Topic 12:

Doctrine of privilege communications in pleadings and privilege speech in

congress

THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES

ARTICLE VI Section 11:

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.

Privilege of Speech and Debate : 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.

Purpose: It is intended to protect members of congress against government pressure

and intimidation aimed at influencing the decision‐making prerogatives of Congress
and its members.

The following requirements must be observed:

1. That the remarks must be made while the legislature or the legislative committee is
functioning, that is in session

2. That they must be made in connection with the discharge of official duties.

To invoke the privilege of speech, the matter must be oral and must be proven to be
indeed privileged.

Speech or debate includes a vote or passage of a resolution, all the utterances made
by Congressmen in the performance of their functions such as speeches delivered,
statements made, or votes casts in the halls of Congress. It also includes bills
introduced in Congress (whether or not it is in session) and all the other utterances
(made outside or inside the premises of Congress) provided they are made in
accordance with a legislative function.

 It is intended to protect members of congress against government pressure

and intimidation aimed at influencing the decision‐making prerogatives of
Congress and its members.
 Moreover, a senator‐lawyer cannot be disbarred or disciplined by the
Supreme Court for statements made during a privilege speech. The senator‐
lawyer’s privilege speech is not actionable criminally or in a disciplinary
proceeding under the Rules of Court.

BETWEEN LAWYER AND CLIENT

Rules of Court, Rule 130, Section 24 (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.
III. REQUIREMENTS

1. There must be a lawyer-client relationship

 The term “lawyer” refers to:

(a). a member of the Philippine Bar in good standing acting in such a

capacity, whether in active practice or not

(b). non-lawyers allowed by law to appear as counsel such as those under

rule 138-A and rule 138, section 34.

(c). Non-lawyers who misrepresent themselves as members of the bar in

order to obtain the confidence of a person and believed as such by the latter.

 The relationship maybe created by mutual consent at the initiative of the

client, or is created by Order of the Court as in the case of a counsel de
officio.

a). the relationship exists whenever the client consults with a lawyer in
relation to a matter which needs the professional services of the lawyer be it for
advice or representation in a future or present legal action.

b). it does not matter that no fee was paid, or that the lawyer later refused to
represent the client or that he withdrew from the action.

c). however the rule does not cover situations where the lawyer was
consulted merely as a notary

2. There must be a communication by the client to the lawyer or advice given

thereon by the lawyer.

 The communication must be for the purpose of creating a lawyer-client

relationship or was given in the course of such relationship.
 The term communication includes the following:

a). Any data or information supplied by the client personally or through

confidential agents, either to the lawyer or to the lawyer’s employees. This may have
been supplied through any form of oral or written communication.

b). All documents, objects or thing delivered to the lawyer except those the
existence and/or contents of which are or maybe known.

Thus titles to land, contracts, reply-communications, bank pass books, dishonored

checks, cannot be considered as confidential.

c). Acts or conduct by the client, such as physical demonstration of actions or

events, or giving a sample of his handwriting to show he is not the falsifier.

d).The advice given by the lawyer to the client orally or through any mode of
written communication.
 e).The identity of the client. As a matter of public policy a lawyer may not
invoke the privilege and refuse to divulge the name or identity of the client except in
the situation when the client’s name has an independent significance such that
disclosure would reveal the client’s confidences.

 The identity may not be disclosed in the following situations:

1. where a strong probability exists that revealing the client’s name would
implicate the client in the very activity for which he sought the lawyer’s advise

2. Where the disclosure would open the client to civil liability

3. Where the government prosecutors have no case against the client and
compelling the lawyer to reveal his client’s name would furnish the only link
that would form a chain of testimony necessary to convict the client of a
crime.

4. Where it is the identity of the client which is sought to be confidential

5. Those covered by the “Doctrine of Work Product”. The pleadings prepared by

the lawyer or his private files containing either facts and data obtained by him
or resulting from his own investigation or by any investigator hired by him;
and/or his impressions or conclusions whether reduced in writing or not,
about the client or the clients cause.

The following communications are not covered and the lawyer may reveal them:

a). those intended to be made public

b). or intended to be communicated to a third person

c). intended for an unlawful purpose or for a future crime or act

d). received from a third person not acting in behalf or as agent of the client

e). those made in the presence of third persons

f). those which are irrelevant

g). the effects of a crime as well as weapons or instruments of a crime.

h). opinions on abstract questions or hypothetical questions of law

3. The communication was confidential

4. The consent of the client to the disclosure was not obtained

IV. Duration and Waiver:

A. The duration is perpetual even after the lawyer-client relationship has already
ceased.
B. The rule maybe waived by the client alone, or by his representatives in case of his
death, expressly or by implication.

Exceptions:

1. If he is a party to a case and his lawyer was called as a witness by his opponent,
by failure of the client to object to the questions concerning the privileged
communications or having objected on direct, the client cross-examines on the
privileged communications.

2. When the client presents evidence on the privileged communication, the opposing
party may call on the lawyer to rebut the evidence.

3. When the client calls on the lawyer to testify on the privileged communication

4. In case of a suit by and between the lawyer and the client, the rule does not apply

5. When the lawyer is accused of a crime in relation to the act of the client which was
the subject of their professional relationship, he may reveal the privileged
communications to prove he had nothing to do with the crime.

V. Liability:

If the lawyer, as witness to a case which does not involve the client, divulges
confidential communication without the prior consent of the client, he may be liable
criminally, civilly and administratively.

Rules of Court, Rule 7, Section 3.Signature and address. — Every pleading must
be signed by the party or counsel representing him, stating in either case his address
which should not be a post office box.

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.

An unsigned pleading produces no legal effect. However, the court may, in its
discretion, allow such deficiency to be remedied if it shall appear that the same was
due to mere inadvertence and not intended for delay. Counsel who deliberately files
an unsigned pleading, or signs a pleading in violation of this Rule, or alleges
scandalous or indecent matter therein, or fails promptly report to the court a change
of his address, shall be subject to appropriate disciplinary action.

Significance of the Signature of Counsel:

1. He has read the pleading;

2. That to the best of his knowledge, information or belief , there is good ground
to support it, and
3. It is not interposed for delay.

Cases where a counsel is subject to disciplinary action:

1. Deliberately files an unsigned pleading;

2. Signs a pleading in violation of the Rules;
3. Alleges in the pleading scandalous or indecent matter or
 4. Fails to promptly report to the court a change of his address

Utterances made in the course of judicial proceedings, including all kinds of

pleadings, petitions and motions belong to the class of communication that are
absolutely privileged.

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.

CANON 21- A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS

OF HIS CLIENT EVEN AFTER THE ATTORNEY-CLIENT RELATION IS
TERMINATED.

CANON 15, 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

Cases:

[G.R. Nos. 115439-41. July 16, 1997]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE SANDIGANBAYAN,

MANSUETO V. HONRADA, CEFERINO S. PAREDES, JR. and GENEROSO S.
SANSAET, respondents.

Facts: A case of perjury against was filed against respondent Ceferino Paredes, Jr.
forfraudulent misrepresentations in his application for a free patent over a vast trat of
land. However, the same was dismissed on the ground of prescription. Then again,
another case was filed against him for violation of RA 3019 (Anti-Graft and Corrupt
Practices Act) for using his former position as Provincial Attorney to influence and
induce the Bureau of Lands officials to favourably act on his application for patent. In
all these cases, Paredes was represented by respondent Atty. Sansaet, a practicing
attorney.

Respondent Paredes contends that he has already been charged under the same set
of facts and the same evidence where such complaint (perjury case where he was
already arraigned) has already been dismissed. Hence, double jeopardy has already
attached. In support hereof, Paredes presented court records and transcripts as
proof of his arraignment in the perjury case.

However, the documents were found to be falsified, in conspiracy with Paredes’

counsel and the clerk of court where the perjury case was filed. One TeofiloGelacio
claims that no notice of arraignment was ever received by the Office of the Provincial
Fiscal. Hence, another case was filed for falsification of judicial records. It was then
that respondent Sansaet offered to testify as a state witness against his client
Paredes, claiming that the latter contrived and induced him to have the graft case
dismissed on the ground of double jeopardy by having him and co-respondent
prepare and falsify the subject documents.
But the Sandiganbayan denied the motion on the ground of attorney-client privilege
since the lawyer could not testify against his own client. In view of such relationship,
confidential matters must have been disclosed by Paredes, as client, to accused
Sansaet, as his lawyer, in his professional capacity, and therefore privileged.

ISSUE: Whether or not the testimony of respondent Sansaet, as proposed state

witness, is barred by attorney-client privilege.

HELD: No, There is no privileged communication rule to talk about. The privilege
applies only if the information was relayed by the client to the lawyer respecting a
past crime. The reckoning point is when the communication was given, not when the
lawyer was made to testify.

The attorney-client privilege cannot apply in these cases as the facts thereof and the
actuations of both respondents therein constitute an exception to the rule.

The announced intention of a client to commit a crime is not included within the
confidences which his attorney is bound to respect. Here, the testimony sought to be
elicited from Sansaet as state witness are the communications made to him by
physical acts and/or accompanying words of Paredes at the time he and Honrada
were about to falsify the documents. Clearly, therefore, the confidential
communications thus made by Paredes to Sansaet were for purposes of and in
reference to the crime of falsification which had not yet been committed in the past by
Paredes but which he, in confederacy with his present co-respondents, later
committed. Having been made for purposes of a future offense, those
communications are outside the pale of the attorney-client privilege.

It is well settled that communication between a lawyer and his client, to be privileged,
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, 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 once
in the interest of justice.

To prevent a conniving counsel from revealing the genesis of a crime which was later
committed pursuant to a conspiracy, because of the objection thereto of his
conspiring client, would be one of the worst travesties in the rules of evidence and
practice in the noble profession of law.

[ GR No. 59161, Jan 30, 1982 ]

MELQUIADES GUTIERREZ v. ENRIQUE H.R. ABILA

Facts: Plaintiff-appellant filed an action for damages against defendants Restituto

Clemente, Manuel Fransisco, Atty. Enrique H.R. Abila Assistant and Provincial Fiscal
Eliseo de Guzman in the Court of First Instance of Rizal(Caloocan City). Basis of the
complaint was the answer filed by defendants. Petitioner alleges that in the aforesaid
answer wilfully, maliciously and malevolently recited false, sham, redundant,
scandalous, impertinent and irrelevant statements which served no purpose than to
put his character, personality and reputation in an utterly bad light and said act being
contrary to law.

Upon motion of the defendants on the ground that aforesaid statements, even if
defamatory, are absolutely privileged, the trial court dismissed the complaint and
from this order plaintiff filed an appeal.

Issue:whether or not the pleadings in question are absolutely privileged.

Held:No. The court found that the aforementioned personal opinions of the
defendants in their answer, expressed in vituperative and intemperate language, are
palpably devoid of any relation whatever to the subject of inquiry and have no place
in a pleading.In Anonymous vs. Trenkman et al, the Court 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
libellous, 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.

Jacobs vs Adelson 325 P.3d 1282 (2014)

FACTS:

Steven C. Jacobs filed a wrongful termination complaint against Las Vegas Sands
Corporation (LVSC) and Sands China Ltd. (Sands China) alleging that Sheldon G.
Adelson, the chief executive officer and majority shareholder of LVSC, demanded
Jacobs to engage in “illegal” activities. Along with personal attacks against Adelson,
Jacobs further alleged that his refusal to engage in such activities led to threats by
Adelson and his termination. LVSC and Sands China filed a motion to dismiss
Jacobs’ complaint, leading to hearing that received much attention from the media.
Following the hearing, the Wall Street Journal published an article that quoted an
email Adelson sent stating that Jacobs had not refuted any of the reasons as to why
he was fired, and, instead, he had explained his termination by using lies and
fabrications. Jacobs later amended his complaint to include a defamation per se
claim against Adelson, LVSC, and Sands China regarding the statements published
in the Wall Street Journal. Adelson, LVSC, and Sands China filed motions to dismiss
the defamation claim, arguing that the statements were absolutely privileged
communications made in the course of judicial proceedings or that they were
protected by the conditional privilege of reply. The district court granted the motion to
dismiss, determining that Adelson’s statements were absolutely privileged
communications relating to the litigation; the district court declined to consider
whether his statements were covered by the conditional privilege of reply.

ISSUE:Whether or not Adelson’s statements were absolutely privileged

communications relating to the litigation, or merely conditional privilege of reply.

HELD:

The absolute privilege

 The existence of an absolute privilege for defamatory statements made during the
course of judicial proceeding has long been recognized in Nevada. The absolute
privilege can apply to defamatory statements made in the context of a judicial
proceeding if the proceeding is contemplated in good faith and under serious
consideration and if the communication is related to the litigation.2 Furthermore,
statements made to someone who is not directly involved in the judicial proceeding
will only be protected by the absolute privilege if the recipient is “significantly
interested” in the proceeding.3 Here, Jacobs argued that the statements were made
outside the judicial proceedings to disinterested persons; therefore, the statements
are unrelated to the litigation and the absolute privilege does not apply. Conversely,
Adelson argued that statements made to the media should be included in the scope
of the absolute privilege rule and that the absolute privilege does apply because his
statements were made during the course of the judicial proceeding and were directly
related to the lawsuit. The Court rejected Adelson’s arguments and agreed with
Jacobs that the absolute privilege did not apply.

Application of the absolute privilege in the media context

The Court has never addressed whether the absolute privilege applies to statements
made to the media; however, it has held that communications are not related to
judicial proceedings when made to someone without an interest in the outcome.
Additionally, the majority of states have held that communications made to the media
are not protected by the absolute privilege rule, and the policy considerations
underlying the rule are not applicable to statements made to the media. Thus, the
statements made to the media are not subject to absolute privilege. Here, the
statements were made outside the judicial proceeding because the Wall Street
Journal does not have an interest, other than that of an observer. The dissent argued
that the statements are privileged and that the media and the public have a
significant interest due to the widespread media coverage of the underlying litigation.
The Court did not agree and concluded that in order to determine if there is a
significant interest, the recipient’s legal relationship to the litigation must be assessed
and not its interest as an observer. Here, the Wall Street Journal did not have a direct
interest in the outcome of the proceedings and did not have a legal or financial
interest in the litigation; therefore, it did not have a significant interest and Adelson’s
statements are not protected by the absolute privilege rule.

The conditional privilege of reply

Additionally, Adelson argued that his statements were privileged because they were
made as a direct response to Jacobs’ defamatory statements in the complaint. The
conditional privilege rule allows a limited right to apply for those who are attacked
with defamatory statements. However, because the district court declined to consider
these arguments and because the factual record has not been developed, the Court
declined to address the applicability of the conditional privilege.

Omitted NOTES:

The purpose of parliamentary immunities is not for the benefit of the officials; rather, it is to protect
and support the rights of the people by ensuring that their representatives are doing their jobs
according to the dictates of their conscience. It is indispensable no matter how powerful the
offended party is.
Thus, congressman who committed an offense punishable for not more than 6 years, but is not
attending session, cannot be arrested so long as he is an incumbent congressman, and so long as
Congress is in session, whether or not he is attending it, he shall be immune from arrest. (People of
the Philippines v. Jalosjos, G.R. Nos. 132875-76, February 3, 2000).

1. Immunity from arrest means legislatures are privileged from arrest while Congress is “in session”
with respect to offenses punishable by up to 6 years of imprisonment.

• The Constitution provides only a privilege from arrest in order to ensure the attendance of
Congressmen. It does not provide immunity from searches.

2. Government prosecutors are not included but they are prohibited from making disclosures under
penal laws, such as The Revised Penal Code under its provisions on Revelation of Private Secrets.

3. Lawyers of government agencies created to render legal assistance to the public are included,
such as lawyers from the PAO and the CHR

4. The relationship maybe created by mutual consent at the initiative of the client, or is created by
Order of the Court as in the case of a counsel de officio.

(iv). Where it is the identity of the client which is sought to be confidential ( Regala vs.
Sandiganbayan: 262 SCRA 122)

A lawyer may not therefore testify that his client, charged with theft of silver coins, paid him with
silver coins.