Protecting client confidences, C3S28 CPRA

Section 28, Canon III

SECTION 28. Protecting client confidences. – A lawyer shall not reveal the confidences of the client, including data from the client’s files, except;
(a) When a written informed consent is obtained from the client;
(b) When required by law, such as anti-money laundering statutes, or the Rules of Court;
(c) To the extent necessary, to collect the lawyer’s fees;
(d) In defense of the lawyer, or the lawyer’s employees or associates; or
(e) By judicial order, but only if material. (2023 Code of Professional Responsibility and Accountability or CPRA)

1. Protecting client confidences

a. No revealing confidences of client

Under this section, lawyers are prohibited from revealing “confidences of the client, including data from the client’s files.”

The relationship between a lawyer and his client is one imbued with utmost trust and confidence. (Samonte v. Jumamil, A.C. No. 11668, July 17, 2017, Per Perlas-Bernabe, J.)

It is the duty of an attorney to “maintain inviolate the confidence, and at every peril to himself [or herself], to preserve the secret of his [or her] client.” The performance of such duty involves the application of rules of evidence and of professional ethics, both of which seek to safeguard the client’s confidence. To adequately represent a client, a full disclosure of the facts by the client to his attorney is a must. Unless the client knows that his attorney cannot be compelled to reveal what is told to him, he will suppress what he or she thinks to be unfavorable facts. If that happens, the legal advice will be useless, if not misleading; lawsuit will be conducted along improper lines, and trials will be full of surprises. The purpose of the attorney-client privilege is to encourage a client to make full disclosure to his or her attorney and to place unrestricted confidence in the attorney in matters affecting the client’s rights or obligations. (Simonetti v. Marapao, A.C. No. 10297, March 09, 2022, Per Dimaampao, J.)

A lawyer’s duty to protect the interest and confidence of his client, together with the corollary obligation not to represent interest in conflict or inconsistent with the same, extends even beyond the end of his professional engagement with said client. (Parungao v. Lacuanan, A.C. No. 12071, March 11, 2020, Per Hernando, J.)

1) Attorney-client privilege

In engaging the services of an attorney, the client reposes on him special powers of trust and confidence. Their relationship is strictly personal and highly confidential and fiduciary. The relation is of such delicate, exacting and confidential nature that is required by necessity and public interest. Only by such confidentiality and protection will a person be encouraged to repose his confidence in an attorney. The hypothesis is that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice. Thus, the preservation and protection of that relation will encourage a client to entrust his legal problems to an attorney, which is of paramount importance to the administration of justice. One rule adopted to serve this purpose is the attorney-client privilege: an attorney is to keep inviolate his client’s secrets or confidence and not to abuse them. Thus, the duty of a lawyer to preserve his client’s secrets and confidence outlasts the termination of the attorney-client relationship, and continues even after the client’s death. It is the glory of the legal profession that its fidelity to its client can be depended on, and that a man may safely go to a lawyer and converse with him upon his rights or supposed rights in any litigation with absolute assurance that the lawyer’s tongue is tied from ever disclosing it. With full disclosure of the facts of the case by the client to his attorney, adequate legal representation will result in the ascertainment and enforcement of rights or the prosecution or defense of the client’s cause. (Mercado v. Vitriolo, A.C. No. 5108, May 26, 2005, Per Puno, J.)

2) Protection is perpetual

In addition, “[t]he protection given to the client is perpetual and does not cease with the termination of the litigation, nor is it affected by the party’s ceasing to employ the attorney and +retaining another, or by any other change of relation between them. It even survives the death of the client.” (Parungao v. Lacuanan [2020], supra.)

The termination of attorney-client relation provides no justification for a lawyer to represent an interest adverse to or in conflict with that of the former client. The client’s confidence once reposed should not be divested by mere expiration of professional employment. Even after the severance of the relation, a lawyer should not do anything which will injuriously affect his former client in any matter in which he previously represented him nor should he disclose or use any of the client’s confidences acquired in the previous relation. (Parungao v. Lacuanan [2020], supra.)

b. Exceptions

The prohibition is subject to the following exceptions:

1) When a written informed consent is obtained from the client;

2) When required by law, such as anti-money laundering statutes, or the Rules of Court;

3) To the extent necessary, to collect the lawyer’s fees;

4) In defense of the lawyer, or the lawyer’s employees or associates; or

5) By judicial order, but only if material.

b. Burden of proof: complainant

[I]n an administrative case against an attorney, the complainant bears the onus to particularize the confidential information allegedly divulged by the attorney without the client’s consent. (Simonetti v. Marapao [2022], supra.)

Parungao v. Lacuanan, A.C. No. 12071, March 11, 2020, Per Hernando, J.

• In the case at bar, Jonathan failed to establish that Atty. Lacuanan has confidential information which the latter acquired through their connection or previous employment and which can be used against him in the pending civil and criminal proceedings instituted by Mary Grace. Jonathan generally avers that in the course of their professional and personal relations, he had shared with Atty. Lacuanan confidential information as regards his marital and family life as well as his businesses and properties. However, these are merely his bare allegations, unsubstantiated by any piece of evidence, and disputed by Atty. Lacuanan.

• It was also completely unnecessary, and not to mention highly improbable, for Atty. Lacuanan to have acquired knowledge of all of Jonathan’s assets and businesses in order to carry out or accomplish their previous engagements. To recall, Jonathan employed the services of Atty. Lacuanan for two specific matters, i.e., to facilitate the sale of a lot from Metrobank to the Spouses Parungao and draft a demand-letter concerning a defective vehicle sold to Jonathan. These are apparently simple undertakings which Atty. Lacuanan could get done even with limited information.

• Moreover, there is merit to Atty. Lacuanan’s argument that the allegations of concubinage, grounds for both the criminal and civil proceedings against Jonathan, are based on public records, particularly, the final and executory Decision dated September 27, 2002 of the Court of Appeals in C.A. G.R. No. 70503, which recalled and set aside the Decision dated May 28, 1999 of the RTC of Valenzuela, Branch 75, declaring null and void Jonathan’s previous marriage to one Annaliza Javellana-Parungao (Annaliza). The said Decision of the appellate court effectively upheld the validity of Jonathan’s previous marriage to Annaliza. Documents which are public records could not be considered confidential.

• Finally, Mary Grace has employed the services of Atty. Lacuanan as counsel for two legal proceedings against Jonathan, viz., (a) the criminal complaint for concubinage, physical injury, and threat, in relation to R.A. No. 9262; and (b) the petition for declaration of nullity of marriage. The significant events which led to the institution of said proceedings only took place from late 2012 onwards. It is being alleged in both proceedings that Jonathan separated from Mary Grace and left the family dwelling in November 2012; that Mary Grace discovered in February 2013 that Jonathan was already cohabiting with another woman; and that when Mary Grace chanced upon Jonathan and his other woman on April 17, 2013, an altercation ensued between them, with Jonathan ultimately inflicting physical injury on Mary Grace. The pending criminal and civil proceedings against Jonathan in which Atty. Lacuanan now acts as counsel for Mary Grace evidently involve matters that are totally distinct and unrelated to Atty. Lacuanan’s previous two engagements with Jonathan, which only pertained to the acquisition of a lot and a defective vehicle in 2011. Absent any showing that said lot and vehicle still formed part of the current marital assets of the Spouses Parungao, they have no material significance in the pending proceedings between the spouses.

Simonetti v. Marapao, A.C. No. 10297, March 09, 2022, Per Dimaampao, J.:

• In the years 1998 and 1999, Atty. Marapao represented Gertrudes’ husband, Venancio Ang (Venancio), in the various criminal cases filed by Venancio against Gertrudes for bigamy, adultery, concubinage, perjury, libel, numerous counts of violation of Commonwealth Act No. 142,2 and several counts of falsification of public and commercial documents. The cases were eventually dismissed as Gertrudes and Venancio reconciled,3 paving the way for Gertrudes to hire Atty. Marapao as her lawyer in the two cases of Estafa and/or violation of Batas Pambansa (BP) No. 22 which she filed against Rosita Mawili (Rosita) and Genera Legetimas (Genera) on 3 December 2001 and 10 December 2001, respectively.

• Eight years later, or, on 1 December 2009, Gertrudes was entangled in another court litigation. This time, she was sued by Eufronia Estaca Guitan (Eufronia) and Victoria Huan (Victoria) for Declaration of Nullity of a Public Document (Deed of Absolute Sale) and a Private Document (Acknowledgment Receipt of Partial Payment with Undertaking), Subrogation, and Damages with Urgent Prayers for the Issuance of the Writs of Preliminary Prohibitory and Mandatory Injunction, docketed as Civil Case No. 7688 before the Regional Trial Court (RTC) of Tagbilaran City, Bohol.5 As it happened, Gertrudes discovered that Atty. Marapao appeared as counsel for Eufronia and Victoria in the said civil case. Meanwhile, from 2009 to 2011, Atty. Marapao continued to render legal services in favor of Eufronia and the latter’s niece, Rosario Galao Leyson (Rosario). More tellingly, Atty. Marapao had assisted Eufronia and Rosario in lodging more than thirty (30) criminal cases against Gertrudes – again for various crimes involving falsification of public and private documents, perjury, violation of the “Anti-Alias Law,” and violation of the National Building Code.

• Dismayed, Gertrudes denounced Atty. Marapao’s propensity of filing frivolous suits. She accused him of violating the Lawyer’s Oath,7 decrying that his act of representing Eufronia, Victoria, and Rosario in the cases filed against her transgressed the ethical injunction which prohibits lawyers from engaging in any conflict of interest given that she was a former client of Atty. Marapao. Gertrudes bemoaned Atty. Marapao’s failure to preserve the confidence and secrets of a client when he used privileged information to file cases against her eight years later. She vehemently characterized the filing of Civil Case No. 7688 as a form of harassment, made possible by the complicity of Atty. Marapao, as a means to coerce her and Venancio to give up their rights and interests in the parcels of land which are subject of the said case.

• Gertrudes failed to discharge such burden in this case. The records bear no specific demonstration of how Atty. Marapao utilized and divulged confidential information without Gertrudes’ consent. At most, all that Gertrudes alleged was that “respondent used without permission his knowledge or information acquired during his term as lawyer for the complainant in filing frivolous case after frivolous case.” A statement as general as such cannot not aid the Court in ascertaining whether there was indeed any violation on the rule on privileged communication.


Canon III, 2023 Code of Professional Responsibility

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