Chapter 9 - Preserving Client's Confidence Flashcards
Until when should a lawyer preserve the confidence of the client?
Canon 21 of the Code of Professional Responsibility states that “A lawyer shall preserve the confidence and secrets of the client EVEN AFTER the termination of the attorney-client relationship.”
This is also related to the lawyer’s duty to maintain inviolate of his client’s confidence which is PERPETUAL. Unless, the client, or the client’s legal heirs consent to this.
Does Canon 21 (preserving client’s confidence) applies to prospective clients? What’s the purpose of this rule?
Yes, Canon 21 also applies to prospective clients. This is because when the prospective client consulted the lawyer on any legal matters, and the latter gives his opinion, there is already an attorney-client relationship regardless if the attorney is retained or not.
This is because it is the glory of the legal profession that any person can depend on the fidelity of a lawyer and that the person can converse with the lawyer upon his rights or supposed rights in any litigation with absolute assurance that the lawyer will not disclose it.
Can an attorney be examined regarding the communication of the client to him? What about the attorney’s staffs?
No, an attorney cannot be compelled to be examined or disclose any confidential communication between him and his client. Unless the client consents to this.
The same goes to the attorney’s staffs (secretary, stenographer, clerk), unless they have the consent of the attorney and the client.
What is Rule 21.02 with regards to revealing the secrets of the client? What are its exceptions?
Rule 21.02 states that generally, a lawyer must not reveal the secrets of the client. This also applies to the client’s family. Exception to this rule is (1) when he is authorized by the client after acquainting him of the consequences of the disclosure, (2) when authorized by law, (3) when necessary for the lawyer to collect his fees, or to defend himself, his employees, or associates.
Why must a lawyer remain inviolate of the client’s confidence?
This is because legal representation requires the full disclosure of facts by the client to the lawyer. Otherwise, the client will suppress information from the lawyer, and this will result to unjust decisions resulting from suppressing relevant evidence.
What is Rule 21.03, with regards to the information of the files of the lawyer? What’s the reason behind this rule?
Rule 21.03 states that a lawyer must not give away information of his clients to an outside agency seeking information for auditing, statistical, book keeping, accounting, data processing, or any other similar purpose. Unless GIVEN WRITTEN CONSENT by the client.
This is because the work of an attorney (research, thought, record of his client) are privileged matters.
Can a lawyer disclose affairs of the client who employed a law firm to his fellow associates?
Generally, a lawyer in a law firm employed by a client, can disclose the latter’s affairs to his fellow associates. Because lawyers in a law firm are not considered as third-person but rather as one.
Exception to the rule is when the client prohibits the lawyer from doing so.
What does Rule 21.05 talks about with regards to the lawyer adopting measures to ensure that the client’s secrets will not be disclosed?
Rule 21.05 states that a lawyer may adopts measures as required to prevent the information of the client from being leaked out in the course of seeking the aid of other professionals such as secretaries, stenographers, clerks, or accountants.
In the scope of the attorney-client privilege, when does privilege exist?
There exists a privilege if:
(1) Legal advice was sought;
(2) From an attorney in his professional capacity with respect
(3) to communications relating to that purpose
(4) made in confidence
(5) by the client
(6) so as permanently to protect such communication at the instance of the client from
(7) disclosure by him or by the attorney
(8) unless such protection is waived
In the scope of the attorney-client privilege, when does privilege exist?
There exists a privilege if:
(1) Legal advice was sought;
(2) From an attorney in his professional capacity with respect
(3) to communications relating to that purpose
(4) made in confidence
(5) by the client
(6) so as permanently to protect such communication at the instance of the client from
(7) disclosure by him or by the attorney
(8) unless such protection is waived
In relation to the second requisite, is there a privilege if the person posing as a lawyer, who is consulted by the client is not an attorney?
The general rule is that, the legal advice must be sought from an attorney.
Exception is, if the communication is voluntarily given by the client to a person who poses as an attorney, then the privilege applies to the communication.
In relation to the fourth element of privilege, what is the rule with regards to the confidentiality of the communication? Is there a limitation to the communication?
The relation of the attorney and client does not automatically raises confidentiality, It must be intended by the client that such communication is confidential.
The limitation of a communication to be cloaked with privilege is that it must be legitimately or properly for a lawful purpose or furtherance of a lawful end.
What are examples of communications that are not privileged?
Examples of communication that are not privileged are (1) communication intended to be delivered to a third person (it ceases to be privileged once it reaches the third person), (2) offer and counteroffer for settlement, (3) a letter written by the client to his attorney in the possession of the adverse party.
To whom does the attorney-client privilege extend?
Generally, it is to the attorney and the client, but this also involves the employees of the attorney. Which needs the consent of the attorney and the client with regards to the disclosure of privileged communication.
What are the rules regarding communications of a perpetrated crime or contemplated crimes by the client?
If the communication is a crime already perpetrated by the client, the privilege applies, which is necessary for the client to disclose the facts or even admit his guilt. But if the crime is abot a crime contemplated to be committed by the client, the cloak of privilege does not apply.
