Report Zzz

7/29/2019 Report Zzz

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3/18/13

CANON 21

TEJANO, TIONGCO, VALDEZLegal ProfessionAtty. Fina Tantuico


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CANON 21: A lawyer shallpreserve the confidence

and secrets of his clienteven after the attorney-client relationship is

terminated.


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Duty to preserve clientsconfidenceNeither attorney nor client nor anyone whostands in a peculiar relation of confidencewith either of them can be compelled todisclose any privileged communication.


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Duration of duty

General rule: PERPETUAL Outlasts:

Professional employment

Death of client

Exception: Some privileged communicationslose privilege character by somesupervening act pursuant to the purpose ofcommunication Communication intended to be sent to 3rd person

loses privilege character upon reaching 3rdperson

Pleading privileged before but not after filing


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Reason for the rule

Two reasons: To encourage a client to make full disclosure to his

attorney in matters affecting his rights andobligations.

Information secured from client is sacred to legalemployment.

Privilege is founded on public policy Benefits justify the risk of unjust decisions due to

suppression of evidence.


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Requisites of privilege

Attorney-client relationshipCommunication between client & attorney

Communication of client to attorney; or Legal advice of attorney to client

ConfidentialityDuring professional employment


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Requisites of privilege

Question of privilege is for the court todetermine, considering: Nature of suit Circumstances & conditions of questions Circumstances & conditions of answers

Party asserting privilege has burden of proof Unless it appears from the face of the document

that it is privileged


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Attorney-clientrelationshipGeneral rule: No privilege for

communication between client and non-lawyer Exception: If person poses as a lawyer

Must be the reason for client to make thecommunication


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Confidentiality

Mere attorney-client relationship does notraise presumption of confidentiality Client should have intended the communication to

be confidential

Privilege not destroyed by eavesdropperPrivilege not destroyed by representation

later of client by other attorney


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Form of communication

Not only oral or written, but also signs orother means of communication

Communication may be transmitted byagency


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Persons entitled to claimprivilegePersons covered by privilege:

Attorney Client Attorneys secretary, stenographer, clerk Interpreter, messenger, other agent of

transmission of communication Experts hired for effective communication

between attorney and client, e.g. accountant,

scientist, engineer, physician


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Persons entitled to claimprivilegePrivilege primarily for client, incidentally for

attorney Client is entitled primarily to assert privilege

For attorneys secretary, stenographer, or

clerk to reveal, client and attorney mustwaive privilege


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Application of rule

Attorney may legally refuse to testify onlyon privileged but not unprivilegedcommunication

However, attorney may not volunteer bothprivileged and unprivileged communication


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Privileged matters

Work product contained in filesDocument privileged upon delivery to

attorney still privileged when with clientCrimes or frauds committed in the past

Not crimes or frauds being committed or about tobe committed

Identity and name of client


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Unprivileged matters

Any communication lacking any requisiteLetter not made in the course of judicial

proceedingsUnprivileged document delivered to

attorneyCommunications concerning creation of

attorney-client relationship

Contracts relating to attorneys fees


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RULE 21.01. Lawyer shall

not reveal clientsconfidence


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RULE 21.01

A lawyer shall not reveal the confidence orsecrets of his client except:

a) When authorized by the client afteracquainting him of the consequences of thedisclosure;

b) When required by law;

c) When necessary to collect his fees or todefend himself, his employees or associates

or by judicial action.


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RULE 21.01

If lawyer requested for some records andopposing counsel sent even confidentialfiles, lawyer must withdraw from action

If witness is third party who illegallyacquired privileged communication fromother party, opposing counsel cannot usesuch witness

Lawyer may not disclose clients funds toclients creditor for attachment

Lawyer may disclose to corporationsdirectors

If client confides perjury, attorney shouldretire from the case


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RULE 21.01

Exceptions Authorized by client

Attorneys implied power of waiver

No partial waiver

Required by law Necessary to collect fees or defend himself Additional: commission of contemplated crime or

fraud

Solution: restrain client

If client does not know the act/omission is a crimeand therefore desists upon knowledge: covered byprivilege


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not use clients secretswithout consent


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RULE 21.02

A lawyer shall not, to the disadvantage ofhis client, use information acquired in thecourse of employment, nor shall he use thesame to his advantage or that of a third

person, unless the client with full knowledgeof the circumstances consents thereto.


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RULE 21.02

Lawyer may use privileged information tothe disadvantage of client only when: Client consented Collecting fees Defending self, employee, or associate


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not give informationfrom his files


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RULE 21.03

A lawyer shall not, without the writtenconsent of his client, give information fromhis files to an outside agency seeking suchinformation for auditing, statistical,

bookkeeping, accounting, data processing,or any similar purpose.


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RULE 21.04. Lawyer maydisclose to partners


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RULE 21.04

A lawyer may disclose the affairs of a clientof the firm to partners or associates thereofunless prohibited by the client.

Partners and associates of a law firm are

considered one person


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adopt measures againstdisclosure


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RULE 21.05

A lawyer shall adopt such measures asmay be required to prevent those whoseservices are utilized by him, from disclosingor using confidences or secrets of the

client.Lawyer must prevent leaks of privileged

communication known by clerical aids andhired experts


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Canon 21: Preservation ofClient's Confidence Involves the application of rules of

evidence and of professional ethics, bothof which seeks to safeguard the client'sconfidence

Duration of the duty perpetual, unlessremoved by the client himself or hisrepresentatives or heirs. Anything which may injure the client Disclose information acquired in a professional

capacity


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Canon 21: Preservation ofClient's Confidence Reason for the Rule

Adequate legal representation requires a fulldisclosure of the facts by the client to hisattorney. Without the privilege, the client will

withhold information that he thinks to beunfavorable.


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Canon 21: Preservation ofClient's Confidence

Requisites of the Rule

The attorney-client privilege exists where legaladvice of any kind is sought form an attorney inhis professional capacity with respect tocommunications relating to that purpose, madein confidence by the client so as to permanentlyprotect such communication from disclosure by

himself or by the attorney, unless the privilegeis waived.


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Canon 21: Preservation ofClient's Confidence Requires an attorney client relationship The mere relation of attorney and client

does not raise the presumption of

confidentiality The client must haveintended the communication to beconfidential.

Any form or mode

Extended to experts and clerks


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Other Applicable Rules

Rule 138, Rules of Court Section 20. Duties of attorneys - It is the duty of

an attorney: (e) To maintain inviolate the confidence, and at

every peril to himself, to preserve the secrets ofhis client, and to accept no compensation inconnection with his clients business except fromhm or with his knowledge and approval.


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Rule 130, Rules of Court Section 24 (b)

An attorney cannot, without the consent of hisclient, be examined as to any communication

made by the client to him, or his advice giventhereon in the course of, or with a view to ,professional employment, nor can an attorneyssecretary, stenographer, or clerk be examined,without the consent of the client and his

employer, concerning any fact the knowledge ofwhich has been acquired in such capacity.


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Art. 208, Revised Penal Code:Prosecution of offenses; negligence and

tolerance. - The penalty of prision correccionalin its minimum period and suspension shall be

imposed upon any public officers or officer ofthe law, who , in dereliction of the duties of hisoffice, shall maliciously refrain from institutingprosecution for the punishment of violators ofthe law, or shall tolerate the commission of

offenses.

Art 208: Prosecution of


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Art. 208: Prosecution ofOffenses; negligence and

tolerance. Acts punishable: By maliciously refraining from instituting

prosecution against violators of the law. By maliciously tolerating the commission of

offenses. Negligence here means neglect of the

duties of his office. Malice is an important element.

Art 208 Prosecution of


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Art. 208. Prosecution ofOffenses; negligence and

tolerance. Elements of dereliction of duty in theprosecution of offenses: Offender is a public officer or officer of the law

who has a duty to cause the prosecution of

offenses. There is dereliction of the duties of his office,

i.e., knowing the commission of the crime, hedoes not cause the prosecution of the criminal,

or, knowing that a crime is to be committed, hetolerates its commission.

Art 208 Prosecution of


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Art. 208. Prosecution ofOffenses; negligence and

tolerance. Applies to public officers and officers of thelaw with duty to prosecute.

The fiscal or prosecutor, is under no

compulsion to file information where he isnot convinced that the evidence warrantsthe filing of an action.

A dereliction of duty caused by poorjudgment or honest mistake is not

punishable. Crime must be proved before conviction for

dereliction


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Other Applicable Laws

Art. 209, Revised Penal Code:Betrayal of trust by an attorney or solicitor. -

Revelation of secrets. - ... any attorney-at-lawor solicitor who, by any malicious breach of

professional duty or of inexcusable negligenceor ignorance, shall prejudice his client, or revealany of the secrets of the latter learned by himin his professional capacity. xxx (or) who,having undertaken the defense of a client or

having received confidential information fromsaid client in a case, shall undertake thedefense of the opposing party in the samecase, without the consent of his first client.


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Rule 21.06

A lawyer shall not avoid indiscreetconversations about a client's affairs evenwith members of his family. Intended to better preserve the client's

confidence and secrets. Indiscreet conversation can result in prejudice

to the client and will lessen the respect due thelegal profession.


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Rule 21.07

A lawyer shall not reveal that he has beenconsulted about a particular case except toavoid possible conflict of interests. Rule on privileged communication applies to

matters disclosed to a layer by a prospectiveclient.

Reason: disclosure and the lawyer's opinionscreate an attorney-client relationship , even

though the lawyer does not eventually acceptthe employment.


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FACTS:On 4/23/1945, Blandina Gamboa Hilado (Hilado) brought

an action against Selim Jacob Assad to ANNUL the sale ofseveral houses and lots executed by the deceased Mr.Hilado

On 1/28/1946, defendant Atty. Vicente Francisco (Dizon)entered as attorney of record for Assad. Atty. Dizon, counselfor petitioner, urged him to discontinue representing Assad

Apparently Hilado communicated Francisco prior to thecase, submitting expedientes, to which the latter gave hiswritten opinion

Hilado filed a motion for disqualification against Francisco

HILADO v. DAVID


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FACTS FOR THE DEFENSE:A real estate broker introduced Hilados case to him, but

averred he would rather take the Syrians cause

Petitioners case was as lost cause; Torrens title was in

her husbands name Hilado came in with the expediente of her case, which

Francisco returned

He took Assads case when the latters lawyer went abroad

HILADO v. DAVID


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ISSUE:

Was there an attorney-client relationshipestablished between Hilado and Francisco?

HILADO v. DAVID


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HELD: Motion for disqualification ALLOWEDRATIO:

q Professional attorney-client relationship established whenattorney is employed eitherto give advice upon a legal

point, to prosecute or defend an action in a court of justice,or to prepare and draft, in legal form such papers as deeds,bills, contracts and the like (Atkinson v. Howlett)

q Not necessary that client should have employed theattorney professionally on any previous occasion; immaterialwhether the attorney took up the case on which he was

consulted forq Attorney is employed when he is engaged in his professional

capacity as a lawyer or counselor when he is listening to hisclients preliminary statement of his case, or when he isgiving advice thereon

q Formality not an essential element of the employment of an

HILADO v. DAVID


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HELD: Motion for Disqualification ALLOWEDRATIO:q that only copies of pleadings were furnished

by Hilado is immaterial; nature of papers,

either public/private, does not matterbecause mere relation of attorney and clientought to preclude the attorney fromaccepting opposing partys retainer

q To make the passing of confidentialcommunication a condition precedent; i.e. tomake the employment conditioned on thescope and character of the knowledgeacquired by an attorney in determining his

HILADO v. DAVID


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HELD: Motion for Disqualification ALLOWEDRATIO:q retaining fee a preliminary fee given to

an attorney or counsel to insure and secure

his future services, and induce him to act forthe client

q Even if Francisco did not read the copy ofproceedings, the fact that he gave hisprofessional advice on the matter, fromwherein arose the attorney-clientrelationship

q Petitioners objection only after (4) monthsfrom the date Francisco first a eared for

HILADO v. DAVID


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FACTS for PROSECUTION:On July 1992, Atty. Essex Silapan asked William Genato if

he could rent a small office space in the latters bulding inQC

Silapan thereupon handled most of complainants cases

start of attorney-client relationship

Respondent borrowed P200,000 for the downpayment of acar. Respondent issued a P176,528 postdated check toanswer for (6) mos. interest on the loan. Also mortgagedhis house in QC but did not surrender title to complainant.

Respondent purchased new car; title was in the name ofcomplainant

January 1993, respondent introduced complainant to acertain Emmanuel Romero, who borrowed money fromcomplainant.

Respondent earned commission from the transaction, used

GENATO v. SILAPAN


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FACTS for PROSECUTION: Respondent failed to pay for his cars amortization

Respondents postdated checks bounced

Complainant filed a criminal case for violation ofB.P. 22

GENATO v. SILAPAN


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RESPONDENT: Complainant was involved in shady deals and shark loans

Complainant wanted respondent to bribe members of theDOJ (judge, prosecutor) to acquit him in his criminal case

It was complainant who offered the office space andengaged his legal services

Real estate mortgage was only a formal requiremet so hecould obtain P200,000 loan

Postdated check was some kind of acknowledgment forattorneys fees and a form of assurance that he wont

abandon complainants case Commission from Romero was in fact attorneys fees from

the latter

IBP: respondent guilty; suspended for (1) year

GENATO v. SILAPAN


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ISSUE:

Whether respondent committed a breach oftrust and confidence by imputing to

complainant illegal practices and disclosingcomplainants alleged intention to bribe govt

officials in connection with a pending case

GENATO v. SILAPAN


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HELD: IBP Resolution AFFIRMED withMODIFICATION; (6) months SUSPENSION

q Canon 17: A lawyer owes fidelity to the

cause of his client and shal be mindful ofthe trust and confidence reposed on him.

q GENERAL RULE: An attorney is NOTpermitted to disclose communications madeto him in his professional character by aclient, unless the latter consents.

q Protection is afforded the clients secrets atthe inception of the relationship; protectionis er etual and does not cease with

GENATO v. SILAPAN


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q HOWEVER, such privilege against disclosure

of confidential communications orinformation limited only to communicationswhich are legitimately and properly withinthe scope of a lawful employment of the

lawyerq Does not extend to those made in

contemplation of a crime or perpetration ofa fraud

q IF unlawful ur ose is avowed

GENATO v. SILAPAN


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q Respondents disclosures were immaterial

to the case and are thus disregardedq Such statements were not the subject

matter of litigation for foreclosure caseqTo disclose such was a breach of fidelity

sufficient to warrant (6) months ofsuspension

GENATO v. SILAPAN


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torrents are free)

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torrents are free)

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torrents are free)

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