I.

Confidentiality Between Lawyers & Clients

A. Duty to Preserve Client’s Confidence
General Rule:
Canon 21 of the Code of Professional Responsibility (CPR) provides that, “A
lawyer shall preserve the confidence and secrets of his client even after the
attorney-client responsibility is terminated.”
This rule applies to matters disclosed to him by prospective clients.1 It is the glory
of the legal profession that its fidelity to its client can be depended on and that man
can safely go to a lawyer and converse with him upon his rights or supposed rights
in any litigation with absolute assurance that the lawyer’s tongue is tied from ever
disclosing it.2
Exceptions:
Rule 21.01 - A lawyer shall not reveal the confidence 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; or
c) When necessary to collect his fees or to defend himself, his employees or
associates or by judicial action.
B. Duration of Duty
Perpetual : It outlasts his professional employment and continues even after
client’s death. He may not do anything which will injuriously affect his former
client nor may he at any time disclose or use against him any knowledge or
information acquired by virtue of the professional relationship.3
C. Reason for the rule
1. To encourage a client to make full disclosure to his attorney and to place
unrestricted confidence in him in matters affecting his rights or obligations;
2. To preserve the confidential and trust relation which exists between attorney
and client.4
D. A lawyer shall not use client’s secrets without his consent
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 advantage
1 Rule 15.02, Code of Professional Responsibility
2 People v. Gerold, 265 111, 448, 107, 165 (1914)
3 Hilado v. David, 4 Phil. 569 (1949)
4 Grand Lake Drive Inn v. Superior Court of Alameda Country, 179 (1960)
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or that of a third person, unless the client with full knowledge of the circumstances
consents thereto.
A lawyer becomes familiar with all the facts connected with his client’s case. He
learns from his client the weak points of the action as well as the strong ones. Such
knowledge must be considered sacred and guarded with care.
E. A lawyer shall not give information from his files
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.
The reason for the rule is that the work product of a lawyer, such as his effort,
research, and thought, and the records of his client, contained in his files are
privileged matters.5
F. A lawyer may disclose affairs of client to partners
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.
The rule is that the professional employment of a law firm is equivalent to the
retainer of the members thereof even though only one of them is consulted;
conversely, the employment of one member of a law firm is generally considered
as employment of the law firm.6
G. A lawyer shall adopt measures against disclosures of client’s secrets
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 client.
A lawyer may avail of the clerical aids of secretaries, stenographers or clerks as
well as the expertise of accountants, physicians, investigators, engineers or
technicians. The client’s secrets learned by these persons in the performance of
their services to the lawyer or to the latter’s client and the reports of these
persons or experts are privileged communications.7
H. A lawyer shall avoid indiscreet conversation about client’s affairs
Rule 21.06 - A lawyer shall avoid indiscreet conversation about client’s affairs
even with members of his family.
5 Hickman v. Taylor, 91 L ed 45 (1940)
6 Hilado v. David, 84 Phil. 569 (1949)
7 Ibid.
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I. A lawyer shall not reveal his having been consulted
Rule 21.07 - A lawyer shall not reveal that he has been consulted about a particular
case except to avoid possible conflicts of interest.
The rule is that the disclosure and the lawyer’s opinion thereon create an attorneyclient
relationship, even though the lawyer does not eventually accept the
employment.8
II. Doctrine of Privileged Communication
Basis:
Rule 15.02 - A lawyer shall be bound by the rule on privileged communication in
respect of matters disclosed to him by a prospective client.
Purpose:
To make the prospective client free to discuss whatever he wishes with the lawyer
without fear that what he tells the lawyer will not be divulged nor used against
him, and for the lawyer to be equally free to obtain information from the
prospective client.
Definition of Confidential Communication
It pertains to information transmitted by voluntary act of disclosure between the
attorney and client in confidence and by means which so far as the client is aware,
discloses the information to no third person other than one reasonably necessary
for the transmission of the information or the accomplishment of the purpose for
which it was given.9
Confidence of Client Secret of Client
Refers to information protected by
attorney-client privilege under the
Rules of Court (i.e., information
pertinent to the case being
handled.)
Refers to information gained in the
professional relationship that the client has
requested to be held inviolate of the
disclosure of which would be
embarrassing or would likely be
detrimental to the client (i.e., information
not exactly pertinent to the case.)
8 Ibid.
9 Mercado v. Vitriolo, A.C. No. 5108 (2005)
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i. Privileged Communications in Pleadings
A. Requisites of Attorney-Client Privileged Communication
1. The person to whom information is given is a lawyer, or a person pretending
to be a lawyer to whom the client discloses the communication.
2. There is a legal relationship existing or a prospective attorney-client
relationship, and it is on this relationship that the client made the
communication;
Note: Matters disclosed by a prospective client to a lawyer are protected by
the rule on privileged communication even if the prospective client does not
thereafter retain the lawyer or the latter declines the employment. The reason
for this is to make the prospective client free to discuss whatever he wishes
with the lawyer without fear that what he tells the lawyer will be divulged or
used against him, and for the lawyer to be equally free to obtain information
from the prospective client.10
However, a communication from a prospective client to a lawyer for some
purpose other than on account of the perspective attorney-client relation is not
privileged.
3. Legal advice must be sought from the attorney in his professional capacity
with respect to communications relating to that purpose.
4. The client must intend that the communication be confidential.
The essence of the veil of secrecy which surrounds communication is intended
by the client not for the information of a third person but for the purpose of
seeking legal advice from his attorney as to his rights or obligations.11
As to form or mode of communication:
There is no particular mode by which a confidential communication shall be
made by a client to his attorney. 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.12
5. The legal advice must be sought from the attorney in his professional capacity.
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. It does not extend to those made in
10 Mercado v. Vitriolo, supra
11 Uy Chico v. Union Life Assurance Society, 29 Phil. 163 (1915)
12 People v. Sandiganbayan, 275 SCRA 505 (1997)
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contemplation of a crime or perpetration of a fraud. It is not within the
profession of a lawyer to advise a client as to how he may commit a crime.13
Examples of privileged matter:
• Work product of lawyer (his effort, research and thought contained in
his file);
• Report of a physician, an accountant, an engineer or a technician, whose
services have been secured by a client as part of his communication to
his attorney or by the attorney to assist him in rendering effective legal
assistance to his client;
• Records concerning an accident in which a party is involved; and
• Consultation which has to do with the preparation of a client to take the
witness stand.
B. Persons Entitled to the Privilege
1. The lawyer, client, and third persons who by reason of their work have
acquired information about the case being handled, including:
a. Attorney’s secretary, stenographer and clerk;
b. Interpreters, messengers, or agents transmitting communication; or
c. Accountant, scientist, physician, or engineer who has been hired for
effective consultation.
2. Assignee of the client’s interest as far as the communication affects the
realization of the assigned interest.
C. Confidentiality v. Attorney-Client Privilege
1. The lawyer’s duty of confidentiality (an ethical duty) is not the same as the
client’s right to assert the attorney-client privilege (a rule of evidence).
2. The attorney-client privilege extends only to communications between
lawyers and clients relating to legal services and which the client reasonably
believes is confidential.
3. Any disclosure may waive the attorney-client privilege as to otherwise
protected matters; not so with the duty of confidentiality.
4. The privilege applies only to limiting testimony in a legal proceeding. The
duty of confidentiality limits voluntary disclosures anywhere.
13 Geneto v. Silapan, A.C. No. 4078, July 14, 2003
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D. Matters NOT Privileged
• Generally, any communication between attorney and client which lack any
one of the elements that make the attorney-client privilege is not privileged.
• Privileged communications which lose their privileged character by some
supervening act done pursuant to the purpose of the communication (e.g., a
communication intended by the client to be sent to a third person through his
attorney loses confidential character once it reaches the third party).
• When the privileged communication was made by the client to the attorney in
relation to either a crime committed in the past, the privilege applies. If the
crime is still to be committed, the privilege does not apply because the
communication between a lawyer and his client must be for a lawful purpose
or in furtherance of a lawful end to be privileged.14
• Contracts relating to attorney’s fees are essentially not privileged.15
E. Exceptions to Attorney-Client Privilege (Under Rule 20.01)
1. When authorized by the client after acquainting him of the consequences of
the disclosure;
The waiver of the privilege cannot be made partially. A client may either
waive it in its entirety or not at all. Hence, by introducing in evidence part of
a privileged document, a client waives the protection of the privilege as to the
other part of the document.16
2. When required by law;
3. When necessary to collect his fees or to defend himself, his employees or
associates or by judicial action; and
4. When the communication is used for the commission of a contemplated crime
or the perpetuation of a fraud.17
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, communications between
attorney and client having to do with the client's contemplated criminal acts,
or in aid or furtherance thereof, are not covered by the cloak of privilege
ordinarily existing in reference to communications between attorney and
client, and in this instance, the lawyer may testify thereon without violating
the attorney-client privilege. In order for the privilege to attach, the
communication must be for a lawful purpose.18