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Doctrine of privilege

communications in pleadings
and judicial proceedings
Problem Areas in Legal Ethics
Arellano University School of Law Arellano Law Foundation

2015-2016

Concept of privileged communication


[speech]
1. Privileged communication as rule of evidence
2. Privileged communication as basis to keep confidential the
secrets or confidences of client
3. Privileged speech in congress
4. Privileged communications made in the course of juridical
proceedings, including all kinds of pleadings, petitions and
motions

1. Privileged Communication as rule of


evidence
Rule 130 Sec. 24.Disqualification by reason of privileged
communication. The following persons cannot testify as to
matters learned in confidence in the following cases:
xxx
(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;
xxx

Essential factors to establish the existence of


the attorney-client privilege communication
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

Where legal advice of any kind is sought


from a professional legal adviser in his capacity as such,
the communications relating to that purpose,
made in confidence
by the client,
are at his instance permanently protected
from disclosure by himself or by the legal advisor,
except the protection be waived.
- Ma. Luisa Hadjula v. Atty. Roceles F. Madianda, A.C. No. 6711,

July 3, 2007

2. Privileged communication as basis to keep


confidential the secrets or confidences of
client
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.
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.
RPC Art. 209. Betrayal of trust by an attorney or solicitor. Revelation of
secrets. In addition to the proper administrative action, the penalty of
prision correccional in its minimum period, or a fine ranging from 200 to
1,000 pesos, or both, 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.

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.

Limit of privileged communication


between client and lawyer
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.
In fact, it has also been pointed out to the Court that 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. PP v. Sandiganbayan, et. al., G.R. Nos.

115439-41 July 16, 1997

3. Privileged speech in congress


The immunity Senator Santiago claims is rooted primarily on
the provision of Article VI, Section 11 of the Constitution, which
provides:
A Senator or Member of the House of Representative shall,
in all offenses punishable by not more than six years
imprisonment, be privileged from arrest while the Congress
is in session. No member shall be questioned nor be held
liable in any other place for any speech or debate in the
Congress or in any committee thereof.

10

Defensor-Santiago case
Senator Miriam Defensor-Santiagos speech delivered on the
Senate floor:

x x x I am not angry. I am irate. I am foaming in the


mouth. I am homicidal. I am suicidal. I am humiliated, debased,
degraded. And I am not only that, I feel like throwing up to be
living my middle years in a country of this nature. I am
nauseated. I spit on the face of Chief Justice Artemio
Panganiban and his cohorts in the Supreme Court, I am no
longer interested in the position [of Chief Justice] if I was to be
surrounded by idiots. I would rather be in another environment
but not in the Supreme Court of idiots x x x. - Probe v. Sen.

Defensor-Santiago A.C. No. 7399 [2009]

11

The purpose of her speech, according to her, was to bring out in


the open controversial anomalies in governance with a view to
future remedial legislation. She averred that she wanted to
expose what she believed to be an unjust act of the Judicial Bar
Council [JBC], which, after sending out public invitations for
nomination to the soon to-be vacated position of Chief Justice,
would eventually inform applicants that only incumbent
justices of the Supreme Court would qualify for nomination.
She felt that the JBC should have at least given an advanced
advisory that non-sitting members of the Court, like her, would
not be considered for the position of Chief Justice.

12

No lawyer who has taken an oath to maintain the respect


due to the courts should be allowed to erode the peoples faith
in the judiciary. In this case, the lady senator clearly violated
Canon 8, Rule 8.01 and Canon 11 of the Code of Professional
Responsibility, which respectively provide:
Canon 8, Rule 8.01.A lawyer shall not, in his professional
dealings, use language which is abusive, offensive or otherwise
improper.
Canon 11.A lawyer shall observe and maintain the respect
due to the courts and to the judicial officers and should insist
on similar conduct by others.

13

Case against Sen. Defensor-Santiago


dismissed
Indeed, her privilege speech is not actionable criminally or in a
disciplinary proceeding under the Rules of Court.
In this case, the lady senator clearly violated Canon 8, Rule 8.01
and Canon 11 of the Code of Professional Responsibility.
WHEREFORE, the letter-complaint of Antero J. Pobre against
Senator/Atty. Miriam Defensor-Santiago is, conformably to Art. VI,
Sec. 11 of the Constitution, DISMISSED.

14

Purpose of Privilege Speech


Our Constitution enshrines parliamentary immunity which is a
fundamental privilege cherished in every legislative assembly of
the democratic world. As old as the English Parliament, its
purpose is to enable and encourage a representative of the
public to discharge his public trust with firmness and
success for it is indispensably necessary that he should
enjoy the fullest liberty of speech and that he should be
protected from resentment of every one, however, powerful,
to whom the exercise of that liberty may occasion offense.-

Probe v. Sen. Defensor-Santiago A.C. No. 7399 [2009]

15

4. Privileged communications made in the course of


juridical proceedings, including all kinds of pleadings,
petitions and motions
Well-entrenched in the Philippine and American jurisprudence is
the rule that for reasons of public policy, utterances made in the
course of juridical proceedings, including all kinds of pleadings,
petitions and motions are absolutely privileged when pertinent
and relevant to the subject under inquiry, however false or
malicious such utterances may be. - Gutierrez v. Abila, et. al., G.R.

No. L-59161 January 30, 1982

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CPR
CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH
COURTESY, FAIRNESS AND CANDOR TOWARDS HIS
PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING
TACTICS AGAINST OPPOSING COUNSEL.
Rule 8.01 - A lawyer shall not, in his professional dealings, use
language which is abusive, offensive or otherwise improper.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive
or menacing language or behavior before the Courts.

17

Certificate of meritorious case


Rue 7 Section 3. The signature of counsel constitutes a
certificate by him that he has read the pleading; that to the
best of his knowledge, information, and belief there is good
ground to support it; and that it is not interposed for delay.
Honest beliefis a claim of good faith.- Alfonso C. Choa vs.

Judge Roberto S. Chiongson, A.M. No. MTJ-95-1063. August


9, 1996

18

Pleadings in judicial proceedings are


considered privileged

Pleadings have become part of public record open to the public


to scrutinize, but also due to the undeniable fact that said...
Pleadings are presumed to contain allegations and assertions
lawful and legal in nature, appropriate to the disposition of issues
ventilated before the courts for the proper administration of justice
and, therefore, of general public concern.
Moreover, pleadings are presumed to contain allegations
substantially true because they can be supported by evidence
presented in good faith, the contents of which would be under the
scrutiny of courts and, therefore, subject to be purged of all
improprieties and illegal statements contained therein. Cuenco v.

Cuenco, et. al., G.R. No. L-29560 March 31, 1976

19

Counsel, parties or witnesses are


exempted from liability in libel or
slander
It is the generally accepted rule that counsel, parties or witnesses
are exempted from liability in libel or slander for words otherwise
defamatory published in the course of judicial proceedings,
provided that the statements are connected with, or relevant,
pertinent or material to, the cause in hand or subject of inquiry.
For as aptly observed in one case, while the doctrine of privileged
communication is liable to be abused, and its abuse may lead to
great hardships, yet to give legal sanction to such suits as the
present would, we think, give rise to far greater hardships. -

Cuenco v. Cuenco, et. al., G.R. No. L-29560 March 31, 1976

20

Effect of privileged matters


For, although every defamatory imputation is presumed to be
malicious, the presumption does not exist in matters considered
privileged. In fine, the privilege destroys the presumption. -

GMA Network, Inc. v. Bustos, et. al., G.R. No. 146848 October
17, 2006

21

Privileged matters may be


absolute or qualified

Absolutely privileged matters are not actionable regardless of the


existence of malice in fact. In absolutely privileged communications, the
mala or bona fides of the author is of no moment as the occasion
provides an absolute bar to the action. Examples of these are speeches or
debates made by Congressmen or Senators in the Congress or in any
of its committees.
On the other hand, in qualifiedly or conditionally privileged
communications, the freedom from liability for an otherwise defamatory
utterance is conditioned on the absence of express malice or malice in
fact. The second kind of privilege, in fine, renders the writer or author
susceptible to a suit or finding of libel provided the prosecution
established the presence of bad faith or malice in fact. To this genre
belongs "private communications" and "fair and true report without any
comments or remarks" falling under and described as exceptions in Article
354 of the Revised Penal Code. - GMA Network, Inc. v. Bustos, et. al., G.R.

No. 146848

October 17, 2006

22

Importance of doctrine of privileged


communications
The doctrine of privileged communication rests upon public policy,
which looks to the free and unfettered administration of justice,
though, as an incidental result it may in some instances afford an
immunity to the evil disposed and malignant slanderer. - PP v.

Atty. Sesbreno, G.R. No. L-62449 July 16, 1984

23

All doubts should be resolved in favor of


its relevancy
In order the matter alleged in a pleading may be privileged, it
need not be in every case material to the issues presented by
the pleadings.

All doubts should be resolved in favor of its relevancy or


pertinency, and for the purposes of relevancy the court will
assume the alleged slanderous charges to be true, however false
they may have been in fact. - Cuenco v. Cuenco, et. al., G.R. No. L-

29560 March 31, 1976

24

There is no absolute privilege in


pleadings

Absolute privilege attached to allegations made by an attorney in a


pleading filed with the court, as long as the statements alleged to be
defamatory were relevant and pertinent to the issues in the case.
We relied heavily on our earlier decision xxx, in which we recognized
the absolute privilege of an attorney to make statements in pleadings
regardless of their truth or the existence of actual malice on the part
of the attorney so long as the statements were relevant and
pertinent to the pleadings. Selby v. Burgess, 712 S.W.2d 898 (1986)

25

All forms of communications are


privileged
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 the client to the attorney by other
means. - PP v. Sandiganbayan, et. al., G.R. Nos. 115439-41 July

16, 1997

26

Professional discipline may still apply


Although the privilege is absolute where it applies, we consider
it to be a privilege narrowed closely by the "relevancy" and
"pertinency" requirements, and we note that while the
privilege will prohibit an attorney from being subject to
litigation it will not make him immune from professional
discipline, when it is appropriate. Selby v. Burgess, 712

S.W.2d 898 (1986)

...makes a lawyer liable for false allegations in a pleading since


the rule states that a lawyer's signature on a pleading
constitutes a certificate by him that to the best of his
knowledge, there is good ground to support the pleading.

Pogue v. Cooper, et. al., 680 S.W.2d 698 (1984)

27

Restriction to the privilege


The Court defined the restriction to the privilege enjoyed by
pleadings thus:
The pleadings should contain but the plain and concise
statements of the material facts and not the evidence by which
they are to be proved. ...
If the pleader goes beyond the requirements of the statute and
alleges an irrelevant matter which is libelous, he loses his
privilege.
The requirement of materiality and relevancy is imposed so that
the protection given to individuals in the interest of an efficient
administration of justice may not be abused as a cloak from
beneath which private malice may be gratified. - Gutierrez v.

Abila, et. al., G.R. No. L-59161 January 30, 1982

28

Example of slanderous matters in a


pleading
Repeated litigations between the same parties might indeed be
tiresome, even nettlesome but this alone is not sufficient cause for
calling another "dirty-minded", and of a "limited mind", "twisted
mind" or to characterize his act as a "devise of wickedness as
earmarks of plaintiff's traits.
It is noted that far from being isolated statements, these slanderous
matters pervade the entire dimension of the defendants' answer,
with almost every paragraph thereof scathing with spiteful imputations
against the plaintiff. These imputations constitute a grave reflection
upon the mental and moral character and reputation of the plaintiff,
and they certainly achieve no purpose except to gratify the defendants'
rancor and ill-will.
The aforementioned personal opinions of the defendants, expressed in
vituperative and intemperate language, are palpably devoid of any
relation whatever to the subject of inquiry and have no place in a
pleading. - Gutierrez v. Abila, et. al., G.R. No. L-59161 January 30,

1982

29

Admonition to lawyers
While indeed lawyers should be allowed some latitude of
remark or comment in the furtherance of the causes they
uphold such remarks or comments should not trench beyond
the bounds of relevancy and propriety. Besides, the language
vehicle does not run short of expressions which are emphatic
but respectful, convincing but not derogatory, illuminating but
not offensive. Gutierrez v. Abila, et. al., G.R. No. L-59161

January 30, 1982

30

Partners who signed the pleadings are


liable
In view of the derogatory implications of that observation, which
was couched in intemperate indecorous and vicious language
and which was baseless, since it was belied by the resolution
itself that stated the reason for requiring the Solicitor General to
proceed with the investigation of the disbarment case, the Court
in that aforementioned October 1 resolution required Attys.
Salandanan and Zosimo G. Linato, who signed the motion
under the firm name of "E. M. Salandanan, Aguilar, Linato &
Associates" to show cause why they should not be adjudged in
contempt of court. Yangson v. Salandanan, A.C. No. 1347.

November 12, 1975

31

Libelous remarks?
Against said order, Atty. Sesbreno filed a motion seeking
reconsideration with a counter-motion for contempt against the
appellant for reneging on his commitment to reimburse
appellee's clients and for resorting to dilatory tactics. To that,
Atty. Ceniza, filed his "Opposition to Motion for Reconsideration,
Etc." charging Sesbreno with misrepresentation, prevarication,
and "telling a barefaced and documented lie." Replying to
these remarks, Sesbreno then filed his "REPLY" Atty. Ramon B.
Ceniza is an irresponsible person, cannot be trusted, like
Judas, a liar and irresponsible childish prankster.- subject
matter of Ceniza's libel suit.

32

Balancing act
While the doctrine is liable to be abuse and its abuse may lead
to great hardships, yet to give legal action to such libel suits
would give rise to greater hardships.
Lawyers, most especially, should be allowed a great latitude of
pertinent comment in the furtherance of the causes they
uphold, and for the felicity of their clients, they may be
pardoned some infelicities of language. - PP v. Atty. Sesbreno,

G.R. No. L-62449 July 16, 1984

33

Test to be applied
A pleading must meet the test of relevancy to avoid being
considered libelous. - PP v. Atty. Sesbreno, G.R. No. L-62449 July

16, 1984

34

Metes and bounds of


relevancy or pertinency
As to the degree of relevancy or pertinency necessary to make
alleged defamatory matters privileged, the courts are inclined
to be liberal.
The matter to which the privilege does not extend must be so
palpably wanting in relation to the subject matter of the
controversy that no reasonable man can doubt its irrelevance
and impropriety.
In order that a matter alleged in a pleading may be privileged,
it need not be in every case material to the issues presented
by the pleadings, It must, however, be legitimately related
thereto, or so pertinent to the subject of the controversy that it
may become the subject of the inquiry in the course of the
trial. - PP v. Atty. Sesbreno, G.R. No. L-62449 July 16, 1984

35

Legitimate answers to accusations


are privileged
Although the language used by defendant-appellee in the
pleading in question was undoubtedly strong, since it was
made in legitimate defense of his own and of his client's
interest, such remarks must be deemed absolutely privileged
and cannot be the basis of an action for libel (Tolentino v.
Baylosis, supra). - PP v. Atty. Sesbreno, G.R. No. L-62449 July 16,

1984

36

Unprofessional conduct
Mutual bickering and recriminations between brother attorneys
detract from the dignity of the legal profession and will not
receive any sympathy from this Court. - PP v. Atty. Sesbreno,

G.R. No. L-62449 July 16, 1984

37

Proper conduct of lawyers


Clients, not lawyers, are the litigants. Whatever may be the illfeeling existing between clients, it should not be allowed to
influence counsel in their conduct and demeanor toward each
other or toward suitors in the case.
All personalities between counsel should be scrupulously
avoided. In the trial of a case it is indecent to allude to the
personal history or the personal peculiarities and
idiosyncracies of counsel on the other side.
Personal colloquies between counsel which cause delay and
promote unseemly wrangling should also be carefully avoided.
Lawyers owe respect not only to the courts and their clients,
but also to other members of the Bar. - PP v. Atty. Sesbreno,

G.R. No. L-62449 July 16, 1984

38

Using abrasive and offensive language not


proper in pleadings

Greater care and circumspection must be exercised in the


preparation of their pleadings and to refrain from using abrasive
and offensive language (Yangson v. Saladanan, 68 SCRA 42). A
becoming modesty is a desirable trait also of practising attorneys.

PP v. Atty. Sesbreno, G.R. No. L-62449 July 16, 1984Privileged

39

When pleadings are published in


newspaper
We are firmly convinced that the correct rule on the matter
should be that a fair and true report of a complaint filed in
court without remarks nor comments even before an
answer is filed or a decision promulgated should be covered by
the privilege.
This Court ruled before that:
Utterances made in the course of judicial proceedings,
including all kinds of pleadings, petitions and motions
belong to the class of communication that are absolutely
privileged. - Cuenco v. Cuenco, et. al., G.R. No. L-29560 March

31, 1976

40

Issue No. 182, Volume X of "The Republic Daily",


bearing date of August 3, 1958, an article fully
reproduced as follows
Rep. Cuenco Sued
Rep. Miguel Cuenco was yesterday sued by the Bisaya Land Transportation
Company, Inc., for alleged illegal and unlawful collections made by him on
the company, amounting to thousands of pesos. Part of these collections
was allegedly obtained by the defendant in violation of a constitutional
inhibition. Congressman Cuenco, according to the complaint, had illegally
collected a total of P18,700 from the plaintiff, of which he was formerly
assistant manager in charge of the shipping department. In the same suit,
the transportation firm asked the court to order the defendant to pay it an
additional sum of P5,600 representing attorney's fees which the plaintiff said
it had obligated to pay its counsel. xxx

41

US jurisprudence

42

Statements made to the media


Appellant sued respondent's companies for wrongful
termination, making a number of allegations in the complaint
against respondent personally. After respondent published a
response to the allegations in the media, appellant sued him
for defamation.
Whether or not statements made to the media regarding
ongoing or contemplated litigation are covered by absolute
privilege. - Jacobs v. Adelson, 325 P.3d 1282 (2014)

43

Whether or not the absolute privilege


applies when the media is the recipient of the
statement
These courts have concluded that the policy considerations
underlying the absolute privilege rule are not applicable to
statements made to the media. Statements made to the media
"do little, if anything, to promote the truth finding process in a
judicial proceeding.... [They] do not generally encourage open and
honest discussion between the parties and their counsel in order to
resolve disputes; indeed, such statements often do just the
opposite.
"Communications made to newspapers and during press
conferences have been almost universally found to be excluded
from the protection of absolute privilege.- Jacobs v. Adelson, 325

P.3d 1282 (2014)

44

Not related to judicial proceedings


We have, however, recognized that communications are not
sufficiently related to judicial proceedings when they are made to
someone without an interest in the outcome.
We conclude that assessing the significant interest of the recipient
requires review of the recipient's legal relationship to the
litigation, not their interest as an observer.
Moreover, the nature of the recipient's interest in or connection to
the litigation is a "case-specific, fact-intensive inquiry" that must
focus on and balance the underlying principles of the privilege.
We conclude that the newspaper does not have a direct interest in,
or connection to, the outcome of the proceedings, other than as a
spectator. - Jacobs v. Adelson, 325 P.3d 1282 (2014)

45

A few jurisdictions have held that, under


certain circumstances, an attorney's
statements to the media are absolutely privileged
Extending the privilege to statements made by an attorney to a reporter
after the dismissal of the first lawsuit. Other jurisdictions have found
exceptions to the majority rule based on unique circumstances. ,
Applying absolute privilege to a statement to a newspaper when all signs
pointed to emerging litigation and the newspaper was a potential party);
,

Applying absolute privilege to a lawyer's statements to the press denying


allegations and questioning the plaintiff's motives, where the plaintiff
publicly solicited a response; ,
Holding that an attorney's prelitigation statements to the press are
absolutely privileged if a class action lawsuit is contemplated. Jacobs v.

Adelson, 325 P.3d 1282 (2014)

46

Communications made to the media


We adopt the majority view that communications made to the
media in an extrajudicial setting are not absolutely privileged, at
least when the media holds no more significant interest in the
litigation than the general public.
In order for the absolute privilege to apply to defamatory
statements made in the context of a judicial or quasi-judicial
proceeding, "(1) a judicial proceeding must be contemplated in
good faith and under serious consideration, and (2) the
communication must be related to the litigation.
The privilege applies to communications made by either an
attorney or a non-attorney that are related to ongoing litigation or
future litigation contemplated in good faith. - Jacobs v. Adelson,

325 P.3d 1282 (2014)

47

Defamatory statements not privileged when


made on radio and television programs
Stating the judicial proceedings privilege protects statements by
parties and their attorneys related to litigation but does not
extend to protect allegedly defamatory statements made on
radio and television programs. Wagner v. Miskin, 660 N.W.2d

593 (2003)

A privileged statement, such as one made in a judicial


proceeding, is not privileged for all subsequent publications
by virtue of initially being spoken in a privileged proceeding.
Even an "absolute" privilege does not permit an individual to
categorically republish possibly defamatory statements without
consequence. Wagner v. Miskin, 660 N.W.2d 593 (2003)

48

Statements to third party


But we have also recognized that "[a]n attorney's statements to
someone who is not directly involved with the actual or
anticipated judicial proceeding will be covered by the absolute
privilege only if the recipient of the communication is
significantly interested in the proceeding." - Jacobs v.

Adelson, 325 P.3d 1282 (2014)

49

Thank you for your attention!!

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