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)