Section 27, Canon III of the Code of Professional Responsibility and Accountability (CPRA) reads as follows:
“SECTION 27. Confidentiality of privileged communication. – A lawyer shall maintain the confidences of the client, and shall respect data privacy laws. The duty of confidentiality shall continue even after the termination of the lawyer-client engagement.”
The privileged communication referred to in Section 27 is the attorney-client privileged communication under Section 24(b), Rule 130 of the Rules of Court.
Section 24(b) of Rule 130 provides that an attorney cannot, without the client’s consent, 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. The exceptions to the privilege stated in Section 24(b) relate to the crime-fraud exception, claimants through the same deceased client, breach of duty by a lawyer or client, document attested by the lawyer, and joint clients.
Section 28, Canon III of the CPRA also provides for exceptions to the attorney-client privilege:
“SECTION 28. Protecting client confidences. – A lawyer shall not reveal the confidences of the client, including data from the client’s files, except;
(a) When a written informed consent is obtained from the client;
(b) When required by law, such as anti-money laundering statutes, or the Rules of Court;
(c) To the extent necessary, to collect the lawyer’s fees;
(d) In defense of the lawyer, or the lawyer’s employees or associates; or
(e) By judicial order, but only if material.” [Emphasis supplied]
Except for (b) and (e), the exceptions provided for in Section 28 above are also covered in Section 24(b), Rule 130 of the Rules of Court.[1] Noteworthy, however, is Section 28(e) which provides that a lawyer may be compelled to reveal client confidences “by judicial order, but only if material.” In effect, Section 28(e) lays down another exception to the attorney-client privilege, this time on the ground of materiality of the communication.
With utmost respect, it is submitted that Section 28(e), Canon III of the CPRA be re-examined.
Like all privileges, the attorney-client privilege is grounded not on relevancy or materiality but on public policy or interest. The aim of the privilege is to encourage full disclosure by the client to the lawyer and thereby promote broader public interests in the observance of law and the administration of justice. The privilege recognizes that sound legal advice and advocacy serves public ends and that such advice or advocacy depends upon the lawyer being fully informed by the client.[2] This consideration overrides the materiality or relevancy of the evidence.
Section 28(e) would eviscerate the attorney-client privilege by allowing materiality or relevancy to trump the public policy behind the privilege. Clients would be hesitant in disclosing critical facts to their lawyers knowing that the lawyer may be compelled to disclose these facts if the court finds that they are material. This would hinder a lawyer from rendering sound legal advice and advocacy to the client and thereby undermine the effective administration of justice.
Section 28(e) adheres to the “balancing” approach under which disclosure could be required when necessary in the interests of justice. Such an approach, however, would undermine the certainty that confidences are protected and would inhibit attorney-client communication. If the privilege’s objective is to be served, attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected, because an uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all (Mueller, Kirkpatrick, and Richter, Evidence 323 [6th ed.]).
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[1] While Sec. 28(b) provides that a lawyer shall not reveal the confidences of his client, “except when required by law, such as anti-money laundering statutes,” at present, there is no law providing for an exception to the attorney-client privilege. The Anti-Money Laundering Act in fact exempts lawyers from compulsory disclosure if this would compromise client confidences or the attorney-client privilege. See also Section 16 of the Anti-Terrorism Act of 2020 which states that the surveillance, interception, and recording of communications between lawyers and clients shall not be allowed.
[2] Upjohn Co. v. United States, 449 U.S. 383 (1981).
