WILLIAM S. UY vs. ATTY. FERMIN L. GONZALES A.C. No.

5280 : March 30, 2004 FACTS: Complainant engaged the services of respondent lawyer to prepare and file a petition for the issuance of a new certificate of title. After confiding with respondent the circumstances surrounding the lost title and discussing the fees and costs, respondent prepared, finalized and submitted to him a petition to be filed before the Regional Trial Court. When the petition was about to be filed, respondent went to complainants office demanding a certain amount other than what was previously agreed upon. Respondent left his office after reasoning with him. Expecting that said petition would be filed, he was shocked to find out later that instead of filing the petition for the issuance of a new certificate of title, respondent filed a letter-complaint against him with the Office of the Provincial Prosecutor for Falsification of Public Documents. The letter-complaint contained facts and circumstances pertaining to the transfer certificate of title that was the subject matter of the petition which respondent was supposed to have filed. Respondent claims that he gave complainant a handwritten letter telling complainant that he is withdrawing the petition he prepared and that complainant should get another lawyer to file the petition thereby terminating the lawyer-client relationship between him and complainant; that there was no longer any professional relationship between the two of them when he filed the lettercomplaint for falsification of public document; that the facts and allegations contained in the lettercomplaint for falsification were culled from public documents procured from the Office of the Register of Deeds. The IBP found him guilty of violating Rule 21.02, Canon 21 of the Canons of Professional Responsibility and recommended for his suspension for 6 months. ISSUE: Whether or not respondent violated Canon 21 of the CPR?

HELD:

No. Evidently, the facts alleged in the complaint for Estafa Through Falsification of Public Documents filed by respondent against complainant were obtained by respondent due to his personal dealings with complainant. Respondent volunteered his service to hasten the issuance of the certificate of title of the land he has redeemed from complainant. Clearly, there was no attorney-client relationship between respondent and complainant. The preparation and the proposed filing of the petition was only incidental to their personal transaction.

Whatever facts alleged by respondent against complainant were not obtained by respondent in his professional capacity but as a redemptioner of a property originally owned by his deceased son and therefore, when respondent filed the complaint for estafa against herein complainant, which necessarily involved alleging facts that would constitute estafa, respondent was not, in any way, violating Canon 21. There is no way we can equate the filing of the affidavit-complaint against herein complainant to a misconduct that is wanting in moral character, in honesty, probity and good demeanor or that renders him unworthy to continue as an officer of the court. To hold otherwise would be precluding any lawyer from instituting a case against anyone to protect his personal or proprietary interests.

PETITION DISMISSED for lack of merit. Upjohn Co. v. United States Facts. Petitioner, an international pharmaceutical company discovered through an independent audit that one of its foreign subsidiaries might have made payments to foreign government officials in order to secure government business. Gerard Thomas, Petitioners General Counsel, was notified and he consulted with outside counsel as well as Petitioners Chairman, all of whom decided an internal investigation as to questionable payments was necessary. As a result, questionnaires were sent to all foreign and area managers inquiring as to information regarding any such payments. This procedure of collecting information had been deemed highly confidential. Petitioner voluntarily sent a preliminary report to the Securities and Exchange Commission (SEC) and the IRS. The IRS began an investigation and was given lists by Petitioner of all those who were interviewed and all whom had responded to the questionnaire. The IRS then sought production of all files relative to the investigation conducted under Gerard Thomas supervision. The requested production included, but was not limited to the written questionnaires and memoranda or notes of interviews conducted in the US and abroad of officers and employees of Petitioner and its subsidiaries. Petitioner refused, citing attorney-client privilege and attorney work product in anticipation of trial. The Respondent, the United States (Respondent), filed a petition seeking enforcement of the summons in the United States District Court for the Western District of Michigan, which was granted. Petitioner then appealed to the Court of Appeals for the Sixth Circuit which rejected the District Courts finding of waiver of the attorney-client privilege, but agreed that the privilege did not apply to the communications made by officers and agents not responsible for directing Upjohns actions in response to legal advice. The Appellate Court remanded to the District Court to determine who was within the control group.

Issue. Whether the attorney-client privilege in the corporate context extends to employees not within the control group of the corporation. Whether the IRS had shown sufficient necessity and justification to overcome the work- product doctrine. Held.

Judgment of the Court of Appeals reversed and remanded. The attorney-client privilege protects the communications in this case from compelled disclosure. The work-product doctrine applies in tax summons enforcement proceedings where a strong showing of necessity must be shown to compel discovery of work product. Discussion. The attorney-client privilege applies to corporations, not just to the control group rather, it extends to lower level employees as well, since their actions as well may involve the corporation in legal difficulties. The attorney-client privilege only protects disclosure of communications. It does not protect disclosure of the underlying facts by those who communicated with the attorney. In this case, the Petitioner gave to the IRS a list of those employees to whom the questionnaire was given and those who answered. The IRS was free to question the employees who communicated with Thomas and outside counsel. The court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. The notes and memoranda that the IRS sought in this case were work product based on oral statements. This required the IRS to show necessity and undue hardship in obtaining the information it sought, a burden that the Supreme Court of the United States (Supreme Court) held was not met. PORMENTO V. PONTEVEDRA Facts: Respondent was the Pormento familys legal counsel between 1964 and 1994. The familys relationship with the respondentextends beyond the mere lawyer-client relations.The rift between complainant and respondent began when the complainants counterclaim in a civil case filed with the RTCof Bacolod City was dismissed. Respondent failed to inform complainant Pormento of the dismissal of his counterclaim whichresulted to the latter being deprived of his right to appeal. In order to recover his ownership over a parcel of land, Pormento wasforced to hire a new lawyer as Atty. Pontevedra refused to institute an action to recover the subject property.In a separate incident, In 1967, he bought a parcel of land located at Negros Occidental. The Deed of Declaration of Heirship and Sale of said land was prepared and notarized by respondent. Since there was another person who claims ownership of the property, complainant alleges that he heeded respondents advice to build a small house on the property and to allow his(complainants) nephew and his family to occupy the house in order for complainant to establish his possession of the said property.Subsequently, complainants nephew refused to vacate the property prompting the former to file an ejectment case with theMunicipal Trial Court of Escalante, Negros Occidental. Respondent acted as the counsel of complainants nephew. Issue: WON respondent is guilty of representing interests which conflict with those of his former client, herein petitioner; Held/Ruling:Rule 15.03, Canon 15 of the Code of Professional Responsibility provides: A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of thefacts.

Jurisprudence instructs that there is a representation of conflicting interests if the acceptance of the new retainer will requirethe attorney to do anything which will injuriously affect his first client in any matter in which he represents him and also whether hewill be called upon in his new relation, to use against his first client any knowledge acquired through their connection. Another testto determine if there is a representation of conflicting interests is whether the acceptance of a new relation will prevent anattorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness ordouble dealing in the performance thereof. A lawyer is forbidden from representing a subsequent client against a former client when the subject matter of the presentcontroversy is related, directly or indirectly, to the subject matter of the previous litigation in which he appeared for the formerclient. Conversely, he may properly act as counsel for a new client, with full disclosure to the latter, against a former client in amatter wholly unrelated to that of the previous employment, there being in that instance no conflict of interests. Where, however,the subject matter of the present suit between the lawyer s new client and his former client is in some way connected with that of the former client s action, the lawyer may have to contend for his new client that which he previously opposed as counsel for theformer client or to use against the latter information confided to him as his counsel. MERCADO V. ATTY. VITRIOLO

Facts: Atty. Vitriolo was the counsel of Mercado in a case for annulment of marriage f iled by the latters husband. Vitriolo filed a criminal action for falsification of public documents against Mercado alleging that the latter made false entries in the certificates of live birth of her children which were presented in the annulment case. Mercado filed this complaint alleging that due to the criminal case filed against her by Vitriolo, information relating to her civil case for annulment was divulged. Hence, Vitriolo breached the privilege and confidence reposed within a lawyer-client relationship. Mercado prayed the Vitriolo be disbarred.

Issue: W/N Vitriolo violated the rule on privileged communication between attorney and client when he filed a criminal case against his former client?

Held: SC provided the factors which are essential to establish the existence of the communication privilege between an attorney and his client.

There exists an attorney-client relationship, or a prospective attorney-client relationship, and it is by reason of this relationship that the client made the communication. The client made the communication in confidence. The legal advice must be sought from the attorney in his professional capacity. SC ruled that in applying all there rules, the evidence on record fails to substantiate Mercados allegations. Mercado did not even specify the alleged communication. all her claims were couched in general terms and lacked specificity. Regala vs. Sandiganbayan

PCGG want to build up their case against Eduardo Coujuanco for the anomalies in the COCO LEVY FUNDS. PCGG wants petitioners divulge that Cojuangco indeed was a client of their firm, as well as other information regarding Cojuangco.

Issue: Can the PCGG compel petitioners to divulge its clients name?

Held: NO.

As a matter of public policy, a clients identity should not be shrouded in mystery. The general is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client.

1) the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. 2) the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. 3) the privilege generally pertains to the subject matter of the relationship.

Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. A party suing or sued is entitled to know who his opponent is. He cannot be obliged to grope in the dark against unknown forces. Except:

1) Client identity is privileged where a strong probability exists that revealing the clients name would implicate that client in the very activity for which he sought the lawyers advice. 2) Where disclosure would open the client to civil liability, his identity is privileged. 3) Where the governments lawyers have no case against an attorneys client unless, by revealing the clients 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 clients name is privileged. That client identity is privileged in those instances where a strong probability exists that the disclosure of the client's identity would implicate the client in the very criminal activity for which the lawyers legal advice was obtained. Fisher v. U.S Facts. Two taxpayers, Mr. Kasmir and Mr. Fisher (taxpayers) were visited by two Internal Revenue Service (IRS) agents, and were interviewed in connection with two separate investigations into possible violations of federal tax laws. Following the interviews, the taxpayers retrieved, from their accountants, documents related to their tax return preparation and filing, and gave those documents to their attorneys. The IRS then issued summonses to the attorneys, seeking the documents. Both clients attorneys refused to turn over the documents sought by the IRS, arguing that doing so would violate their clients Fifth Amendment rights against self-incrimination. In both cases, a District Court ordered the summonses enforced, and appeals followed. In one case, the Court of Appeals for the Third Circuit affirmed the enforcement order, and in the other case, the Court of Appeals for the Fifth Circuit reversed the order. The United States Supreme Court granted certiorari to resolve the Circuit Court split.

Issue. When the Internal Revenue Service, during the course of a tax investigation, serves summonses on taxpayers attorneys commanding the attorneys to produce documents given to the attorneys by their clients and concerning the taxpayers accounting, are the Fifth Amendment rights against self incrimination of the taxpayers violated? Held. No; the enforcement of such summonses against the taxpayers attorneys does not involve any compelled testimonial self-incrimination, and therefore does not violate the Fifth Amendment rights of the taxpayers. Discussion. The Court first pointed out that, The Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of physical or moral compulsion exerted on the person asserting the privilege. (citations omitted). The Court then cited its decision in Couch v. United States, 409 U.S. 322 (1973), in which it was held that, the Fifth Amendment rights of a taxpayer were not violated by the enforcement of a documentary summons directed to her accountant and requiring production of the

taxpayers own records in the possession of the accountant. The Court then applied the decision in Couch to the present case, writing: Here, the taxpayers are compelled to do no more than was the taxpayer in Couch. The taxpayers Fifth Amendment privilege is therefore not violated by enforcement of the summonses directed toward their attorneys. This is true whether or not the Amendment would have barred a subpoena directing the taxpayer to produce the documents while they were in his hands. The Court also supported its holding through an examination of the language of the Fifth Amendment, stating: A subpoena served on a taxpayer requiring him to produce an accountants workpapers in his possession without doubt involves substantial compulsion. But it does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought. Therefore, the Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications. The Court concluded that since, surely it is not illegal to seek accounting help in connection with ones tax returns or for the accountant to prepare workpapers and deliver them to the taxpayer . . . we are quite unprepared to hold that either the fact of existence of the papers or of their possession by the taxpayer poses any realistic threat of incrimination to the taxpayer.