Confidentiality between lawyers and clients (b) When required by law;

Problem Areas in Legal Ethics (c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.

•
Arellano University School of Law – Arellano Law Foundation
2018-2019
Rule 21.02 - A lawyer shall not, _______________ of his client, use information acquired in the course of
__________________, nor shall he use the same to _________________ or that of a third person, unless the
…..
client with full knowledge of the circumstances ______________ thereto.
Rule 12.06 - A lawyer shall not knowingly assist a witness to misrepresent himself or to impersonate another.

Rule 12.07 - A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him.
Rule 12.08 - A lawyer shall avoid testifying in behalf of his client, except:
(a) on formal matters, such as the mailing, authentication or custody of an instrument, and the like; or
(b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must,
• Rule 21.03 - A lawyer shall not, _____________________________ 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.
Canon 21 – A lawyer shall preserve the confidence and secrets of his client even after the
attorney-client relation is terminated

•
during his testimony, entrust the trial of the case to another counsel.
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;
CANON 19 - A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE LAW.
(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 19.01 - A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and shall
not present, participate in presenting or threaten to present unfounded criminal charges to obtain an
improper advantage in any case or proceeding.
Rule 19.02 - A lawyer who has received information that his client has, in the course of the representation,
• 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
perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and client with full knowledge of the circumstances consents thereto.
failing which he shall terminatethe relationship with such client in accordance with the Rules of Court.
Rule 19.03 - A lawyer shall not allow his client to dictate the procedure in handling the case.
• 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
CANON 15 - A lawyer shall observe ____________, _____________ and _____________ in all his dealings and
transactions with his clients processing, or any similar purpose.

• Rule 15.02. - A lawyer shall be bound by the rule on ______________________ in respect of matters
disclosed to him by a ______________________ client.
Cont…
Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or associates thereof
_________________ by the client.
Rule 21.05 - A lawyer shall ____________________as may be required to prevent those whose services are utilized by

•
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 ______________________ by the
client to him, or his _________________ thereon in the course of, or with a view to, professional _________________,
nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his
employer, concerning any ______________ the knowledge of which has been acquired in such capacity;
CANON 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his
clients
him, from disclosing or using confidences or secrets of the clients.
Rule 21.06 - A lawyer shall _________________conversation about a client's affairs even with members of his family.
Rule 21.07 - A lawyer __________________that he has been consulted about a particular case except to avoid
_________________________________.
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 measuresas 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 indiscreetconversation about a client's affairs even with members of his family.

•
Rule 21.07 - A lawyer shall not revealthat he has been consulted about a particular case except to avoid possible
Rule 15.02. - A lawyer shall be bound by the rule on privilege communication in respect of matters conflict of interest.
disclosed to him by a prospective client.
Rule 138 of the Rules of Court

• Rule 130 Sec. 24.Disqualification by reason of privileged communication. — The following persons
cannot testify as to matters learned in confidence:
Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the ______________, and at every peril to himself, to
____________________________, and to accept no compensation in connection with his client's business except from
him or with his knowledge and approval.
(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 Rule 138 of the Rules of Court
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; 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
Canon 21 – A lawyer shall preserve the confidence and secrets of his client even after the from him or with his knowledge and approval.
attorney-client relation is terminated

•
Canon 17. A lawyer ____________ to the cause of his client and he shall be mindful of the ____________________
reposed in him.
Rule 21.01 - A lawyer shall not reveal the confidences or secrets of his client except;
Canon 17. A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence
(a) When authorized by the client after acquainting him of the consequences of the disclosure;
reposed in him.

1
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.
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.

Confidentiality is not the same as the attorney-client privilege 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.
The lawyer’s duty of confidentiality (an ethical duty) is not the same as the client’s right to assert the 2) Where disclosure would open the client to civil liability; his identity is privileged.
attorney client privilege (a rule of evidence). 3) Where the government's lawyers have no case against an attorney's client unless, by revealing the client's name,

•
The attorney/client privilege extends only to communications between lawyers and clients relating to
legal services and which the client reasonably believes is confidential.
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]
Any disclosure may waive the attorney/client privilege as to other otherwise protected matters; not so with
the duty of confidentiality. Communication to commit crime or fraud not privileged

• The privilege applies only to limiting testimony in a legal proceeding. The duty of confidentiality
• "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
limits voluntary disclosures anywhere. 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.
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
• The relation of attorney and client cannot exist for the purpose of counsel in concocting crimes.

•
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
The protection which the law affords to communications between attorney and client has reference to
curtailed thereby rendering the right practically nugatory. The threat this represents against another sacrosanct
those which are legitimately and properly within the scope of a lawful employment, and does not extend
individual right, the right to be presumed innocent is at once self-evident. - Regala et. al. v. Sandiganbayan, G. R.
to communications made in contemplation of a crime, or perpetration of a fraud. -Dissenting
No. 105938 [1996]
opinion, 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
It does not extend to those made in contemplation of a crime or perpetration of a fraud. If the unlawful purpose is
to all information relating to the representation, whatever its source. A lawyer may not disclose such information
avowed, as in this case, the complainant’s alleged intention to bribe government officials in relation to his case, the
except as authorized or required by the Rules of Professional Conduct or other law.
communication is not covered by the privilege as the client does not consult the lawyer professionally. It is not
Lawyer’s duty to keep the confidentiality
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
An effective lawyer-client relationship is largely dependent upon the degree of confidence which exists
for hire. Thus, the attorney-client privilege does not attach, there being no professional employment in the strict
between lawyer and client which in turn requires a situation which encourages a dynamic and fruitful exchange
sense. - Genato v. Atty. Silapan, A.C. No. 4078. July 14, 2003
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
Extent of confidentiality
et. al. v. Sandiganbayan, G. R. No. 105938 [1996]
An attorney's duty of confidentiality, which totally covers the client's admission of guilt, does not extend to a
client's announced plans to engage in future criminal conduct. - Clark v. United States, 289 U. S. 1, 289 U. S. 15
Duty of lawyer when receiving a material not intended for him
Cause of client defense is not absolute
A lawyer who receives on an unauthorized basis materials of an adverse party that she knows to be privileged or
Whatever the contours of the line between traditional lawyering and criminal conduct, they must inevitably be
confidential should, upon recognizing the privileged or confidential nature of the materials, either refrain from
drawn case-by-case. We refuse to accept the notion that lawyers may do anything, including violating the law, to
reviewing such materials or review them only to the extent required to determine how appropriately to proceed;
zealously advocate their clients' interests and then avoid criminal prosecution by claiming that they were "just
She should notify her adversary's lawyer that she has such materials and should either follow instructions of the
doing their job." - United States v. Cueto (7th Cir. 1998) 151 F.3d 620, 634
adversary's lawyer with respect to the disposition of the materials, or refrain from using the materials until a
Permanent nature of duty to keep confidentiality
definitive resolution of the proper disposition of the materials is obtained from a court. - ABA Comm. on Ethics and
The duty to maintain inviolate the client’s confidences and secrets is not temporary but permanent. It is in
Prof'l Responsibility, Formal Op. 382 (1994).
effect perpetual for "it outlasts the lawyer’s employment" (Canon 37, Code of Professional Responsibility) which
General Rule on client’s identity
means even after the relationship has been terminated, the duty to preserve the client’s confidences and secrets
As a matter of public policy, a client's identity should not be shrouded in mystery. Under this premise, the general
remains effective.
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]
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
Reasons advanced for the general rule

2
affected by the party’s ceasing to employ the attorney and retaining another, or by any other change of relation A confidential communication refers to information transmitted by voluntary act of disclosure between attorney
between them. It even survives the death of the client. – Genato v. Atty. Silapan, A.C. No. 4078. July 14, 2003 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
Secrets or confidential communications must be obtained in a lawyer-client relationship purpose for which it was given.
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 The duty to preserve client information is broad and exacting; it is violated even by a revelation made with
redemptioner of a property originally owned by his deceased son and therefore, when respondent filed the complaint honest intentions and motives.
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 Attorney-Client Privilege cannot be invoked
instituting a case against anyone to protect his personal or proprietary interests. – Uy v. Atty. Gonzales, A.C. No. 5280,
March 30, 2004 1. There is consent or waiver or client.
It must be stressed, however, that the privilege against disclosure of confidential communications or information is 2. Such is required by law.
limited only to communications which are legitimately and properly within the scope of a lawful 3. Such is made to protect the lawyer’s rights (i.e. to collect his fees or associates or by judicial action).
employment of a lawyer. - Genato v. Atty. Silapan, A.C. No. 4078. July 14, 2003 4. When such communication are made in contemplation of a crime or the perpetuation of a fraud.

Starting point of duty of confidentiality The principle of client-lawyer confidentiality is given effect
The moment complainant approached the then receptive respondent to seek legal advice, a veritable lawyer-client by related bodies of law
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] the attorney-client privilege,

This duty of confidentiality also extends to prospective clients even though an attorney-client relationship is never
established.
• the work product doctrine and

Not a defense to justify breaching the duty of confidentiality • 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.
Lawyer not inclined to handle the client's case after consultation.

•
The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the
lawyer through compulsion of law.
no formal professional engagement follows the consultation. When confidentiality does not extend
to partners and associates

• no contract whatsoever was executed by the parties to memorialize the relationship.

- Hadjula v. Atty. Madianda, A.C. No. 6711 [2007]
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.
The essential factors to establish the existence of the attorney-client privilege communication
(1) Where legal advice of any kind is sought
Protection from third party
(2) from a professional legal adviser in his capacity as such,
This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but
(3) the communications relating to that purpose,
could reasonably lead to the discovery of such information by a third person.
(4) made in confidence
(5) by the client,
Disclosure of the Client's Identity and Whereabouts
(6) are at his instance permanently protected
The general rule is that a client's identity and whereabouts are not covered by the attorney-client privilege, as
(7) from disclosure by himself or by the legal advisor,
opposed to the ethical duty of confidentiality.
(8) except the protection be waived.
However, exceptions have been made if disclosure would implicate the client in the criminal activity for which legal
- Hadjula v. Atty. Madianda, A.C. No. 6711 [2007]
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)
Characteristics of the Attorney-Client Privilege

1.
2.
A-C privilege where legal advice is professionally sought from an attorney.
The client must intend the above communication to be confidential.
• Lawyer must testify about identity of client who paid with counterfeit $100 bill.

3. A-C privilege embraces all forms of communication and action.

4.

5.
As a general rule, A-C privilege also extends to the attorney’s secretary, stenographer, clerk or agent with
reference to any fact required in such capacity.
The above duty is perpetual and is absolutely privileged from disclosure.
• 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

……..
The communication made by a client to his attorney must not be intended for mere information, but for the purpose
of seeking legal advice from his attorney as to his rights or obligations.
The communication must have been transmitted by a client to his attorney for the purpose of seeking legal advice.
……..
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;

3
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 tecumissued 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)
Representing a fugitive
Assuming the client is indeed properly characterized as a fugitive, defense counsel must take into account the
boundaries of permissible advocacy. It bears noting that any physical act intended to harbor or conceal a fugitive
so as to prevent his discovery or arrest arguably could constitute a separate criminal violation.
A lawyer “is free to continue to give legal advice to [a fugitive] client and to represent him before the authorities, as
long as [the lawyer] does nothing to aid the client to escape trial.
Client is under conditions of bail
“Where a client is under conditions of bail and defies a lawful court order to appear, his 'whereabouts' are
not unqualifiedly protected by the attorney-client privilege, and the attorney may be compelled to disclose
information of the client's whereabouts." - Commonwealth v. Maguigan,511 A2d 1327 (Pa SupCt 1986)
Lawyer who learned from client's wife that client had left with suitcase for "parts unknown" had firm factual basis for
believing client jumped bond and did not intend to appear for trial, thus had duty to advise court to avoid
assisting in criminal act. - U.S. v. DelCarpio-Cotrina,733 FSupp 95 (DC SFla 1990)
An attorney representing an individual who has violated the terms of bail and fled the jurisdiction arguably has
an even greater obligation as an officer of the court to seek the prompt return of the client in compliance with a
judicial release order.
An attorney “may not assist the [fugitive] client in any way that the lawyer knows will further an illegal or
fraudulent purpose.”- Association of the Bar of the City of New York Formal Opinion 1999-02
…….
4
Where an attorney believes, but does not know, conduct to be illegal or fraudulent, the attorney may act on behalf
of the fugitive client, but “only after assuring him or herself that there is reasonable support for an argument that the
client’s intended use of the fruits of the representation will not further a criminal scheme or act. -
Association of the Bar of the City of New York Formal Opinion 1999-02
WON the Sixth Amendment right of a criminal defendant to assistance of counsel is violated when an
attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial.
……..
[Accused] was charged with murder, and when counsel was appointed, he objected to the lawyer initially appointed,
claiming that he felt uncomfortable with a lawyer who had formerly been a prosecutor.
[Another counsel] was then appointed, and immediately began an investigation. [Accused] gave him a statement that
he had stabbed [the victim] as the latter "was pulling a pistol from underneath the pillow on the bed."
Upon [further] questioning by counsel, however, [accused] indicated that he had not actually seen a gun, but that he
was convinced that [the victim] had a gun.
…….
No pistol was found on the premises; shortly after the police search following the stabbing, which had revealed no
weapon, the victim's family had removed all of the victim's possessions from the apartment.
[Counsel] interviewed [accused’s] companions who were present during the stabbing, and none had seen a gun
during the incident.
[Counsel] advised [the accused] that the existence of a gun was not necessary to establish the claim of self-defense,
and that only a reasonable belief that the victim had a gun nearby was necessary, even though no gun was actually
present.
…….
"[W]e could not allow him to [testify falsely], because that would be perjury, and, as officers of the court, we would be
suborning perjury if we allowed him to do it; . . . I advised him that, if he did do that, it would be my duty to advise
the Court of what he was doing, and that I felt he was committing perjury; also, that I probably would be allowed
to attempt to impeach that particular testimony."
…….
"When false evidence is offered by the client, however, a conflict may arise between the lawyer's duty to keep
the client's revelations confidential and the duty of candor to the court.
Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence
should not be offered or, if it has been offered, that its false character should immediately be disclosed."
…….
That court held that the right to have counsel present all appropriate defenses does not extend to using perjury, and
that an attorney's duty to a client does not extend to assisting a client in committing perjury.
It is universally agreed that, at a minimum, the attorney's first duty when confronted with a proposal for perjurious
testimony is to attempt to dissuade the client from the unlawful course of conduct. - Nix v. Whiteside, 475 U.S. 157
(1986)
………
Rule 19.02 - A lawyer who has received information that his client has, in the course of the representation,
perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and
failing which he shall terminate the relationship with such client in accordance with the Rules of Court.
"Does the attorney-client privilege protect an attorney from revealing information on the whereabouts of
his or her client?"
…..
Appellant's client, Carlos Aquino, was scheduled to stand trial on April 7, 1983, on a charge of rape. When Aquino did
not appear for trial, the [state] moved the trial court to compel appellant to "disclose the address and telephone
number of the Defendant.”
…….
Appellant is an attorney. She was before the trial court representing one Carlos Aquino, who was scheduled to stand
trial on a charge of rape. On the Commonwealth's petition, the trial court granted appellant immunity from the
use against her of her testimony disclosing "any information she may have regarding the whereabouts of the . . .
Defendant, Carlos Aquino, and any information she may have on how to locate the Defendant Aquino."
When the court ordered appellant to provide this information, appellant declined to do so on the grounds that the
court lacked jurisdiction to compel her testimony; that the grant of immunity did not effectively protect her rights
under the Fifth Amendment; and that the information she had been ordered to disclose was protected by the
attorney-client privilege.
The court then found appellant guilty of civil contempt and ordered her to pay a fine…
……
We are not asking [appellant] to tell us how to find [defendant] or anything. We have a right to know. This court has
a right to know where he is, if she knows, and that's all.
We are not asking what communications he has had with her, anything he said with regard to where he has been
hiding. . . . We are merely asking is there an address, if she knows his address and the Court deserves to
know that.
…..
At the first hearing, the [state’s] motion was "to [c]ompel defense counsel [appellant] to disclose the address and
telephone number of the Defendant,"
"We are not asking [appellant] to tell us how to find him or anything. . . . We are merely asking is there an address, if
she knows his address and the Court deserves to have that,"
……
Then the trial court asked "whether [appellant] knows the whereabouts of the Defendant.
- Commonwealth v. [Atty.] Maguigan, 323 Pa. Superior Ct. 317 (1983)
"When false evidence is offered by the client, however, a conflict may arise between the lawyer's duty to keep the
client's revelations confidential and the duty of candor to the court. Upon ascertaining that material evidence is false,
the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its
false character should immediately be disclosed." 475 U.S. 157 (1986)
 Thank you for your attention!!
Doctrine of privilege communications in pleadings and judicial proceedings
Problem Areas in Legal Ethics

WON the attorney involved in this case properly declined to disclose to a grand jury the whereabouts of a client who Arellano University School of Law – Arellano Law Foundation
had consulted the attorney about a fugitive warrant.
2018-2019
In deciding whether the "crime or fraud" exception applies, the relevant factor to consider is whether the client
consulted with the attorney in order:
(1) to aid the client "in the commission of any crime";
(2) to enable the client "to avoid any criminal investigation or proceeding pending at the time the advice was given";
or Concept of “privileged communication [speech]”
(3) to assist the client to "avoid lawful process in any proceeding pending at the time the advice was given."
1. Privileged communication as rule of evidence
[Counsel] refused to answer five questions, asserting the attorney-client privilege:
(1) What number did you call when you called him back [during the week of June 29, 1987]? 2. Privileged communication as basis to keep confidential the secrets or confidences of client
(2)Did you advise your client that in the opinion of the Warren County Prosecutor's Office, he was a fugitive from
justice? 3. Privileged speech in congress
(3) Have you advised him that he should comply with the law?
(4) Can you tell the Grand Jury what his occupation is?
4. Privileged communications made in the course of juridical proceedings, including all kinds of pleadings, petitions
(5) Can you tell the Grand Jury by whom he is employed at the present time?
and motions

In the current case we need to address three questions:

first, whether an address is to be regarded as a confidence by a client or as a communication related to the
representation;
second, whether the so-called "crime or fraud" exception to the privilege requires disclosure of the address; and
finally, whether the circumstances are such that the privilege must yield to other fundamental values of our justice 1. Privileged Communication as rule of evidence
system. We will treat the client's telephone number and employer as a form of address.
…… Rule 130 Sec. 24.Disqualification by reason of privileged communication. — The following persons cannot testify as to
We perceive no sound reason why the communication that consists of, or includes, a client's address should not, at
matters learned in confidence in the following cases:
least in a case such as this, be governed by the same considerations that obtain as to other communications that are
accorded the privilege. We therefore decide the issues involved not on the basis of whether an address is, or may ever
xxx
be, the subject of a protected confidential communication between a client and attorney but on the basis of the
purposes for which the privilege exists and the reasons for its assertion in the context of the particular case.
Thus, whether a client's address may be considered a confidence protected by the attorney-client privilege necessarily (b)An attorney cannot, without the consent of his client, be examined as to any communication made by the
depends on the surrounding circumstances in which the address was given. 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;
Our conceptual resistance to recognizing the privilege here stems from the near certainty that the client is a wrong-
doer. Unlike a suspect accused of crime, who must be presumed to be innocent, we are virtually positive that xxx
this client has done something wrong by jumping bail.
Essential factors to establish the existence of the attorney-client privilege communication
Courts that have addressed the question of disclosure have uniformly held that a determination of whether a client's
whereabouts must be disclosed will depend on an analysis of the facts of the case and the nature of the
(1) Where legal advice of any kind is sought
communication involved.

(2) from a professional legal adviser in his capacity as such,

Attorney's first duty when confronted with a proposal for perjurious testimony (3) the communications relating to that purpose,
It is universally agreed that at a minimum the attorney's first duty when confronted with a proposal for perjurious
testimony is to attempt to dissuade the client from the unlawful course of conduct. (4) made in confidence

When false evidence (5) by the client,

is offered by the client

5
(6) are at his instance permanently protected
(7) from disclosure by himself or by the legal advisor,
(8) except the protection be waived.
- Ma. Luisa Hadjula v. Atty. Roceles F. Madianda, A.C. No. 6711, July 3, 2007
2. Privileged communication as basis to keep confidential the secrets or confidences of client
CANON 21 - A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS CLIENT EVEN AFTER THE
ATTORNEY-CLIENT RELATION IS TERMINATED.
Rule 21.01 - A lawyer shall not reveal the confidences or secrets of his client except;
(a) When authorized by the client after acquainting him of the consequences of the disclosure;
(b) When required by law;
(c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial action.
•
Rule 21.02 - A lawyer shall not, to the disadvantage of his client, use information acquired in the course of
employment, nor shall he use the same to his own advantage or that of a third person, unless the client with full
knowledge of the circumstances consents thereto.
• Rule 21.03 - A lawyer shall not, without the written consent of his client, give information from his files to an
outside agency seeking such information for auditing, statistical, bookkeeping, accounting, data processing, or any
similar purpose.
• Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or associates thereof unless
prohibited by the client.
• Rule 21.05 - A lawyer shall adopt such measures as may be required to prevent those whose services are
utilized by him, from disclosing or using confidences or secrets of the clients.
Rule 21.06 - A lawyer shall avoid indiscreet conversation about a client's affairs even with members of his family.
Rule 21.07 - A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible
conflict of interest.
RPC Art. 209. Betrayal of trust by an attorney or solicitor. — Revelation of secrets. — In addition to the proper
administrative action, the penalty of prisioncorreccional in its minimum period, or a fine ranging from 200 to 1,000
6
pesos, or both, shall be imposed upon any attorney-at-law or solicitor ( procurador judicial) who, by any malicious
breach of professional duty or of inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the
secrets of the latter learned by him in his professional capacity.
The same penalty shall be imposed upon an attorney-at-law or solicitor (procurador judicial) who, having undertaken
the defense of a client or having received confidential information from said client in a case, shall undertake the
defense of the opposing party in the same case, without the consent of his first client.
Rule 15.02. - A lawyer shall be bound by the rule on privilege communication in respect of matters disclosed to him
by a prospective client.
Limit of privileged communication between client and lawyer
It is well settled that in order that a communication between a lawyer and his client may be privileged, it must be for
a lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege
from attaching.
In fact, it has also been pointed out to the Court that the "prosecution of the honorable relation of attorney and client
will not be permitted under the guise of privilege, and every communication made to an attorney by a client for
a criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge, but which
the attorney under certain circumstances may be bound to disclose at once in the interest of justice.“ – PP v.
Sandiganbayan, et. al., G.R. Nos. 115439-41 July 16, 1997
3. Privileged speech in congress
• The immunity Senator Santiago claims is rooted primarily on the provision of Article VI, Section 11 of the
Constitution, which provides:
“A Senator or Member of the House of Representative shall, in all offenses punishable by not more than six years
imprisonment, be privileged from arrest while the Congress is in session. No member shall be questioned nor be
held liable in any other place for any speech or debate in the Congress or in any committee thereof.”
Defensor-Santiago case
Senator Miriam Defensor-Santiago’s speech delivered on the Senate floor:
x xx I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am suicidal. I am humiliated,
debased, degraded. And I am not only that, I feel like throwing up to be living my middle years in a country of this
nature. I am nauseated. I spit on the face of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court,
I am no longer interested in the position [of Chief Justice] if I was to be surrounded by idiots. I would rather be in
another environment but not in the Supreme Court of idiots x xx. - Probe v. Sen. Defensor-Santiago A.C. No. 7399
[2009]
The purpose of her speech, according to her, was to bring out in the open controversial anomalies in governance with
a view to future remedial legislation. She averred that she wanted to expose what she believed “to be an unjust act of
the Judicial Bar Council [JBC],” which, after sending out public invitations for nomination to the soon to-be vacated
position of Chief Justice, would eventually inform applicants that only incumbent justices of the Supreme
Court would qualify for nomination. She felt that the JBC should have at least given an advanced advisory that
non-sitting members of the Court, like her, would not be considered for the position of Chief Justice.
•
No lawyer who has taken an oath to maintain the respect due to the courts should be allowed to erode the
people’s faith in the judiciary. In this case, the lady senator clearly violated Canon 8, Rule 8.01 and Canon 11 of the
Code of Professional Responsibility, which respectively provide:
Canon 8, Rule 8.01.––A lawyer shall not, in his professional dealings, use language which is abusive, offensive or
otherwise improper.
Canon 11.––A lawyer shall observe and maintain the respect due to the courts and to the judicial officers and should
insist on similar conduct by others.
Case against Sen. Defensor-Santiago dismissed
• Indeed, her privilege speech is not actionable criminally or in a disciplinary proceeding under the Rules of
Court.
• In this case, the lady senator clearly violated Canon 8, Rule 8.01 and Canon 11 of the Code of Professional
Responsibility.
• WHEREFORE, the letter-complaint of Antero J. Pobre against Senator/Atty. Miriam Defensor-Santiago is,
conformably to Art. VI, Sec. 11 of the Constitution, DISMISSED.
Purpose of Privilege Speech
Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every legislative
assembly of the democratic world. As old as the English Parliament, its purpose “is to enable and encourage a
representative of the public to discharge his public trust with firmness and success” for “it is indispensably
necessary that he should enjoy the fullest liberty of speech and that he should be protected from
resentment of every one, however, powerful, to whom the exercise of that liberty may occasion offense.”-
Probe v. Sen. Defensor-Santiago A.C. No. 7399 [2009]
4. Privileged communications made in the course of juridical proceedings, including all kinds of pleadings, petitions
and motions
Well-entrenched in the Philippine and American jurisprudence is the rule that for reasons of public policy,
utterances made in the course of juridical proceedings, including all kinds of pleadings, petitions and
motions are absolutely privileged when pertinent and relevant to the subject under inquiry, however false or
malicious such utterances may be. - Gutierrez v. Abila, et. al., G.R. No. L-59161 January 30, 1982
7
CPR
• CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND CANDOR TOWARDS
HIS PROFESSIONAL COLLEAGUES, AND SHALL AVOID HARASSING TACTICS AGAINST OPPOSING
COUNSEL.
• Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is abusive, offensive or otherwise
improper.
• Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the
Courts.
Certificate of meritorious case
Rue 7 Section 3. The signature of counsel constitutes a certificate by him that he has read the pleading; that to the
best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for
delay.
“Honest belief”is a claim of “good faith.”- Alfonso C. Choa vs. Judge Roberto S. Chiongson, A.M. No. MTJ-95-1063.
August 9, 1996
Pleadings in judicial proceedings are considered privileged
Pleadings have become part of public record open to the public to scrutinize, but also due to the undeniable
fact that said...
Pleadings are presumed to contain allegations and assertions lawful and legal in nature, appropriate to the
disposition of issues ventilated before the courts for the proper administration of justice and, therefore, of general
public concern.
Moreover, pleadings are presumed to contain allegations substantially true because they can be supported by
evidence presented in good faith, the contents of which would be under the scrutiny of courts and, therefore, subject
to be purged of all improprieties and illegal statements contained therein. – Cuenco v. Cuenco, et. al., G.R. No. L-
29560 March 31, 1976
……
It is a settled principle in this jurisdiction that statements made in the course of judicial proceedings are absolutely
privileged. This absolute privilege remains regardless of the defamatory tenor and the presence of malice if the same
are relevant, pertinent or material to the cause in hand or subject of the inquiry. Thus, the person making these
statements such as a judge, lawyer or witness does not thereby incur the risk of being found liable thereon in a
criminal prosecution or an action for the recovery of damages. – Navarrete v. CA, G.R. No. 124245. February 15, 2000
Counsel, parties or witnesses are exempted from liability in libel or slander
It is the generally accepted rule that counsel, parties or witnesses are exempted from liability in libel or slander for
words otherwise defamatory published in the course of judicial proceedings, provided that the statements are
connected with, or relevant, pertinent or material to, the cause in hand or subject of inquiry.
For as aptly observed in one case, while the doctrine of privileged communication is liable to be abused, and its abuse regardless of their truth or the existence of actual malice on the part of the attorney so long as the statements were
may lead to great hardships, yet to give legal sanction to such suits as the present would, we think, give rise to far relevant and pertinent to the pleadings. – Selby v. Burgess, 712 S.W.2d 898 (1986)
greater hardships. - Cuenco v. Cuenco, et. al., G.R. No. L-29560 March 31, 1976
All forms of communications are privileged

The privilege is not confined to verbal or written communications made by the client to his attorney but extends as
Effect of privileged matters well to information communicated by the client to the attorney by other means. - PP v. Sandiganbayan, et. al., G.R.
Nos. 115439-41 July 16, 1997
For, although every defamatory imputation is presumed to be malicious, the presumption does not exist in
matters considered privileged. In fine, the privilege destroys the presumption. - GMA Network, Inc. v. Bustos, et. al.,
G.R. No. 146848 October 17, 2006
Professional discipline may still apply

Privileged matters may be

absolute or qualified • Although the privilege is absolute where it applies, we consider it to be a privilege narrowed closely by the
"relevancy" and "pertinency" requirements, and we note that while the privilege will prohibit an attorney from
being subject to litigation it will not make him immune from professional discipline, when it is appropriate. –
Selby v. Burgess, 712 S.W.2d 898 (1986)
Absolutely privileged matters are not actionable regardless of the existence of malice in fact. In absolutely
privileged communications, the mala or bona fides of the author is of no moment as the occasion provides an
absolute bar to the action. Examples of these are speeches or debates made by Congressmen or Senators in the

•
Congress or in any of its committees.
...makes a lawyer liable for false allegations in a pleading since the rule states that a lawyer's signature on a
On the other hand, in qualifiedly or conditionally privileged communications, the freedom from liability for an pleading constitutes a certificate by him that to the best of his knowledge, there is good ground to support the
otherwise defamatory utterance is conditioned on the absence of express malice or malice in fact. The second pleading. – Pogue v. Cooper, et. al., 680 S.W.2d 698 (1984)
kind of privilege, in fine, renders the writer or author susceptible to a suit or finding of libel provided the prosecution
established the presence of bad faith or malice in fact. To this genre belongs "private communications" and "fair
and true report without any comments or remarks" falling under and described as exceptions in Article 354 of the
Revised Penal Code. - GMA Network, Inc. v. Bustos, et. al., G.R. No. 146848 October 17, 2006

Restriction to the privilege

Importance of doctrine of privileged communications The Court defined the restriction to the privilege enjoyed by pleadings thus:

The doctrine of privileged communication rests upon public policy, which looks to the free and unfettered
administration of justice, though, as an incidental result it may in some instances afford an immunity to the evil
disposed and malignant slanderer. - PP v. Atty. Sesbreno, G.R. No. L-62449 July 16, 1984
The pleadings should contain but the plain and concise statements of the material facts and not the evidence by
which they are to be proved. ...
If the pleader goes beyond the requirements of the statute and alleges an irrelevant matter which is libelous, he loses
his privilege.

All doubts should be resolved in favor of its relevancy The requirement of materiality and relevancy is imposed so that the protection given to individuals in the interest of
an efficient administration of justice may not be abused as a cloak from beneath which private malice may be
In order the matter alleged in a pleading may be privileged, it need not be in every case material to the issues gratified. - Gutierrez v. Abila, et. al., G.R. No. L-59161 January 30, 1982
presented by the pleadings.

All doubts should be resolved in favor of its relevancy or pertinency, and for the purposes of relevancy the
court will assume the alleged slanderous charges to be true, however false they may have been in fact. - Cuenco Example of slanderous matters in a pleading
v. Cuenco, et. al., G.R. No. L-29560 March 31, 1976
Repeated litigations between the same parties might indeed be tiresome, even nettlesome but this alone is not
sufficient cause for calling another "dirty-minded", and of a "limited mind", "twisted mind" or to characterize his
act as a "devise of wickedness as earmarks of plaintiff's traits.”
There is “no” absolute privilege in pleadings
It is noted that far from being isolated statements, these slanderous matters pervade the entire dimension of
Absolute privilege attached to allegations made by an attorney in a pleading filed with the court, as long as the the defendants' answer, with almost every paragraph thereof scathing with spiteful imputations against the plaintiff.
statements alleged to be defamatory were relevant and pertinent to the issues in the case. We relied heavily on
our earlier decision xxx, in which we recognized the absolute privilege of an attorney to make statements in pleadings

8

These imputations constitute a grave reflection upon the mental and moral character and reputation of the plaintiff,
and they certainly achieve no purpose except to gratify the defendants' rancor and ill-will.
………
The aforementioned personal opinions of the defendants, expressed in vituperative and intemperate language, are
palpably devoid of any relation whatever to the subject of inquiry and have no place in a pleading. - Gutierrez v. Abila,
et. al., G.R. No. L-59161 January 30, 1982
Admonition to lawyers
While indeed lawyers should be allowed some latitude of remark or comment in the furtherance of the causes they
uphold such remarks or comments should not trench beyond the bounds of relevancy and propriety. Besides, the
language vehicle does not run short of expressions which are emphatic but respectful, convincing but not derogatory,
illuminating but not offensive. – Gutierrez v. Abila, et. al., G.R. No. L-59161 January 30, 1982
Partners who signed the pleadings are liable
In view of the derogatory implications of that observation, which was couched in intemperate indecorous and vicious
language and which was baseless, since it was belied by the resolution itself that stated the reason for requiring the
Solicitor General to proceed with the investigation of the disbarment case, the Court in that aforementioned October
1 resolution required Attys. Salandanan and Zosimo G. Linato, who signed the motion under the firm name of
"E. M. Salandanan, Aguilar, Linato& Associates" to show cause why they should not be adjudged in contempt of court.
– Yangson v. Salandanan, A.C. No. 1347. November 12, 1975
Libelous remarks?
• Against said order, Atty. Sesbreno filed a motion seeking reconsideration with a counter-motion for contempt
against the appellant for reneging on his commitment to reimburse appellee's clients and for resorting to dilatory
tactics. To that, Atty. Ceniza, filed his "Opposition to Motion for Reconsideration, Etc." charging Sesbreno with
misrepresentation, prevarication, and "telling a barefaced and documented lie." Replying to these remarks,
Sesbreno then filed his "REPLY" – Atty. Ramon B. Ceniza is “an irresponsible person, cannot be trusted, like
Judas, a liar and irresponsible childish prankster.”- subject matter of Ceniza's libel suit.
Balancing act
While the doctrine is liable to be abuse and its abuse may lead to great hardships, yet to give legal action to such libel
suits would give rise to greater hardships.
Lawyers, most especially, should be allowed a great latitude of pertinent comment in the furtherance of the causes
they uphold, and for the felicity of their clients, they may be pardoned some infelicities of language. - PP v. Atty.
Sesbreno, G.R. No. L-62449 July 16, 1984
Test to be applied
9
•
A pleading must meet the test of relevancy to avoid being considered libelous. - PP v. Atty. Sesbreno, G.R. No. L-
62449 July 16, 1984
Metes and bounds of
relevancy or pertinency
As to the degree of relevancy or pertinency necessary to make alleged defamatory matters privileged, the courts are
inclined to be liberal.
The matter to which the privilege does not extend must be so palpably wanting in relation to the subject matter of
the controversy that no reasonable man can doubt its irrelevance and impropriety.
In order that a matter alleged in a pleading may be privileged, it need not be in every case material to the issues
presented by the pleadings, It must, however, be legitimately related thereto, or so pertinent to the subject of the
controversy that it may become the subject of the inquiry in the course of the trial. - PP v. Atty. Sesbreno, G.R.
No. L-62449 July 16, 1984
Legitimate answers to accusations
are privileged
Although the language used by defendant-appellee in the pleading in question was undoubtedly strong, since it was
made in legitimate defense of his own and of his client's interest, such remarks must be deemed absolutely
privileged and cannot be the basis of an action for libel (Tolentino v. Baylosis, supra). - PP v. Atty. Sesbreno, G.R. No.
L-62449 July 16, 1984
Unprofessional conduct
Mutual bickering and recriminations between brother attorneys detract from the dignity of the legal profession
and will not receive any sympathy from this Court. - PP v. Atty. Sesbreno, G.R. No. L-62449 July 16, 1984
Proper conduct of lawyers
Clients, not lawyers, are the litigants. Whatever may be the ill-feeling existing between clients, it should not be
allowed to influence counsel in their conduct and demeanor toward each other or toward suitors in the case.
All personalities between counsel should be scrupulously avoided. In the trial of a case it is indecent to allude to
the personal history or the personal peculiarities and idiosyncracies of counsel on the other side.
Personal colloquies between counsel which cause delay and promote unseemly wrangling should also be carefully
avoided. Lawyers owe respect not only to the courts and their clients, but also to other members of the Bar. - PP
v. Atty. Sesbreno, G.R. No. L-62449 July 16, 1984
Using abrasive and offensive language not proper in pleadings
Greater care and circumspection must be exercised in the preparation of their pleadings and to refrain from using
abrasive and offensive language (Yangson v. Saladanan, 68 SCRA 42). A becoming modesty is a desirable trait also
of practising attorneys. – PP v. Atty. Sesbreno, G.R. No. L-62449 July 16, 1984Privileged
When pleadings are published in newspaper
• We are firmly convinced that the correct rule on the matter should be that a fair and true report of a complaint
filed in court without remarks nor comments even before an answer is filed or a decision promulgated should
be covered by the privilege.
•
This Court ruled before that:
Utterances made in the course of judicial proceedings, including all kinds of pleadings, petitions and motions
belong to the class of communication that are absolutely privileged. - Cuenco v. Cuenco, et. al., G.R. No. L-29560
March 31, 1976
Issue No. 182, Volume X of "The Republic Daily", bearing date of August 3, 1958, an article fully reproduced as
follows
Rep. Cuenco Sued
Rep. Miguel Cuenco was yesterday sued by the Bisaya Land Transportation Company, Inc., for alleged illegal and
unlawful collections made by him on the company, amounting to thousands of pesos. Part of these collections was
allegedly obtained by the defendant in violation of a constitutional inhibition. Congressman Cuenco, according to the
complaint, had illegally collected a total of P18,700 from the plaintiff, of which he was formerly assistant manager in
charge of the shipping department. In the same suit, the transportation firm asked the court to order the defendant
to pay it an additional sum of P5,600 representing attorney's fees which the plaintiff said it had obligated to pay its
counsel. xxx
Two kinds of publications relating to court and to court proceedings
Succinctly, there are two kinds of publications relating to court and to court proceedings which can warrant
the exercise of the power to punish for contempt:
(1) that which tends to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit
or proceeding; and
(2) that which tends to degrade the courts and to destroy public confidence in them or that which tends to bring
them in any way into disrepute.
……
Contempt, by reason of publications relating to court and to court proceedings, are of two kinds. A publication which
tends to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding,
constitutes criminal contempt which is summarily punishable by courts. This is the rule announced in the cases
relied upon by the majority. A publication which tends to degrade the courts and to destroy public confidence in
them or that which tends to bring them in any way into disrepute, constitutes likewise criminal contempt, and is
equally punishable by courts.
In the language of the majority, what is sought, in the first kind of contempt, to be shielded against the influence of
newspaper comments, is the all-important duty of the courts to administer justice in the decision of a pending case.
……
10
In the second kind of contempt, the punitive hand of justice is extended to vindicate the courts from any act or
conduct calculated to bring them into disfavor or to destroy public confidence in them.
In the first, there is no contempt where there is no action pending, as there is no decision which might in any
way be influenced by the newspaper publication.
In the second, the contempt exists, with or without a pending case, as what is sought to be protected is the
court itself and its dignity. x xx Courts would lose their utility if public confidence in them is destroyed. - Governor
Enrique T. Garcia, Jr., et. al. v. Manrique, G.R. No. 186592 October 10, 2012
Disclosure of criminal activities
In the foreclosure case, respondent made the following allegation in his Answer:
xxx
4. That complainant is a businessman who is engaged in the real estate business, trading and buy and sell of
deficiency taxed imported cars, shark loans and other shady deals and has many cases pending in court;
……
Complainant denied respondent’s charges and claimed that respondent’s allegation is libelous and not privilege as it
was irrelevant to the foreclosure case. Complainant further pointed to paragraph 12 of respondent’s Answer, thus:
12. That on January 29, 1993, before paying for the next installment on his car on January 30, 1993, defendant Essex L.
Silapan asked the complainant to execute a Deed of Sale transferring ownership of the car to him but the latter said
that he will only do so after the termination of his criminal case at Branch 138 of the Regional Trial Court of Makati,
Metro Manila, x xx
……
where he (complainant) wanted Essex L. Silapan, his former counsel in that case, to offer bribe money to the
members of the review committee of the Department of Justice where a petition for review of the resolution of
the Investigating Prosecutor was pending at the time, x xx or, in the event that the said petition for review is denied,
he wanted Essex L. Silapanto offer bribe money to the prosecutor assigned at the above-mentioned Court and
even to the presiding Judge, for his eventual acquittal, which defendant Essex L. Silapan all refused to do not
only because such acts are immoral and illegal, .....
……
but also because the complainant confided to him that he was really involved in the commission of the crime
that was charged of in the above-mentioned case.
Complainant gripes that the foregoing allegations are false, immaterial to the foreclosure case and maliciously
designed to defame him. He charged that in making such allegations, respondent is guilty of breaking their
confidential lawyer-client relationship and should be held administratively liable therefor.
- WON respondent committed a breach of trust and confidence by imputing to complainant illegal between the parties and their counsel in order to resolve disputes; indeed, such statements often do just the
practices. opposite.“

- WON or not disclosing complainant’s alleged intention to bribe government officials a breach of trust and
confidence.

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 • "Communications made to newspapers and during press conferences have been almost universally found to be
excluded from the protection of absolute privilege.”- Jacobs v. Adelson, 325 P.3d 1282 (2014)
lawyer .....

……

It does not extend to those made in contemplation of a crime or perpetration of a fraud. If the unlawful purpose is Not related to judicial proceedings
avowed, as in this case, the complainant’s 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. We have, however, recognized that communications are not sufficiently related to judicial proceedings when they
Thus, the attorney-client privilege does not attach, there being no professional employment in the strict sense. are made to someone without an interest in the outcome.

…..

Be that as it may, respondent’s explanation that it was necessary for him to make the disclosures in his pleadings fails
to satisfy us. The disclosures were not indispensable to protect his rights as they were not pertinent to the
• We conclude that assessing the significant interest of the recipient requires review of the recipient's legal
relationship to the litigation, not their interest as an observer.
foreclosure case. It was improper for the respondent to use it against the complainant in the foreclosure case as it

•
was not the subject matter of litigation therein and respondent’s professional competence and legal advice were not
being attacked in said case.
Moreover, the nature of the recipient's interest in or connection to the litigation is a "case-specific, fact-intensive
inquiry" that must focus on and balance the underlying principles of the privilege.
…..

•
A lawyer must conduct himself, especially in his dealings with his clients, with integrity in a manner that is beyond
reproach. His relationship with his clients should be characterized by the highest degree of good faith and fairness. We conclude that the newspaper does not have a direct interest in, or connection to, the outcome of the
proceedings, other than as a spectator. - Jacobs v. Adelson, 325 P.3d 1282 (2014)
Thus, the Court agrees with the evaluation of the IBP and finds that respondent’s allegations and disclosures in the
foreclosure case amount to a breach of fidelity sufficient to warrant the imposition of disciplinary sanction against
him.
A few jurisdictions have held that, under certain circumstances, an attorney's statements to the media are
– Genato v. Atty. Silapan, A.C. No. 4078. July 14, 2003 absolutely privileged

US jurisprudence Extending the privilege to statements made by an attorney to a reporter after the dismissal of the first lawsuit.
Other jurisdictions have found exceptions to the majority rule based on unique circumstances. ,
Statements made to the media
Applying absolute privilege to a statement to a newspaper when all signs pointed to emerging litigation and the
Appellant sued respondent's companies for wrongful termination, making a number of allegations in the complaint newspaper was a potential party); ,
against respondent personally. After respondent published a response to the allegations in the media,
appellant sued him for defamation. Applying absolute privilege to a lawyer's statements to the press denying allegations and questioning the plaintiff's
motives, where the plaintiff publicly solicited a response; ,

Holding that an attorney's prelitigation statements to the press are absolutely privileged if a class action lawsuit is
Whether or not statements made to the media regarding ongoing or contemplated litigation are covered by absolute contemplated. – Jacobs v. Adelson, 325 P.3d 1282 (2014)
privilege. - Jacobs v. Adelson, 325 P.3d 1282 (2014)
Communications made to the media
Whether or not the absolute privilege
applies when the media is the recipient of the statement We adopt the majority view that communications made to the media in an extrajudicial setting are not
absolutely privileged, at least when the media holds no more significant interest in the litigation than the general

•
public.
These courts have concluded that the policy considerations underlying the absolute privilege rule are not
In order for the absolute privilege to apply to defamatory statements made in the context of a judicial or quasi-
applicable to statements made to the media. Statements made to the media "do little, if anything, to promote the
judicial proceeding, "(1) a judicial proceeding must be contemplated in good faith and under serious consideration,
truth finding process in a judicial proceeding.... [They] do not generally encourage open and honest discussion
and (2) the communication must be related to the litigation.“

11
The privilege applies to communications made by either an attorney or a non-attorney that are related to ongoing
litigation or future litigation contemplated in good faith. - Jacobs v. Adelson, 325 P.3d 1282 (2014)
Defamatory statements not privileged when made on radio and television programs
Stating the judicial proceedings privilege protects statements by parties and their attorneys related to litigation but
does not extend to protect allegedly defamatory statements made on radio and television programs. – Wagner v.
Miskin, 660 N.W.2d 593 (2003)
A privileged statement, such as one made in a judicial proceeding, is not privileged for all subsequent
publications by virtue of initially being spoken in a privileged proceeding.
Even an "absolute" privilege does not permit an individual to categorically republish possibly defamatory
statements without consequence. – Wagner v. Miskin, 660 N.W.2d 593 (2003)
Statements to third party
But we have also recognized that "[a]n attorney's statements to someone who is not directly involved with the
actual or anticipated judicial proceeding will be covered by the absolute privilege only if the recipient of the
communication is “significantly interested” in the proceeding." - Jacobs v. Adelson, 325 P.3d 1282 (2014)
 Thank you for your attention!!
Conflict of interest in a regular lawyer-client relationship
Problem Areas in Legal Ethics
Arellano University School of Law – Arellano Law Foundation
2018-2019
CANON 21 - A lawyer shall preserve the confidence and secrets of his client even after the attorney-client
relation is terminated
Rule 21.02 - A lawyer shall not, to the disadvantage of his client, _________________ 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 ______________ thereto.
Rule 21.07 - A lawyer shall not _________ that he has been consulted about a particular case except to
__________________ conflict of interest.
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CANON 21 - A lawyer shall preserve the confidence and secrets of his client even after the attorney-client
relation is terminated
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 21.07 - A lawyer shall not reveal that he has been consulted about a particular case except to avoid possible
conflict of interest.
General Rule in a law firm
• Rule 21.04 - A lawyer _________________of a client of the firm to ___________________ thereof unless prohibited
by the client.
General Rule in a law firm
• 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.
• An information obtained from a client by a member or assistant of a law firm is information imparted to the firm.
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. – Hilado v. David, et. Al., G.R. No. L-961, September 21, 1949
CANON 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his
clients
Rule 15.01. - A lawyer, in conferring with a prospective client, shall ascertain ____________________whether the
matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the
prospective client.
Rule 15.03. - A lawyer shall not represent _________________ except by __________________of all concerned given
after a ____________________.
Rule 15.04. - A lawyer may, with the _____________ of all concerned, act as mediator, conciliator or arbitrator in
settling disputes.
Rule 15.05. - A lawyer when advising his client, shall give a candid and ________________ on the ___________ and
probable results of the client's case, neither ______________ nor ______________ the prospects of the case.
CANON 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his
clients
Rule 15.01. - A lawyer, in conferring with a prospective client, shall ascertain as soon as practicablewhether the
matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the
prospective client.
Rule 15.03. - A lawyer shall not represent conflicting interests except by written consent of all concerned given
after a full disclosure of the facts.
Rule 15.04. - A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in
settling disputes.
Rule 15.05. - A lawyer when advising his client, shall give a candid and honest opinion on the merits and probable
results of the client's case, neither overstating nor understating the prospects of the case.
Rule 15.08. - A lawyer who is engaged in another ___________ or occupation concurrently with the practice of law
shall make clear to his client whether he is acting as a __________ or in _______________.
Rule 15.08. - A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall
make clear to his client whether he is acting as a lawyer or in another capacity.
The prohibition against conflict of interest rests on five rationales
x xx. First, the law seeks to assure clients that their lawyers will represent them with undivided loyalty. A client is
entitled to be represented by a lawyer whom the client can trust. Instilling such confidence is an objective important
in itself. x xx.
Second, the prohibition against conflicts of interest seeks to enhance the effectiveness of legal representation. To the
extent that a conflict of interest undermines the independence of the lawyer’s professional judgment or inhibits a
lawyer from working with appropriate vigor in the client’s behalf, the client’s expectation of effective representation x
xx could be compromised. - Samson v. Atty. Era, A.C. No. 6664 July 16, 2013
Cont…
Third, a client has a legal right to have the lawyer safeguard the client’s confidential information xxx.1âwphi1
Preventing use of confidential client information against the interests of the client, either to benefit the lawyer’s
personal interest, in aid of some other client, or to foster an assumed public purpose is facilitated through conflicts
rules that reduce the opportunity for such abuse.
Fourth, conflicts rules help ensure that lawyers will not exploit clients, such as by inducing a client to make a gift to
the lawyer xxx.
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Finally, some conflict-of-interest rules protect interests of the legal system in obtaining adequate presentations to
tribunals. In the absence of such rules, for example, a lawyer might appear on both sides of the litigation,
complicating the process of taking proof and compromise adversary argumentation x xx. - Samson v. Atty. Era, A.C.
No. 6664 July 16, 2013
COI is everywhere
Conflicts of interest are not the exclusive headache of large, urban, multi-office law firms. Conflicts of interest arise
within and affect law practices of every size, geographical location and discipline. The number of clients, adverse
parties, and interested non-parties with whom attorneys become involved throughout their careers is truly staggering
and invariably underestimated.
Extreme case of Conflict of Interest
The most obvious conflicts of interest are those in which the lawyer's personal interests clash with those of the
client.
Rule on Conflicting Interests
It is generally the rule based on sound public policy that attorney cannot represent diverse interest. It is highly
improper to represent both sides of an issue.
Competitor Conflicts
Courts have found that a competitor conflict is present when the lawyer attempts to represent two competitors on
a material aspect of their competition.
Whose interest?
It is, of course, a hornbook proposition that it is the client, and not the lawyer, that defines the client's interests
and instructs the lawyer about them.
Degree of involvement
The greater the involvement in the client's affairs the greater the danger that confidences (where such exist) will be
revealed.
“Closed file” conflicts
Involve representation adverse to a former client in the same or substantially related matters.
Duty to protect only matters acquired during the lawyer-client relationship
The intent of the law is to impose upon the lawyer the duty to protect the client’s interests only on matters that he
previously handled for the former client and not for matters that arose after the lawyer-client relationship has
terminated. – Palm v. Atty. Iledan, Jr. A.C. No. 8242 [2009]

Doctrine of “imputed knowledge”
Doctrine of imputed knowledge is based on the assumption that an attorney, who has notice of matter affecting his
client, has communicated the same to his principal in the course of professional dealings. The doctrine applies
regardless of whether or not the lawyer actually communicated to the client what he learned in his professional
capacity, the attorney and his client being one judicial person.
Knowledge of one member of a law firm will be imputed by inference to all members of that firm; free flow of
information within the partnership.
Preliminary conflict of interest check
Whenever a prospective client seeking legal assistance contacts an attorney, the attorney should politely but firmly
decline to discuss the matter in detail until a preliminary conflict of interest check can be performed.
As the adjective suggests, preliminary conflict of interest checks should ideally be performed before the
prospective client divulges additional confidential information which may conflict the attorney out of current
or future representations.
Rule 15.01. - A lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the
matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the
prospective client.
Confidentiality of information is not relevant in COI
The rule on conflict of interests covers not only cases in which confidential communications have been confided but
also those in which no confidence has been bestowed or will be used. - Atty. Jalandoni v. Atty. Villarosa, AC 5303,
June 15, 2006
Unqualified opposing interest of new and former clients
The rule prohibits a lawyer from representing new clients whose interests oppose those of a former client in any
manner, whether or not they are parties in the same action or in totally unrelated cases. - Atty. Jalandoni v. Atty.
Villarosa, AC 5303, June 15, 2006
•
Another test of the inconsistency of interests is whether the acceptance of a new relation will prevent an attorney
from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of
unfaithfulness or double-dealing in the performance thereof, and also whether he will be called upon in his new
relation to use against his first client any knowledge acquire in the previous employment.
• The first part of the rule refers to cases in which the opposing parties are present clients either in the same
action or in a totally unrelated case; the second part pertains to those in which the adverse party against whom
the attorney appears is his former client in a matter which is related, directly or indirectly, to the present
controversy. - Atty. Jalandoni v. Atty. Villarosa, AC 5303, June 15, 2006
Degree of adverse interest, intention or motive are not material
14
•
An attorney owes to his client undivided allegiance. After being retained and receiving the confidences of the
client, he cannot, without the free and intelligent consent of his client, act both for his client and for one whose
interest is adverse to, or conflicting with that of his client in the same general matter…. The prohibition stands
even if the adverse interest is very slight; neither is it material that the intention and motive of the attorney
may have been honest- Lim Jr. v. Atty. Villarosa, A.C. No. 5303, June 15, 2006
As to who initiate engagement
is immaterial
• To negate any culpability, respondent explained that he did not offer his legal services to accused Avila and Ilo but
it was the two accused who sought his assistance in executing their extrajudicial confessions. Nonetheless, he
acceded to their request to act as counsel after apprising them of their constitutional rights and after being convinced
that the accused were under no compulsion to give their confession. - Perez v. Atty. Dela Torre, AC 6160, March 30,
2006
Retained counsel of either party cannot act as mediator without consent
Even respondent’s alleged effort to settle the existing controversy among the family members was improper
because the written consent of all concerned was still required. A lawyer who acts as such in settling a
dispute cannot represent any of the parties to it. - Lim Jr. v. Atty. Villarosa, A.C. No. 5303, June 15, 2006
Rule 15.04. - A lawyer may, with the written consent of all concerned, act as mediator, conciliator or arbitrator in
settling disputes.
Nature of the case is irrelevant
The claim of respondent that there is no conflict of interests in this case, as the civil case handled by their law firm
where Gonzales is the complainant and the criminal cases filed by Gonzales against the Gatcheco spouses are not
related, has no merit. The representation of opposing clients in said cases, though unrelated, constitutes conflict of
interests or, at the very least, invites suspicion of double-dealing which this Court cannot allow. - Gonzales v.
Atty. Cabucana, A.C. No. 6836, January 23, 2006
Dismissed employee and counsel of record incompatible
In the instant case, quite apart from the issue of validity of the 1990 compromise agreement, this Court finds fault in
respondent's omission of that basic sense of fidelity to steer clear of situations that put his loyalty and
devotion to his client, the faculty members of UST, open to question. Atty. Mariño both as lawyer and president
of the union was duty bound to protect and advance the interest of union members and the bargaining unit
above his own. This obligation was jeopardized when his personal interest as one of the dismissed employees of UST
complicated the negotiation process and eventually resulted in the lopsided compromise agreement that rightly or
wrongly brought money to him and the other dismissed union officers and directors, seemingly or otherwise at
the expense of the faculty members. - Dr. Gamilla et. al. v. Atty. Mariño Jr., A.C. No. 4763, March 20, 2003
Client of law firm is the client of every partners and associates
Respondent further argued that it was his brother who represented Gonzales in the civil case and not him, thus, there
could be no conflict of interests. We do not agree. As respondent admitted, it was their law firm which represented
Gonzales in the civil case. Such being the case, the rule against representing conflicting interests applies. - Gonzales v.
Atty. Cabucana, A.C. No. 6836, January 23, 2006
Vicarious disqualification
 •
Traditionally, if a lawyer is ineligible to represent a particular client, all members of the lawyer's firm also are
ineligible.
Representing conflicting interests would occur only where the attorney’s new engagement would require her to
The basis for vicarious disqualification is the "presumption of shared confidences," which seeks to prevent disclosure use against a former client any confidential information gained from the previous professional relation.
of client confidences, preserve counsel loyalty, and avoid the appearance of impropriety.

Professional engagement starts the moment the lawyer listens to his prospective client • The prohibition did not cover a situation where the subject matter of the present engagement was totally
unrelated to the previous engagement of the attorney.
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 pleadings, or advocating his client s cause in open
court. - Atty. Catalan v. Atty. Silvosa A.C. No. 7360 [2012] • - Seares, Jr. v. Atty. Gonzales-Alzate, Adm. Case No. 9058 November 14, 2012

Consent ineffective

• A lawyer may not properly represent conflicting interests even though the parties concerned agree to the dual
representation where:
Remember: The test to determine whether there is a conflict of interest in the representation is PROBABILITY, not
1. the conflict is between the attorney’s interest and that of a client, or certainty of conflict.

2. between a private client’s interests and that of the government or any of its instrumentalities.

3. between an accused and counsel. It is of no moment that the lawyer would not be called upon to contend for one client that which the lawyer has to
oppose for the other client, or that there would be no occasion to use the confidential information acquired from one

• Section 12. (Article III of the Constitution)

(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in
the presence of counsel.
to the disadvantage of the other as the two actions are wholly unrelated. It is enough that the opposing parties in
one case, one of whom would lose the suit, are present clients and the nature or conditions of the lawyer’s
respective retainers with each of them would affect the performance of the duty of undivided fidelity to both clients. -
Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005
Effects of Representing Adverse Interests

Three tests to determine conflicting interests 1. Disqualification as counsel of new client on petition of former client.

The first is when, on behalf of one client, it is the attorney’s duty to contest for that which his duty to another client 2. Where such is unknown to, becomes prejudicial interests of the new client, a judgment against such
requires him to oppose or when this possibility of such situation will develop (conflicting duties). may, on that ground be set aside.

…….. 3. A lawyer can be held administratively liable through disciplinary action and may be held criminally
liable for betrayal of trust.
The second test is whether the acceptance of the new relation will prevent a lawyer from the full discharge of his duty
of undivided fidelity and loyalty to his client or will invite suspicion of unfaithfulness or double-dealing in the 4. The attorney’s right to fees may be defeated if found to be related to such conflict and such was
performance thereof (Invitation of suspicion). objected to by the former client, or if there was a concealment and prejudice by reason of the attorney’s previous
professional relationship with the opposite party.

…….
What are the types of conflict of interest?

• The third test is whether a lawyer will be called upon in his new relation to use against the first client any
knowledge acquired in the previous employment (use of prior knowledge obtained).
1. Concurrent or multiple or simultaneous representation:

15
 most obvious and satisfactory proof of the charge. It is enough that the counsel of one party had a hand in the
preparation of the pleading of the other party, claiming adverse and conflicting interests with that of his original

»
these are
A lawyer represents clients whose objectives are adverse to each other, no matter how slight or remote
client. To require that he also be counsel-of-record of the adverse party would punish only the most obvious form of
deceit and reward, with impunity, the highest form of disloyalty. – Artezuela v. Atty. Maderazo, A.C. No. 4354. April
22, 2002

Only instance when a lawyer can represent conflicting interest

Take note of this minimal degree
A lawyer cannot represent conflicting interests except by written consent of all concerned given after a full
disclosure of the facts. – Santos Ventura Hocorma Foundation, Inc. v. Atty. Funk, A.C. No. 9094 August 15, 2012

»
Client consent is not a panacea

Ex. A CPA-lawyer being part of a firm that represents the estate and being part of the accountancy firm that
represents the creditors. The conflict need not arise from two legal relationships.
2. Sequential or successive representation:
Client consent can sometimes resolve such a conflict, but it is not a panacea.
The lawyer must always “reasonably believe[] that [he] will be able to provide competent and diligent
representation to each affected client.”
Put slightly differently, representation is prohibited notwithstanding informed client consent if the court “cannot
reasonably conclude that the lawyer will be able to provide competent and diligent representation.”

» Representation of present client who may have an interest adverse to prior client.
Limit of full disclosure

A lawyer is forbidden from representing a subsequent client against a former client when the subject matter of
the present controversy is related, directly or indirectly, to the subject matter of the previous litigation in which he
appeared for the former client. Conversely, he may properly act as counsel for a new client, with full disclosure to the
latter, against a former client in a matter wholly unrelated to that of the previous employment, there being in
that instance no conflict of interests.

• Successive representation - when a lawyer or law firm seeks to represent a client whose interests are adverse to
a former client without the former client's consent. The rule against simultaneous representation is based
principally on the duty of undivided loyalty.
Where, however, the subject matter of the present suit between the lawyer’s new client and his former client is in
some way connected with that of the former client’s action, the lawyer may have to contend for his new client
that which he previously opposed as counsel for the former client or to use against the latter information confided to
him as his counsel. - Pormento, Sr. v. Atty. Pontevedra, A.C. No. 5128. March 31, 2005

• Unlike simultaneous representation, successive representation is not prima facie improper. The duty to
preserve client confidences is the primary ethical consideration implicated by successive representation.
Purpose and intention is immaterial

Respondent contends that he handled the defense of the accused in the subject criminal case for humanitarian
reasons and with the honest belief that there exists no conflict of interests.

• Successive representation implicates both the duty of loyalty and the preservation of the attorney-client
relationship.
However, the rule is settled that the prohibition against representation of conflicting interests applies although the
attorney’s intentions and motives were honest and he acted in good faith. Moreover, the fact that the conflict of
Suspicion of Double-dealing even if the case is unrelated
interests is remote or merely probable does not make the prohibition inoperative. - Pormento, Sr. v. Atty. Pontevedra,
A.C. No. 5128. March 31, 2005
We do not sustain respondent’s theory that since the ejectment case and the replevin case are unrelated cases fraught
with different issues, parties, and subject matters, the prohibition is inapplicable. His representation of
opposing clients in both cases, though unrelated, obviously constitutes conflict of interest or, at the least,
invites suspicion of double-dealing. - Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005
Good faith and honest intention is not a defense

That the representation of conflicting interest is in good faith and with honest intention on the part of the lawyer
does not make the prohibition inoperative. - Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005
Does the lawyer have to be the counsel-of-record for the other party to violate this provision?

To be guilty of representing conflicting interests, a counsel-of-record of one party need not also be counsel-of-
record of the adverse party. He does not have to publicly hold himself as the counsel of the adverse party, nor
make his efforts to advance the adverse party’s conflicting interests of record--- although these circumstances are the

16
Although there are instances where lawyers cannot decline representation, they cannot be made to labor under
conflict of interest between a present client and a prospective one. – Quiambao v. Atty. Bamba, Adm. Case No. 6708
August 25, 2005
Indeed, the prohibition against representation of conflicting interests applies although the attorney’s intentions were
honest and he acted in good faith. - Atty. Catalan v. Atty. Silvosa A.C. No. 7360 [2012]
Termination of A-C relations is not a justification
Respondent also asserts that when he accepted employment in Criminal Case No. 3159, the attorney-client relations
between him and complainant in Civil Case No. 1648 had already been terminated. This defense does not hold water
because the termination of the relation of attorney and client provides no justification for a lawyer to
represent an interest adverse to or in conflict with that of the former client. – Pormento, Sr. v. Atty. Pontevedra,
A.C. No. 5128. March 31, 2005
Acquired knowledge of former client’s doings is indelible
The reason for this is that a lawyer acquires knowledge of his former client's doings, whether documented or not,
that he would ordinarily not have acquired were it not for the trust and confidence that his client placed on him
in the light of their relationship. It would simply be impossible for the lawyer to identify and erase such entrusted
knowledge with faultless precision or lock the same into an iron box when suing the former client on behalf of a new
one. - Santos Ventura Hocorma Foundation, Inc. v. Atty. Funk, A.C. No. 9094 August 15, 2012
Informed consent must be written
•
A client's implied consent is insufficient to waive a potential conflict of interest.
•
Rule 15.03. - A lawyer shall not represent conflicting interests except by written consent of all concerned given
after a full disclosure of the facts.
• While the respondent may assert that the complainant expressly consented to his continued representation in the
ejectment case, the respondent failed to show that he fully disclosed the facts to both his clients and he failed to
present any written consent of the complainant and AIB as required under Rule 15.03, Canon 15 of the Code of
Professional Responsibility. - Quiambao v. Atty. Bamba, Adm. Case No. 6708 August 25, 2005
COI remains after termination of attorney-client relationship
The termination of the attorney-client relationship does not justify a lawyer to represent an interest adverse to or in
conflict with that of the former client. The spirit behind this rule is that the client’s confidence once given should not
be stripped by the mere expiration of the professional employment. Even after the severance of the relation, a lawyer
17
should not do anything that will injuriously affect his former client in any matter in which the lawyer previously
represented the client. – Samson v. Atty. Era, A.C. No. 6664 July 16, 2013
Current observations husband and wife lawyers in legal practice
Where both husband and wife are lawyers but they are not practicing in association with one another, may they or
their firms represent differing interests?
Some firms apparently have been reluctant to employ one spouse-lawyer where that person's husband or wife is, or
may soon be, practicing with another firm in the same city or area.
Some law firms are concerned whether a law firm is disqualified, by reason of its employment of one spouse, to
represent a client opposing an interest represented by another law firm that employs the husband or wife of the
inquiring firm's associate.
Cont…
It is not necessarily improper for husband-and-wife lawyers who are practicing in different offices or firms to
represent differing interests. No disciplinary rule expressly requires a lawyer to decline employment if a husband,
wife, son, daughter, brother, father, or other close relative represents the opposing party in negotiation or litigation.
Likewise, it is not necessarily improper for a law firm having a married partner or associate to represent clients whose
interests are opposed to those of other clients represented by another law firm with which the married lawyer's
spouse is associated as a lawyer.
Cont…
Married partners who are lawyers must guard carefully at all times against inadvertent violations of their professional
responsibilities arising by reason of the marital relationship.
The disqualification of married or related lawyers who oppose one another professionally is not generally imputed to
other lawyers in the related lawyer's law offices.
Such personal disqualification is not imputed to the spouses' firms unless the lawyers have a personal interest in the
outcome of the case.
Special circumstances that
highlight the concern
1. whether the fee of either firm is contingent,
2. whether the disputed matter is one of negotiation or litigation, and whether the married lawyer in question will or
will not actually be working on the particular matter.
3. Another variation of the problem is the situation in which a governmental agency, such as a district attorney or
an attorney general, is the employer of either the husband or the wife, and the spouse is associated with a law
firm in the same community.
Concerns about husband & wife lawyers
Yet it also must be recognized that the relationship of husband and wife is so close that the possibility of an
inadvertent breach of a confidence or the unavoidable receipt of information concerning the client by the spouse
other than the one who represents the client (for example, information contained in a telephoned message left for
the lawyer at home) is substantial. Because of the closeness of the husband-and-wife relationship, a lawyer who
is married to a lawyer must be particularly careful.
 If such a sexual relationship occurs and the impairment is not avoided, the lawyer will have violated ethical
obligations to the client.
Recommendations

Married partners who are lawyers must guard carefully at all times against inadvertent violations of their professional
responsibilities arising by reason of the marital relationship. Client's consent to sexual relations alone will rarely be sufficient

"The client's consent to sexual relations alone will rarely be sufficient to eliminate this danger. In many cases, the
client's ability to give meaningful consent is vitiated by the lawyer's potential undue influence and/or the emotional
Lawyer Relatives vulnerability of the client.

Ethical precepts admonish lawyers related by blood or marriage to avoid adversarial representations without the
informed consent of the parties.
Lawyers related by blood or marriage have long been permitted to represent adversarial interests provided that a
reasonable effort is made to anticipate and expose potential conflicts to clients before obtaining their consent to
representation.
Faced with client consent, courts have consistently required an actual conflict of interest rather than simply the fact
of adversarial lawyer relatives before ordering disqualification.
Defense
The lawyer may, therefore, be called upon in a disciplinary or other proceeding to show that the client consented,
that the consent was freely given based on full and reasonable disclosure of the risks involved, and that any
ensuing sexual relationship did not in any way disadvantage the client in the representation, that is, the
attorney's judgment remained independent, the representation proceeded free of conflicts, the privilege was
not compromised and the other ethical obligations to the client were fulfilled."
The rule on COI also covers cases in which no confidence has been bestowed or will be used

The rule on conflict of interests covers not only cases in which confidential communications have been confided but
also those in which no confidence has been bestowed or will be used. - Humberto C. Lim Jr. v. Atty. Nicanor V.
Personal Relationships Villarosa, A.C. No. 5303, June 15, 2006

• A lawyer is romantically involved with the opposing party’s attorney, or sexually involved with a client, the
lawyer’s loyalty or judgment can be impaired.
“Friendly accommodations“ by a lawyer creates a professional relationship

Respondent must have known that her act of constantly and actively communicating with complainant, who, at that
time, was beleaguered with demands from investors of Multitel, eventually led to the establishment of a lawyer-client
relationship. Respondent cannot shield herself from the inevitable consequences of her actions by simply saying that
the assistance she rendered to complainant was only in the form of "friendly accommodations," precisely because at

• Lawyers who are dating and also representing adversaries in litigation should disclose their relationship if
it is sufficiently close that their clients might have questions about the lawyers' ability to represent them zealously.
the time she was giving assistance to complainant, she was already privy to the cause of the opposing parties who had
been referred to her by the SEC. - Palacios v. Atty. Amora, A.C. No. 11504, August 01, 2017

Drafting of demand letter

We are not persuaded. A lawyer-client relationship can exist notwithstanding the close friendship between
…….. complainant and respondent. The relationship was established the moment complainant sought legal advice from
respondent regarding the dishonored checks. By drafting the demand letter respondent further affirmed such
Lawyers who are otherwise personally close should do likewise. relationship. The fact that the demand letter was not utilized in the criminal complaint filed and that respondent
was not eventually engaged by complainant to represent her in the criminal cases is of no moment. As observed by
The lawyer had enjoyed an "intimate physical relationship" with the secretary and talked with her "about significant the Investigating Commissioner, by referring to complainant Justo as “my client” in the demand letter sent to the
aspects of the case," for which he was disqualified. defaulting debtor, respondent admitted the existence of the lawyer-client relationship. Such admission effectively
estopped him from claiming otherwise.
A lawyer is prohibited from having sex with a client unless a consensual sexual relationship existed prior to
the start of professional representation.

Sexual relationship during the course of representation
"It is apparent that a sexual relationship during the course of representation can seriously harm the client's interests.
Therefore, the Committee concludes that because of the danger of impairment to the lawyer's representation
associated with a sexual relationship between lawyer and client, the lawyer would be well advised to refrain
from such a relationship.
Likewise, the non-payment of professional fee will not exculpate respondent from liability. Absence of
monetary consideration does not exempt lawyers from complying with the prohibition against pursuing cases with
conflicting interests. The prohibition attaches from the moment the attorney-client relationship is established and
extends beyond the duration of the professional relationship. We held in Burbe v. Atty. Magulta that it is not
necessary that any retainer be paid, promised or charged; neither is it material that the attorney consulted did not
afterward handle the case for which his service had been sought. – Castro-Justo v. Atty. Galing, A.C. No. 6174,
November 16, 2011

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Non-payment of professional fee still triggers COI
Likewise, the non-payment of professional fee will not exculpate respondent from liability.
Absence of monetary consideration does not exempt lawyers from complying with the prohibition against pursuing
cases with conflicting interests.
We held [] that it is not necessary that any retainer be paid, promised or charged; neither is it material that the
attorney consulted did not afterward handle the case for which his service had been sought. – Castro-Justo v. Atty.
Galing, A.C. No. 6174, November 16, 2011
COI requires the use against a former client any confidential information
Representing conflicting interests would occur only where the attorney’s new engagement would require her to use
against a former client any confidential information gained from the previous professional relation.
The prohibition did not cover a situation where the subject matter of the present engagement was totally unrelated
to the previous engagement of the attorney.
To constitute the violation, the attorney should be shown to intentionally use against the former client the
confidential information acquired by her during the previous employment. - Seares, Jr. v. Atty. SaniataLiwliwa V.
Gonzales-Alzate Adm. Case No. 9058 , November 14, 2012
COI and representation of a partnership
We hold here that an attorney representing a partnership does not necessarily have an attorney-client relationship
with an individual partner for purposes of applying the conflict of interest rules. Whether such a relationship exists
turns on finding an agreement, express or implied, that the attorney also represents the partner. – Responsible
Citizens et. al. v. The Superior Court of Fresno County, 20 Cal. Rptr.2d 756 [1993]
The take- over of a client’s cause of action by another lawyer
The excuse proffered by respondent that it was not him but Atty. Año who was eventually engaged by complainant
will not exonerate him from the clear violation of Rule 15.03 of the Code of Professional Responsibility. The take-
over of a client’s cause of action by another lawyer does not give the former lawyer the right to represent the
opposing party. It is not only malpractice but also constitutes a violation of the confidence resulting from the
attorney-client relationship. -Lydia Castro-Justo v. Atty. Rodolfo T. Galing, A.C. No. 6174, November 16, 2011
COI and source of salary
• The Public Defender asserts there might be a conflict of interest between him and the County Attorney if they
were to appear on opposite sides of a Family Court proceeding. Both are appointed by the County Board of
Representatives which fixes the salary of each. These facts alone do not create a conflict of interests. When they
appear in Family Court proceedings they act independently and are performing duties prescribed by law. The District
Attorney is also a salaried officer of the county, albeit he is elected rather than appointed. There is no conflict of
interest when a Public Defender represents a defendant being prosecuted by a District Attorney. - John H. Owen v.
Joseph A. Mogavero, Jr., 77 Misc. 2d 851 (N.Y. Misc. 1974)
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Public Defenders Association is a law firm
In Commonwealth v. Via we held that members of the public defender's office would be considered members of the
"same firm" for purposes of presenting a claim of ineffective assistance of trial counsel. The rationale of Via, as it
concerned public defenders being considered as one law firm, is equally applicable to the question of conflict
of interest in multiple representations.
Having determined that the Public Defenders Association of Philadelphia is a "law firm," it is clear that two members
of the same firm are prohibited from representing multiple clients with inconsistent defenses. - Commonwealth v.
Westbrook, 400 A.2d 160, 1979
Public law office is not a “law firm”
Here, Knecht switched sides while this lawsuit was pending. She moved from the law firm that represented the
Stensons in their lawsuit against the City, to the city attorney's office. The parties all agree that, as a result, she would
be disqualified from representing the City in this matter. The apt questions are whether Knecht's disqualification
requires the vicarious disqualification of the entire city attorney's office and whether screening with an "ethical wall"
can prevent the vicarious disqualification. Were we concerned with a private law firm, the answer would be clear:
Knecht's disqualification would be mandatory and would extend to her entire law firm. But Knecht is employed by a
public law office, not a private law firm.
………
An attorney who switches sides during litigation is disqualified from representing his or her former adversary. The
disqualification extends to the attorney's entire new law firm.
But a city attorney's office is not a "law firm" within the meaning of the vicarious disqualification rule.
As we shall explain, in an ordinary civil case, disqualification of a non-supervisorial deputy city attorney should
not result in the vicarious disqualification of the entire city attorney's office. Such would deprive the city of its
counsel of choice, result in an unnecessary burden on the public fisc, and provide an unnecessary litigation
disadvantage to the city. -City of Santa Barbara v. The Superior Court of Santa Barbara County & Robert Stenson et al.,
122 Cal. App. 4th 17; 2004
Public sector attorneys v.
Private sector attorneys
• xxx courts have long recognized that public sector attorneys have the same ethical duties of confidentiality and
loyalty as their counterparts in the private sector. However, the interests at stake are different, and so are the rules
governing vicarious disqualification of a public law office.
• Unlike their private-sector counterparts, public sector lawyers:
1. do not have a financial interest in the matters on which they work. As a result, they may have less, if any,
incentive to breach client confidences.
2. Public-sector lawyers also do not recruit clients or accept fees. As a result, they have no financial incentive to
favor one client over another.
- City of Santa Barbara v. The Superior Court of Santa Barbara County & Robert Stenson et al., 122 Cal. App. 4th
17; 2004
A motion to disqualify counsel may implicate several important interests

1. a client's right to chosen counsel,

2. an attorney's interest in representing a client,

3. the financial burden on a client to replace disqualified counsel, and

4. the possibility that tactical abuse underlies the disqualification motion.

- M'Guinness v. Johnson, 243 Cal.App.4th 602 (2015)

Thank you for your attention!!

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