Canon 21, Rule 21.

05

United States of America, Appellee, v. Louis Kovel, Defendant-appellant, 296 F.2d 918 (2d
Cir. 1961)

U.S. Court of Appeals for the Second Circuit - 296 F.2d 918 (2d Cir. 1961)

Argued November 2, 1961

Decided December 5, 1961

Louis Bender, New York City (Louis Bender and Jerome Kamerman), New York City, for
appellant.

Gerald Walpin, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for
Southern Dist. of New York, David Klingsberg, Asst. U. S. Atty., New York City, of counsel), for
appellee.

New York County Lawyers' Association, New York City (Boris Kostelanetz, Jules Ritholz and
Bud G. Holman, New York City, of counsel), submitted a brief as amicus curiae.

Before CLARK, HINCKS and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

This appeal from a sentence for criminal contempt for refusing to answer a question asked in the
course of an inquiry by a grand jury raises an important issue as to the application of the
attorney-client privilege to a non-lawyer employed by a law firm. Our decision of that issue
leaves us with the further problem of what disposition is appropriate on a record which, due to
the extreme positions erroneously taken by both parties in the court below, lacks the evidence
needed to determine whether or not the privilege existed. We vacate the judgment and remand so
that the facts may be developed.
Kovel is a former Internal Revenue agent having accounting skills. Since 1943 he has been
employed by Kamerman & Kamerman, a law firm specializing in tax law. A grand jury in the
Southern District of New York was investigating alleged Federal income tax violations by
Hopps, a client of the law firm; Kovel was subpoenaed to appear on September 6, 1961, a few
days before the date, September 8, when the Government feared the statute of limitations might
run. The law firm advised the Assistant United States Attorney that since Kovel was an employee
under the direct supervision of the partners, Kovel could not disclose any communications by the
client or the result of any work done for the client, unless the latter consented; the Assistant
answered that the attorney-client privilege did not apply to one who was not an attorney.
The record reveals nothing as to what occurred on September 6. On September 7, the grand jury
appeared before Judge Cashin. The Assistant United States Attorney informed the judge that
Kovel had refused to answer "several questions * * * on the grounds of attorney-client
privilege"; he proffered "respectable authority * * * that an accountant, even if he is retained or
employed by a firm of attorneys, cannot take the privilege." The judge answered "You don't have
to give me any authority on that." A court reporter testified that Kovel, after an initial claim of
privilege had admitted receiving a statement of Hopps' assets and liabilities, but that, when asked
"what was the purpose of your receiving that," had declined to answer on the ground of privilege
"Because the communication was received with a purpose, as stated by the client"; later
questions and answers indicated the communication was a letter addressed to Kovel. After
verifying that Kovel was not a lawyer, the judge directed him to answer, saying "You have no
privilege as such." The reporter then read another question Kovel had refused to answer, "Did
you ever discuss with Mr. Hopps or give Mr. Hopps any information with regard to treatment for
capital gains purposes of the Atlantic Beverage Corporation sale by him?" The judge again
directed Kovel to answer, reaffirming "There is no privilege you are entitled to no privilege,
as I understand the law." Kovel asked whether he might say something; the judge instructed him
to answer, saying "I'm not going to listen." Kovel also declined to tell what Hopps had said
concerning a transaction underlying a bad debt deduction in Hopps' 1954 return, and whether
Hopps had told him that a certain transfer of securities "had no effect whatsoever" and was just a
form of accommodation; the judge gave similar directions after the reporter had read each
question and refusal to answer. Then the grand jury, the Assistant and Kovel returned to the
grand jury room.
Later on September 7, they and Kovel's employer, Jerome Kamerman, now acting as his counsel,
appeared again before Judge Cashin. The Assistant told the judge that Kovel had "refused to
answer some of the questions which you had directed him to answer." A reporter re-read so much
of the transcript heretofore summarized as contained the first two refusals. The judge offered
Kovel another opportunity to answer, reiterating the view, "There is no privilege to this man at
all." Counsel referred to New York Civil Practice Act, 353, which we quote in the margin, 1 and
sought an adjournment until co-counsel could appear; the judge put the matter over until the next
morning.
On the morning of September 8, the same dramatis personae, plus the added counsel, attended in
open court. Counsel reiterated that an employee "who sits with the client of the law firm * * *
occupies the same status * * * as a clerk or stenographer or any other lawyer * * *"; The judge
was equally clear that the privilege was never "extended beyond the attorney." In the course of a
colloquy the Assistant made it plain that further questions beyond the two immediately at issue
might be asked. After the judge had briefly retired, leaving the Assistant and Kovel with the
grand jury, proceedings in open court resumed. The reporter recited that in the interval, on
reappearing before the grand jury and being asked "What was the purpose communicated to you
by Mr. Hopps for your receiving from him an asset and liability statement of his personal
financial situation?", Kovel had declined to answer. On again being directed to do so, Kovel
declined "on the ground that it is a privileged communication." The court held him in contempt,
sentenced him to a year's imprisonment, ordered immediate commitment and denied bail. Later
in the day, the grand jury having indicted, Kovel was released until September 12, at which time,
without opposition from the Government, I granted bail pending determination of this appeal.
Here the parties continue to take generally the same positions as below Kovel, that his status
as an employee of a law firm automatically made all communications to him from clients
privileged; the Government, that under no circumstances could there be privilege with respect to
communications to an accountant. The New York County Lawyers' Association as amicus
curiae has filed a brief generally supporting appellant's position.
Decision under what circumstances, if any, the attorney-client privilege may include a
communication to a nonlawyer by the lawyer's client is the resultant of two conflicting forces.
One is the general teaching that "The investigation of truth and the enforcement of testimonial
duty demand the restriction, not the expansion, of these privileges," 8 Wigmore, Evidence
(McNaughton Rev. 1961), 2192, p. 73. The other is the more particular lesson "That as, by
reason of the complexity and difficulty of our law, litigation can only be properly conducted by
professional men, it is absolutely necessary that a man * * * should have recourse to the
assistance of professional lawyers, and * * * it is equally necessary * * * that he should be able
to place unrestricted and unbounded confidence in the professional agent, and that the
communications he so makes to him should be kept secret * * *," Jessel, M. R. in Anderson v.
Bank, 2 Ch.D. 644, 649 (1876). Nothing in the policy of the privilege suggests that attorneys,
simply by placing accountants, scientists or investigators on their payrolls and maintaining them
in their offices, should be able to invest all communications by clients to such persons with a
privilege the law has not seen fit to extend when the latter are operating under their own steam.
On the other hand, in contrast to the Tudor times when the privilege was first recognized, see 8
Wigmore, Evidence, 2290, the complexities of modern existence prevent attorneys from
effectively handling clients' affairs without the help of others; few lawyers could now practice
without the assistance of secretaries, file clerks, telephone operators, messengers, clerks not yet
admitted to the bar, and aides of other sorts. "The assistance of these agents being indispensable
to his work and the communications of the client being often necessarily committed to them by
the attorney or by the client himself, the privilege must include all the persons who act as the
attorney's agents." 8 Wigmore, Evidence, 2301; Annot., 53 A.L.R. 369 (1928).2
Indeed, the Government does not here dispute that the privilege covers communications to non-
lawyer employees with "a menial or ministerial responsibility that involves relating
communications to an attorney." We cannot regard the privilege as confined to "menial or
ministerial" employees. Thus, we can see no significant difference between a case where the
attorney sends a client speaking a foreign language to an interpreter to make a literal translation
of the client's story; a second where the attorney, himself having some little knowledge of the
foreign tongue, has a more knowledgeable non-lawyer employee in the room to help out; a third
where someone to perform that same function has been brought along by the client; and a fourth
where the attorney, ignorant of the foreign language, sends the client to a non-lawyer proficient
in it, with instructions to interview the client on the attorney's behalf and then render his own
summary of the situation, perhaps drawing on his own knowledge in the process, so that the
attorney can give the client proper legal advice. All four cases meet every element of Wigmore's
famous formulation, 2292, "(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 adviser, (8) except the protection be waived," save
(7); literally, none of them is within (7) since the disclosure is not sought to be compelled from
the client or the lawyer. Yet 2301 of Wigmore would clearly recognize the privilege in the first
case and the Government goes along to that extent; 2301 would also recognize the privilege in
the second case and 2311 in the third unless the circumstances negated confidentiality. We find
no valid policy reason for a different result in the fourth case, and we do not read Wigmore as
thinking there is. Laymen consulting lawyers should not be expected to anticipate niceties
perceptible only to judges and not even to all of them.
This analogy of the client speaking a foreign language is by no means irrelevant to the appeal at
hand. Accounting concepts are a foreign language to some lawyers in almost all cases, and to
almost all lawyers in some cases. Hence the presence of an accountant, whether hired by the
lawyer or by the client, while the client is relating a complicated tax story to the lawyer, ought
not destroy the privilege, any more than would that of the linguist in the second or third
variations of the foreign language theme discussed above; the presence of the accountant is
necessary, or at least highly useful, for the effective consultation between the client and the
lawyer which the privilege is designed to permit. 3 By the same token, if the lawyer has directed
the client, either in the specific case or generally, to tell his story in the first instance to an
accountant engaged by the lawyer, who is then to interpret it so that the lawyer may better give
legal advice, communications by the client reasonably related to that purpose ought fall within
the privilege; there can be no more virtue in requiring the lawyer to sit by while the client
pursues these possibly tedious preliminary conversations with the accountant than in insisting on
the lawyer's physical presence while the client dictates a statement to the lawyer's secretary or is
interviewed by a clerk not yet admitted to practice. What is vital to the privilege is that the
communication be made in confidence for the purpose of obtaining legal advice from the
lawyer. If what is sought is not legal advice but only accounting service, as in Olender v. United
States, 210 F.2d 795, 805-806 (9 Cir. 1954), see Reisman v. Caplin, 61-2 U.S. T.C. 9673
(1961), or if the advice sought is the accountant's rather than the lawyer's, no privilege exists. We
recognize this draws what may seem to some a rather arbitrary line between a case where the
client communicates first to his own accountant (no privilege as to such communications, even
though he later consults his lawyer on the same matter, Gariepy v. United States, 189 F.2d 459,
463 (6 Cir. 1951)),4 and others, where the client in the first instance consults a lawyer who
retains an accountant as a listening post, or consults the lawyer with his own accountant present.
But that is the inevitable consequence of having to reconcile the absence of a privilege for
accountants and the effective operation of the privilege of client and lawyer under conditions
where the lawyer needs outside help. We realize also that the line we have drawn will not be so
easy to apply as the simpler positions urged on us by the parties the district judges will
scarcely be able to leave the decision of such cases to computers; but the distinction has to be
made if the privilege is neither to be unduly expanded nor to become a trap.5
The application of these principles here is more difficult than it ought be in future cases, because
the extreme positions taken both by appellant and by the Government, the latter's being shared
by the judge, resulted in a record that does not tell us how Hopps came to be communicating
with Kovel rather than with Kamerman. The Government says the burden of establishing the
privilege was on Kovel and, since he did not prove all the facts essential to it even on our view,
the sentence must stand. Kovel rejoins that the Government always has the burden of showing a
criminal defendant's guilt and, since the proof does not negate the possible existence of a
privilege, the sentence must fall.
We follow the Government's argument at least to this extent: If we were here dealing with a trial
at which a claim of privilege like Kovel's had been overruled and the witness had answered, we
should not reverse, since "the burden is on the objector to show that the relation" giving rise to
the privilege existed. Woodrum v. Price, 104 W.Va. 382, 389, 140 S.E. 346, 349 (1927). On the
other hand, appellant is right that, in a prosecution for criminal contempt, the ultimate burden of
persuasion on the issue of privilege remains the Government's, see Michaelson v. United
States, 266 U.S. 42, 66, 45 S. Ct. 18, 69 L. Ed. 162 (1924); United States v. Fleischman, 339
U.S. 349, 70 S. Ct. 739, 94 L. Ed. 906 (1950); United States v. Patterson, 219 F.2d 659 (2 Cir.
1955); e. g., if Kamerman had testified he had told Hopps preliminarily to discuss with Kovel the
transactions Kovel declined to disclose, and the Government challenged this testimony, it would
have had the burden of convincing the judge on the facts. The burden that the Government's
proof did shift to Kovel was that of going forward with evidence supporting the claim of
privilege, United States v. Fleischman, supra. Kovel did not discharge that burden, on our view
of the law; he claims he was relieved of any need of doing so since the course of the proceedings
had made it apparent that no evidence he could have submitted would have influenced the
district judge and the law does not require the ritual performance of a useless act, citing United
States v. Zwillman, 108 F.2d 802 (2 Cir. 1940). However, the needs of the appellate court also
must be considered; in order to preserve Kovel's position on appeal counsel should have
proffered the necessary evidence and, if the judge would not receive it, should have made an
offer of proof, along the lines prescribed in civil cases by F.R.Civ.Proc. 43(c), 28 U.S.C. Without
this we are left in the dark whether a remand will serve any purpose; although the Zwillman
opinion dispensed with a formal offer, 108 F.2d p. 804, the record there afforded more assurance
that the evidence the judge had refused to consider might sustain the privilege than we have here
with respect to evidence not mentioned before the judge, whether or not it exists in other grand
jury minutes. However, the uncertainty as to the applicable legal principle, the fixed view of the
judge, and the haste with which the proceedings were here conducted because of the prospective
running of the statute of limitations, extenuate although they do not altogether excuse the failure
of Kovel's counsel to make a proper offer of proof; and a remand for determination of a few
simple facts by the judge will not be burdensome. With petitioner's liberty at stake, we believe
that the proper course, 28 U.S.C. 2106.
A final point requires consideration, namely, the Government's contention that the question
appellant declined to answer was designed to provide the very factual basis which, on our view,
was needed to determine whether the privilege existed. On one reading it was exactly that. If the
judge had so explained the question, Kovel would have been bound to answer it to him; a witness
claiming the attorney-client privilege may not refuse to disclose to the judge the circumstances
into which the judge must inquire in order to rule on the claim, People's Bank of Buffalo v.
Brown, 112 F. 652 (3 Cir. 1902); Steiner v. United States, 134 F.2d 931, 935 (5 Cir. 1943);
Schwimmer v. United States, 232 F.2d 855, 864 (8 Cir.), cert. denied, 352 U.S. 833, 77 S. Ct. 48,
1 L. Ed. 2d 52 (1956). However, the question was susceptible of other meanings; Kovel could
well have understood it as calling for an answer relating to the substance of what Hopps had told
him, a substance that might have included admissions whose disclosure would be seriously
damaging. On the previous day the direction to answer this question had been linked with two
others relating to substance and, just prior to the critical refusal, the Assistant had made it plain
that still other questions might come. Although not entirely clear, it seems that the "purpose" of
Hopps in sending the figures may have been stated in a letter. If so, Kovel would doubtless have
been thinking of whatever the letter said and we do not know what that was; yet the idea of
allowing the judge preliminarily to examine the letter was not advanced by anyone. Moreover,
the proper practice is for the judge to conduct his preliminary inquiry into the existence of the
privilege with the jury excused, see Steiner v. United States, supra, 134 F.2d at 934-935; here the
question was asked with the jury present. Kovel's understanding of the question also may be
explored on the remand although, in view of what we have been compelled to say on the
subject, perhaps without too much practical effect.
The judgment is vacated and the cause remanded for further proceedings consistent with this
opinion.
1
"An attorney or counselor at law shall not disclose, or be allowed to disclose, a communication,
made by his client to him, or his advice given thereon, in the course of his professional
employment, nor shall any clerk, stenographer or other person employed by such attorney or
counselor * * * disclose, or be allowed to disclose, any such communication or advice."
2
N.Y.Civil Practice Act, 353, is a legislative recognition of this principle. We doubt the
applicability of the New York statute in a Federal grand jury proceeding; plainly, under
F.R.Crim.Proc. 26, 18 U.S.C., it would not be applicable in a Federal criminal trial and we
cannot believe the framers of the Criminal Rules intended state law to apply in the former case
when it would not in the latter. However, decision of the issue is unnecessary, for there is nothing
to indicate the New York legislature intended to do more than enact the principles of the common
law
3
To such extent as the language in Himmelfarb v. United States, 175 F.2d 924, 939 (9 Cir. 1949),
may be contra, we must respectfully disagree. The amicus curiae brief suggests the actual
decision in Himmelfarb may be supported because the record there shows the information had
been given by the client for the precise purpose of transmission to a special agent of the Internal
Revenue Service and had in fact been so transmitted pursuant to the client's authorization; if that
be so, the necessary element of confidentiality was lacking.
4
We do not deal in this opinion with the question under what circumstances, if any, such
communications could be deemed privileged on the basis that they were being made to the
accountant as the client's agent for the purpose of subsequent communication by the accountant
to the lawyer; communications by the client's agent to the attorney are privileged, 8 Wigmore,
Evidence, 2317-1. See Lalance & Grosjean Mfg. Co. v. Haberman Mfg. Co., 87 F. 563
(C.C.S.D.N.Y., 1898)
5
City & County of San Francisco v. Superior Court, etc., 37 Cal. 2d 227, 231 P.2d 26, 25
A.L.R.2d 1418 (1951), and State v. Kociolek, 23 N.J. 400, 129 A.2d 417 (1957), accord
generally with the above analysis
City & County of S. F. v. Superior Court

[S. F. No. 18264. In Bank. May 15, 1951.]

CITY AND COUNTY OF SAN FRANCISCO, Petitioner, v. THE SUPERIOR COURT OF THE
CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

COUNSEL

Dion R. Holm, City Attorney, and George E. Baglin, Deputy City Attorney, for Petitioner.

Hoberg & Finger, John Finger, Peart, Baraty & Hassard and George Smith for Respondents and
Real Party in Interest.

OPINION

TRAYNOR, J.

James Hession brought an action for personal injuries against the City and County of San
Francisco and the Western Pacific Railroad Company. He alleged that he suffered brain
concussion, nerve root damage, and nervous shock. At the request of Hession's attorneys, Dr.
Joseph Catton, a physician specializing in nervous and mental diseases, twice gave Hession a
neurological and psychiatric examination. [37 Cal. 2d 231] In his deposition Dr. Catton testified
that there was no physician-patient relationship between him and Hession; that he did not advise
or treat Hession; that the sole purpose of the examination was to aid Hession's attorneys in the
preparation of a lawsuit for Hession; and that he was the agent of the attorneys. He refused to
answer questions regarding Hession's condition on the grounds that the information sought was
privileged under subdivisions 2 and 4 of Section 1881 of the Code of Civil Procedure and that
the questions called for "the use of faculties of a physician, neurologist, and psychiatrist and for
an opinion based thereon, which opinion is a portion of my property which I do not wish to be
deprived of without due compensation and arrangement having been made in relation thereto."
Hession's counsel also claimed that the information was privileged.

Petitioner, the City and County of San Francisco, seeks a writ of mandamus to compel
respondent court to order Dr. Catton to answer the questions.

The Physician-Patient Privilege

[1] Dr. Catton testified that "there was no physician-patient relationship in the sense that I was
examining him for the purpose of giving him advice or treatment, ... nor did I at any time give
him any such advice or treatment; so that there wasn't that usual physician-patient relationship."
He also filed an affidavit in which he averred that he "has not at any time prescribed for or
treated the said James Hession as a patient or otherwise." Under such circumstances there is no
physician-patient privilege under subdivision 4 of section 1881 of the Code of Civil Procedure.
fn. * That privilege cannot be invoked when no treatment is contemplated or given. "The
confidence that is protected is only that which is given to a professional physician during a
consultation with a view to curative treatment; for it is that relation only which the law desires to
facilitate." (8 Wigmore, Evidence, 3d ed., 1940, 2382, p. 817; Estate of Baird, 173 Cal. 617,
623-624 [160 P. 1078]; Estate of Black, 132 [37 Cal. 2d 232] Cal. 392, 393, 396 [64 P. 695];
Harrison v. Sutter St. Ry. Co., 116 Cal. 156, 166 [47 P. 1019]; People v. Dutton, 62 Cal. App. 2d
862, 863 [145 P.2d 676]; Keller v. Gerber, 49 Cal. App. 515, 524 [193 P. 809]; see 58 Am.Jur.,
Witnesses, 415, p. 237; 107 A.L.R. 1495.)

[2] Even if there had been a physician-patient relationship, the privilege would be waived under
section 1881(4) by Hession's bringing the action for personal injuries. (Phillips v. Powell, 210
Cal. 39, 42 [290 P. 441]; Ballard v. Pacific Greyhound Lines, 28 Cal. 2d 357, 360 [170 P.2d 465];
see also Moreno v. New Guadalupe Mining Co., 35 Cal. App. 744, 754-755 [170 P. 1088].)

[3] Relying on Webb v. Francis J. Lewald Coal Co., 214 Cal. 182 [4 P.2d 532], respondent and
Hession, the real party in interest, contend that since the privilege set forth in section 1881(4) is
phrased in the language "prescribe or act for the patient" and the personal-injury-litigant
exception is phrased in the language "prescribed for or treated said person" the exception to the
privilege in the case of personal-injury litigants is not so broad as the privilege. (Italics added.)
They conclude that the privilege exists here because Dr. Catton "acted" for Hession when he
examined him and delivered to his counsel a written report of his findings, but that the exception
cannot apply because Dr. Catton did not prescribe for or treat Hession. The Webb case clearly
supports this conclusion, but a reexamination of that case compels the conclusion that this
ground of the decision must be disapproved.

[4] The whole purpose of the privilege is to preclude the humiliation of the patient that might
follow disclosure of his ailments. When the patient himself discloses those ailments by bringing
an action in which they are in issue, there is no longer any reason for the privilege. The patient-
litigant exception precludes one who has placed in issue his physical condition from invoking the
privilege on the ground that disclosure of his condition would cause him humiliation. He cannot
have his cake and eat it too.

The view taken in the Webb case defeats the purpose of the statute by seizing upon the phrase
"act for the patient" and giving it a meaning that cannot reasonably be attributed to the
Legislature. [5] The statute reads: "A licensed physician or surgeon can not, without the consent
of his patient, be examined in a civil action, as to any information acquired in attending the
patient, which was necessary to [37 Cal. 2d 233] enable him to prescribe or act for the patient."
(Italics added.) "Prescribe" is the correlative of "physician"; a physician prescribes for a patient.
"Act" is the correlative of "surgeon"; a surgeon acts for a patient. A Missouri statute makes this
clear by providing "... which information was necessary to enable him to prescribe for such
patient as a physician, or to do any act for him as a surgeon." (Mo. Rev. Stats. 1949,
491.060(s).) The California statute embodies the same meaning by using the nouns physician or
surgeon in the disjunctive and the verb applicable to each--prescribe or act--likewise in the
disjunctive. Even if "act" were construed as relative to a physician as well as to a surgeon, the
privilege could still not be extended to personal-injury litigants that the statute excepts. The
statute refers to "information acquired in attending the patient." (Italics added.) A physician
attends a patient to treat, prescribe for, or act for him to prevent, palliate, or cure an ailment. [6]
If the person examined is not a patient there is no physician-patient relationship and therefore no
physician-patient privilege.

[7] Even if there is a physician-patient relationship, it is settled that the privilege given by the
statute is that of the patient, not that of the physician, and that if the patient does not claim the
privilege, it is waived. (Hirschberg v. Southern Pac. Co., 180 Cal. 774, 777 [183 P. 141]; Lissak
v. Crocker Estate Co., 119 Cal. 442, 445 [51 P. 688]; Wheelock v. Godfrey, 100 Cal. 578, 587 [35
P. 317]; San Francisco Credit Clearing-House v. MacDonald, 18 Cal. App. 212, 219 [122 P. 964];
see 20 Cal.L.Rev. 302, 311; 8 Wigmore, supra, 2386, p. 828.) The view taken in the Webb case,
however, would enable the physician to defeat the purpose of the statute by claiming the
privilege even though the patient does not. The plaintiff in that case, the only one who could
assert the privilege, did not do so; it was the physician who asserted it. "Respondent's counsel,
however, remained silent and expressly stated to the court that they would take no part in this
phase of the proceeding." (Webb v. Francis J. Lewald Coal Co., supra, at p. 185.)

The Contention That Dr. Catton Need Not Testify If He Is Not Paid More Than The Ordinary
Witness Fee

[8] Doctor Catton asserted a privilege personal to himself, a privilege not to testify to knowledge
and opinions that were the result of his special learning without payment of [37 Cal. 2d
234] more than the ordinary witness fee. Petitioner asks him to testify, not by reason of his
expertness in a special field, but because of his knowledge of specific facts as to Hession's
condition, facts pertinent to an issue to be tried. He is like any other witness with knowledge of
such facts; it is immaterial that he discovered them by reason of his special training. In testifying
as a witness he would simply be imparting information relevant to the issue, as he would had he
been a witness to the accident in which Hession was injured. "[A] physician who has acquired
knowledge of a patient or of specific facts in connection with a patient may be called upon to
testify to those facts without any compensation other than the ordinary witness receives for
attendance upon court." (McClenahan v. Keyes, 188 Cal. 574, 583 [206 P. 454]; see, also, People
v. Barnes, 111 Cal. App. 605, 610 [295 P. 1045]; People v. Conte, 17 Cal. App. 771, 784 [122 P.
450, 457]; Ex Parte Dement, 53 Ala. 389 [25 Am.Rep. 611]; Dixon v. People, 168 Ill. 179 [48
N.E. 108, 39 L.R.A. 116]; Summers v. State, 5 Tex.App. 365 [32 Am.Rep. 573]; Philler v.
Waukesha County, 139 Wis. 211 [120 N.W. 829, 17 Ann.Cas. 712, 25 L.R.A.N.S. 1040]; 8
Wigmore, supra, 2203, p. 134; 3 So.Cal.L.Rev. 448; 39 Yale L.J. 761; 2 A.L.R. 1576, 1577.)

The Attorney-Client Privilege

[9a] Although Dr. Catton can invoke no privilege of his own and there was no physician-patient
privilege in this case, we have concluded that Dr. Catton was an intermediate agent for
communication between Hession and his attorneys and that Hession may therefore invoke the
attorney-client privilege under section 1881, subdivision (2), of the Code of Civil Procedure.
That subdivision reads: "An attorney, can not, 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
professional employment; nor can an attorney's secretary, stenographer, or clerk be examined,
without the consent of his employer, concerning any fact the knowledge of which has been
acquired in such capacity." (See, also, Bus. & Prof. Code, 6068(e).) [10] This privilege is
strictly construed, since it suppresses relevant facts that may be necessary for a just decision.
(Satterlee v. Bliss, 36 Cal. 489, 508; Samish v. Superior Court, 28 Cal. App. 2d 685, 695 [83 P.2d
305]; see 27 Cal.Jur. 44, 51; 58 Am.Jur., Witnesses, 464, p. 261.) [11] It cannot be invoked [37
Cal. 2d 235] unless the client intended the communication to be confidential (McKnew v.
Superior Court, 23 Cal. 2d 58, 66 [142 P.2d 1]; Mission Film Corp. v. Chadwick Pictures Corp.,
207 Cal. 386, 390 [278 P. 855]; Franzen v. Shenk, 192 Cal. 572, 584 [221 P. 932]; Sharon v.
Sharon, 79 Cal. 633, 675-678 [22 P. 26, 131]; Hager v. Shindler, 29 Cal. 47, 63-64; Ver Bryck v.
Luby, 67 Cal. App. 2d 842, 844 [155 P.2d 706]; People v. Hall, 55 Cal. App. 2d 343, 356-357
[130 P.2d 733]; People v. White, 102 Cal. App. 647, 650 [283 P. 368]), and only communications
made to an attorney in the course of professional employment are privileged. (McKnew v.
Superior Court, supra, 65-67; Franzen v. Shenk, supra, 584; Sharon v. Sharon, supra, 678;
Mitchell v. Towne, 31 Cal. App. 2d 259, 265 [87 P.2d 908]; Ferguson v. Ash, 27 Cal. App. 375,
377-379 [150 P. 657].)

[12] The privilege is given on grounds of public policy in the belief that the benefits derived
therefrom justify the risk that unjust decisions may sometimes result from the suppression of
relevant evidence. Adequate legal representation in the ascertainment and enforcement of rights
or the prosecution or defense of litigation compels a full disclosure of the facts by the client to
his attorney. "Unless he makes known to the lawyer all the facts, the advice which follows will
be useless, if not misleading; the lawsuit will be conducted along improper lines, the trial will be
full of surprises, much useless litigation may result. Thirdly, unless the client knows that his
lawyer cannot be compelled to reveal what is told him, the client will suppress what he thinks to
be unfavorable facts." (Morgan, Foreword, Am. Law Inst. Code of Evidence, p. 25-26.) Given
the privilege, a client may make such a disclosure without fear that his attorney may be forced to
reveal the information confided to him. "[T]he absence of the privilege would convert the
attorney habitually and inevitably into a mere informer for the benefit of the opponent." (8
Wigmore, supra, 2380a, p. 813.)

[13] The privilege embraces not only oral or written statements but actions, signs, or other means
of communicating information by a client to his attorney. (Ex Parte McDonough, 170 Cal. 230,
234 [149 P. 566, Ann.Cas. 1916E 327, L.R.A. 1916C 593]; see 58 Am.Jur., Witnesses, 486, p.
272.) "(A)lmost any act, done by the client in the sight of the attorney and during the
consultation, may conceivably be done by the client as the subject of a communication, and
the [37 Cal. 2d 236] only question will be whether, in the circumstances of the case, it was
intended to be done as such. The client, supposedly, may make a specimen of his handwriting for
the attorney's information, or may exhibit an identifying scar, or may show a secret token. If any
of these acts are done as part of a communication to the attorney, and if further the
communication is intended to be confidential ..., the privilege comes into play." (8 Wigmore,
supra, 2306, p. 590.)

Petitioner contends that under the express terms of section 1881 (2) it is only the attorney and the
attorney's secretary, stenographer, or clerk who cannot be examined, and that since Dr. Catton
was not engaged in any of these capacities he cannot withhold the information requested.

[14] The statute specifically extends the client's privilege to preclude examination of the
attorney's secretary, stenographer, or clerk regarding information of communications between
attorney and client acquired in such capacities, to rule out the possibility of their coming within
the general rule that the privilege does not preclude the examination of a third person who
overhears or otherwise has knowledge of communications between a client and his attorney.
(Sharon v. Sharon, 79 Cal. 633, 677 [22 P. 26, 131]; Ver Bryck v. Luby, 67 Cal. App. 2d 842, 844
[155 P.2d 706]; Mitchell v. Towne, 31 Cal. App. 2d 259, 265 [87 P.2d 908]; Cohn v. Cohn, 130
Cal. App. 349, 355 [20 P.2d 61]; Carleton v. Bonham, 60 Cal. App. 725, 726, 732-733 [214 P.
503]; see, 8 Wigmore, supra, 2311, p. 600, 2326, p. 629; 27 Cal.Jur. 53; 11 Cal.Jur. 10-Yr.
Supp. (1950 Rev.) 685, note 3; 58 Am.Jur., Witnesses, 492, p. 275, 518, p. 291; 53 A.L.R.
369 et seq.) [15] It does not follow, however, that intermediate agents of communication between
attorney and client fall within that general rule. Had Hession himself described his condition to
his attorneys there could be no doubt that the communication would be privileged and that
neither the attorney nor Hession could be compelled to reveal it, even though a client is not listed
in section 1881 (2) among those who cannot be examined. (Verdelli v. Gray's Harbor etc. Co.,
115 Cal. 517 [47 P. 364]; Birmingham R. & E. Co. v. Wildman, 119 Ala. 547 [24 So. 548, 549-
550]; State v. White, 19 Kan. 445, 446-447 [27 Am.Rep. 137]; Hemenway v. Smith, 28 Vt. 701,
707; see, 8 Wigmore, supra, 2324, p. 628.) [16] It is no less the client's communication to the
attorney when it is given by the client to an agent for transmission to the attorney, and it is
immaterial whether the agent is the agent of the attorney, the client, or both. "(T)he [37 Cal. 2d
237] client's freedom of communication requires a liberty of employing other means than his
own personal action. The privilege of confidence would be a vain one unless its exercise could
be thus delegated. A communication, then, by any form of agency employed or set in motion by
[TEXT STRICKEN]-[the]- client is within the privilege.

"This of course includes communications through an interpreter, and also communications

through a messenger or any other agent of transmission, as well as communications originating
with the client's agent and made to the attorney. It follows, too, that the communications of the
attorney's agent to the attorney are within the privilege, because the attorney's agent is also the
client's sub-agent and is acting as such for the client." (8 Wigmore, supra, 2317, pp. 616-617;
New York Casualty Co. v. Superior Court, 30 Cal. App. 2d 130, 132-133 [85 P.2d 965]; Lewis v.
United Air Lines Transport Corp., 32 F. Supp. 21, 22; Schmitt v. Emery, 211 Minn. 547 [2
N.W.2d 413, 416, 139 A.L.R. 1242]; In re Heile, 65 Ohio App. 45 [29 N.E.2d 175, 176-177]; see
58 Am.Jur., Witnesses, 472, pp. 264-265, 497-498, pp. 279-280, 502, pp. 281-281; 70
C.J., Witnesses, 537, p. 401; cases collected in 139 A.L.R. 1256-1260; 53 A.L.R. 369, 373.)
[9b] Thus, when communication by a client to his attorney regarding his physical or mental
condition requires the assistance of a physician to interpret the client's condition to the attorney,
the client may submit to an examination by the physician without fear that the latter will be
compelled to reveal the information disclosed. (Webb v. Francis J. Lewald Coal Co., 214 Cal.
182, 186-187 [4 P.2d 532]; see 5 So.Cal.L.Rev. 446.) In Arnold v. City of Maryville, 110
Mo.App. 254 [85 S.W. 107, 108], and McMillen v. Industrial Comm. of Ohio (Ohio App.), 37
N.E.2d 632, on which petitioner relies, it was held, as we hold in the present case, that there was
no physician-patient privilege. In neither case, however, was the attorney-client privilege
invoked or considered.

[17] It is contended that the purpose of the patient-litigant exception in subdivision 4 of section
1881 would be defeated if the attorney- client privilege in subdivision 2 can be invoked to
prevent a physician from divulging the results of his examination of a person for the purpose of
aiding his attorneys in the preparation of an action for personal injuries. The two subdivisions
relate to two separate and distinct privileges. Since there was no physician-patient
relationship, [37 Cal. 2d 238] there was no physician-patient privilege to waive; the whole of
subdivision 4 including the exception was therefore inapplicable. It does not follow that if there
is no physician-patient privilege there can be no attorney-client privilege. [18] The patient-
litigant exception applies only to the physician- patient privilege in subdivision 4 and there is no
corresponding client- litigant exception in subdivision 2. Had Dr. Catton treated Hession before
being asked to serve as an intermediate agent between Hession and his attorneys, the patient-
litigant exception would apply and Dr. Catton would then have been like any other witness with
knowledge of facts pertinent to an issue to be tried. [19] The exception could not be defeated by
asking the physician to reveal his knowledge of the facts to the attorneys, for a litigant cannot
silence a witness by having him reveal his knowledge to the litigant's attorney. (See Hickman v.
Taylor, 329 U.S. 495, 506-509 [67 S. Ct. 385, 91 L. Ed. 451]; 8 Wigmore, supra, 2317-2318,
pp. 615-618; 58 Am.Jur., Witnesses, 498, pp. 279-280.) [20] Similarly, if Dr. Catton should
now treat Hession, any information acquired in the course of that treatment would not be
privileged, although the results of his previous examinations and his reports to Hession's
attorneys would be.

The alternative writ of mandamus is discharged, and the petition for the peremptory writ is
denied.

Gibson, C.J., Shenk, J., Edmonds, J., Carter, J., Schauer, J., and Spence, J., concurred.

FN *. "Physician and patient. A licensed physician or surgeon cannot, without the consent of his
patient, be examined in a civil action, as to any information acquired in attending the patient,
which was necessary to enable him to prescribe or act for the patient; ... provided further, that
where any person brings an action to recover damages for personal injuries, such action shall be
deemed to constitute a consent by the person bringing such action that any physician who has
prescribed for or treated said person and whose testimony is material in said action shall
testify. ..."
Canon 21, Rule 21.07

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-961 September 21, 1949

BLANDINA GAMBOA HILADO, petitioner,

vs.
JOSE GUTIERREZ DAVID, VICENTE J. FRANCISCO, JACOB ASSAD and SELIM
JACOB ASSAD, respondents.

Delgado, Dizon and Flores for petitioner.

Vicente J. Francisco for respondents.

TUASON, J.:

It appears that on April 23, 1945, Blandina Gamboa Hilado brought an action against Selim
Jacob Assad to annul the sale of several houses and lot executed during the Japanese occupation
by Mrs. Hilado's now deceased husband.

On May 14, Attorneys Ohnick, Velilla and Balonkita filed an answer on behalf of the defendant;
and on June 15, Attorneys Delgado, Dizon, Flores and Rodrigo registered their appearance as
counsel for the plaintiff. On October 5, these attorneys filed an amended complaint by including
Jacob Assad as party defendant.

On January 28, 1946, Attorney Francisco entered his appearance as attorney of record for the
defendant in substitution for Attorney Ohnick, Velilla and Balonkita who had withdrawn from
the case.

On May 29, Attorney Dizon, in the name of his firm, wrote Attorney Francisco urging him to
discontinue representing the defendants on the ground that their client had consulted with him
about her case, on which occasion, it was alleged, "she turned over the papers" to Attorney
Francisco, and the latter sent her a written opinion. Not receiving any answer to this suggestion,
Attorney Delgado, Dizon, Flores and Rodrigo on June 3, 1946, filed a formal motion with the
court, wherein the case was and is pending, to disqualify Attorney Francisco.

Attorney Francisco's letter to plaintiff, mentioned above and identified as Exhibit A, is in full as
follows:
 VICENTE J. FRANCISCO
Attorney-at-Law
1462 Estrada, Manila

July 13, 1945.

Mrs. Blandina Gamboa Hilado

Manila, Philippines

My dear Mrs. Hilado:

From the papers you submitted to me in connection with civil case No. 70075 of the
Court of First Instance of Manila, entitled "Blandina Gamboa Hilado vs. S. J. Assad," I
find that the basic facts which brought about the controversy between you and the
defendant therein are as follows:

(a) That you were the equitable owner of the property described in the complaint, as the
same was purchased and/or built with funds exclusively belonging to you, that is to say,
the houses and lot pertained to your paraphernal estate;

(b) That on May 3, 1943, the legal title to the property was with your husband, Mr.
Serafin P. Hilado; and

(c) That the property was sold by Mr. Hilado without your knowledge on the aforesaid
date of May 3, 1943.

Upon the foregoing facts, I am of the opinion that your action against Mr. Assad will not
ordinarily prosper. Mr. Assad had the right to presume that your husband had the legal
right to dispose of the property as the transfer certificate of title was in his name.
Moreover, the price of P110,000 in Japanese military notes, as of May 3, 1943, does not
quite strike me as so grossly inadequate as to warrant the annulment of the sale. I believe,
lastly, that the transaction cannot be avoided merely because it was made during the
Japanese occupation, nor on the simple allegation that the real purchaser was not a citizen
of the Philippines. On his last point, furthermore, I expect that you will have great
difficulty in proving that the real purchaser was other than Mr. Assad, considering that
death has already sealed your husband's lips and he cannot now testify as to the
circumstances of the sale.

For the foregoing reasons, I regret to advise you that I cannot appear in the proceedings
in your behalf. The records of the case you loaned to me are herewith returned.

Yours very truly,

 (Sgd.) VICENTE J. FRANCISCO

VJF/Rag.

In his answer to plaintiff's attorneys' complaint, Attorney Francisco alleged that about May, 1945,
a real estate broker came to his office in connection with the legal separation of a woman who
had been deserted by her husband, and also told him (Francisco) that there was a pending suit
brought by Mrs. Hilado against a certain Syrian to annul the sale of a real estate which the
deceased Serafin Hilado had made to the Syrian during the Japanese occupation; that this woman
asked him if he was willing to accept the case if the Syrian should give it to him; that he told the
woman that the sales of real property during the Japanese regime were valid even though it was
paid for in Japanese military notes; that this being his opinion, he told his visitor he would have
no objection to defending the Syrian;

That one month afterwards, Mrs. Hilado came to see him about a suit she had instituted against a
certain Syrian to annul the conveyance of a real estate which her husband had made; that
according to her the case was in the hands of Attorneys Delgado and Dizon, but she wanted to
take it away from them; that as he had known the plaintiff's deceased husband he did not hesitate
to tell her frankly that hers was a lost case for the same reason he had told the broker; that Mrs.
Hilado retorted that the basis of her action was not that the money paid her husband was
Japanese military notes, but that the premises were her private and exclusive property; that she
requested him to read the complaint to be convinced that this was the theory of her suit; that he
then asked Mrs. Hilado if there was a Torrens title to the property and she answered yes, in the
name of her husband; that he told Mrs. Hilado that if the property was registered in her husband's
favor, her case would not prosper either;

That some days afterward, upon arrival at his law office on Estrada street, he was informed by
Attorney Federico Agrava, his assistant, that Mrs. Hilado had dropped in looking for him and
that when he, Agrava, learned that Mrs. Hilado's visit concerned legal matters he attended to her
and requested her to leave the "expediente" which she was carrying, and she did; that he told
Attorney Agrava that the firm should not handle Mrs. Hilado's case and he should return the
papers, calling Agrava's attention to what he (Francisco) already had said to Mrs. Hilado;

That several days later, the stenographer in his law office, Teofilo Ragodon, showed him a letter
which had been dictated in English by Mr. Agrava, returning the "expedients" to Mrs. Hilado;
that Ragodon told him (Attorney Francisco) upon Attorney Agrava's request that Agrava thought
it more proper to explain to Mrs. Hilado the reasons why her case was rejected; that he forthwith
signed the letter without reading it and without keeping it for a minute in his possession; that he
never saw Mrs. Hilado since their last meeting until she talked to him at the Manila Hotel about a
proposed extrajudicial settlement of the case;
That in January, 1946, Assad was in his office to request him to handle his case stating that his
American lawyer had gone to the States and left the case in the hands of other attorneys; that he
accepted the retainer and on January 28, 1946, entered his appearance.

Attorney Francisco filed an affidavit of stenographer Ragodon in corroboration of his answer.

The judge trying the case, Honorable Jose Gutierrez David, later promoted to the Court of
Appeals, dismissed the complaint. His Honor believed that no information other than that already
alleged in plaintiff's complaint in the main cause was conveyed to Attorney Francisco, and
concluded that the intercourse between the plaintiff and the respondent did not attain the point of
creating the relation of attorney and client.

Stripped of disputed details and collateral matters, this much is undoubted: That Attorney
Francisco's law firm mailed to the plaintiff a written opinion over his signature on the merits of
her case; that this opinion was reached on the basis of papers she had submitted at his office; that
Mrs. Hilado's purpose in submitting those papers was to secure Attorney Francisco's professional
services. Granting the facts to be no more than these, we agree with petitioner's counsel that the
relation of attorney and client between Attorney Francisco and Mrs. Hilado ensued. The
following rules accord with the ethics of the legal profession and meet with our approval:

In order to constitute the relation (of attorney and client) a professional one and not
merely one of principal and agent, the attorneys must be employed either to give advice
upon a legal point, to prosecute or defend an action in court of justice, or to prepare and
draft, in legal form such papers as deeds, bills, contracts and the like. (Atkinson vs.
Howlett, 11 Ky. Law Rep. (abstract), 364; cited in Vol. 88, A. L. R., p. 6.)

To constitute professional employment it is not essential that the client should have
employed the attorney professionally on any previous occasion. . . . It is not necessary
that any retainer should have been paid, promised, or charged for; neither is it material
that the attorney consulted did not afterward undertake the case about which the
consultation was had. If a person, in respect to his business affairs or troubles of any kind,
consults with his attorney in his professional capacity with the view to obtaining
professional advice or assistance, and the attorney voluntarily permits or acquiesces in
such consultation, then the professional employment must be regarded as established. . . .
(5 Jones Commentaries on Evidence, pp. 4118-4119.)

An attorney is employed-that is, he is engaged in his professional capacity as a lawyer or

counselor-when he is listening to his client's preliminary statement of his case, or when
he is giving advice thereon, just as truly as when he is drawing his client's pleadings, or
advocating his client's cause in open court. (Denver Tramway Co. vs. Owens, 20 Colo.,
107; 36 P., 848.)

Formality is not an essential element of the employment of an attorney. The contract may
be express or implied and it is sufficient that the advice and assistance of the attorney is
sought and received, in matters pertinent to his profession. An acceptance of the relation
is implied on the part of the attorney from his acting in behalf of his client in pursuance
 of a request by the latter. (7 C. J. S., 848-849; see Hirach Bros. and Co. vs. R. E.
Kennington Co., 88 A. L. R., 1.)

Section 26 (e), Rule 123 of the Rules of Court provides that "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 professional employment;" and section 19 (e) of Rule 127
imposes upon an attorney the duty "to maintain inviolate the confidence, and at every peril to
himself, to preserve the secrets of his client." There is no law or provision in the Rules of Court
prohibiting attorneys in express terms from acting on behalf of both parties to a controversy
whose interests are opposed to each other, but such prohibition is necessarily implied in the
injunctions above quoted. (In re De la Rosa, 27 Phil., 258.) In fact the prohibition derives
validity from sources higher than written laws and rules. As has been aptly said in In re Merron,
22 N. M., 252, L.R.A., 1917B, 378, "information so received is sacred to the employment to
which it pertains," and "to permit it to be used in the interest of another, or, worse still, in the
interest of the adverse party, is to strike at the element of confidence which lies at the basis of,
and affords the essential security in, the relation of attorney and client."

That only copies of pleadings already filed in court were furnished to Attorney Agrava and that,
this being so, no secret communication was transmitted to him by the plaintiff, would not vary
the situation even if we should discard Mrs. Hilado's statement that other papers, personal and
private in character, were turned in by her. Precedents are at hand to support the doctrine that the
mere relation of attorney and client ought to preclude the attorney from accepting the opposite
party's retainer in the same litigation regardless of what information was received by him from
his first client.

The principle which forbids an attorney who has been engaged to represent a client from
thereafter appearing on behalf of the client's opponent applies equally even though during
the continuance of the employment nothing of a confidential nature was revealed to the
attorney by the client. (Christian vs. Waialua Agricultural Co., 30 Hawaii, 553, Footnote
7, C. J. S., 828.)

Where it appeared that an attorney, representing one party in litigation, had formerly
represented the adverse party with respect to the same matter involved in the litigation,
the court need not inquire as to how much knowledge the attorney acquired from his
former during that relationship, before refusing to permit the attorney to represent the
adverse party. (Brown vs. Miller, 52 App. D. C. 330; 286, F. 994.)

In order that a court may prevent an attorney from appearing against a former client, it is
unnecessary that the ascertain in detail the extent to which the former client's affairs
might have a bearing on the matters involved in the subsequent litigation on the attorney's
knowledge thereof. (Boyd vs. Second Judicial Dist. Court, 274 P., 7; 51 Nev., 264.)

This rule has been so strictly that it has been held an attorney, on terminating his
employment, cannot thereafter act as counsel against his client in the same general
matter, even though, while acting for his former client, he acquired no knowledge which
 could operate to his client's disadvantage in the subsequent adverse employment. (Pierce
vs. Palmer [1910], 31 R. I., 432; 77 Atl., 201, Ann. Cas., 1912S, 181.)

Communications between attorney and client are, in a great number of litigations, a complicated
affair, consisting of entangled relevant and irrelevant, secret and well known facts. In the
complexity of what is said in the course of the dealings between an attorney and a client, inquiry
of the nature suggested would lead to the revelation, in advance of the trial, of other matters that
might only further prejudice the complainant's cause. And the theory would be productive of
other un salutary results. To make the passing of confidential communication a condition
precedent; i.e., to make the employment conditioned on the scope and character of the
knowledge acquired by an attorney in determining his right to change sides, would not enhance
the freedom of litigants, which is to be sedulously fostered, to consult with lawyers upon what
they believe are their rights in litigation. The condition would of necessity call for an
investigation of what information the attorney has received and in what way it is or it is not in
conflict with his new position. Litigants would in consequence be wary in going to an attorney,
lest by an unfortunate turn of the proceedings, if an investigation be held, the court should accept
the attorney's inaccurate version of the facts that came to him. "Now the abstinence from seeking
legal advice in a good cause is by hypothesis an evil which is fatal to the administration of
justice." (John H. Wigmore's Evidence, 1923, Section 2285, 2290, 2291.)

Hence the necessity of setting down the existence of the bare relationship of attorney and client
as the yardstick for testing incompatibility of interests. This stern rule is designed not alone to
prevent the dishonest practitioner from fraudulent conduct, but as well to protect the honest
lawyer from unfounded suspicion of unprofessional practice. (Strong vs. Int. Bldg., etc.; Ass'n,
183 Ill., 97; 47 L.R.A., 792.) It is founded on principles of public policy, on good taste. As has
been said in another case, the question is not necessarily one of the rights of the parties, but as to
whether the attorney has adhered to proper professional standard. With these thoughts in mind, it
behooves attorneys, like Caesar's wife, not only to keep inviolate the client's confidence, but also
to avoid the appearance of treachery and double-dealing. Only thus can litigants be encouraged
to entrust their secrets to their attorneys which is of paramount importance in the administration
of justice.

So without impugning respondent's good faith, we nevertheless can not sanction his taking up the
cause of the adversary of the party who had sought and obtained legal advice from his firm; this,
not necessarily to prevent any injustice to the plaintiff but to keep above reproach the honor and
integrity of the courts and of the bar. Without condemning the respondents conduct as dishonest,
corrupt, or fraudulent, we do believe that upon the admitted facts it is highly in expedient. It had
the tendency to bring the profession, of which he is a distinguished member, "into public
disrepute and suspicion and undermine the integrity of justice."

There is in legal practice what called "retaining fee," the purpose of which stems from the
realization that the attorney is disabled from acting as counsel for the other side after he has
given professional advice to the opposite party, even if he should decline to perform the
contemplated services on behalf of the latter. It is to prevent undue hardship on the attorney
resulting from the rigid observance of the rule that a separate and independent fee for
consultation and advice was conceived and authorized. "A retaining fee is a preliminary fee
given to an attorney or counsel to insure and secure his future services, and induce him to act for
the client. It is intended to remunerate counsel for being deprived, by being retained by one
party, of the opportunity of rendering services to the other and of receiving pay from him, and
the payment of such fee, in the absence of an express understanding to the contrary, is neither
made nor received in payment of the services contemplated; its payment has no relation to the
obligation of the client to pay his attorney for the services which he has retained him to
perform." (7 C.J.S., 1019.)

The defense that Attorney Agrava wrote the letter Exhibit A and that Attorney Francisco did not
take the trouble of reading it, would not take the case out of the interdiction. If this letter was
written under the circumstances explained by Attorney Francisco and he was unaware of its
contents, the fact remains that his firm did give Mrs. Hilado a formal professional advice from
which, as heretofore demonstrated, emerged the relation of attorney and client. This letter binds
and estop him in the same manner and to the same degree as if he personally had written it. An
information obtained from a client by a member or assistant of a law firm is information
imparted to the firm. (6 C. J., 628; 7 C. J. S., 986.) This is not a mere fiction or an arbitrary rule;
for such member or assistant, as in our case, not only acts in the name and interest of the firm,
but his information, by the nature of his connection with the firm is available to his associates or
employers. The rule is all the more to be adhered to where, as in the present instance, the opinion
was actually signed by the head of the firm and carries his initials intended to convey the
impression that it was dictated by him personally. No progress could be hoped for in "the public
policy that the client in consulting his legal adviser ought to be free from apprehension of
disclosure of his confidence," if the prohibition were not extended to the attorney's partners,
employers or assistants.

The fact that petitioner did not object until after four months had passed from the date Attorney
Francisco first appeared for the defendants does not operate as a waiver of her right to ask for his
disqualification. In one case, objection to the appearance of an attorney was allowed even on
appeal as a ground for reversal of the judgment. In that case, in which throughout the conduct of
the cause in the court below the attorney had been suffered so to act without objection, the court
said: "We are all of the one mind, that the right of the appellee to make his objection has not
lapsed by reason of failure to make it sooner; that professional confidence once reposed can
never be divested by expiration of professional employment." (Nickels vs. Griffin, 1 Wash. Terr.,
374, 321 A. L. R. 1316.)

The complaint that petitioner's remedy is by appeal and not by certiorari deserves scant attention.
The courts have summary jurisdiction to protect the rights of the parties and the public from any
conduct of attorneys prejudicial to the administration of the justice. The summary jurisdiction of
the courts over attorneys is not confined to requiring them to pay over money collected by them
but embraces authority to compel them to do whatever specific acts may be incumbent upon
them in their capacity of attorneys to perform. The courts from the general principles of equity
and policy, will always look into the dealings between attorneys and clients and guard the latter
from any undue consequences resulting from a situation in which they may stand unequal. The
courts acts on the same principles whether the undertaking is to appear, or, for that matter, not to
appear, to answer declaration, etc. (6 C.J., 718 C.J.S., 1005.) This summary remedy against
attorneys flows from the facts that they are officers of the court where they practice, forming a
part of the machinery of the law for the administration of justice and as such subject to the
disciplinary authority of the courts and to its orders and directions with respect to their relations
to the court as well as to their clients. (Charest vs. Bishop, 137 Minn., 102; 162, N.W., 1062,
Note 26, 7 C. J. S., 1007.) Attorney stand on the same footing as sheriffs and other court officers
in respect of matters just mentioned.We conclude therefore that the motion for disqualification
should be allowed. It is so ordered, without costs. Moran, C.J., Ozaeta, Paras, Feria, Bengzon,
Padilla, Montemayor, Reyes and Torres, JJ., concur.