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Attorney-Client Privilege

attorney-client privilege


An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, 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.

General rule
The attorney-client privilege may not be invoked to refuse to divulge the identity of the client.

Exception (Regala vs. Sandiganbayan 1996)
1. When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyer’s advice
2.  When disclosure would open the client to liability
3. When the name would furnish the only link that would form the chain of testimony necessary to convict.

Attorney-Client Privilege
Requisites:
1. There is an attorney and client relation
2. The privilege is invoked with respect to a confidential communication between them in the course of professional employment
3. The client has not given his consent to the attorney’s testimony

Basis
Public Policy

The client owns the privilege and therefore he alone can invoke it.

For the privilege to apply, the attorney must have been consulted in his professional capacity, even if no fee has been paid therefore. However, if the communications were not made for the purpose of
creating that relationship, they will not be covered by the privilege even if thereafter the lawyer becomes the counsel of the party in a case involving said statements.

The test is whether the communications are made to an attorney with a view of obtaining professional assistance or advice.

Communications to an attorney are not privileged where they are voluntary made after he has refused to accept employment.

There is NO privilege communication in cases where abstract legal opinions are sought and obtained on general questions of law, either civil or criminal, in such cases, no facts are or need be disclosed
implicating the client, and so there is nothing of a confidential character to conceal.

The communications covered by the privilege include verbal statements and documents or papers entrusted to the attorney, and of facts learned by the attorney through the act or agency of his client.

Confidential relations made in reliance upon the supposed relation of attorney and client, whether the party assuming to act as such is an attorney or not, are excluded by the court.

Sidewalk advice from attorney upon legal question for which no compensation is asked or expected and none given except a luncheon, should not be regarded as privileged communications.

Note: The privilege is applicable to counsel de officio.

Even in cases where the consent of the client is obtained, it is his duty to ask first to be relieved and have another attorney take his place before testifying so that he may be cross-examined and not leave his client without proper representation.

An attorney who becomes a subscribing witness to his client’s will, may testify to the attending circumstances of the execution of his client’s will for by requesting his attorney to become a subscribing witness to the will, the testator waives privilege as to his attorney’s testimony concerning testamentary communications.

Communication made by a client to an attorney as a public officer to enable him to act in his capacity is not privilege.

The privilege DOES NOT apply when the action was brought by the client against the attorney.

The Privilege Does Not Apply To Communications Which Are:
1. Intended to be made public
2. Intended to be communicated to others
3. Intended for an unlawful purpose
4. Received from third person not acting in behalf or as agent of the client
5. Made in the presence of third parties who are strangers to the attorney-client relationship

The period to be considered is that date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future.

Professional communications continues even after the relation of client and attorney is terminated.

Communications regarding a crime already committed made by the offender to an attorney, consulted as such, are privileged communications.

Contemplated criminal acts are not covered.

The privilege does not attach when the attorney is a conspirator.

The privilege does not apply when all the attorney has to do it to either affirm or deny the secret revealed by the client to the court.

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Bigwas

My friends call me Bigwas, I have a degree in Law and Criminology, not English but Internet marketing and Web developing is what I do and I love to blog. I hope you learn something from my blog.

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