Jimenez v. Francisco, AC No.

10548, December 10, 2014

a. Facts:

Clarion Realty and Development Corporation (Clarion) is a corporation where

Mark Jimenez owned substantial number shares of stock. Later, Mark Jimenez filed an
estafa case against the complainant for her alleged participation in the fraudulent means
in selling his properties. Instead of remitting all the proceeds of the sale to Mark Jimenez,
complainant and her co-respondents misappropriated and converted the funds for their
personal use and benefit. Mark Jimenez and the complainant were former lovers.

Caroline Jimenez filed a complaint against respondent Atty. Edgar Francisco for
allegedly violating the rule on privileged communication between attorney and client
when the respondent submitted an affidavit in support of the estafa case. According to the
complainant, she usually conferred with the respondent regarding the legal implications
of Clarions transactions. More significantly, the principal documents relative to the sale
and transfer of Clarions property were all prepared and drafted by the respondent or the
members of his law office.

On the other hand, respondent countered that he was not the complainants lawyer
as he was the lawyer of Mark Jimenez and of the Clarion. He also argued that he might
have assisted the complainant in some matters, but these were all under the notion that
Mark Jimenez had given him authority to do so. While he admitted that the legal
documentation for the transfer of shares and the sale of the Forbes property were
prepared by him and notarized by the members of his law firm, he averred that these acts
were performed in his capacity as the corporate secretary and legal counsel of Clarion,
and not as a lawyer of complainant. He also opined that the complainant failed to
establish, by clear and convincing evidence, that a lawyer-client relationship existed
between them so as to make operational the rule on privileged communication.

Respondent was found guilty by the Commission on Bar Disciplines

Investigating Commissioner of violating the rule on privileged communication and
engaged in an act that constituted representation of conflicting interests in violation of
Canons 15 and 21 of the CPR. For this, he was recommended to be suspended for one (1)
year from the practice of law. On appeal, the IBP Board of Governors affirmed in toto the
assailed ruling and denied the Motion for Reconsideration filed later by the respondent.

b. Issue:

Did he violate the rule on privileged communication between him and the
complainant?
c. Ruling:

No, because there was no lawyer-client relationship.

The factors in determining the existence of lawyer-client privilege are the

following: (1) 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; (2) the client made the communication in confidence; and (3) the legal
advice must be sought from the attorney in his professional capacity. (Mercado v.
Vitriolo)

The Court ruled that based on the records of the case, there was no indication that
the advice regarding the sale of the Forbes property was given to the respondent in
confidence. Neither was there a demonstration of what the complainant had
communicated to the respondent nor a recital of circumstances under which the
confidential communication was relayed. All that the complainant alleged in her
complaint was that she sought the legal advice from respondent in various occasions.
Considering that complainant also failed to attend the hearings at the IBP, there was no
testimony as to the specific confidential information allegedly divulged by the respondent
without her consent. It is therefore difficult, if not impossible, to determine if there was
any violation of the rule on privileged communication.

It is not enough to merely assert the attorney-client privilege as the complainant

has the burden of proving that it exists and applies. However, while she failed to prove
this, the respondents actions were found to have constituted malpractice and gross
misconduct in his office as attorney when he actively and passively allowed Clarion to
make untruthful representations to the SEC and in other public documents. For this, the
respondent was suspended from the practice of law for six (6) months.
People v. Sy Juco, GR No. L-41957, August 28, 1937

a. Facts:

A search warrant was issued upon the building occupied by defendant Santiago Sy
Juco for certain fraudulent bookletters and papers or records kept therein. The validity of
the search warrant was questioned by the Salakan Lumber Co., Inc., and herein appellant
Atty. Teopisto Remo. According to them, the search warrant included an art metal filing
cabinet and some books which they respectively own and not by defendant Sy Juco.
Appellant requested that the agents of the BIR be prevented from opening the filing
cabinet as it contained some letters, documents and papers belonging to his clients.

The trial court ordered that the art metal filing cabinet and the books and papers
claimed by the Salakan Lumber Co., Inc., would only be returned to them once it is
proved that these items contain nothing showing that these have been used to commit
fraud against the Government.

Hence, this instant petition.

b. Issue:

Does the trial court had the authority to order the opening of the cabinet in
question for the purpose of determining, by an examination of the books, documents and
records contained therein, whether or not the same were used to commit fraud against the
Government?

c. Ruling:

No.

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
professional employment; nor can an attorney's secretary stenographer, or clerk be
examined, without the consent of client and his employer, concerning any fact, the
knowledge of which has been acquired in such capacity. (Sec. 383, No. 4, Act No. 190) A
lawyer must strictly maintain inviolate the confidence and preserve the secrets of his
client. He shall not be permitted in any court without the consent of his client, given in
open court, to testify to any facts imparted to him by his client in professional
consultation, or for the purpose of obtaining advice upon legal matters. (Sec. 31, Act No.
190)

It is clear that the court could not and cannot order the opening of the art metal
filing cabinet in question because, it having been proven that it belongs to the appellant
attorney and that in it he keeps the records and documents of his clients, to do so would
be in violation of his right as such attorney, since it would be tantamount to compelling
him to disclose or divulge facts or things belonging to his clients, which should be kept
secret, unless she is authorized by them to make such disclosure, it being a duty imposed
by law upon an attorney to strictly preserve the secrets or communications made to him.
Such an act would constitute a qualified violation of section 383, No. 4, and of section 31
of Act No. 190.

Having found that the search was illegal, the seized art metal filing cabinet,
together with the key thereof, was ordered to be immediately returned unopened to the
appellant Remo.
Lee v. Simando, AC No. 9537, June 10, 2013

a. Facts:

Respondent Atty. Amador Simando was able to convince complainant Dr. Teresita
Lee to lend money to a certain Felicito Mejorado amounting to P1.4 Million while
awaiting for the latters informers reward from the Bureau of Customs. So as to assure
complainant, respondent made himself as co-maker of Mejorado in such loan. However,
after several demands, Mejorado failed to pay prompting complainant to demand
payment from the respondent. With new lawyer, complainant filed a disbarment case
against the respondent before the IBPs Commission on Bar Discipline (IBP-CBD).
Complainant accused the respondent of violating the trust and confidence which she gave
upon him as her lawyer and even took advantage of their professional relationship in
order to get a loan for his client.

In his Answer, respondent, while primarily denied liability in the contract of loan,
claimed among others that complainant is a money-lender exacting high interest rates
from borrowers. He narrated several instances and civil cases where complainant was
engaged in money-lending where he divulged that even after defendants had already paid
their loan, complainant still persists in collecting from them. Respondent asserted that he
knew of these transactions because he was among the four lawyers who handled
complainants case. He insisted that there is no conflict of interest because he is
Mejorados lawyer relative to the latters claim for informers reward and not Mejorados
lawyer against the complainant. He reiterated that there is no conflicting interest as there
was no case between Mejorado and the complainant that he is handling for both of them.

Complainant lamented in her Reply that respondent is guilty of violating the

lawyer-client confidentiality rule when he divulged in his comments confidential
information he had acquired while he was still her lawyer and even used it against her in
the present case thus, committing unethical conduct.

Having found the respondent guilty of violating the CPR, the IBP-CBD
recommended his suspension from the practice of law for six (6) months. Such was later
reversed by the IBP Board of Governors when it granted respondents Motion for
Reconsideration. In effect, the case was dismissed.

Hence, the instant petition.

b. Issue:

Has the respondent violated the Code of Judicial Ethics of Lawyers?

c. Ruling:
 Yes.

The Court found respondent guilty of representing conflicting interest when he

consented in the parties agreement and even signed as co-maker to the loan agreement. It
is improper for respondent to appear as counsel for one party (complainant as creditor)
against the adverse party (Mejorado as debtor) who is also his client, since a lawyer is
prohibited from representing conflicting interests. He may not, without being guilty of
professional misconduct, act as counsel for a person whose interest conflict with that of
his present or former client.

Respondent was also found to have violated Rule 21.01 of the CPR when, in his
last-ditch effort to impeach the credibility of complainant, he divulged information which
he acquired in confidence during the existence of their lawyer-client relationship.

The termination of the relation of attorney and client provides no justification for
a lawyer to represent an interest adverse to or in conflict with that of the former client.
The reason for the rule is that the clients confidence once reposed cannot be divested by
the expiration of the professional employment. Consequently, a lawyer should not, even
after the severance of the relation with his client, 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 clients confidences acquired in the previous relation.
(Nombrando v. Hernandez)

The decision of the IBP-CBD was adopted and respondent was ordered to be
suspended for six (6) months.