Disqualification by reason of privileged communication

Discussion of Attorney and Client, Rule 130, Sec. 24(b)

Rule 130, Section 24 enumerates persons who cannot testify as to matters

learned in confidence.

Section 24. Disqualification by reason of privileged communication. — The following persons cannot

testify as to matters learned in confidence in the following cases:

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

THE REQUISITES FOR THE APPLICATION OF THE DISQUALIFCAITION ON

THE GROUND OF PRIVILEGED COMMUNCATION BETWEEN ATTY AND
CLIENT

1) That there must be an attorney and client relationship

2) That the privilege is invoked with respect to confidential communication
between them in the course of professional employment
3) The client has not given his consent to the testimony of the attorney,
secretary, stenographer or clerk, nor the attorney gives his consent to his
said employees.

The attorney-client relationship starts when the client makes a preliminary

consultation with the attorney tending to establish a relation, even though
there is no fee paid by the client.

What is the coverage of the disqualification?

1) Verbal statements
2) Documents and papers entrusted to the attorney by the client
3) Those facts learned by the attorney from the client

Exceptions

1) Future crime-fraud
2) Claims against same deceased client
3) Self-defense
4) Lawyer-attesting witness
5) Joint clients’ communication
6) When the communication is intended to be made public
7) When the communication is intended to be communicated to others
8) When the communication was received a third person who is not acting in
behalf or as agent of the client
 9) When the communication was made in the presence of a third party who is a
stranger to the attorney and client
10) When there is a waiver on the part of the client
11) When the client gives his consent
12) Action filed by the client against the attorney
13) Dying declaration made by the client to the attorney

The privilege will continue even after the attorney-client relationship, or even after
the death of the client.

PEOPLE VS SANDIGANBAYAN

FACTS

Respondent Paredes, Jr., who was formerly the Provincial Attorney of Agusan del
Sur. During his time, Paredes applied for and was granted a free patent over a vast
tract of land. However, it was cancelled because apparently, it has already been
designated and reserved as a school site.

The court found that Paredes had obtained title thereto through fraudulent
misrepresentations in his application, and somebody came forward and filed a case
of perjury against him. However, the same was dismissed on the ground of
prescription. Then again, another case was filed against him for violation of RA
3019 (Anti-Graft and Corrupt Practices Act) for using his former position as
Provincial Attorney to influence and induce the Bureau of Lands officials to favorably
act on his application for patent.

In all these cases, Paredes was represented by respondent Atty. Sansaet, a

practicing attorney. 

Paredes, as defense, contends that he has already been charged under the same
set of facts and the same evidence where such complaint (perjury case where he
was already arraigned) has already been dismissed. Hence, double jeopardy has
already attached. In support hereof, Paredes presented court records and
transcripts as proof of his arraignment in the perjury case. However, the documents
were found to be falsified, in conspiracy with Paredes’ counsel and the clerk of court
where the perjury case was filed.

One Teofilo Gelacio claims that no notice of arraignment was ever received by the
Office of the Provincial Fiscal. Hence, another case was filed for falsification of
judicial records. It was then that respondent Sansaet offered to testify as a state
witness against his client Paredes, claiming that the latter contrived and induced
him to have the graft case dismissed on the ground of double jeopardy by having
him and co-respondent prepare and falsify the subject documents. But the
Sandiganbayan denied the motion on the ground of attorney-client privilege since
the lawyer could not testify against his own client. In view of such relationship,
confidential matters must have been disclosed by Paredes, as client, to accused
Sansaet, as his lawyer, in his professional capacity, and therefore privileged.

The proposal that Sansaet be a state witness was rejected by the Ombudsman,
which was affirmed by the Sandiganbayan.

ISSUE

Whether the projected testimony of respondent Sansaet, as proposed state

witness, is barred by the attorney-client privilege.

RULING

NO. There is no privileged communication rule in this case. 

The privilege applies only if the information was relayed by the client to
the lawyer respecting a past crime. The reckoning point is when the
communication was given, not when the lawyer was made to testify. 

The attorney-client privilege cannot apply in these cases as the facts thereof and
the actuations of both respondents therein constitute an exception to the rule. 

It may be correctly assumed that there was a confidential communication made by

Paredes to Sansaet in connection with the criminal cases since the latter served as
his counsel therein. The privilege is not confined to verbal or written
communications made by the client to his attorney but extends as well to
information communicated by other means, including physical acts. The acts and
words of the parties, therefore, during the period when the documents were being
falsified were necessarily confidential since Paredes would not have invited Sansaet
to his house and allowed him to witness the same except under conditions of
secrecy and confidence.

However, the announced intention of a client to commit a crime is not included

within the confidences which his attorney is bound to respect. It is true that by
now, insofar as the falsifications are concerned, those crimes were necessarily
committed in the past. But for the privilege to apply, 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 lawyer’s advice with respect to a crime which
he has already committed, he is given the protection of a virtual confessional seal
which the privilege declares cannot be broken by the attorney without the client’s
consent. 

The same privileged confidentiality, however, does not attach with regard
to a crime a client intends to commit thereafter or in the future and for
purposes of which he seeks the lawyer’s advice. 
In this case, 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 were about to falsify the documents. 

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. Having been made for purposes
of a future offense, those communications are outside the pale of the attorney-
client privilege. 

It is well settled that communication between a lawyer and his client, to be

privileged, must be for a lawful purpose or in furtherance of a lawful
end. The existence of an unlawful purpose prevents the privilege from attaching. In
fact, the prosecution of the honorable relation of attorney and client will not be
permitted under the guise of privilege, and every communication made to an
attorney by a client for a criminal purpose is a conspiracy or attempt at a
conspiracy which is not only lawful to divulge, but which the attorney under certain
circumstances may be bound to disclose at once in the interest of justice.