Disqualification-- Atty-- Client Privilege

Question 1

Requisites for the Privilege

Answer 1

1. There must be a communication made by the client to the attorney, or and advice given by the attorney to his client;
2. The communication or advice must be given in confidence; and
3. The communication or advice must be given either in the course of the professional employment or with a view of professional employment. (Riano, 2019)

Question 2

Doctrine of Absolute Privilege?

Answer 2

A communication is absolutely privileged when it is not actionable, even if the author has acted in bad faith. This class includes allegations or statements made by parties or their counsel in pleadings or motions or during the hearing of judicial and administrative proceedings, as well as answers given by the witness in reply to questions propounded to them in the course of said proceedings, provided that said allegations or statements are relevant to the issues, and the answers are responsive to the questions propounded to said witnesses. (Belen v. People, G.R. No. 211120, 13 Feb. 2017)

The absolute privilege remains regardless of the defamatory tenor and the presence of malice, pertinent or material to the cause in and or subject of the inquiry. (Ibid.)

Question 3

Communications NOT Covered by the Privilege

Answer 3

If the communication is:

1. Intended to be made public;
2. Intended to be communicated to others;
3. Intended for an unlawful purpose;

NOTE: The privilege does not extend to communications where the client’s purpose is the furtherance of a future intended crime or fraud, or for the purpose of committing a crime or a tort, or those made in furtherance of an illicit activity (Riano, 2019).

4. Received from third persons not acting in behalf or as agents of the client; or
5. Made in the presence of third parties who are strangers to the attorney-client relationship. (Regalado, 2008)

Question 4

Cases when the Privilege is NOT Applicable:

Answer 4

a. Furtherance of crime or fraud/ “Future crimefraud exception”. If the services or advice of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

b. Claimants through some deceased client. As to communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate or by inter vivos transaction;

c. Breach of duty by lawyer or client/Self-defense exception. As to communication relevant to an issue of breach of duty by the lawyer to his or her client, or by the client to his or her lawyer;

d. Document attested by the lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness;

e. Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in action between any of the clients, unless they have expressly agreed otherwise. (Sec. 24(b), Rule 130, ROC, as amended)

Question 5

Applicability of the Rule regarding the Identity of the Client

Answer 5

GR: A lawyer may NOT invoke the privilege and refuse to divulge the name or identity of his client.

XPNs: 1. Where a strong possibility exists that revealing the client’s name would implicate the client in the very activity for which he sought the lawyer’s advice;

2. Where disclosure would open the client to civil liability; or
3. Last Link Doctrine – Where the government’s lawyers have no case against an attorney’s client unless, by revealing the client’s name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual for a crime. (Regala v. Sandiganbayan, G.R. No. 105938, 03 Sept. 1996)

Question 6

Q: On August 15, 2008, Edgardo committed estafa against Petronilo in the amount of 3 million pesos. Petronilo brought his complaint to the National Bureau of Investigation, which found that Edgardo had visited his lawyer twice, the first time on August 14, and the second August 16, 2008; and that both visits concerned the swindling of Edgardo. During the trial, the RTC issued a subpoena ad testificandum to Edgardo’s lawyer for him to testify the conversations during their first and second meetings. May the subpoena be quashed on the ground of privileged communication? Explain fully. (2008 BAR)

Answer 6

A: NO. The subpoena may not be simply quashed on the allegation that the testimony to be elicited constitutes privileged communication. It may be noted that the accused committed the crime swindling on August 15, 2008, whereas he first visited his lawyer on August 14, 2008 or before he committed the swindling.

Clearly, the conversations the accused had with his lawyer before he committed the swindling cannot be protected by the privilege between attorney and client because the crime had not been committed yet and it is no part of a lawyer’s professional duty to assist or aid in the commission of a crime; hence not in the course of professional employment.

The second visit by accused Edgardo to his lawyer on the next day (August 16, 2008) after the swindling was committed may also suffer from the same infirmity as the conversations had during their first meeting inasmuch as there could not be a complaint made immediately after the estafa was committed. The privilege covering a lawyer-client relation under Sec. 24(b), Rule 130, may not be invoked, as it is not a ground for quashal of a subpoena ad testificandum under Sec. 4, Rule 21 of the Rules of Court