iii. Confidential

Rationale<br>

Confidential nature of the privilege; to preserve marital and domestic relations

Elements<br>

• The husband or the wife
• During or after the marriage
• Cannot be examined
• Without the consent of the other
• As to any communication received in confidence by one from the other during the marriage [Sec. 24(a), Rule 130]

Except: Spouse may testify for or against the other even without the consent of the latter

• In a civil case by one against the other, or
• In a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants. [Sec. 24(a), Rule 130]

A widow of a victim allegedly murdered may testify as to her husband’s dying declaration as to how he died since the same was not intended to be confidential [US v. Antipolo, G.R. No. L-13109 (1918)]

Scope: “Any communication”

Includes utterances, either oral or written, or acts [Herrera]

Elements<br>

• A physician, psychotherapist or person reasonably believed by the patient to be authorized to practice medicine or psychotherapy
• Psychotherapist:
• A physician, pPerson licensed to practice medicine engaged in the diagnosis or treatment of a mental or emotional condition; or
• A person licensed as a psychologist by the government while similarly engaged
• In a civil case
• Note: the privilege cannot be claimed in a criminal case because the interest of the public in a criminal prosecution should be deemed more important than the secrecy of the communication [Riano, 211, 2016 Ed.]
• Without the consent of the patient
• Cannot be examined as to
• Any confidential communication made between the patient and his/her physician or psychotherapist
• For the purpose of diagnosis or treatment
• Of the patient’s physical, mental, or emotional condition
• Including drug or alcohol addiction

Note: this privilege also applies to persons, including members of the patient’s family, who have participated in the diagnosis or treatment of the patient under the direction of the physician or psychotherapist. [Sec. 24(c), Rule 130]

Physician-patient relationship need not be entered into voluntarily.

Others

• When there is no attorney-client relationship
• When the communication was not intended to be confidential
• When the action is one brought by the client against the attorney and the disclosure of the confidential information becomes necessary for the attorney (But limited only for what is necessary for the attorney's own protection).

Note: Contracts between attorneys and clients are inherently personal and private matters, but they are a constant subject of litigation, and contracts relating to fees are essentially not of a privileged nature. In other words, the terms of employment between attorney and client are not of a privileged nature. (Orient Insurance v. Revilla, G.R. No. 34098, 1930)

• When there is waiver.

The attorney cannot make a waiver without the client's consent - express or implied.

Secrecy of Bank Deposits

All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. (R.A. 1405, Sec. 2)

Witness Protection, Security and Benefit Act

All proceedings involving application for admission into the Program and the action taken thereon shall be confidential in nature. No information or documents given or submitted in support thereof shall be released except upon written order of the Department of Justice or the proper court. (R.A. 6981, Sec. 7)

THIRD PERSONS:

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 par.)

Note: Communication divulged to "strangers" or outsiders can scarcely be considered a confidential communication between attorney and client. (U.S. vs. Gordon-Nikkar, 518 F.2d 972, 1975)