Confidentiality between

lawyers and clients

Problem Areas in Legal Ethics

Arellano University School of Law Arellano Law Foundation
2015-2016

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 CANON 15 - A lawyer shall observe candor, fairness
and loyalty in all his dealings and transactions with
his clients

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.

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 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 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;

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 Canon 21 A l awyer shal l preser ve t he conf i dence
and secret s of hi s cl i ent even af ter t he
at tor ney-cl i ent rel at i on i s ter mi nated
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.

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Cont

Rule 21 .04 - A lawyer may disclo se the affairs of a client of

the firm to par tners o r associates thereof un less proh ib ited
by the c lient.
Rule 21 .05 - A lawyer shall adopt such m easu res as may be
required to p revent tho se who se se r vices are utilized by him,
from disclo sing o r u sing confidences o r secrets of the
clients.
Rule 21 .06 - A lawyer shall avo id in d iscreet conversation
about a client's affairs even with members of his family.
Rule 21 .07 - A lawyer sha ll no t revea l that he has been
consulted about a par ticular case except to avoid po ssible
conflict of interest .

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 R u le 138 o f th e R u les o f C o u rt

Sec . 20 . It is the duty of an atto rney: (e) to m a in ta in

in v io la te th e con fid ence, and at ever y peril to himself, to
preser ve th e secre ts of h is c lien t, and to accept no
compensation in connection with his client's bu siness except
from him o r with his knowledge and app roval .

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 Canon 17 . A lawyer owes fidelity to the cause of his client
and he shall be mindful of the tru st and confidence reposed
in him .

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 R evised Pen al C o d e

A r t. 209 . Betraya l of tru st b y an a tto rney o r so lic ito r.

Reve la tion of secre ts . In add ition to the p roper
adm in istra tive action , xxx sha ll b e im posed upon any a tto rney-
at- law o r so lic ito r ( p ro cu rado r jud icia l) w ho , b y any m alic io us
b reach of p rofessiona l du ty o r of inexcusab le neg ligence o r
ig no rance , sha ll p rejud ice h is c lien t, o r revea l any of the
secre ts of th e la tte r lea rned by h im in h is p rofessiona l capacity.
The sam e pena lty sha ll b e im posed upon an a tto rney-at- law o r
so lic ito r (p rocu rado r judic ia l) w ho , hav ing under taken the
defen se of a c lien t o r hav ing rece ived con fid en tial in fo rm atio n
from sa id c lien t in a case , sha ll under take the defen se of the
opposing par ty in the sam e case , w ithou t the consen t of h is
first c lien t.

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 Confidentiality is not the same as the
attorney-client privilege
The lawyers duty of confidentiality (an ethical duty) is not
the same as the clients right to assert the attorney client
privilege (a rule of evidence).
The attorney/client privilege extends only to
communications between lawyers and clients relating to
legal services and which the client reasonably believes is
confidential.
Any disclosure may waive the attorney/client privilege as to
other otherwise protected matters; not so with the duty of
confidentiality.
The privilege applies only to limiting testimony in a legal
proceeding. The duty of confidentiality limits voluntary
disclosures anywhere.

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 W h y law yer-clien t relatio n sh ip s req u ires
co n fid en tiality
Consid era tions favo ring con fid en tia lly in law yer-c lie n t
re la tion sh ip s a re m any and se r ve several constitu tio na l and po licy
concern s. In the constitu tiona l sphere , the p riv ilege g ives fle sh
to one of the m ost sacro sanct righ ts availab le to the accused , the
righ t to counse l. I f a c lien t w ere m ade to choose betw een lega l
rep resen ta tion w ithou t e ffective comm un ica tion and d isc lo su re and
lega l rep resenta tion w ith all h is secre ts revea led then he m igh t be
com pe lled , in som e in stances, to e ithe r op t to stay aw ay from the
jud ic ia l system o r to lo se the righ t to counse l. I f the p rice of
d isc lo su re is too h igh , o r if it am oun ts to se lf in crim ination ,
then the flow of in fo rm ation w ou ld be cu r ta iled thereby rendering
the righ t p ractica lly nugato r y. The th reat th is rep resen ts aga in st
ano ther sacrosanct ind iv id ua l righ t, th e righ t to be p resum ed
innocen t is at once se lf-evid en t. - Regala et. al. v.
Sandiganbayan, G. R. No. 105938 [1996]

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 Exten t o f C o n fid en tiality R u le

The confidentiality rule, fo r example, applies not only to

matters communicated in confidence by the client but also to
all info rmation relating to the rep resentation, whatever its
sou rce . A lawyer may not disclo se such info rmation except as
autho rized or required by the Rules of Professional Conduct
o r other law.

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 Law yer
s du ty to keep the con fid en tia lity

An effective lawyer -client relationship is la rge ly dependen t

upon the degree of con fidence w h ich ex ists b etw een law yer
and c lien t which in tu rn requires a situation which
encou rages a dynamic and f ruitful exchange and flow of
info rmation . It necessarily follows that in o rder to attain
effective rep resentation, the law yer m ust in voke the
priv ilege not as a matter of option but as a m atte r of du ty
and professiona l responsib ility . - Regala et. al. v.
Sandiganbayan, G. R. No. 105938 [1996]

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 Duty of lawyer when receiv ing a
mater ial not i ntended for h i m
A l awyer who recei ves on an unaut hori zed basi s mat eri al s of an
adverse party t hat she kno ws t o be pri vil eged or confi denti al
shoul d, upon recogni zi ng t he pri vil eged or confi denti al nat ure of
t he mat eri al s, ei t her ref rai n f ro m revi ewi ng such mat eri al s or
revi ew t he m onl y t o t he ext ent requi red t o det er mi ne ho w
appropri atel y t o proceed;

She shoul d notif y her adversary' s l awyer t hat she has such
mat eri al s and shoul d ei t her f oll ow i nst ructi ons of t he adversary' s
l awyer wi t h respect to t he di sposi ti on of t he mat eri al s, or ref rai n
fro m usi ng the mat eri al s until a defi ni ti ve resol uti on of t he proper
di sposi ti on of t he mat eri als i s obt ai ned f ro m a court. - ABA
Co mm. on Ethi cs and Prof'l Responsi bility, For mal Op. 382 ( 1994) .

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 G en eral R u le o n clien ts id en tity

As a matter of public policy, a client's identity should not

be shrouded in myster y. Under this premise, the general rule
in ou r ju risdiction as well as in the United States is that a
lawyer m ay no t in voke the priv ilege and refuse to divulge the
name o r identity of this client . - Regala et. al. v.
Sandiganbayan, G. R. No. 105938 [1996]

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 R easo n s ad van ced fo r th e g en eral ru le

F irst, the cou r t has a rig h t to know that the c lien t w hose
p riv ileged in fo rm ation is sough t to be p ro tected is fle sh and
b lood .
Second , the priv ilege beg ins to ex ist o n ly a f te r the a tto rney-
c lien t re la tionsh ip has been estab lished . The a tto rney-c lien t
p riv ilege does no t a ttach un til the re is a c lien t.
Th ird , the p riv ilege genera lly p er ta in s to the subject m atte r of
the re la tion sh ip .
F ina lly, due pro cess consid era tion s require tha t the opposing par ty
shou ld , as a genera l ru le, know h is ad versa r y . "A par ty su ing o r
sued is en titled to know w ho h is opponen t is ." He canno t be ob lig ed
to g rope in th e dark aga in st unknow n fo rces.

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 Exceptions

1) Cli ent i dentity i s pri vil eged where a strong probability exi sts t hat
reveali ng t he cli ent' s na me woul d i mpl i cate t hat cli ent i n t he very
acti vity f or whi ch he sought t he l awyer' s advi ce.
2) Where di scl osure woul d open t he cli ent to ci vil liability; hi s
i dentity i s pri vil eged.
3) Where t he govern ment's l awyers have no case agai nst an
attorney' s client unl ess, by reveali ng the cli ent' s name, t he sai d
na me woul d furni sh t he onl y li nk t hat woul d f or m t he chai n of
testi mony necessary t o convi ct an i ndi vi dual of a cri me, t he
cli ent' s na me i s pri vil eged. - Regal a et. al. v. Sandi ganbayan, G. R.
No. 105938 [1996]

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 Summarizing these exceptions, info rmation relating to the
identity of a client m ay fa ll w ith in the am b it of the
priv ilege w hen the c lient's nam e itse lf has an independen t
sign ifican ce, su ch that d isc lo su re w ou ld then revea l c lien t
con fid ences. - Regala et. al. v. Sandiganbayan, G. R. No.
105938 [1996]

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 Communication to commit crime or fraud not
privileged
"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 subj ects, and that it is no part of the
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.

The relation of attorney and client cannot exist for the purpose of
counsel in concocting crimes.

The protection which the law affords to communications between

attorney and client has reference to those which are legitimately and
properly within the scope of a lawful employment, and does not extend
to communications made in contemplation of a crime, or
perpetration of a fraud. -Di ssenti ng opi ni on, Regal a et. al. v.
Sandi ganbayan, G. R. No. 105938 [ 1996]
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 It does not extend to those made in contemplation of a crime
o r perpetration of a fraud . If the unlawful pu rpose is
avowed, as in this case, the complainants alleged intention
to bribe government officials in relation to his case, the
communication is no t covered by the priv ilege as the client
does not consult the lawyer p rofessionally. I t is no t w ith in
the profession of a law yer to adv ise a c lien t as to how he
m ay comm it a crim e as a law yer is not a gun fo r h ire . Thus,
the atto rney-client p rivilege does not attach, there being no
p rofessional employment in the strict sense . - Genato v.
Atty. Silapan, A.C. No. 4078. July 14, 2003

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 C au se o f clien t d efen se is n o t ab so lu te

W hatever the contou rs of the line between traditional

lawyering and criminal conduct, they mu st inevitably be
drawn case-by-case . W e refuse to accept the notion that
lawyers may do anything, including violating the law, to
zealously advocate their clients' interests and then avoid
criminal p rosecution by c la im ing that they w ere "ju st do ing
the ir job." - United States v. Cueto (7th Cir. 1998) 151
F.3d 620, 634

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 Perm an en t n atu re o f d u ty to keep
co n fid en tiality
The du ty to m a in ta in in v io la te the c lie n t
s con fid ences and secrets
is no t tem po rar y bu t perm anen t. It is in e ffect perpetua l fo r " it
ou tlasts the law yer s em plo ym en t" (Canon 37 , Code of P rofessiona l
Responsib ility) w h ich m eans even a fte r the re la tionship has been
te rm inated , the du ty to p rese r ve the c lien ts con fidences and
secre ts rem a ins e ffective .

Th is ob lig a tion to p rese r ve the con fid ences and secrets of a c lie n t
arises a t the in cep tion of the ir re la tionsh ip . The pro tection g iven
to the c lien t is p erpetua l and does no t cease w ith the te rm inatio n
of the litig ation , no r is it a ffected by the par tys ceasing to
em p loy the a tto rney and re ta in ing ano ther, o r b y any othe r change of
re la tion betw een them . It even su r v ives the death of the c lien t.
Genato v. Atty. Silapan, A.C. No. 4078. July 14, 2003

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 Secrets o r co n fid en tial co m m u n icatio n s m u st
b e o b tain ed in a law yer-clien t relatio n sh ip
The a lleged "secre ts" of com p la inan t w ere no t spec ifie d by h im in
h is a ffid av it
-com p la in t. W hatever facts a lleged by responden t
aga in st com p la inan t w ere no t o bta ined by responden t in h is
p rofess iona l capacity bu t as a redem ptioner of a p roper ty
o rig ina lly ow ned by h is deceased son and the re fo re , w hen respondent
filed the com p la in t fo r esta fa aga in st here in com p lain an t, w h ich
necessa rily invo lved a lleging facts that w ou ld constitu te esta fa ,
responden t w as no t, in any w ay, v io la tin g Canon 21 . xxx To ho ld
o ther w ise w ou ld be p rec lu d ing any law yer from in stitu ting a case
aga in st anyone to p ro tect h is p e rsona l o r p rop rie ta r y in te rests .
Uy v. Atty. Gonzales, A.C. No. 5280, March 30, 2004
It m ust be stressed , how ever, tha t the p riv ilege aga inst d isc lo su re
of con fid en tia l comm un ication s o r in fo rm ation is lim ited on ly to
comm un ica tions w h ich a re leg itim ate ly and p roperly w ith in the
scope of a la w fu l em p lo ym en t of a law yer. - Genato v. Atty. Silapan,
A.C. No. 4078. July 14, 2003

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 Startin g p o in t of d u ty of co n fid en tiality
The moment complainant app roached the then receptive
respondent to seek legal advice, a veritab le law yer-c lien t
re la tion sh ip evo lved between the two. Such relationship
imposes upon the lawyer cer tain restrictions circumscribed
by the ethics of the p rofession . Among the bu rdens of the
relationship is that which enjoins the lawyer, respondent in
this instance, to keep inv io la te confid en tia l in fo rm ation
acqu ired o r revea led du ring lega l consu lta tion s. - Hadjula
v. Atty. Madianda, A.C. No. 6711 [2007]

This duty of confidentiality also extends to p rospective

clients even though an atto rney-client relationship is never
established .

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 Not a defense to justify breaching the
duty of confidentiality

1. La wyer not i ncli ned t o handl e t he cli ent' s case after consul tati on.
2. no f or mal prof essi onal engage ment f ol l ows t he consul tati on.
3. no cont ract what soever was execut ed by t he parties t o
me mori ali ze t he rel ati onshi p.
- Hadj ul a v. Atty. Madi anda, A. C. No. 6711 [ 2007]

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The essential factors to establish the existence of the
attorney-client privilege communication

( 1) Where l egal advi ce of any ki nd i s sought

( 2) f ro m a prof essi onal l egal advi ser i n hi s capaci ty as such,
( 3) t he co mmu ni cati ons rel ati ng t o t hat purpose,
( 4) made i n confi dence
( 5) by t he client,
( 6) are at hi s i nst ance perma nentl y protected
( 7) f ro m di scl osure by hi msel f or by t he l egal advi sor,
( 8) except t he prot ecti on be wai ved.
- Hadj ul a v. Atty. Madi anda, A. C. No. 6711 [ 2007]

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Characteristics of the Attorney-Client Privilege

1. A- C pri vil ege where l egal advi ce i s professi onall y sought f ro m an

attorney.
2. The cli ent must i nt end t he above co mmu ni cati on to be
confi denti al .
3. A- C pri vil ege e mbraces all f or ms of commu ni cati on and acti on.
4. As a general rul e, A- C pri vil ege al so extends t o t he attorney s
secret ary, st enographer, cl erk or agent wi t h ref erence t o any f act
requi red i n such capaci ty.
5. The above dut y i s perpetual and i s absol utel y pri vileged f ro m
di scl osure.

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 Attorney-Client Privilege cannot be
invoked
1. There i s consent or wai ver or cli ent .
2. Such i s requi red by l aw.
3. Such i s made t o prot ect the l awyer s ri ght s (i .e. t o coll ect hi s f ees
or associ ates or by j udi ci al acti on) .
4. When such co mmu ni cati on are made i n cont e mpl ati on of a
cri me or t he perpet uati on of a f raud.

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The principle of client-lawyer confidentiality is
given effect
by related bodies of law

1. t he attorney-cli ent pri vil ege,

2. t he work product doct ri ne and
3. t he rul e of confi denti ality est abli shed i n prof essi onal et hi cs.

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 The atto rney-client p rivilege and work-p roduct doctrine apply
in jud ic ia l and o ther proceed ing s in which a lawyer may be
called as a witness o r o ther wise required to p roduce
evidence concerning a client .

The rule of client-lawyer confidentiality applies in

situations other than those w here evid en ce is sought from
the lawyer through compulsion of law.

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 C o n fid en tiality d o es n o t exten d to
p artn ers an d asso ciates

Lawyers in a firm may, in the cou rse of the firm's p ractice,

disclo se to each other info rmation relating to a client of
the firm, unle ss the c lien t has in stru cted that par ticu la r
in fo rm ation be con fined to specified law yers.

Rule 21 .04 - A lawyer m ay d isc lo se the a ffa irs of a c lien t

of the firm to par tners o r asso cia tes thereof unless
p rohibited by the client.

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 P ro tectio n fro m th ird p arty

This p rohibition also applies to disclo su res by a lawyer that

do not in themselves reveal p rotected info rmation but could
reasonably lead to the discover y of su ch in fo rm ation by a
th ird pe rson.

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 D isclo su re of th e C lien t's Id en tity an d
W h ereab o u ts
The general rule is that a client's identity and whe reabouts
are no t covered by the atto rney-c lie n t priv ilege, as opposed
to the e th ica l du ty of con fid en tia lity .
However
, exceptions have been made if disclo su re would
implicate the client in the criminal activity for which
legal advice was sought o r "if the net effect of the
disclo su re would be to reveal the natu re of a client
communication ." - Charles McCormick, McCormick on Evidence
90 (5th ed. 1999)

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 La wyer must testif y about i dentity of client who pai d wi t h
count erf ei t $100 bill .

Cli ent' s na me not consi dered confi dential unl ess "i ntert wi ned"
wi t h confi denti al i nf or mat i on or l ast li nk t yi ng cli ent t o cri me. -
Al exi ou v. United St at es), 39 F. 3d 973 (9t h Ci r. 1994

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 Client identity is p rivileged in exceptional cases when
disclo su re would p rovide "last link" in chain of evidence
leading to conclusion that client committed crime, and would
reveal confidential communication between lawyer and client ;

Client who accused divo rce lawyer of imp roper sexual advances
may not obtain client list in discover y. - Brett v.
Berkowitz, 706 A.2d 509 (Del. 1998)

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 Lawyer fo r client sought in hit-and-run accident m ay w ithho ld
c lien t's id en tity when disclo su re would implicate client in
criminal activity fo r which legal advice sought . - Dietz v.
Doe, 935 P.2d 611 (Wash. 1997)

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Certain instances where a court order is not involved,
courts have held the client's whereabouts protected

La wyer may not be co mpell ed t o di sclose address

of def endant f at her i n child cust ody proceedi ng when he
specifi call y request ed t hat l awyer not reveal t he ho me address and
tel ephone number of t he fat her and t he na me and address of t he
school t he chil dren were attendi ng; information that the client
requests be kept confidential is protected unl ess prot ecti on
per mit s a f raud or cri me or cl earl y f rust rat es t he ad mi ni st rati on of
j usti ce. - Br ennan v. Br ennan, 422 A2d 510 ( Pa Super Ct 1980)

Do mesti c rel ati ons case where confi denti ality of address was
necessary f or cli ent saf ety. - Wal dman v. Wal dman, 358 NE2d 521
( 1976)

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 A s a ru le a la w yer sh o u ld ch allen g e an
o rd er to d isclo se in fo rm atio n
ab o u t clien t
In sum, the atto rney-client p rivilege o rdinarily w ill no t
cover the info rmation sought by a subpoena directed to a
lawyer. Ye t even when faced with a subpoena seeking fee
in fo rm ation o r a c lien t's id en tity, the lawyer should
genera lly asse r t the a tto rney-c lient priv ilege and obtain a
cou r t ruling rather than make his own determination whether
the info rmation is p rivileged . The existence of exceptions to
the general rule holding that fee and client identity are
not p rivileged, as well as the law yer's e th ica l du ty to
oppo se d isc losu re of in fo rm ation learned du ring a c lien t's
represen tation, make it advisable to follow this cou rse of
action .

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 A lawyer faced with a subpoena fo r info rmation about a
client m ust resist the subpoena if the lawyer's testimony o r
the document p roduction wou ld v io la te e ither the a tto rney-
c lien t priv ilege o r the eth ica l du ty of con fid entia lity and
the c lien t d oes no t consen t to the disc lo su re . - 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 testif y about a client

may file a motion to quash asse r ting the atto rney-client
p rivilege, along with any other po ssible grounds fo r refusing
to comply.

A subpoena duces tecum issued to a lawyer that m akes no

attem pt w hatsoever to con fine its scope to relevant, non-
p rivileged matters is unenfo rceable and must be quashed . -
U.S. v. Horn, 976 F2d 1314 (CA9 1992)

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 R ep resen tin g a fu g itive

Assuming the client is indeed p roperly characterized as a

fugitive, defense counsel mu st take into account the
boundaries of permissible advocacy. It bears noting that any
physical act in tended to harbo r o r concea l a fugitive so as
to p revent his discover y o r arrest arguably could constitute
a separate criminal violation .

A lawyer is free to continue to give legal advice to [a

fugitive] client and to rep resent him befo re the autho rities,
as long as [the lawyer] does nothing to aid the client to
escape trial.

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 C lien t is u n d er co n d itio n s o f b ail

W here a client is under cond ition s of ba il and d e fies a

law fu l cou r t o rder to appear, h is 'w hereabou ts' a re no t
unqua lified ly pro tected by the atto rney-client p rivilege,
and the attorney may be compelled to disclo se info rmation of
the client's whe reabouts." - Commonwealth v. Maguigan,511 A2d
1327 (Pa SupCt 1986)
Lawyer who learned from client's wife that client had lef t
with suitcase fo r "par ts unknown" had firm factual basis fo r
believing client jumped bond and did not intend to appear
fo r trial, thus had du ty to adv ise cou r t to avoid ass isting
in crim ina l act. - U.S. v. DelCarpio-Cotrina,733 FSupp 95
(DC SFla 1990)

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 An atto rney rep resenting an individual w ho has vio la ted the
te rm s of ba il and fled the ju risd iction arguably has an even
g reate r ob ligation as an office r of the cou r t to seek the
p rompt retu rn of the client in compliance with a judicial
release o rder .

An atto rney may not assist the [fugitive] client in any

way that the lawyer know s w ill fu r ther an illeg a l o r
- Association of the Bar of the City of
fraudu len t pu rpo se.
New York Formal Opinion 1999-02

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 W here an atto rney believes, bu t does no t know , conduct to be
illegal o r fraudulent, the atto rney may act on behalf of the
fugitive client, but only af ter assu ring him or he rself
that there is reasonable suppo r t for an argument that the
clients in tended u se of the fru its of the represen ta tion
w ill no t fu r ther a crim ina l schem e o r act. - Association of
the Bar of the City of New York Formal Opinion 1999-02

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Thank you for your
attention!!

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