement
32
on March 22, that his client had indeed engaged his Ingram acknowledges that communications by a client to his own lawyer
services for past activity relating to stolen IBM checks. remain privileged when the lawyer subsequently shares them with co-
defendants for purposes of a common defense. The common-defense rule,

which is not as narrow as Ingram contends, has been recognized in cases
9. U.S. VS. MCPARTLIN (KB)
spanning more than a century. Ingram also seems to argue that the
595 F.2d 1321| Decided March 26, 1979| TONE
Plaintiff-Appellee: Gordon B. Nash, Joan B. Safford, Candace J. Fabri, Asst. U. S. communication was not privileged because it was made to an investigator
rather than an attorney. The investigator was an agent for Ingram's attorney,
Attys., Chicago, Ill.
Defendant-Appellant: Edward J. Calihan, Jr., William J. Harte, Chicago, Ill., however, so it is as if the communication was to the attorney himself. The
Herbert J. Miller, Jr., Washington, D. C., Joseph A. Lamendella, Harvey M. Silets, attorney who thus undertakes to serve his client's co-defendant for a limited
purpose becomes the co-defendant's attorney for that purpose.
John J. Jiganti, Chicago, Ill., for defendants-appellants.

FACTS: (Really Long Case)

SUMMARY:
Ingram Corporation was told that if they wanted to secure the contract, they Dirty Bidding and Bribing
The Sanitary District operates a sewage treatment plant in Stickney,
would have to make a political contribution which amounted to $450,000.
Illinois. Until 1971 the sludge produced as a by-product was disposed
Benton, a vice-president of the Ingram Corp, acting with the knowledge and
of by pumping it into nearby lagoons. Early that year, because the
complicity of Frederick Ingram and through intermediaries Bull and Weber,
lagoons were rapidly being filled and efforts to clean them had failed,
bribed McPartlin and Janicki to cause the sludge-hauling contract to be
the District announced plans to have the sludge transported to Fulton
awarded to Ingram Corporation. Sometime before the fall of 1974 a federal
County, Illinois, and solicited bids on the project, which were due on
grand jury commenced an investigation of the events surrounding the sludge-
March 19, 1971.
hauling contract. In May, 1975, the government granted immunity to Benton
Viewed in the light most favorable to the prosecution, the evidence
as a witness of the prosecution. Benton kept diaries, or appointment calendars,
showed that Benton, acting with the knowledge and complicity of
in which he made notes concerning meetings and telephone conversations,
Frederick Ingram and through intermediaries Bull and Weber, bribed
naming the persons involved and often recording the substance of the
McPartlin and Janicki to cause the sludge-hauling contract to be
conversations. The Benton diaries figured prominently in the government's
awarded to Ingram Corporation and one of its subsidiaries, and later
case, for they corroborated much of his testimony. McPartlin and Ingram then
bribed the same officials to secure favorable treatment under the
sought to discredit these diaries. An investigator acting for Frederick Ingram's
contract and modifications of the contract. The details were as follows:
counsel twice interviewed McPartlin with the consent of the latter's
counsel for the purpose of determining whether there was a basis for
When the District solicited bids on the sludge-hauling project,
challenging the truth of some of the diary entries. In the second of these
defendant Bull assisted Frank Oberle, an employee of Ingram
interviews McPartlin made certain statements, which Ingram argues tend to
Contractors, Inc., a wholly owned subsidiary of Ingram Corporation, in
support his defense. McPartlin's counsel objected on the ground, inter alia, of
investigating the new proposal. During the week before the bids were
the attorney-client privilege. Evidence issue now is w/n statements made to
to be submitted, Bull visited Robert Howson, a vice president of
the Investigator of the counsel of another defendant cannot be admitted as
Ingram Contractors, Inc., in New Orleans, Louisiana, and told Howson
evidence on the ground of attorney-client privilege. McPartlin was entitled to
that if Ingram Corporation expected to secure the contract, it would
the protection of the attorney-client privilege, because his statements were
have to make a "political contribution." Howson responded that he
made in confidence to an attorney for a co-defendant for a common purpose
was not in that sort of business, but then took Bull to meet William J.
related to both defenses. They were made in connection with the project of
Benton, vice president of Ingram Corporation and president of Ingram
attempting to discredit Benton, a project in which Ingram and McPartlin and
Contractors, Inc.
their attorneys were jointly engaged for the benefit of both defendants.

33
Benton gave McPartlin $75,000 in cash, including several one thousand

Ingram Corporation, Burlington Northern, Inc., and the Atchison,
dollar bills. On April 6, 1971, Weber deposited nine one thousand
Topeka and Santa Fe Railway Company were the leading contenders
dollar bills in the account of one of his defunct corporations, Illinois
among those submitting bids on March 19, 1971. To negotiate with
Southern Materials.
these three bidders, the Sanitary District established a committee,
which met with representatives of the bidders for the first time on
On April 6, 1971, Weber telephoned Benton, asking for $25,000 in cash
March 23, 1971.
immediately to secure the cooperation of three Sanitary District staff
members. When Benton protested that he could not deliver $25,000
That evening Bull, Oberle, and Benton met in Benton's hotel room,
cash on such short notice, Weber suggested that Ingram Corporation
where they were later joined by defendant Weber. After Bull had
issue a check in that amount to Bull Towing Company, which Benton
introduced Weber to Benton, Bull and Oberle left the room. Weber
caused to be done the next day. On April 8, 1971, Edwin Bull deposited
then told Benton that if Ingram Corporation wanted the sludge-
the Ingram check in the account of Bull Towing Company and, at the
hauling contract, it would have to make a $250,000 "political
same time, withdrew $25,000 in cash from the account.
contribution." Benton replied that he would have to get approval from
his superiors. After agreeing to meet Benton the next day, Weber left.
The Sanitary District requested the three bidders on the sludge-hauling
contract to submit new bids by April 15, 1971. Santa Fe declined.
Benton then telephoned defendant Frederick Ingram to inform him of
Burlington Northern submitted a revised bid of $18,300,000. Oberle
Weber's "political contribution" proposal. Ingram agreed, provided
submitted Ingram Corporation's revised bid of $16,990,000, after
that the contribution could be added to the cost of the contract.
which he returned to his hotel room, where he received a telephone
On March 24, 1971, Benton again met with Bull, who expressed his
call from either Benton or Weber. The caller instructed him to go to
belief that if the Ingram Corporation accepted Weber's proposal, it
the bar at the Continental Plaza Hotel to meet defendant Janicki,
would get the contract. Bull also told Benton that if the corporation
which Oberle did. At the meeting in the bar Janicki told Oberle to raise
did get the contract, he wanted $100,000 in addition to anything it
Ingram's revised bid to $17,990,000. Oberle then returned to his hotel
paid Weber. At another meeting later in the day, Weber asked Benton
room and telephoned Benton for advise. Benton instructed Oberle to
to open an account at a Chicago bank to demonstrate Ingram
attend the Sanitary District negotiating committee meeting scheduled
Corporation's "good faith." That same day, Benton opened an account
for that afternoon. While attending the meeting, Oberle received
at the First National Bank of Chicago.
telephone instructions from Benton to raise the Ingram bid by
The following week, Weber called Benton and told him that
$1,000,000 to $17,990,000. Oberle did so.
Burlington Northern, Inc. had offered to make a $295,000 political
contribution. According to Weber, it was therefore necessary for
Ingram Corporation to raise its contribution to $450,000, including a After Bidding Politics
On April 22, 1971, the Sanitary District Board of Trustees voted to
$150,000 cash payment before the contract was awarded. Again
award the contract to Ingram Corporation. Between that date and
Benton consulted Frederick Ingram, who again agreed on condition
May 12, 1971, a contract was drafted by members of the Sanitary
that the contribution could be added to the contract price. Benton
District staff and Ingram Corporation representatives, including John
communicated Ingram Corporation's approval to Weber, but said that
Donnelly, president of Ingram Barge Company, the Ingram Corporation
the corporation could not raise $150,000 in cash on such short notice.
subsidiary that would transport the sludge under the contract. The
Weber replied that some of the $150,000 had to be paid by April 3,
staff insisted on a liquidated damages clause authorizing the District to
1971.
prescribe the amount of sludge to be transported in any 24-hour
On April 3, 1971, Weber and McPartlin went to Benton's Chicago hotel
period and providing that Ingram Corporation would be assessed a
room, where Weber introduced McPartlin to Benton as the man who
penalty for each ton of sludge not transported, as prescribed, in any
handled all political contributions for the Democratic Party in Illinois.
24-hour period. Donnelly, after initially refusing to agree to the
McPartlin assured Benton that Ingram Corporation would receive at
provision, discussed it with Benton, who told him to agree to it. Only
least $21,500,000 in total revenue from the sludge-hauling contract.
34
after talking with Frederick Ingram, however, did Donnelly accede to

inclusion of the liquidated damages clause.
The contract provided that Ingram Corporation would construct
additions to the treatment facilities at Stickney and an unloading dock
and pump station in Fulton County, for which work the Sanitary
District was to pay $733,000. Ingram Corporation was also to construct
a pipeline over property not owned by the District, for which
construction the District agreed to pay $68,000 per month for 36
months, a total of $2,448,000. The contract also provided that Ingram
Corporation would receive $1.802 per ton of sludge hauled from
Stickney to Fulton County. The parties estimated that over the life of
the contract 8,000,000 tons of sludge would be transported.
On May 19, 1971, Weber and Benton met in New Orleans to discuss
ways of increasing Ingram Corporation's total revenue under the
contract to the $21,500,000 that McPartlin had assured Benton would
be forthcoming. Weber told Benton that Janicki and he thought that
the corporation could receive an additional $2,100,000 by billing the
Sanitary District a second time for the construction of the pipeline and
the construction in Fulton County.
On June 26, 1971, Weber told Benton that Janicki needed $21,250 to
pay off three District staff members. Ingram issued a check for that
amount to Southwest Expressway, another of Weber's defunct
corporations.
On July 27, 1971, Weber issued a $20,000 check to Bull Towing
Company. Edwin Bull deposited the check and, at the same time,
withdrew $20,000. The next day, the Illinois Commerce Commission
granted Ingram Corporation's request for a certificate of convenience
and necessity.
On August 14, 1971, Edwin Bull negotiated two contracts with Ingram
Corporation. In one of them Ingram Corporation agreed to rent barges
from Bull Towing Company to transport sludge from the Lemont
Bridge over the Illinois River to Fulton County. Donnelly signed this
contract but refused to sign the other contract, under which Ingram
Corporation would agree to pay Bull $.17 per ton for transporting
sludge from Stickney to the Lemont Bridge. Ten cents per ton were
intended as payment for actual towing services; the other seven cents
per ton were intended as payment for consulting services and
engineering and feasibility studies that Bull had allegedly performed
for Ingram Corporation. The second contract also provided for
payment to Bull of a $76,000 "finder's fee." Donnelly objected to the
"finder's fee," questioned whether any consulting services or studies

that Bull provided to Ingram Corporation were worth $560,000, and
questioned Bull's competence as a barge operator. Out of Bull's
presence, Benton told Donnelly that if Bull did not participate in the
sludge-hauling contract, there would be no contract. Donnelly still
refused to sign the second Ingram-Bull contract, but permitted Benton
to sign it on behalf of Ingram Barge Corporation as well as Ingram
Corporation.
On August 15, 1971, Benton, Weber, and McPartlin met in Chicago to
discuss further payments. Benton agreed to provide $146,000 in two
installments. On August 18, 1971, Oscar Hardison, comptroller of
Ingram Corporation, delivered $30,000 in cash to Weber at O'Hare
Airport in Chicago. On August 28, 1971, another Ingram executive, G.
Glen Martin, gave Weber $116,000, whichconsisted of $46,000 in cash
and $70,000 in checks payable to Weber's defunct corporations.
Ingram Barge Corporation began transporting sludge six days later
than the date it was required to do so under the sludge-hauling
contract; whereupon the Sanitary District assessed liquidated damages
of $30,000 under the liquidated damages clause. In early October,
1971, Benton, Weber, and Janicki held a meeting in Chicago to discuss
this matter, following which the Sanitary District withdrew the
assessment. After the meeting, Weber told Benton that Janicki
wanted $100,000 by the end of 1971. When informed by Benton of
this request, however, Frederick Ingram refused, saying that no more
payments would be made until the Sanitary District began making
payments on the pipeline, as Weber had promised it would.
On December 15, 1971, Weber telephoned Benton to tell him that the
Sanitary District would issue a check to Ingram Corporation for
$1,000,000, as partial payment on the pipeline. When Benton arrived
at Janicki's office the following day, however, Janicki disclaimed any
knowledge of the $1,000,000 check. Benton threatened to "jerk the
rug" from under everyone in Chicago.
Upon learning of Benton's threat, Weber informed Oberle of it and
asked Oberle to do whatever he could about Benton. Oberle
telephoned defendant Frederick Ingram to tell him of Benton's threat.
Ingram expressed no surprise, simply thanked Oberle for the
information and hung up, and later in the day met with Benton to
discuss the matter. At the meeting they agreed that Benton would
continue to represent Ingram's interest in dealing with the Chicago
officials.
35
extend the sludge-hauling contract for three years at a higher price per
On December 21, 1971, Weber, Janicki, and Benton met in Benton's
ton.
hotel room in Chicago. Benton apologized for his threat. He then gave
Weber two checks payable to Weber's defunct corporations in the
On December 28, 1972, representatives of the Ingram companies and
amount of $50,070. This payment brought Ingram's total contribution
the District signed an agreement covering the pipeline purchase that
to $317,320, leaving a balance of $132,680 on the $450,000
was to be effective only if the parties also signed two other
commitment.
agreements: a retroactive modification of the liquidated damages
clause and a three year extension of the sludge-hauling contract. On
In February, 1972, Weber told Benton that because of the difficulties
January 26, 1973, the additional agreements were signed.
in getting the Sanitary District to pay the additional $2,100,000 for
the pipeline, Ingram Corporation would have to increase its
After the signing, Benton returned to his hotel room and telephoned
contribution to $620,000. On February 17, 1972, Weber asked Benton
Janicki to tell him that his money was ready. Janicki sent his secretary
for $100,000 in cash immediately. When Benton told defendant
to pick up a package containing $50,000 in cash. Benton then
Ingram of the request, Ingram responded that he would investigate
telephoned Weber to tell him to come and pick up the balance of the
ways of raising the money. On February 28, 1972, Benton delivered
money due. When Weber arrived, Benton gave him $95,000 in cash
$100,000 to Mrs. Valentine Janicki.
and nine letters of credit drawn on a Swiss bank in the amount of
$70,000 each.
At trial, defendant Frederick Ingram contended that he did not learn
until this February, 1972 meeting with Benton that his company had
One of the letters of credit matured in June, 1973, and each of the
secured a multi-million dollar contract by paying more than $300,000
others matured sequentially at six-month intervals. Weber admitted
to Chicago officials. Ingram testified that he protested against paying
negotiating the first four letters at the Swiss bank in July, 1973,
the bribes, but reluctantly agreed when Benton informed him that if
December, 1973, June, 1974, and December, 1974. On each occasion,
he refused to pay, the Sanitary District would not pay the additional
he purchased his plane ticket to Europe with cash, arranged for his trip
$2,100,000 for the pipeline and would use the liquidated damages
to Switzerland only after he arrived in Europe, and stopped in Toronto,
clause to penalize Ingram Corporation.
Canada, on the way back to the United States. On his last two trips,
Weber telephoned Janicki from Europe.
On March 10, 1972, Weber told Benton that if Ingram Corporation
could deliver $100,000 before the end of the month, the Sanitary
District Board of Trustees would approve the purchase of the pipeline. Investigation
One-fourth of this amount was delivered, but the balance was not, and
Sometime before the fall of 1974 a federal grand jury commenced an
the trustees failed to approve the purchase. At a July 6, 1972 meeting
investigation of the events surrounding the sludge-hauling contract.
between Benton, Janicki, and Weber, however, Janicki promised that
In May, 1975, the government granted immunity to Benton.
the trustees would take some action on the pipeline in the month of
In November, 1975, Weber sent his brother, Henry Weber, to Europe
July. As promised, the board of trustees authorized the staff to
to negotiate the fifth and sixth letters of credit, which matured in
negotiate with Ingram for the purchase of the pipeline on July 20, 1972.
June, 1975, and December, 1975. Following his brother's instructions,
On August 23, 1972, Benton gave McPartlin $80,000 in cash.
Henry Weber did not proceed directly to the drawee Swiss bank but
McPartlin told Benton that the trustees would approve the
went to a bank in Vaduz, Liechtenstein, to have that bank present the
purchaseof the pipeline in September, but Ingram would have to pay
letters to the Swiss bank.
the balance of its contribution, about $95,000, in September also.
On November 26, 1975, two weeks after his return from Liechtenstein,
Between August and November, 1972, Ingram Corporation and the
Henry Weber appeared before the grand jury and testified that he had
Chicago officials negotiated a new agreement. Ingram would pay
only visited Frankfurt and Munich. On December 3, 1975, the
$750,000 over a three year period, and the Sanitary District would
government called Henry Weber to appear a second time before the
purchase the pipeline, modify the liquidated damages clause, and
grand jury, this time asking Weber to bring his travel records. During
his second appearance, Henry Weber testified that he had been
36
mistaken when he said that he had only visited Frankfurt and Munich
and that he had also visited Vaduz.
On December 9, 1975, Franklin Weber's attorney telephoned one of
the government's attorneys in this case and informed him of what
the government attorney already had reason to suspect, namely, that
Franklin Weber had possession of the remaining letters of credit.

Issue: W/N McPartlin is entitled to the attorney-client privilege in objecting to
the inclusion of the statements he gave to Ingrams investigator? (YES)
Ratio: (Wont discuss all of the issues as it is really long and irrelevant)

THE MCPARTLIN STATEMENTS AND THE ATTORNEY-CLIENT PRIVILEGE
AMONG CO-DEFENDANTS AND THEIR COUNSEL (EVIDENCE)
Throughout the period covered by the indictment, Benton kept diaries,
or appointment calendars, in which he made notes concerning
meetings and telephone conversations, naming the persons involved
and often recording the substance of the conversations. The Benton
diaries figured prominently in the government's case, for they
corroborated much of his testimony.
Destroying Benton's credibility was important to Ingram, as it was to
the other defendants, even though Ingram's defense was based, in
part, on the argument that he had made the payments in response to
the threats Benton had reported to him, because Ingram's account of
events in issue differed materially from Benton's, and because the
government's case hinged largely on Benton's testimony. Since
Benton's diaries corroborated so much of his testimony, it was
imperative from the standpoint of all defendants that an effort be
made to discredit them.
Such an effort was made, and Frederick Ingram and McPartlin
cooperated in that effort. In a brief supporting a pretrial "Motion for
Additional Time to Conduct Document Analysis," Ingram's counsel
stated, with reference to contemplated tests on the Benton diaries,
o [T]he defendant Frederic B. Ingram is not the only defendant
who may be affected by the results of these tests. Besides the
general effect of the doubts that may be raised as to Benton's
veracity and the credibility of the diary entries, the case
against at least one other defendant Robert F. McPartlin
may be substantially affected by the results of the tests. From
the results of the tests conducted so far, it appears that at

least two of the suspicious diary entries relate to alleged

payments of money to Mr. McPartlin.
An investigator acting for Frederick Ingram's counsel twice
interviewed McPartlin with the consent of the latter's counsel for the
purpose of determining whether there was a basis for challenging the
truth of some of the diary entries. In the second of these interviews
McPartlin made certain statements, which Ingram argues tend to
support his defense. At trial, when Ingram offered evidence of these
statements, McPartlin's counsel objected on the ground, inter alia, of
the attorney-client privilege, and the court, after an in camera hearing,
sustained the objection on this and another ground.
The exclusion of the McPartlin statements would not be reversible
error even if he had not been entitled to claim the privilege. We are
satisfied from our examination of the transcript of the in
camera hearing, which was sealed and made a part of the record on
appeal, that the statements merely corroborated facts which were
admitted in evidence and which the jury obviously found to be
true. We do not disclose the contents of the statements because they
remain protected by the attorney-client privilege, on which we
alternatively base our ruling on this point.
McPartlin was entitled to the protection of the attorney-client
privilege, because his statements were made in confidence to an
attorney for a co-defendant for a common purpose related to both
defenses. They were made in connection with the project of
attempting to discredit Benton, a project in which Ingram and
McPartlin and their attorneys were jointly engaged for the benefit of
both defendants. Ingram acknowledges that communications by a
client to his own lawyer remain privileged when the lawyer
subsequently shares them with co-defendants for purposes of a
common defense. The common-defense rule, which is not as narrow
as Ingram contends, has been recognized in cases spanning more than
a century.
Uninhibited communication among joint parties and their counsel
about matters of common concern is often important to the
protection of their interests. In criminal cases it can be necessary to a
fair opportunity to defend. Therefore, waiver is not to be inferred from
the disclosure in confidence to a co-party's attorney for a common
purpose.
In the case at bar, the judge found, as a preliminary question of fact,
from the evidence adduced at the hearing held pursuant to Rule 404(a),
37
Fed.R.Evid., that McPartlin had made the statements to the

an attempt to discredit Benton, the attorney for each represented
investigator in confidence. That finding is not clearly erroneous.
both for purposes of that joint effort. The relationship was no different
than it would have been if during the trial the Ingram and McPartlin
Ingram argues that the co-defendants' defenses must be in all respects
attorneys had decided that Ingram's attorney would cross-examine
compatible if the joint-defense privilege is to be applicable. The cases
Benton on behalf of both, and during cross-examination McPartlin
do not establish such a limitation and there is no reason to impose it.
passed Ingram's attorney a note containing information for use in the
Rule 503(b)(3) of the proposed Federal Rules of Evidence, as approved
cross-examination. The attorney who thus undertakes to serve his
by the Supreme Court, stated that the privilege applies to
client's co-defendant for a limited purpose becomes the co-
communications by a client "to a lawyer representing another in a
defendant's attorney for that purpose. A claim of privilege was upheld
matter of common interest." The Advisory Committee's Note to
in circumstances such as these where communications were made
proposed Rule 503(b) makes it clear that the joint-interest privilege is
directly to the attorney for another party in In the Matter of Grand
not limited to situations in which the positions of the parties are
Jury Subpoena Duces Tecum, United States v. Friedman, relied on by
compatible in all respects:
Ingram, is not to the contrary. In Friedman the court held its decision
o The third type of communication occurs in the "joint
in Hunydee v. United States, supra, inapplicable, because no joint
defense" or "pooled information" situation, where different
defense or common interest was alleged. The court went on to state,
lawyers represent clients who have some interests in
in the footnote relied upon, that even if Hunydee was applicable, there
common. . . . The rule does not apply to situations where
was no privilege since "the facts of the conversation negate
there is no common interest to be promoted by a joint
confidentiality."
consultation, and the parties meet on a purely adversary
basis.
Inasmuch as McPartlin was entitled to assert the privilege whether
Ingram was tried jointly or separately, no prejudice would have
Although the Congress, in its revision of the Federal Rules of Evidence,
resulted from the joint trial by reason of the exclusion of the McPartlin
deleted the detailed privilege rules and left the subject of privilege in
statements even if those statements had not been merely cumulative.
federal question cases to "be governed by the principles of common
law as they may be interpreted by the courts of the United States," R.
501 Fed.R.Evid., the recommendations of the Advisory Committee, SEVERANCE [not important]
approved by the Supreme Court, are a useful guide to the federal
Before discussing the specific attacks on the district court's denial of
courts in their development of a common law of evidence. In this
severance, some general principles should be noted. The question of
instance we follow the recommendation. The privilege protects
whether charges that have been properly joined ought to be severed
pooling of information for any defense purpose common to the
for trial is for the discretion of the trial judge, whose decision will be
participating defendants. Cooperation between defendants in such
reversed only upon a showing of clear abuse
circumstances is often not only in their own best interests but serves
The defendant has the burden of showing prejudice, which is a difficult
to expedite the trial or, as in the case at bar, the trial preparation.
one. Id. A denial of severance will rarely be reversed on review, and
Ingram also seems to argue that the communication was not
then only for the most "cogent reasons," There is, moreover, a strong
privileged because it was made to an investigator rather than an
policy in favor of joint trial "where the charge against all the
attorney. The investigator was an agent for Ingram's attorney,
defendants may be proved by the same evidence and results from the
however, so it is as if the communication was to the attorney himself.
same series of acts."
"It has never been questioned that the privilege protects
communications to the attorney's . . . agents . . for rendering his ANTAGONISTIC DEFENSE [not important]
services." Nor was it, as Ingram contends, fatal to the privilege that
The Ingrams contended that the payments were made only because
McPartlin made the statement, in effect, to Ingram's attorney rather
the Sanitary District threatened to take action that would have
than his own. When the Ingram and McPartlin camps decided to join in
resulted in financial disaster to Ingram Corporation, and therefore
38
neither of them had the "intent (to influence the performance of an

official act) required by the Illinois bribery statute."
Ingrams claim that their defense is antagonistic to the other
defendants which is why the action against should be severed
Court said that even if the defenses were to a degree antagonistic,
however, it does not follow that there should have been two or more
trials. One has no right to any tactical advantage that would result if
evidence that is admissible against him in either a joint or separate
trial might be unavailable in a separate trial.
It is therefore the settled rule that a defendant is not entitled to a
severance merely because it would give him a better chance of
acquittal. Thus antagonistic defenses do not require the granting of
severance, , even when one defendant takes the stand and blames his
co-defendant for the crime. Even when the defendant who testified he
was the victim of extortion had dealt directly with the defendant
alleged to have extorted the bribe, we sustained the denial of
severance.

SPILLOVER EFFECT OF EVIDENCE OFFERED AGAINST FREDERICK INGRAM [not
important]
Janicki asserts that he was prejudiced by evidence offered against
Frederick Ingram showing that Ingram Corporation had bribed a
Brazilian corporate official between 1969 and 1971, because the
conduct of the Brazilian was similar to that with which Janicki was
charged. The trial court instructed the jury to consider the evidence
of the earlier bribe only as to Frederick Ingram's state of mind, but
Janicki asserts that this instruction was ineffective. We see no
substantial risk that the jury would believe that because a Brazilian
corporate officer took a bribe from Ingram Corporation, Janicki did
also, and therefore we conclude that Janicki was not prejudiced by the
admission of this evidence.

10. U.S. VS. GORDON-NIKKAR (IE)
518 F.2d 972| September 5, 1975| AINSWORTH
Plaintiff-Appellee: UNITED STATES of America
Defendant-Appellant: Ana Luisa GORDON-NIKKAR

SUMMARY:
Ana Gordon-Nikkar was convicted for conspiracy to possess with intent to
distribute cocaine. On appeal she contends that her conviction should be

reversed because the court permitted Brenda Marchand to give testimony

regarding privileged conversation between the appellants attorney and his
clients and that the court denied her motion to quash the jury panel. As to the
issue of w/n the statements in the attorneys office were protected by
attorney-client privilege, the court held that a communication divulged to
"strangers" or outsiders can scarcely be considered a confidential
communication between attorney and client. As to the issue on imposing
citizenship as a qualification for jury service, the court held that there was a
compelling state interest in confining the selection of jurors to those who are
citizens and preventing resident aliens from serving as jurors is rationally
related to Congress' legitimate power to define the extent of resident aliens'
rights prior to obtaining citizenship.

FACTS:
Appellant, Ana Gordon-Nikkar, was convicted after a trial by jury on all
three counts of an indictment charging her with
o conspiracy to possess with intent to distribute approximately four
kilograms of cocaine,and
o substantive charges of possession with intent to distribute and
distribution of the cocaine.
On appeal, appellant contends her conviction should be reversed because
1. the district court permitted a Government witness, Brenda Marchand,
to give testimony regarding allegedly privileged conversations
between appellant's attorney and his clients, and
2. because the court denied her motion to quash the jury panel on
account of the exclusion of resident aliens from grand and petit juries.
Brenda Marchand (EVIDENCE PART)
charged as a codefendant with the crimes for which appellant was
convicted.
Marchand subsequently pled guilty on Count I of the indictment and
testified at trial for the Government.
Prior to entering her plea, Marchand had two meetings in the office of
appellant's attorney, Mr. Estrumsa.
On each of these occasions, several of the codefendants were present.
Marchand, however, was not a client of Estrumsa, and it is unclear
whether all the other persons in these meetings were Estrumsa's
clients.
Of the two conversations related by Marchand, the second was the
subject of thorough cross-examination by Estrumsa. The second
conversation involved Estrumsa's alleged recommendation that
39
Marchand leave the country and go to Venezuela.

On redirect, the Government inquired, over defense objection, into
the substance of the conversation during the first meeting. Marchand
testified that at this meeting the participants, at Mr. Estrumsa's
suggestion, agreed to give perjured cover-up testimony at trial to the
effect that none of them had possessed the cocaine, but instead
merely happened to be at a party where the cocaine was discovered.
Issue: W/N the statements in attorney Estrumsa's office were protected by the
attorney-client privilege. (NO)
Ratio:
There were at least five persons present at Estrumsa's office on this
occasion; at least one of the persons, Brenda Marchand, and perhaps
others, were not clients of Mr. Estrumsa. A communication divulged to
"strangers" or outsiders can scarcely be considered a confidential
communication between attorney and client.
Therefore, this communication is not protected by the attorney-client
privilege. But even if it appeared that the communication in question were
otherwise privileged (i. e., that the communication was considered
confidential despite the presence of a stranger), the testimony was
nonetheless admissible.
The conversations in question dealt with plans to commit perjury so as to
hide the criminal activity of appellant and others. It is beyond dispute that
the attorney-client privilege does not extend to communications regarding
an intended crime.
The policy underlying the attorney-client privilege is to promote the
administration of justice. It would be a perversion of the privilege to
extend it so as to protect communications designed to frustrate justice by
committing other crimes to conceal past misdeeds.

Motion to Quash the Jury Panel (not related to evidence)
Appellant argues that the trial court erroneously refused to quash the petit
jury venire on the ground that the exclusion therefrom of resident aliens
deprived her of her right to trial before a jury representing a fair cross-
section of the community.
The right and duty to act as grand or petit jurors is presently reserved to
citizens. "Any citizen of the United States . . is competent to serve as a
grand or petit juror."
This mandate excludes resident aliens from jury services. All defendants at
the trial were of Cuban origin , defendant alleged that in Miami, where
trial took place 30% are resident aliens mostly of Cuban descent, exclusion

of resident aliens deprived her of a fair trial.

Although the Sixth Amendment encompasses a fundamental right to trial
by a jury which is a truly representative cross-section of the community, it
has never been thought that federal juries must be drawn from a cross-
section of the total population without the imposition of any qualifications.

ISSUE: W/N Government can constitutionally impose citizenship as a
qualification for jury service
RATIO:
Jurisprudence has held that aliens are protected by the Equal Protection
Clause of the Fourteenth Amendment, and that classifications based on
alienage are inherently suspect and subject to close judicial scrutiny.
The same analysis is applicable to the Due Process Clause of the Fifth
Amendment, which relates to classifications by the Federal Government. If
a classification is invalid under the Equal Protection Clause of the
Fourteenth Amendment, it is also invalid under the Due Process Clause of
the Fifth Amendment.
Since alienage is a suspect classification, the Federal Government must
therefore demonstrate that it has a compelling state interest in confining
the selection of jurors to those who are citizens.
In Perkins, the court held that there was a compelling interest "in ensuring
that persons who serve as jurors are personally committed to the proper
application and enforcement of the laws of the United States" which
therefore justifies the exclusion of aliens
o native-born citizens would be conversant with the social and
political institutions of our society, the customs of the locality, the
nuances of local tradition and language
o Likewise naturalized citizens, have demonstrated a basic
understanding of our form of government, history and traditions.
o There is no corresponding basis for assuming that resident aliens,
who owe allegiance not to any state or to the federal government,
but are subjects of a foreign power, have so assimilated our
societal and political mores that an equal reliance could be placed
on their performing as well as citizens the duties of jurors in our
judicial system.
Jury deliberations are perhaps the most secret form of decision-making in
the nation; a single juror who failed to understand the import of the
evidence being presented or who lacked any concern for the fairness of
the outcome could severely obstruct or distort the course of justice.
Resident aliens by definition have not yet been admitted to citizenship.
40
Until they become citizens, they remain in most cases legally bound to the
country of their origin.
Another reason why aliens may be excluded from federal juries is that
Under Article I, section 8, clause 4 of the Constitution, Congress is granted
the power "to establish an uniform Rule of Naturalization."
While resident aliens are entitled to the full protection of this country's
laws, until they obtain and maintain citizenship by naturalization they are
subject to the plenary authority of Congress' immigration and
naturalization powers.
Although Congress may not single out aliens for discriminatory treatment
in matters not related to the furtherance of its naturalization
responsibilities, (three-judge court), Congress has the power to define
reasonable prerequisites to an alien's exercise of the rights and duties of
citizenship.
We believe that preventing resident aliens from serving as jurors is
rationally related to Congress' legitimate power to define the extent of
resident aliens' rights prior to obtaining citizenship.
Since Congress may validly exclude aliens from jury service, appellant was
deprived of no Sixth Amendment right by the failure to have resident
aliens included in the grand or petit jury venires.

11. U.S. VS. NOBLES (MR)
422 US 225| 06/23/1975 | MR. JUSTICE POWELL

Petitioner/s: UNITED STATES
Respondent/s: ROBERT NOBLES

SUMMARY
Nobles was tried and convicted of armed robbery of a bank. The only evidence
of the prosecution linking him to the crime was the testimony of 2 witnesses.
His best defense is the discrediting these 2 witnesses. Counsel, before trial,
engaged an investigator to interview the 2 witnesses, which interviews were
embodied in a report. The defense counsel used this report as basis for cross-
examinationas in the counsel would propound questions, which revealed the
contents of the interview, which would tend to be different from the answers
of the witnesses in court. The lower court said that if defense counsel wished
to put the investigator on the stand, they must furnish the prosecution the
parts of the report that tend to discredit the witnesses. in refusing, the defense
invoked (a) Fifth amendmentwhich is wrong because the privilege only
covers self-incrimination of the accused, not reports of interviews made on

behalf of the accused; (b) Fed. Rule Crim. Proc. 16which is wrong because it
only applied to pre-trial discovery; (c) work product doctrinewhich is wrong
because the rule is not absolute. Respondent can no more advance the work
product doctrine to sustain a unilateral testimonial use of work product
materials than he could elect to testify in his own behalf and thereafter assert
his Fifth Amendment privilege to resist cross-examination on matters
reasonably related to those brought out in direct examination; (d) fishing
expeditionwhich is wrong, because the court is only compelling examination
of those parts of the testimony of the investigator which would tend to
discredit the witnesses testimony

FACTS
Respondent was tried and convicted on charges arising from an armed
robbery of a federally insured bank.
The only evidence linking him to the crime was identification
testimony of two witnesses, a bank teller and a salesman who was in
the bank during the robbery
Respondent offered an alibi but his strongest defense was discrediting
the testimony of those 2 eyewitnesses
In preparation for their defense, an investigator for the defense
interviewed both witnesses and preserved the essence of those
conversations in a written report. When the witnesses testified for the
prosecution, respondent's counsel relied on the report in conducting
their cross-examination.
Cross of bank teller:
o Asked whether he recalled having told the investigator that he
had seen only the back of the man he identified as respondent.
He did not remember. He was allowed, despite defense
counsels objection, to refresh his memory by looking at that
portion of the investigators report. Prosecutor was also
allowed to look briefly
o Thereafter testified that although the report indicated that he
told the investigator he had
Cross of salesman:
o Acknowledged that he too had spoken to the defense
investigator. Respondent's counsel twice inquired whether he
told the investigator that "all blacks looked alike" to him, and
in each instance the witness denied having made such a
41
statement. The prosecution again sought inspection of the

relevant portion, to which defense counsel objected
o The court declined to order disclosure at that time, but ruled
that it would be required if the investigator testified as to the
witnesses' alleged statements from the witness stand.
Court futher advised that it would examine the investigator's report in
camera, and would excise all reference to matters not relevant to the
precise statements at issue.
After prosecution completed its case, respondent called the
investigator as a defense witness. The court reiterated that a copy of
the report, inspected and edited in camera, would have to be
submitted to Government counsel
When respondent's counsel stated that he did not intend to produce
the report, the court ruled that the investigator would not be allowed
to testify about those interviews
CA for Ninth Circuit reversed. Fifth Amendment prohibited the
disclosure condition imposed. Further, Fed.Rule Crim.Proc. 16, while
framed exclusively in terms of pretrial discovery, precluded
prosecutorial discovery at trial as well.
To ensure that justice is done, it is imperative to the function of courts

that compulsory process be available for the production of evidence
needed either by the prosecution or by the defense.
Federal judiciary has inherent power to require the prosecution to
produce the previously recorded statements of its witnesses so that
the defense may get the full benefit of cross-examination and the
truth finding process may be enhanced.
At issue here is whether, in a proper case, the prosecution can call
upon that same power for production of witness statements that
facilitate "full disclosure of all the [relevant] facts."
o The defense proposed to call its investigator to impeach the
identification testimony of the prosecution's eyewitnesses. It
was evident from cross-examination that the investigator
would testify that each witness' recollection of the appearance
of the individual identified as respondent was considerably
less clear at an earlier time than it was at trial.
o It also appeared that the investigator and one witness differed
even as to what the witness told him during the interview. The
investigator's contemporaneous report might provide critical
insight into the issues of credibility
o It could assist the jury in determining the extent to which the
investigator's testimony actually discredited the prosecution's
witnesses. If, for example, the report failed to mention the
purported statement of one witness that "all blacks looked
alike," the jury might disregard the investigator's version
altogether. On the other hand, if this statement appeared in
the contemporaneously recorded report, it would tend
strongly to corroborate the investigator's version of the
interview, and to diminish substantially the reliability of that
witness' identification.
So the courts saying that its obviously important to serve the ends of
justice that the prosecution is able to examine the report so that we
get both ends of the story. The question now is whether there is some
privilege available to the defense to refuse disclosure

ISSUE
WN in these circumstances, the federal court may compel the defense to
reveal the relevant portions of the investigators report for the prosecutions
use in cross-examinationYES

HELD:
The judgment of the Court of Appeals for the Ninth Circuit is therefore
Reversed.

RATIO
The adversary system
The dual aim of the criminal justice system"that guilt shall not
escape or innocence suffer,"
While the adversary system depends primarily on the parties for the
presentation and exploration of relevant facts, the judiciary is not
limited to the role of a referee or supervisor. Its compulsory processes Fifth Amendment not available
The Fifth Amendment privilege against compulsory self-incrimination
stand available to require the presentation of evidence in court or
is an "intimate and personal one," which protects "a private inner
before a grand jury.
sanctum of individual feeling and thought and proscribes state
The ends of criminal justice would be defeated if judgments were to be
intrusion to extract self-condemnation."
founded on a partial or speculative presentation of the facts.

42
It is a personal privilege: it adheres basically to the person, not to

information that may incriminate him.
Here, respondent did not prepare the report, and there is no
suggestion that the portions subject to the disclosure order reflected
any information that he conveyed to the investigator. The fact that
these statements of third parties were elicited by a defense
investigator on respondent's behalf does not convert them into
respondent's personal communications.
Fifth amendment privilege does not extend to the testimony or
statements of third parties called as witnesses as trial
Were such materials open to opposing counsel on mere

demand, much of what is now put down in writing would
remain unwritten. An attorney's thoughts, heretofore inviolate,
would not be his own. Inefficiency, unfairness and sharp
practices would inevitably develop in the giving of legal advice
and in the preparation of cases for trial. The effect on the legal
profession would be demoralizing.
o The court therefore recognized a qualified privilege for certain
materials prepared by an attorney acting for his client in
anticipation of litigation
At its core, the work product doctrine shelters the mental processes of
the attorney, providing a privileged area within which he can analyze
and prepare his client's case
But the doctrine is an intensely practical one, grounded in the realities
of litigation in our adversary system. One of those realities is that
attorneys often must rely on the assistance of investigators and other
agents in the compilation of materials in preparation for trial. It is
therefore necessary that the doctrine protect material prepared by
agents for the attorney as well as those prepared by the attorney
himself.
The privilege derived from the work product doctrine is not absolute.
Like other qualified privileges, it may be waived. Here, respondent
sought to adduce the testimony of the investigator and contrast his
recollection of the contested statements with that of the
prosecution's witnesses. Respondent, by electing to present the
investigator as a witness, waived the privilege with respect to
matters covered in his testimony.
Respondent can no more advance the work product doctrine to
sustain a unilateral testimonial use of work product materials than
he could elect to testify in his own behalf and thereafter assert his
Fifth Amendment privilege to resist cross-examination on matters
reasonably related to those brought out in direct examination
o

Fed. Rule Crim. Proc. 16 not available (I doubt hell get into this really cause
we have no idea what it is)
Both the language and history of Rule 16 indicate that it addresses

only pretrial discovery. Rule 16(f) requires that a motion for discovery
be filed "within 10 days after arraignment or . . . such reasonable later
time as the court may permit," and further commands that it include
all relief sought by the movant.
It is designed to encourage promptness in filing and to enable the
district court to avoid unnecessary delay or multiplication of motions
The Government's right of discovery arises only after the defendant

has successfully sought discovery under subsections (a)(2) or (b), and is
confined to matters "which the defendant intends to produce at the
trial." Fed.Rule Crim.Proc. 16(c). This hardly suggests any intention that
the Rule would limit the court's power to order production once trial
has begun.

Work product doctrine not available

Heres what the doctrines about:
o In performing his various duties, however, it is essential that a
lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel.
Proper preparation of a client's case demands that he
assemble information, sift what he considers to be the The Court did not authorize a general fishing expedition
Its considered ruling was quite limited in scope, opening to
relevant from the irrelevant facts, prepare his legal theories,
prosecution scrutiny only the portion of the report that related to the
and plan his strategy without undue and needless interference.
testimony the investigator would offer to discredit the witnesses'
o This work is reflected, of course, in interviews, statements,
identification testimony
memoranda, correspondence, briefs, mental impressions,
Respondent's argument that this ruling deprived him of the Sixth
personal beliefs, and countless other tangible and intangible
Amendment rights to compulsory process and cross-examination
ways

43
misconceives the issue. The District Court did not bar the investigator's
testimony. It merely prevented respondent from presenting to the jury
a partial view of the credibility issue by adducing the investigator's
testimony and thereafter refusing to disclose the contemporaneous
report that might offer further critical insights.
The Sixth Amendment does not confer the right to present testimony
free from the legitimate demands of the adversarial system;

Conclusion: the full testimony of the investigator, rather than a truncated
portion favorable to respondent, we think it would be artificial indeed to
deprive the court of the power to effectuate that judgment. Nor do we find
constitutional significance in the fact that the court in this instance was able to
exclude the testimony in advance, rather than receive it in evidence and
thereafter charge the jury to disregard it when respondent's counsel refused,
as he said he would, to produce the report.

44

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EVIDENCE 3-II | 3A-2015 | ATTY. L.

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

This may possibly be good law, though Wigmore cites no

acquiescence or assent on his part.

A careful consideration of the testimony of Lucio Javillonar will show

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

These being the facts proven, I am of opinion that application must be

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

the purpose of advising the client as to his rights. It is evident that a

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

- the organization and acquisition of business associations and/or

directives of the coconut monopoly.

he was one of the incorporators in 1976 of Mermaid Marketing

WN Sandiganbayan gravely abused its discretion in subjecting

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

3. WN Sandiganbayan gravely abused its discretion in not considering

as lawyers; that their inclusion in the complaint is merely being used as

[not important] Stockton v. Ford: US SC held:

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

confidence thus reposed shall not be used to the detriment or

If a client were made to choose between legal representation

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

clients themselves were unsure about whether or not they

lawyers, regarding the financial and corporate structure, framework

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

[not important] Uberrimei fidei relationship between a lawyer and his

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

The condition precedent required by PCGG for the exclusion of

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

1. the issue of privilege contested therein arose in grand jury

They then partake of the nature of a conspiracy, or attempted

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

Case: Action instituted in the CFI-Manila by Barton to recover from

letter (Exhibit K). The territory assigned to Ludvigsen & McCurdy

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

Francisco, and 5K of the same to be consigned to Henry E. White; and

would contract with Barton for a minimum quantity of 10K additional

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

on the ground that it was a privileged communication

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

shall not be removed as to so much as makes to the

writ ofmandamus appropriate, since the right from the exercise of

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

WITH REGARD TO A CRIME WHICH A CLIENT INTENDS TO COMMIT

In this criminal case, respondent Paredes was likewise represented by

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

Ombudsman approved the filing of falsification charges against all the

distinction must be made between confidential communications

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

Having been made for purposes of a future offense, those

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

their innocence. There is thus no other direct evidence available for

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

nullify the privilege of confidential communication between attorney and

to overcome the protection of the work-product doctrine. The CA rejected the

EVIDENCE 3-II | 3A-2015 | ATTY. L. ARROYO

officials and emphasized that the management needed full