DOCTRINE OF PRIVILEDE COMMUNICATIONS IN PLEADINGS AND JUDICIAL

PROCEEDINGS
Problem Areas in Legal Ethics No.14

CONCEPT OF PRIVILEGED COMMUNICATION [SPEECH]

1. Privileged communication as rule on evidence.
2. Privileged communication as basis to keep confidential the secrets or
confidences of clients.
3. Privileged speech in congress.
4. Privileged communications made in the course of juridical proceedings,
including all kinds of pleadings, petitions and motions.

Privileged Communication as Rule on Evidence

Rule 130, Sec. 24. Disqualification by reason of privileged communication.

The following persons cannot testify as to matters learned in confidence in
the following cases:
Xxx

(b) An attorney cannot, without the consent of his client, be examined as to

any communication made by the client to him, or his advice given thereon in
the course of, or with a view to, professional employment, nor can an
attorney's secretary, stenographer, or clerk be examined, without the
consent of the client and his employer, concerning any fact the knowledge of
which has been acquired in such capacity;

xxx

ESSENTIAL FACTORS TO ESTABLISH THE EXISTENCE OF THE ATTORNEY-CLIENT

PRIVILEGE COMMUNICATION
1.
2.
3.
4.
5.
6.
7.
8.

Where legal advice of any kind is sought.

From a professional legal adviser in his capacity as such,
The communications relating to that purpose.
Made in confidence
By the client,
Are at his instance permanently protected
From disclosure by himself or by the legal advisor,
Except the protection be waived.
(Hadjula vs. Madianda)

Privileged Communication as Basis to Keep Confidential the Secrets or

Confidences of Clients
CANON 21 A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS
CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS TERMINATED.
Rule 21. 01 - A lawyer shall not reveal the confidences or secrets of his client
except;
(a) When authorized by the client after acquainting him of the consequences
of the disclosure;
(b) When required by law;
(c) When necessary to collect his fees or to defend himself, his employees or
associates or by judicial action.
Rule 21.06 - A lawyer shall avoid indiscreet conversation about a client's affairs
even with members of his family.
Rule 21.07 - A lawyer shall not reveal that he has been consulted about a particular
case except to avoid possible conflict of interest.
RPC Art. 209. Betrayal of trust by an attorney or solicitor. Revelation of secrets.
In addition to the proper administrative action, the penalty of prision correccional in
its minimum period, or a fine ranging from 200 to 1,000 pesos, or both, shall be
imposed upon any attorney-at-law or solicitor ( procurador judicial) who, by any
malicious breach of professional duty or of inexcusable negligence or ignorance,
shall prejudice his client, or reveal any of the secrets of the latter learned by him in
his professional capacity.

The same penalty shall be imposed upon an attorney-at-law

(procuarador judicial) who, having undertaken the defense of
having received confidential information from said client in a
undertake the defense of the opposing party in the same case,
consent of his first client.

or solicitor
a client or
case, shall
without the

Rule 15.02. - A lawyer shall be bound by the rule on privilege communication in

respect of matters disclosed to him by a prospective client.
LIMIT OF PRIVILEGED COMMUNICATION BETWEEN CLIENT AND LAWYER

It is well settled that in order that a communication between a lawyer and his
client may be privileged, it must be for a lawful purpose or in furtherance of a
lawful end. The existence of an unlawful purpose prevents the privilege from
attaching.
In fact, it has also been pointed out to the Court that the prosecution of the
honorable relation of attorney and client will not be permitted under the guise
of privilege, and every communication made to an attorney by a client for a
criminal purpose is a conspiracy or attempt at a conspiracy which is not only

lawful to divulge, but which the attorney under certain circumstances may be
bound to disclose at one in the interest of justice. ( PP vs. Sandiganbayan)
Privileged Speech in Congress

The immunity Senator Santiago claims is rooted primarily on the provision of

Article VI, Section 11 of the Constitution, which provides:
A Senator or Member of the House of Representatives shall, in all
offenses punishable by not more than six years imprisonment, be
privileged from arrest while the Congress is in session. No Member
shall be questioned nor be held liable in any other place for any
speech or debate in the Congress or in any committee thereof.

DEFENSOR-SANTIAGO CASE

Senator Miriam Defensor-Santiagos speech delivered on the Senate floor:

xxx I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I
am suicidal. I am humiliated, debased, degraded. And I am not only that, I
feel like throwing up to be living my middle years in a country of this nature. I
am nauseated. I spit on the face of Chief Justice Artemio Panganiban and his
cohorts in the Supreme Court, I am no longer interested in the position [of
Chief Justice] if I was to be surrounded by idiots. I would rather be in another
environment but not in the Supreme Court of idiots. (Pobre vs. Sen. DefensorSantiago)
Case against Senator Defensor-Santiago dismissed.
Indeed, her privilege speech is no actionable criminally or in a disciplinary
proceeding under the Rules of Court.
In this case, the lady senator clearly violated Canon 8, Rule 8.01 and Canon
11 of the Code of Professional Responsibility.
WHEREFORE, the letter-complaint of Pobre against the Senator is DISMISSED.

PURPOSE OF PRIVILEGE SPEECH

Our Constitution enshrines parliamentary immunity which is a fundamental

privilege cherished in every legislative assembly of the democratic world. As
old as the English Parliament, its purpose is to enable and encourage a
representative of the public to discharge his public trust with firmness and
success for it is indispensably necessary that he should enjoy the fullest
liberty of speech and that he should be protected from resentment of
everyone, however, powerful, to whom the exercise of that liberty may
occasion offense. (Pobre vs. Sen. Defensor-Santiago)

Privileged Communications Made in the Course of Juridical Proceedings,

Including All Kinds of Pleadings, Petitions and Motions

Well-entrenched in the Philippine and American jurisprudence is the rule that

for reason of public policy, utterances mad in the course of juridical

proceedings, including all kinds of pleadings, petitions and motions are

absolutely privileged when pertinent and relevant to the subject under
inquiry, however false or malicious such utterances may be. (Gutierrez vs.
Abila)
CODE OF PROFESSIONAL RESPONSIBILITY
CANON 8 - A LAWYER SHALL CONDUCT HIMSELF WITH COURTESY, FAIRNESS AND
CANDOR TOWARDS HIS PROFESSIONAL COLLEAGUES, AND SHALL AVOID
HARASSING TACTICS AGAINST OPPOSING COUNSEL.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which is
abusive, offensive or otherwise improper.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing
language or behavior before the Courts.
CERTIFICATE OF MERITORIOUS CASE

Rule 7, Section 3. The signature of counsel constitutes a certificate by him

that he has read the pleading; that to the best of his knowledge, information,
and belief there is good ground to support it; and that it is not interposed for
delay.
Honest belief is a claim of good faith (Choa vs. Chiongson)

PLEADINGS IN JUDICIAL PROCEEDINGS ARE CONSIDERED PRIVILEGED

Pleadings have become part of public record open to the public to scrutinize,
but also due to the undeniable fact that said
Pleadings are presumed to contain allegations and assertions lawful and legal
in nature, appropriate to the disposition of issues ventilated before the courts
for the proper administration of justice, and, therefore, of general public
concern.
Moreover, pleadings are presumed to contain allegations substantially true
because they can be supported by evidence presented in good faith, the
contents of which would be under the scrutiny of courts and, therefore,
subject to be purged of all improprieties and illegal statements contained
therein. (Cuenco vs. Cuenco)

COUNSEL, PARTIES OR WITNESSES ARE EXEMPTED FROM LIABILITY IN LIBEL OR

SLANDER

It is the generally accepted rule that counsel, parties or witnesses are

exempted from liability in libel or slander for words otherwise defamatory
published in the course of judicial proceedings, provided that the statements
are connected with, or relevant, pertinent or material to, the cause in hand or
subject of inquiry.
For as aptly observed in one case, while the doctrine of privileged
communication is liable to be abused, and its abuse may lead to great

hardships, yet to give legal sanction to such suits as the present would, we
think, give rise to far greater hardships. (Cuenco vs. cuenco)
EFFECT OF PRIVILEGED MATTERS

For, although every defamatory imputations is presumed to be malicious, the

presumption does not exist in matters considered privileged. In fine, the
privilege destroys the presumption. (GMA Network, Inc. vs. Bustos)

PRIVILEGED MATTERS MAY BE ABSOLUTE OR QUALIFIED

Absolutely privileged matters are not actionable regardless of the existence

of malice in fact. In absolutely privileged communications, the mala or bona
fides of the author is of no moment as the occasion provides an absolute bar
to the action. Examples of these are speeches or debates made by Congress
or Senators in the Congress or in any of its committees.
On the other hand, in qualifiedly or conditionally privileged communications,
the freedom from liability for an otherwise defamatory utterance is
conditioned on the absence of express malice or malice in fact. To this genre
belongs private communications and fair and true report without any
comments or remarks falling under and described as exceptions in Article
354 of the RPC. (GMA Network, Inc. vs. Bustos)

IMPORTANCE OF DOCTRINE OF PRIVILEGED COMMUNICATIONS

The doctrine of privileged communication rests upon public policy, which look
to the free and unfettered administration of justice, though, as an incidental
result in some instances afford an immunity to the evil disposed and
malignant slanderer. (PP. vs. Atty. Sesbreno)

THERE IS NO ABSOLUTE PRIVILEGE IN PLEADINGS

Absolute privilege attached to allegations made by an attorney in a pleadings

filed with the court, as long as the statements alleged to be defamatory were
relevant and pertinent to the issues in the case. We relied heavily on our
earlier decision xxx, in which we recognized the absolute privilege of an
attorney to make statements in pleadings regardless of their truth or the
existence of actual malice on the part of the attorney so long as the
statements were relevant and pertinent to the pleadings. (Selby vs. Burgess)

ALL FORMS OF COMMUNICATIONS ARE PRIVILEGED

The privileged is not confined to verbal or written communications made by

the client to his attorney but extends as well to information communicated by
the client to the attorney by other means. (PP vs. Sandiganbayan)

PROFESSIONAL DISCIPLINE MAY STILL APPLY

Although the privilege is absolute where it applies, we consider it to be a

privilege narrowed closely by the relevancy and pertinence requirements,
and we note that while the privilege will prohibit an attorney from being

subject to litigation it will not make him immune from professional discipline,
when it is appropriate. (Selby vs. Burgess)
makes a lawyer liable for false allegations in a pleading since the rule
states that a lawyers signature on a pleading constitutes a certificate by him
that to the best of his knowledge, there is good ground to support the
pleading. (Pogue vs. Cooper)

RESTRICTION TO THE PRIVILEGE

The Courts defined the restriction to the privilege enjoyed by pleadings

thus;
The pleadings should contain but the plain and concise statements of the
material facts and not the evidence by which they are to be proved.
If the pleader goes beyond the requirements of the statute and alleges an
irrelevant matter which is libelous, he loses his privilege.
The requirement of materiality and relevancy is imposed so that the
protection given to individuals in the interest of an efficient administration
of justice may not be abused as a cloak from beneath which private
malice may be gratified. (Gutierrez vs. Abila)

EXAMPLE OF SLANDEROUS MATTERS IN A PLEADING

Repeated litigations between the same parties might indeed be tiresome,

even nettlesome but this alone is not sufficient cause for calling another
dirty-minded, and of a limited mind, twisted mind or to characterize his
act as a devise of wickedness as earmarks of plaintiffs traits.
It is noted that far from being isolated statements, these slanderous matters
pervade the entire dimension of the defendants answer, with almost every
paragraph thereof scathing with spiteful imputations against the plaintiff.
These imputations constitute a grave reflection upon the mental and moral
character and reputation of the plaintiff, and they certainly achieve no
purpose except to gratify the defendants rancor and ill-will.
The aforementioned personal opinion of the defendants, expressed in
vituperative and intemperate language, are palpably devoid of any relation
whatever to the subject of inquiry and have no place in a pleadings.
(Gutierrez vs. Abila)

ADMONITION TO LAWYERS

While indeed lawyers should be allowed some latitude of remark or comment

in the furtherance of the causes they uphold such remarks or comments
should not trench beyond the bounds of relevancy and propriety. Besides, the
language vehicle does not run short of expressions which are emphatic but
respectful, convincing but not derogatory, illuminating but not offensive.
(Gutierrez vs. Abila)

PARTNERS WHO SIGNED THE PLEADINGS ARE LIABLE

In view of the derogatory implications of that observation, which was couched

in intemperate indecorous and vicious language and which was baseless,
since it was belied by the resolution itself that stated the reason for requiring
the Solicitor General to proceed with the investigation of the disbarment
case, the Court in that aforementioned October 1 resolution required Attys.
Salandanan and Linato, who signed the motion under the firm name of E.M.
Salandanan, Aguilar, Linato and Associates to show cause why they should
not be adjudged in contempt of court (Yangson vs. Salandanan)

LIBELOUS REMARKS?

Against said order, Atty. Sesbreno filed a motion seeking reconsideration with
a counter-motion for contempt against the appellant for reneging on his
commitment to reimburse appellees clients and for resorting to dilatory
tactics. To that, Atty. Ceniza, filed his Opposition to Motion for
Reconsideration,
Etc.
charging
Sesbreno
with
misrepresentation,
prevarication, and telling a barefaced and documented lie. Replyinf to these
remarks, Sesbreno then filed his REPLY Atty. Ramon Ceniza is an
irresponsible person, cannot be trusted, like Judas, a liar and irresponsible
childish prankster. Subject matter in Cenizas libel suit.

BALANCING ACT

While the doctrine is liable to be abuse and its abuse may lead to great
hardships, yet to give legal action to such libel suits would give rise to greater
hardships.
Lawyers, most especially, should be allowed a great latitude of pertinent
comment in the furtherance of the causes they uphold, and for the felicity of
their clients, they may be pardoned some infelicities of language. (PP vs. Atty.
Sesbreno)

TEST TO BE APPLIED

A pleading must meet the test of relevancy to avoid being considered

libelous.