Confidentiality between lawyers and clients

Problem Areas in Legal Ethics

Arellano University School of Law Arellano Law Foundation

CANON 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions
with his clients

Rule 15.02. - A lawyer shall be bound by the rule on privilege communication in respect of
matters disclosed to him by a prospective client.

Rule 130 Sec. 24.Disqualification by reason of privileged communication. The following

persons cannot testify as to matters learned in confidence:

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

Canon 21 A lawyer shall preserve the confidence and secrets of his client even after the
attorney-client relation is terminated

Rule 21.01 - A lawyer shall not reveal the confidences or secrets of his client except;

(a) When authorized by the client after acquainting him of the consequences of the disclosure;

(b) When required by law;

(c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial
action.

Rule 21.02 - A lawyer shall not, to the disadvantage of his client, use information acquired in the
course of employment, nor shall he use the same to his own advantage or that of a third
person, unless the client with full knowledge of the circumstances consents thereto.

Rule 21.03 - A lawyer shall not, without the written consent of his client, give information from
his files to an outside agency seeking such information for auditing, statistical, bookkeeping,
accounting, data processing, or any similar purpose.

Cont

Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or associates
thereof unless prohibited by the client.
 Rule 21.05 - A lawyer shall adopt such measures as may be required to prevent those whose
services are utilized by him, from disclosing or using confidences or secrets of the clients.

Rule 21.06 - A lawyer shall avoid indiscreet conversation about a client's affairs even with
members of his family.

Rule 21.07 - A lawyer shall not reveal that he has been consulted about a particular case except
to avoid possible conflict of interest.

Rule 138 of the Rules of Court

Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the confidence, and at every peril
to himself, to preserve the secrets of his client, and to accept no compensation in connection
with his client's business except from him or with his knowledge and approval.

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

Revised Penal Code

Art. 209. Betrayal of trust by an attorney or solicitor. Revelation of secrets. In addition to

the proper administrative action, xxx shall be imposed upon any attorney-at-law or solicitor (
procurador judicial) who, by any malicious breach of professional duty or of inexcusable
negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter
learned by him in his professional capacity.

The same penalty shall be imposed upon an attorney-at-law or solicitor (procurador judicial)
who, having undertaken the defense of a client or having received confidential information
from said client in a case, shall undertake the defense of the opposing party in the same case,
without the consent of his first client.

Why lawyer-client relationships requires confidentiality

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

Extent of Confidentiality Rule

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

Lawyers duty to keep the confidentiality

An effective lawyer-client relationship is largely dependent upon the degree of confidence

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

General Rule on clients identity

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

Reasons advanced for the general rule

First, the court has a right to know that the client whose privileged information is sought to be
protected is flesh and blood.

Second, the privilege begins to exist only after the attorney-client relationship has been
established. The attorney-client privilege does not attach until there is a client.

Third, the privilege generally pertains to the subject matter of the relationship.

Finally, due process considerations require that the opposing party should, as a general rule,
know his adversary. "A party suing or sued is entitled to know who his opponent is." He cannot
be obliged to grope in the dark against unknown forces.

Exceptions

1) Client identity is privileged where a strong probability exists that revealing the client's name would
implicate that client in the very activity for which he sought the lawyer's advice.

2) Where disclosure would open the client to civil liability; his identity is privileged.

3) Where the government's lawyers have no case against an attorney's client unless, by revealing the
client's name, the said name would furnish the only link that would form the chain of testimony
necessary to convict an individual of a crime, the client's name is privileged. - Regala et. al. v.
Sandiganbayan, G. R. No. 105938 [1996]
 Summarizing these exceptions, information relating to the identity of a client may fall within
the ambit of the privilege when the client's name itself has an independent significance, such
that disclosure would then reveal client confidences. - Regala et. al. v. Sandiganbayan, G. R.
No. 105938 [1996]

Communication to commit crime or fraud not privileged

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

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

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

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

Cause of client defense is not absolute

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

Permanent nature of duty to keep confidentiality

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

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

Secrets or confidential communications must be obtained in a lawyer-client relationship

The alleged "secrets" of complainant were not specified by him in his affidavit-complaint.
Whatever facts alleged by respondent against complainant were not obtained by respondent in
his professional capacity but as a redemptioner of a property originally owned by his deceased
son and therefore, when respondent filed the complaint for estafa against herein complainant,
which necessarily involved alleging facts that would constitute estafa, respondent was not, in
any way, violating Canon 21. xxx To hold otherwise would be precluding any lawyer from
instituting a case against anyone to protect his personal or proprietary interests. Uy v. Atty.
Gonzales, A.C. No. 5280, March 30, 2004

It must be stressed, however, that the privilege against disclosure of confidential

communications or information is limited only to communications which are legitimately and
properly within the scope of a lawful employment of a lawyer. - Genato v. Atty. Silapan, A.C.
No. 4078. July 14, 2003

Starting point of duty of confidentiality

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

This duty of confidentiality also extends to prospective clients even though an attorney-client
relationship is never established.

Not a defense to justify breaching the duty of confidentiality

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

2. no formal professional engagement follows the consultation.

3. no contract whatsoever was executed by the parties to memorialize the relationship.

The essential factors to establish the existence of the attorney-client privilege communication

(1) Where legal advice of any kind is sought

(2) from a professional legal adviser in his capacity as such,

(3) the communications relating to that purpose,

(4) made in confidence

(5) by the client,

(6) are at his instance permanently protected

(7) from disclosure by himself or by the legal advisor,

(8) except the protection be waived.

Characteristics of the Attorney-Client Privilege

1. A-C privilege where legal advice is professionally sought from an attorney.

2. The client must intend the above communication to be confidential.

3. A-C privilege embraces all forms of communication and action.

4. As a general rule, A-C privilege also extends to the attorneys secretary, stenographer, clerk or
agent with reference to any fact required in such capacity.

5. The above duty is perpetual and is absolutely privileged from disclosure.

Attorney-Client Privilege cannot be invoked

1. There is consent or waiver or client.

2. Such is required by law.

3. Such is made to protect the lawyers rights (i.e. to collect his fees or associates or by judicial
action).

4. When such communication are made in contemplation of a crime or the perpetuation of a

fraud.

The principle of client-lawyer confidentiality is given effect

by related bodies of law

1. the attorney-client privilege,

2. the work product doctrine and

3. the rule of confidentiality established in professional ethics.

The attorney-client privilege and work-product doctrine apply in judicial and other proceedings
in which a lawyer may be called as a witness or otherwise required to produce evidence
concerning a client.
 The rule of client-lawyer confidentiality applies in situations other than those where evidence is
sought from the lawyer through compulsion of law.

Confidentiality does not extend to partners and associates

Lawyers in a firm may, in the course of the firm's practice, disclose to each other information
relating to a client of the firm, unless the client has instructed that particular information be
confined to specified lawyers.

Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or associates
thereof unless prohibited by the client.

Protection from third party

This prohibition also applies to disclosures by a lawyer that do not in themselves reveal
protected information but could reasonably lead to the discovery of such information by a
third person.

Disclosure of the Client's Identity and Whereabouts

The general rule is that a client's identity and whereabouts are not covered by the attorney-
client privilege, as opposed to the ethical duty of confidentiality.

However, exceptions have been made if disclosure would implicate the client in the criminal
activity for which legal advice was sought or "if the net effect of the disclosure would be to
reveal the nature of a client communication." - Charles McCormick, McCormick on Evidence 90
(5th ed. 1999)

Lawyer must testify about identity of client who paid with counterfeit $100 bill.

Client's name not considered confidential unless "intertwined" with confidential information or
last link tying client to crime. - Alexiou v. United States), 39 F.3d 973 (9th Cir. 1994

Client identity is privileged in exceptional cases when disclosure would provide "last link" in
chain of evidence leading to conclusion that client committed crime, and would reveal
confidential communication between lawyer and client;

Client who accused divorce lawyer of improper sexual advances may not obtain client list in
discovery. - Brett v. Berkowitz, 706 A.2d 509 (Del. 1998)

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

Certain instances where a court order is not involved, courts have held the client's whereabouts
protected
 Lawyer may not be compelled to disclose address

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

Domestic relations case where confidentiality of address was necessary for client safety. -
Waldman v. Waldman,358 NE2d 521 (1976)

As a rule a lawyer should challenge an order to disclose information

about client

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

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

A lawyer who receives a subpoena to testify about a client may file a motion to quash asserting
the attorney-client privilege, along with any other possible grounds for refusing to comply.

A subpoena duces tecum issued to a lawyer that makes no attempt whatsoever to confine its
scope to relevant, non-privileged matters is unenforceable and must be quashed. - U.S. v. Horn,
976 F2d 1314 (CA9 1992)