6. Privileges of a Lawyer

Subject-matter of the privilege<br>

• Communications
• Observations by the lawyer (regardless of medium of transmission which may include oral or written words and actions)
• Tangible evidence delivered to a lawyer
• Documents entrusted to a lawyer [Herrera]

Identity of Client

General rule: The attorney-client privilege may not be invoked to refuse to divulge the identity of the client.

Exceptions:

• When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyer’s advice;
• When disclosure would open the client to liability;
• When the name would furnish the only link that would form the chain of testimony necessary to convict [Regala v. Sandiganbayan, G.R. No. 105938 and G.R. No. 108113 (1996)]

Attorney and Client; exceptions

Reason: It is based upon grounds of public policy to enable full disclosure.

McPartlin was entitled to the protection of the attorney-client privilege, because his statements were made in confidence to an attorney for a codefendant for a common purpose related to both defenses. (U.S. vs. McPartlin, 595 F.2d 1321, 1979)

The period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. In other words, If the client seeks his lawyer’s advice with respect to a crime that the former has theretofore committed, he is given the protection of a virtual confessional seal which the attorney-client privilege declares cannot be broken by the attorney without the client’s consent.

If the advice he seeks is with respect to a future crime, the communication is not protected. (People vs. Sandiganbayan, G.R. No. 115439-41, 1997)

Requisites:

• There must be a communication made by the client to the attorney, OR advice given by the attorney to his client;

(No particular form is required under the Rules)

• The communication or advice must be given in confidence; and
• The communication or advice must be given either:
• In the course of professional employment; or
• With a view to professional employment

(This contemplates preliminary negotiations, even if later on the attorneyclient relationship is not perfected)

Attorney’s secretary, stenographer, clerk or other persons assisting the attorney are also covered by the rule and cannot be examined concerning any fact the knowledge of which has been acquired in such capacity without the consent of the client AND their employer.

Note: Also covered is a “person reasonably believed by the client to be licensed to engage in the practice of law”

The Privilege Does NOT Apply:

• As provided for by the Rules of Court [Rule 130, Sec. 24(b)]:
• Furtherance of crime or fraud (future crime-fraud) [Rule 130, Sec. 24(b)(i)]
• There is no privilege if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud. (People v. Sandiganbayan, G.R. No. 115439- 41, 1997)
• Clients are not entitled to use lawyers to help them in pursuing unlawful or fraudulent objectives. If the privilege were to cloak such activity, the result would be loss of public confidence and corruption of the profession.An attorney’s service knowingly used to further a crime or fraud is hardly qualified as “professional legal services”, an essential element of the privilege (Mueller & Kirkpatrick, Sec. 5.22)
• Claimants through same deceased client [Rule 130, Sec. 24(b)(ii)]
• While the attorney-client privilege survives the death of a client, there is no privilege in a will contest or other case between parties who both claim through that very client since it is not known who stands in the shoes of the deceased client.
• Communication of such information may be essential to an accurate resolution of competing claims of succession, and the testator would presumably favor disclosure of the communications in order to dispose of his estate in accord with his intentions (Mueller & Kirkpatrick, Sec. 5.24)
• Breach of duty by lawyer or client [Rule 130, Sec. 24(b)(iii)]
• If the client alleges a breach of duty on the part of the lawyer - e.g., professional malpractice, incompetence or ethical violations OR a lawyer sues a client for his fee, either may testify as to communications between them which would otherwise be privileged.
• This “self-defense” exception is sometimes justified on the theory that client impliedly waives the privilege by making allegations of breach of duty against the lawyer (Mueller & Kirkpatrick, Sec. 5.23)
• Document attested by the lawyer [Rule 130, Sec. 24(b)(iv)
• When an attorney serves as an attesting witness, he is not acting as a lawyer and the client’s obvious intent is to have him available to testify to the matter attested (Lempert, R. & Saltzburg, S. at 697)
• Joint clients [Rule 130, Sec. 24(b)(v)]
• While joint client are within the class of persons to whom otherwise confidential communications can be disclosed without destroying confidentiality, if they have a falling out, the communications are not privileged in subsequent litigations between themselves, unless they have expressly agreed otherwise.
• Joint clients do not intend their communication to be confidential from each other. Therefore, joint representation means each joint client accepts the risk that another joint client may later use what one has said to the lawyer (Mueller & Kirkpatrick, Sec. 5.14)

Waiver of the Privilege:

• Client of the attorney consents to disclose privileged communication.
• Giving evidence on the privileged communication.
• When the privileged communication falls into the hands of the adverse party.

BUT NOTE THIS 2019 AMENDMENT: The communication shall remain privileged, even in the hands of a third person who may have obtained the information, provided that the original parties to the communication took reasonable precaution to protect its confidentiality. (Rule 130, Sec. 24, last paragraph)

• In calling or cross-examining his attorney regarding the privileged communication.

The receipt of fees from a client is not usually within the privilege because the payment of a fee is not normally a matter of confidence or a communication. The ministerial or clerical services of an attorney in transferring funds to or from a client is not a matter of confidence that is protected by the privilege. (In re Grand Jury Investigation, 732 F.2d 447, 1983)

General Rule: Client’s identity is not privileged.

Exceptions:

• Where a strong probability exists that revealing the client’s identity would implicate him in the activity for which he sought the lawyer’s advice.
• Where disclosure would open the client to civil liability.
• 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 of a crime (LAST LINK DOCTRINE). (Regala v. Sandiganbayan, G.R. No. 105398, 1996)

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 of a crime, the client’s name is privileged. (Regala v. Sandiganbayan, G.R. No. 105398, 1996)