Legal Ethics

Mercado v. Vitriolo A.C. No. 5108 May 26, 2005 Attorney-Client Privilege

FACTS:

Complainant Rosa F. Mercado’s husband filed a civil case for annulment of their marriage with the RTC of Pasig City. This annulment case had been dismissed and the same became final and executory on July 15, 1992.

In August 1992, Atty. de Leon, counsel of the complainant died. Respondent  Atty. Julito D. Vitriolo entered his appearance before the trial court as collaborating counsel for complainant, and filed  his Notice of Substitution of Counsel, informing the RTC that he has been appointed as counsel for the complainant, in substitution of Atty. de Leon.

On April 13, 1999, respondent filed a criminal action against complainant before the Office of the City Prosecutor, for violation of Articles 171 and 172 (falsification of public document) of the RPC. Respondent alleged that complainant made false entries in the Certificates of Live Birth of her children by allegedly indicating therein that she is married to a certain Ferdinand Fernandez, and that their marriage was solemnized on April 11, 1979, when in truth, she is legally married to Ruben G. Mercado and their marriage took place on April 11, 1978.

Complainant denied the accusations of respondent against her. She filed the instant administrative complaint against Atty. Julito D. Vitriolo, seeking his disbarment from the practice of law. The complainant alleged that respondent maliciously instituted a criminal case for falsification of public document against her, a former client, based on confidential information gained from their attorney-client relationship.

The IBP Commission on Bar Discipline set two dates for hearing but complainant failed to appear in both. Thus, the case was submitted for resolution based on the pleadings submitted by the parties.

The IBP Board of Governors found the respondent guilty of violating the rule on privileged communication between attorney and client, and recommended his suspension from the practice of law for one (1) year.

Complainant, upon receiving a copy of the IBP report and recommendation, wrote Chief Justice Hilario Davide, Jr., a letter of desistance. She stated that after the passage of so many years, she has now found forgiveness for those who have wronged her.

ISSUE:

Whether or not the respondent violated the rule on privileged communication between attorney and client when he filed a criminal case for falsification of public document against his former client.

RULING:

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. 

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 death0 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. 

Dean Wigmore cites the factors essential to establish the existence of the privilege, viz:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.

Notably, the mere relation of attorney and client does not raise a presumption of confidentiality. The client must intend the communication to be confidential.

A confidential communication refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means which, so far as the client is aware, discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given.

Moreover, the mere relation of attorney and client does not raise a presumption of confidentiality. The client must intend the communication to be confidential.

A confidential communication refers to information transmitted by voluntary act of disclosure between attorney and client in confidence and by means which, so far as the client is aware, discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given.

The legal advice must be sought from the attorney in his professional capacity.

The communication made by a client to his attorney must not be intended for mere information, but for the purpose of seeking legal advice from his attorney as to his rights or obligations. The communication must have been transmitted by a client to his attorney for the purpose of seeking legal advice.

Applying all these rules to the case at bar, we hold that the evidence on record fails to substantiate complainant’s allegations. We note that complainant did not even specify the alleged communication in confidence disclosed by respondent. The Court cannot be involved in a guessing game as to the existence of facts which the complainant must prove.

The complaint against respondent Atty. Julito D. Vitriolo is hereby DISMISSED for lack of merit.

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