SUNGA CHAN VS CHUA
inventory, appraisal, winding up and restitution of his net shares in the
June 22, 1992, respondent Lamberto T. Chua filed a complaint against
petitioner Lilibeth Sunga Chan and Cecilia Sunga ,daughter and wife,
respectively of the deceased Jacinto L. Sunga (hereafter Jacinto), for “Winding
Up of Partnership Affairs, Accounting, Appraisal and Recovery of Shares and
Damages with Writ of Preliminary Attachment” with the Regional Trial Court,
Branch 11, Sindangan, Zamboanga del Norte.
Respondent alleged that in 1977, he verbally entered into a partnership with
Jacinto in the distribution of Shellane Liquefied Petroleum Gas (LPG) in
Manila. For business convenience, respondent and Jacinto allegedly agreed
to register the business name of their partnership, SHELLITE GAS APPLIANCE
CENTER (hereafter Shellite), under the name of Jacinto as a sole
proprietorship. Respondent allegedly delivered his initial capital contribution
of P100,000.00 to Jacinto while the latter in turn produced P100,000.00 as his
counterpart contribution, with the intention that the profits would be equally
divided between them. The partnership allegedly had Jacinto as manager,
assisted by Josephine Sy (hereafter Josephine), a sister of the wife of
respondent, Erlinda Sy. As compensation, Jacinto would receive a manager’s
fee or remuneration of 10% of the gross profit and Josephine would receive
10% of the net profits, in addition to her wages and other remuneration from
the business.
The business operated quite well. Respondent claimed that he could attest to
the success of their business because of the volume of orders and deliveries
of filled Shellane cylinder tanks supplied by Pilipinas Shell Petroleum
Corporation.
However, when Jacinto furnished him about the merchandise inventories,
balance sheets and net worth of Shellite from 1977 to 1989, he suspected
that the indicated in these documents were understated and undervalued by
Jacinto and Josephine for their own selfish reasons and for tax avoidance.
Upon Jacinto’s death in the later part of 1989, his surviving wife, petitioner
Cecilia and particularly his daughter, petitioner Lilibeth, took over the
operations, control, custody, disposition and management of Shellite without
respondent’s consent.
Despite respondent’s repeated demands upon petitioners for accounting,
partnership, petitioners failed to comply.
After petitioner Lilibeth ran out of alibis and reasons to evade respondent’s
demands, she disbursed out of the partnership funds the amount of
P200,000.00 and partially paid the same to respondent. Petitioner Lilibeth
allegedly informed respondent that the P200,000.00 represented partial
payment of the latter’s share in the partnership, with a promise that the
former would make the complete inventory and winding up of the properties
of the business establishment. However, allegedly failed to comply with their
duty to account, and continued to benefit from the assets and income of
Shellite to the damage and prejudice of respondent.
Petitioners filed a Motion to Dismiss on the ground that the Securities and
Exchange Commission (SEC) in Manila, not the Regional Trial Court in
Zamboanga del Norte had jurisdiction over the action.
RTC – denied motion to dismiss
Petitioner filed a second Motion to Dismiss this time on the ground that the
claim for winding up of partnership affairs, accounting and recovery of shares
in partnership affairs, accounting and recovery of shares in partnership
assets/properties should be dismissed and prosecuted against the estate of
deceased Jacinto in a probate or intestate proceeding.
RTC – denied second mtd
CA – denied petition for certiorari
SC- denied the petition for review, on certiorari filed by petitioner, “as
petitioners failed to show that a reversible error was committed by the
appellate court.”
- The case was remanded to trial court
- Respondent presented his evidence while petitioners were
considered to have waived their right to present evidence for their
failure to attend the scheduled date for reception of evidence despite
notice.
- RTC rendered its Decision ruling for respondent
- Court of Appeals dismissed the notice of appeal
Petitioners contention:
- There was no existed respondent Lamberto T. Chua and the late
Jacinto L. Sunga upon the latter’s invitation and offer and that upon
his death the partnership assets and business were taken over by
petitioners, considering that there was absence of any written
agreement and to make it conclude that the testimonies of the
respondent was competent and credible.
- To support this argument, petitioners invoke the “Dead Man’s
Statute” or “Survivorship Rule” under Section 23, Rule 130 of the
Rules of Court that provides:
ISSUE:
whether or not the “Dead Man’s Statute” applies to this case so as to render
inadmissible respondent’s testimony and that of his witness, Josephine – NO!
HELD:
The “Dead Man’s Statute” provides that if one party to the alleged
transaction is precluded from testifying by death, insanity, or other mental
disabilities, the surviving party is not entitled to the undue advantage of
giving his own uncontradicted and unexplained account of the transaction.
But before this rule can be successfully invoked to bar the introduction of
testimonial evidence, it is necessary that
1. The witness is a party or assignor of a party to a case or persons in
whose behalf a case is prosecuted.
2. The action is against an executor or administrator or other
representative of a deceased person or a person of unsound mind;
3. The subject-matter of the action is a claim or demand against the
estate of such deceased person or against person of unsound mind;
4. His testimony refers to any matter of fact which occurred before the
death of such deceased person or before such person became of
unsound mind
Two reasons forestall the application of the “Dead Man’s Statute” to this case.
First, petitioners filed a compulsory counterclaim against respondent in their
answer before the trial court, and with the filing of their counterclaim,
petitioners themselves effectively removed this case from the ambit of the
“Dead Man’s Statute.”
Well entrenched is the rule that when it is the executor or administrator or
representatives of the estate that sets up the counterclaim, the plaintiff,
herein respondent, may testify to occurrences before the death of the
deceased to defeat the counterclaim. Moreover, as defendant in the
counterclaim, respondent is not disqualified from testifying as to matters of
fact occurring before the death of the deceased, said action not having been
brought against but by the estate or representatives of the deceased.
Second, the testimony of Josephine is not covered by the “Dead Man’s
Statute” for the simple reason that she is not “a party or assignor of a party
to a case or persons in whose behalf a case is prosecuted.”
Records show that respondent offered the testimony of Josephine to
establish the existence of the partnership between respondent and Jacinto.
Petitioners’ insistence that Josephine is the alter ego of respondent does not
make her an assignor because the term “assignor” of a party means “assignor
of a cause of action which has arisen, and not the assignor of a right assigned
before any cause of action has arisen.”
Hence, Josephine is merely a witness of respondent, the latter being the party
plaintiff. Notably, there was really a formation of partnership.
GUERRERO VS ST. CLAIRE
During the lifetime of the petitioner, the spouses Isidoro Guerrero and Panay
Ramos were the absolute owners of the disputed property, which is a parcel
of land located at San Dionisio, Parañaque, Rizal, with an area of 42,299
square meters, more or less.
The spouses had six children, named Andres, Juliana, Aurelio, Leona, Jose
and Cristina, and all surnamed Guerrero. Panay Ramos predeceased Isidoro
Guerrero. Before his demise, Isidoro Guerrero verbally willed and ordained
that the questioned lot be assigned and adjudicated to Andres Guerrero as
his share in the inheritance, the other children having been assigned other
lots.
Accordingly, upon the death of Isidoro Guerrero, Andres Guerrero physically
possessed the lot and cultivated it through his tenant Dominador Ramirez,
who earned a 50% share in the net produce, the other 50% being retained by
Andres Guerrero who defrayed the cultivation expenses and real estate taxes
on the property.
Shortly after the beginning of the Japanese occupation, Andres Guerrero
entrusted the land to his sister, Cristina Guerrero, and allowed her to have the
property cultivated and to retain the owner’s share in the harvests. The
arrangement between brother and sister was that Cristina Guerrero could
continue in the cultivation of the land and enjoyment of the owner’s share in
the produce for as long as she needed the property. Dominador Ramirez
continued his tenancy until shortly before the death of Andres Guerrero.
Sometime in July 1943, Andres Guerrero died survived by his widow, Segunda
Laquindanum, and their children, who are the petitioners in this case.
Cristina Guerrero continued as trustee of the deceased Andres Guerrero.
Sometime during the latter part of 1971 certain people who introduced
themselves as agents or buyers of the land approached some of the plaintiffs
in order to secure their consent to the sale of the property. Said plaintiffs
were informed that the land was titled in the name of their cousin, Manuel
Guerrero. Plaintiffs made inquiries and discovered the following: that Manuel
Guerrero was able to have the lot titled in his name on the basis of a ‘Deed of
Sale of Land’ dated April 24, 1948 purportedly executed by Cristina Guerrero;
The deed of sale was registered, the defendants Guerreros caused to be
notarized an “Articles of Partnership” of St. Clare’s Realty Company, Ltd.,
constituting themselves as partners; that on September 28, 1971, the
defendants Guerreros sold the disputed lot in a “Deed of Absolute Sale” to
the St. Clare’s Realty Company, Ltd.;
Petitioner contention:
- Deed of Sale in favor of Manuel Guerrero was fraudulent, simulated
and falsified for the reason, among others, that Cristina Guerrero was
not the owner of the land at the time she purportedly sold it;
- the Deeds of Sale to the defendants Guerreros and St. Clare’s Realty
Company, Ltd. and the transfer certificates of title in their favor are
fraudulent and simulated, and ineffective against the plaintiffs for the
reason, among others, that at the time of execution of the Deeds of
Sale, the defendants Guerreros knew that the property belonged to
Andres Guerrero;
- that long after the complaint in the present case has been filed, the
plaintiffs came to know that the St. Clare’s Realty Company, Ltd.
executed a “Joint Venture Agreement” with the United Housing
Corporation under which the latter bound itself to develop the
property into a residential subdivision; and that the said agreement
was entered into in gross and evident bad faith.
Separate answers were filed by the defendants Guerreros, St. Clare’s Realty
Company, Ltd. and United Housing Corporation.
Defendant Guerreros contention:
- Guerrero was the absolute owner of the property;
- St. Clare’s Realty Company, Ltd. averred that its contract with United
Housing Corporation was made in good faith.
- United Housing Corporation averred that there is no privity of
interest between plaintiffs and this defendant considering that the
plaintiffs are not parties to the Joint Venture Agreement.
Trial ensued and among the witnsesses that testifies is Laura Cervantes
stating that her mother, Cristina Guerrero, had been sick for a long time
before she died at the age of 80 years in 1948; that the money spent for the
illness of her mother came from Manuel Guerrero; and that, through her
children, Cristina Guerrero could ask money from Manuel Guerrero because
of the land that Andres Guerrero had lent to her. After Laura Cervantes had
thus testified, counsel for the defendants Guerreros objected to the line of
questioning on the ground that the said witness was testifying “on matters
which are prohibited under Sec. 20(a), Rule 130, of the Rules of Court.”
However, RTC Resumed her testimony.
Then, the defendants Guerreros filed a written motion to disqualify Laura
Cervantes as a witness on the basis of Section 20(a), Rule 130, of the New
Rules of Court.
RTC – granted The motion and declared that Laura Cervantes, Jose Cervantes
as well as other witnesses similarly situated, are disqualified to testify in the
case.
RTC – ruled in favour of defendants
CA - affirm
ISSUE:
Whether the witnesses Laura Cervantes, Jose Cervantes “and others similarly
situated” are disqualified to testify; - NO!
HELD:
The plain truth is that Laura Cervantes and Jose Cervantes are not parties in
the present case, and neither are they assignors of the parties nor “persons in
whose behalf a case is prosecuted.” They are mere witnesses by whose
testimonies the plaintiffs aimed to establish that it was not Cristina Guerrero,
but Andres Guerrero, who owned the disputed land at the time of its alleged
sale to Manuel Guerrero; that Cristina Guerrero did not really sell but merely
mortgaged the property to Manuel Guerrero.
By excluding the testimonies of the two witnesses and by barring them from
further testifying, upon reasoning that unduly strained the meaning of the
provisions of the Rules of Court relied upon, the trial court deprived itself of
the opportunity of knowing the truth in this case.
Moreover, the present case is not a claim or demand against the estate of the
deceased Manuel Guerrero. The defendants Guerreros are not the executors
or administrators or representatives of such deceased. They are being sued as
claimants of ownership in their individual capacities of the disputed lot. The
lot is not a part of the estate of Manuel Guerrero. Hence, the inapplicability of
the dead man’s rule.
ABRAHAMA VS RECTO-KASTEN
On September 3, 1943, Juan C. Ysmael, obtained a loan from Alfonso
Abraham, Sr. in the amount of P12,500.00 in Japanese currency notes, and
executed a promissory note in favor of the Abraham promising to pay the
loan within 90 days with interest at the rate of 10% per annum. The note was
executed in the presence of Florencia Q. Abraham, the creditor's wife, who
affixed her signature at the bottom thereof as a witness thereto.
Upon the maturity of the note, as demand was made for its payment, but the
debtor failed to pay.
On February 9, 1945, Alfonso Abraham, Sr. died.
On the other hand, Juan C. Ysmael died intestate on April 23, 1952 leaving
the note still unpaid.
On November 13, 1954, in Special Proceedings No. Q-285 for the settlement
of the intestate estate of Juan Ysmael, pending before the Court of First
Instance of Quezon City,
Florencia Q. Vda. de Abraham, together with her sons, Alfonso and Jesus, all
surnamed Abraham, filed a pleading entitled "Reclamacion" demanding
payment of the amount represented by the note. Because no regular
administrator of the estate had yet been appointed by the court, the
"Reclamacion" was not acted upon. However, as soon as Priscilla
Recto-Kasten was appointed administratrix, the claimants reproduced their
"Reclamacion" before the lower court and the same was finally set for
hearing. As agreed upon by the parties, the reception of evidence was
delegated to a commissioner.
During the hearing before the commissioner, the counsel for the
administratrix interposed a general and continuing objection to the
testimony of Florencia Vda. de Abraham invoking the provisions of Section
26(c), Rule 123 of the Rules of Court. However, after the claimant had
testified, he lengthily cross-examined her on the very matters against which
he interposed a general objection.
RTC - that the claimants established a just and valid claim against the estate
of Juan C. Ysmael, and therefore the "reclamacion" under consideration is
hereby APPROVED.
CA - "the lower court erred in finding that the claimants have established a
just and valid claim, and in allowing the claim—supposing it was a claim with
consideration—when the same had been barred by prescription, estoppel
and laches,"
ISSUE:
whether or not petitioners have established a just and valid claim. whether
the same is already barred by prescription and laches. – YES! No!
HELD:
The record shows that petitioners have established the due execution and
genuineness of the promissory note and that respondents failed to present
any evidence to destroy the same.
It is true that Section 26 (c), Rule 123 of the Rules of Court provides:
"(c) Parties or assignors of parties to a case, or persons in whose behalf a case
is prosecuted, against an executor administrator or other representative of a
deceased person, or against a person of unsound mind, upon a claim or
demand against the estate of such deceased person or against such person
of unsound mind, cannot testify as to any matter of fact occurring before the
death of such deceased person or before such person became of unsound
mind;"
However, there was a waiver of the prohibition when the counsel for the
administratrix extensively cross- examined the witness on the very matters
subject of the prohibition.
It was for this reason that the trial judge eventually overruled the counsel's
previous general and continuing objection and admitted the testimony of the
witness. Furthermore, it is difficult to believe that the counsel's lengthy
cross-examination on the prohibited matter was merely for the purpose of
establishing the "motive, prejudices and predilection" of the witness.
Under the New Civil Code, an action upon a written contract must be
brought within 10 years from the time the right of action accrues. (Art. 1144,
par. 1). In the case at bar, the cause of action accrued on December 3, 1943
(the date when the note became due and demandable) and petitioners filed
their "reclamacion" only on November 13, 1954. Apparently, the action has
already prescribed, because more than ten years had elapsed before any suit
was filed.
However, it must be remembered that the provisions on moratorium had the
effect of suspending the statute of limitations from November 18, 1944 when
Executive Order No. 25 was issued, to May 18, 1953, the date of
promulgation of the decision in the case of Rutter v. Esteban (G.R. No.
L-3708) holding such provisions no longer applicable. Thus, from December
3, 1943 to November 13, 1954, eleven years, eleven months and ten days
have elapsed. Deducting from this period eight years and six months, the
time during which the statute of limitations was suspended, it is clear that
petitioners' claim has not yet prescribed when it was filed on November 13,
1954.
GONI VS CA
The three (3) haciendas known as San Sebastian, Sarria and Dulce Nombre de
Maria situated in the Municipality of Bais, Negros Oriental, were originally
owned by the Compania General de Tabacos de Filipinas [TABACALERA].
Sometime in 1949, the late Praxedes T. Villanueva, predecessor-in-interest of
petitioners, negotiated with TABACALERA for the purchase of said haciendas.
However, as he did not have sufficient funds to pay the price, Villanueva with
the consent of TABACALERA, offered to sell Hacienda Sarria to one Santiago
Villegas, who was later substituted by Joaquin Villegas. Private respondent
Gaspar Vicente stood as guarantor for Villegas in favor of TABACALERA.
The guarantee was embodied in a document denominated as “Escritura de
Traspaso de Cuenta.” The amount realized from the transaction between
Villanueva and Villegas still fell short of the purchase price of the three
haciendas, or in consideration of the guaranty undertaken by private
respondent Vicente, Villanueva contracted or promised to sell to the latter
fields nos. 3, 4 and 13 of Hacienda Dulce Nombre de Maria for the sum of
P13,807.00.
This agreement was reduced to writing and signed by petitioner Genaro Goñi
as attorney- in-fact of Villanueva
Private respondent Vicente thereafter advised TABACALERA to debit from his
account the amount of P13,807.00 as payment for the balance of the
purchase price. However, as only the amount of P12,460.24 was actually
needed to complete the purchase price, only the latter amount was debited
from private respondent’s account. The difference was supposedly paid by
private respondent to Villanueva, but as no receipt evidencing such payment
was presented in court, this fact was disputed by petitioners.
It is alleged by petitioners that subsequent to the execution of the
contract/promise to sell, Villanueva was able to raise funds by selling a
property in Ayungon, Negros Oriental. He thus went to private respondent
Vicente for the purpose of rescinding the contract/promise to sell. However,
as the amount of P12,460.24 had already been debited from private
respondent’s account, it was agreed that lots 4 and 13 of the Hacienda Dulce
Nombre de Maria would merely be leased to private respondent Vicente for
a period of five (5) years starting with crop-year 1950-51 at an annual rental
of 15% of the gross income, said rent to be deducted from the money
advanced by private respondent and any balance owing to Villa-nueva would
be delivered by Vicente together with the lots at the end of the stipulated
period of lease.
On December 10, 1949, TABACALERA executed a formal deed of sale
covering the three haciendas in favor of Villanueva. The fields were likewise
mortgaged by Villanueva to the Rehabilitation Finance Corporation (RFC),
later transferred to the Philippine National Bank on December 16, 1955, for a
total indebtedness of P334,400.00. 3 Meanwhile, Fields nos. 4 and 13 were
delivered to private respondent Vicente after the 1949-1950 milling season in
January and February, 1950.
On June 17, 1950, Villanueva executed a “Documento de la Venta Definitiva”
in favor of Joaquin Villegas, covering Lot No. 314 of the Cadastral Survey of
Bais with an area of 468,627 square meters, more or less. (Hacienda Sarria). A
supplemental instrument was later executed by Villanueva in favor of Villegas
to include in the sale of June 17, 1950 the sugar quota of the land.
On November 12, 1951, Villanueva died. Intestate proceedings were
instituted on November 24, 1951 before the then Court of First Instance of
Negros Oriental, docketed as Special Case No. 777. Among the properties
included in the inventory submitted to the court were fields nos. 3, 4 and 13
of Hacienda Dulce Nombre de Maria. _______________
Respondent Vicente instituted an action for recovery of property and
damages before the then Court of First Instance of Negros Oriental against
petitioner Goñi in his capacity as administrator of the intestate estate of
Praxedes Villanueva. Private respondent Vicente sought to recover field no. 3
of the Hacienda Dulce Nombre de Maria, basing his entitlement thereto on
the contract/promise to sell executed by the late Praxedes Villanueva in his
favor on October 24, 1949.
Petitioner Goñi, filed an answer with counterclaim for accounting of the
produce of fields
private respondent Vicente amended his complaint on September 1, 1955, to
include a prayer for damages representing the produce of field no. 3 from
1949-50 until delivery thereof to him.
private respondent Vicente amended his complaint anew to include as
parties-defendants the heirs of the late Praxedes Villanueva.
the parties entered into a stipulation of facts, agreeing, among others, on the
costs of production and produce of the three fields in question. The case
thereafter proceeded to trial.
Plaintiff presented two (2) witnesses: then party-plaintiff Gaspar Vicente,
himself, who over the objection of therein defendants testified on facts
occurring before the death of Praxedes Villanueva, and Epifanio Equio, a clerk
of TABACALERA Agency in the Bais Sugar Central.
Defendants presented Genaro Goñi, who testified on the alleged verbal lease
agreement.
RTC - ordering therein defendants-heirs to deliver to Gaspar Vicente field no.
3, to execute a formal deed of sale covering fields nos. 3, 4 and 13 in favor of
Vicente. Therein defendant Goñi was relieved of any civil liability for
damages, either personally or as administrator of the estate.
CA – affirm
ISSUE:
“MAY RESPONDENT GASPAR VICENTE TESTIFY ON MATTERS OF FACT
OCCURRING BEFORE THE DEATH OF PRAXEDES T. VILLANUEVA, WHICH
CONSTITUTES A CLAIM OR DEMAND UPON HIS ESTATE, IN VIOLATION OF
RULE 123, SEC. 26, PAR. (C), NOW RULE 130, SEC. 20 PAR, A)? “
HELD:
Under ordinary circumstances, private respondent Vicente would be
disqualified by reason of interest from testifying as to any matter of fact
occurring before the death of Praxedes T. Villanueva, such disqualification
being anchored on Section 20(a) of Rule 130, commonly known as the
Survivorship Disqualification Rule or Dead Man Statute.
The object and purpose of the rule is to guard against the temptation to give
false testimony in regard to the transaction in question on the part of the
surviving party and further to put the two parties to a suit upon terms of
equality in regard to the opportunity of giving testimony. 9 It is designed to
close the lips of the party plaintiff when death has closed the lips of the party
defendant, in order to remove from the surviving party the temptation to
falsehood and the possibility of fictitious claims against the deceased.
The case at bar, although instituted against the heirs of Praxedes Villanueva
after the estate of the latter had been distributed to them, remains within the
ambit of the protection. The reason is that the defendants-heirs are properly
the “representatives” of the deceased, not only because they succeeded to
the decedent’s right by descent or operation of law, but more importantly
because they are so placed in litigation that they are called on to defend
which they have obtained from the deceased and make the defense which
the deceased might have made if living, or to establish a claim which
deceased might have been interested to establish, if living.
Such protection, however, was effectively waived when counsel for
petitioners cross-examined private respondent Vicente.
“A waiver occurs when plaintiff’s deposition is taken by the representative of
the estate or when counsel for the representative cross-examined the plaintiff
as to matters occurring during deceased’s lifetime.”
It must further be observed that petitioners presented a counterclaim against
private respondent Vicente. When Vicente thus took the witness stand, it was
in a dual capacity as plaintiff in the action for recovery of property and as
defendant in the counterclaim for accounting and surrender of fields nos. 4
and 13. Evidently, as defendant in the counterclaim, he was not disqualified
from testifying as to matters of fact occurring before the death of Praxedes
Villanueva, said action not having been brought against, but by the estate or
representatives of the estate/deceased person. Likewise, under a great
majority of statutes, the adverse party is competent to testify to transactions
or communications with the deceased or incompetent person which were
made with an agent of such person in cases in which the agent is still alive
and competent to testify. But the testimony of the adverse party must be
confined to those transactions or communications which were had with the
agent. 13 The contract/promise to sell under consideration was signed by
petitioner Goñi as attorney-in- fact (apoderado) of Praxedes Villanueva. He
was privy to the circumstances surrounding the execution of such contract
and therefore could either confirm or deny any allegations made by private
respondent Vicente with respect to said contract. The inequality or injustice
sought to be avoided by Section 20(a) of Rule 130, where one of the parties
no longer has the opportunity to either confirm or rebut the testimony of the
other because death has permanently sealed the former’s lips, does not
actually exist in the case at bar, for the reason that petitioner Goñi could and
did not negate the binding effect of the contract/promise to sell. Thus, while
admitting the existence of the said con-tract/promise to sell, petitioner Goñi
testified that the same was subsequently novated into a verbal contract of
lease over fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria.
TONGCO VS VIANZON
Marcelino Tongco and Anastacia Vianzon contracted marriage on July 5,
1894.
Marcelino died on July 8, 1925, leaving the Anastacia as his widow.
The niece of the deceased, Josefa Tongco, was named administratrix of the
estate.
It appears that shortly before the death of Marcelino Tongco, he had
presented claims in a cadastral case in which he had asked for titles to certain
properties in the name of the conjugal partnership consisting of himself and
his wife, and that corresponding decrees for these lots were issued in the
name of the conjugal partnership not long after his death.
In the cadastral case, the widow began action on April 28, 1926, when she
presented a motion for a revision of certain decrees within the one-year
period provided by the Land Registration Law. Issue was joined by the
administratrix of the estate.
A decision was rendered that a new COT issued for the subject lots as the
exclusive prop of the widow
On July 19, 1926, the administratrix of the estate began action against
Anastaci aVianzon for the recovery of specified property and for damages.
RTC - that one- half of the value of the shares in theSociedadCooperativa de
Credito Rural de Orani, to the amount of ten pesos (P10), belonging to the
intestate estate of MarcelinoTongco, which one-half interest must appear in
the inventory of the property of the estate of the deceased Marcelino
Tongco."
From both of the judgments hereinbefore mentioned, the administratrix of
the estate of MarcelinoTongco
belonged exclusively to her, that is, it would, unless we are forced to
disregard her testimony. No reversible error was committed in the denial of
the motion for a new trial for it is not at all certain that it rested on a legal
foundation, or that if it had been granted it would have changed the result.
Counsel is eminently correct in emphasizing that the object and purpose of
this statute is to guard against the temptation to give false testimony in
regard to the transaction is question on the part of the surviving party. He
has, however, neglected the equally important rule that the law was designed
to aid in arriving at the truth and was not designed to suppress the truth.
The law twice makes use of the word "against." The actions were not brought
"against" the administratrix of the estate, nor were they brought upon claims
"against" the estate.
In the first case at bar, the action is one by the administratrix to enforce
demand "by" the estate.
In the second case at bar, the same analogy holds true for the claim was
presented in cadastral proceedings where in one sense there is no plaintiff
and there is no defendant.
Moreover, a waiver was accomplished when the adverse party undertook to
cross-examine the interested person with respect to the prohibited matters.
LICHAUCO vs ATLANTIC GOLF

ISSUE:

Whether the widow was competent to testify in cadastral cases

HELD:

It is true that by reason of the provisions of article 1407 of the Civil Code the
presumption is that all the property of the spouses is partnership property in
the absence of proof that it belongs exclusively to the husband or to the wife.
But even proceeding on this assumption, we still think that the widow has
proved in a decisive and conclusive manner that the property in question
MARITAL PRIVILEGE COMMUNICATIONS
PP v CARLOS
Dr. Pablo G. Sityar, on March 3, 1924, in Mary Chiles Hospital, performed a
surgical operation upon the defendant's wife for appendicitis and certain
other ailments. She remained in the hospital until the 18th of the same
month, but after her release therefrom she was required to go several times
to the clinic of Doctor Sityar at No. 40 Escolta, for the purpose of dressing the
wounds caused by the operation. On these occasions she was accompanied
by her husband, the defendant. The defendant states that on one of the
visits, that of March 20, 1924, Doctor Sityar sent him out on an errand to buy
some medicine, and that while defendant was absent on this errand Doctor
Sityar outraged the wife. The defendant further states that his wife informed
him of the outrage shortly after leaving the clinic. Notwithstanding this it
nevertheless appears that he again went there on March 28th to consult the
deceased about some lung trouble from which he, the defendant, was
suffering. He was given some medical treatment and appears to have made
at least one more visit to the clinic without revealing any special resentment.
On May 12, 1924, the defendant, suffering from some stomach trouble,
entered the Philippine General Hospital where he remained until May 18,
1924, and where he was under the care of two other physicians. While in the
hospital her received a letter (Exhibit 5) from Doctor Sityar asking the
immediate settlement of the account for the professional services rendered
his wife. Shortly after his release from the hospital the defendant sought an
interview with Doctor Sityar and went to the latter's office several times
without finding him in. On one of these occasions he was asked by an
employee of the office, the nurse Cabañera, if he had come to settle his
account, to which the defendant answered that he did not believe he owed
the doctor anything.
In the afternoon of May 26th the defendant again went to the office of the
deceased and found him there alone. According to the evidence of the
prosecution, the defendant then, without any preliminary quarrel between
the two, attacked the deceased with a fan-knife and stabbed him twice. The
deceased made an effort to escape but the defendant pursued him and
overtaking him in the hall outside the office, inflicted another wound upon
him and as a consequence if the three wounds he died within a few minutes.
The defendants made his escape but surrendered himself to the Constabulary
at Malolos, Bulacan, in the evening of the following day.
The defendant admits that he killed the deceased but maintains that he did
so in self-defense. He explains that he went to Doctor Sityar's office to
protest against the amount of the fee charged by the doctor and, in any
event, to ask for an extension of the time of payment; that during the
conversation upon that subject the deceased insulted him by telling him that
inasmuch as he could not pay the amount demanded he could send his wife
to the office as she was the one treated, and that she could then talk the
matter over with the decease; that this statement was made in such an
insolent and contemptuous manner that the defendant became greatly
incensed and remembering the outrage committed upon his wife, he
assumed a threatening attitude and challenged the deceased to go
downstairs with him and there settle the matter; that the deceased thereupon
took a pocket-knife from the center drawer of his desk and attacked the
defendant, endeavoring to force him out of the office; that the defendant,
making use of his knowledge of fencing, succeeded in taking the knife away
from the deceased and blinded by fury stabbed him first in the right side of
the breast and then in the epigastric region, and fearing that the deceased
might secure some other weapon or receive assistance from the people in
the adjoining room, he again stabbed him, this time in the back.
The defendant's testimony as to the struggle described is in conflict with the
evidence presented by the prosecution. But assuming that it is true, it is very
evident that it fails to establish a case of self-defense and that, in reality, the
only question here to be determined is whether the defendant is guilty of
murder or of simple homicide.
The court below found that the crime was committed with premeditation and
therefore constituted murder. This finding can only be sustained by taking
into consideration Exhibit L, a letter written to the defendant by his wife and
siezed by the police in searching his effects on the day of his arrest. It is
dated May 25, 1924, two days before the commission of the crime and shows
that the writer feared that the defendant contemplated resorting to physical
violence in dealing with the deceased.
Counsel for the defendant argues vigorously that the letter was a privileged
communication and therefore not admissible in evidence.
HELD:
numerical weight of authority is, however, to the effect that where a
privileged communication from one spouse to another comes into the hands
of a third party, whether legally or not, without collusion and voluntary
disclosure on the part of either of the spouses, the privilege is thereby
extinguished and the communication, if otherwise competent, becomes
admissible.
The letter in question was obtained through a search for which no warrant
appears to have been issued and counsel for the defendant cites the causes
of Boyd and Boyd vs. United States (116 U.S., 616) and Silverthorne Lumber
Co. and Silverthorne vs. United States (251 U.S., 385) as authority for the
proposition that documents obtained by illegal searches of the defendant's
effects are not admissible in evidence in a criminal case. In discussing this
point we can do not better than to quote Professor Wigmore:
The foregoing doctrine (i. e., that the admissibility of
evidence is not affected by the illegality of the means
through which the party has been enabled to obtain the
evidence)
The letter Exhibit L must, however, be excluded for reasons not discussed in
the briefs.
The letter was written by the wife of the defendant and if she had testified at
the trial the letter might have been admissible to impeach her testimony, but
she was not put on the witness-stand and the letter was therefore not offered
for that purpose.
The letter is therefore nothing but pure hearsay and its admission in evidence
violates the constitutional right of the defendant in a criminal case to be
confronted with the witnesses for the prosecution and have the opportunity
to cross-examine them. In this respect there can be no difference between an
ordinary communication and one originally privileged.
The question is radically different from that of the admissibility of testimony
of a third party as to a conversation between a husband and wife overheard
by the witness. Testimony of that character is admissible on the ground that
it relates to a conversation in which both spouses took part and on the
further ground that where the defendant has the opportunity to answer a
statement made to him by his spouse and fails to do so, his silence implies
assent. That cannot apply where the statement is contained in an unanswered
letter.
The direction of the wound would depend largely upon the manner in which
the knife was held.
For the reasons stated we find the defendant guilty of simple homicide,
without aggravating or extenuating circumstances.
UNITED STATES VS ANTIPOLO
The appellant was prosecuted in the Court of First Instance of the Province of
Batangas, charged with the murder of one Fortunato Dinal. The trial court
convicted him of homicide and from that decision he was appealed. One of
the errors assigned is based upon the refusal of the trial judge to permit
Susana Ezpeleta, the widow of the man whom the appellant is accused of
having murdered, to testify as a witness on behalf of the defense concerning
certain alleged dying declarations.
The witness was called to the stand and having stated that she is the widow
of Fortunato Dinal was asked: "On what occasion did your husband die?" To
this question the fiscal objected
Counsel for defendant insisted that the witness was competent, arguing that
the disqualification which the fiscal evidently had in mind relates only to
cases in which a husband or wife of one of the parties to a proceeding is
called to testify; that the parties to the prosecution of a criminal case are the
Government and the accused; that, furthermore the marriage of Dinal to the
witness having been dissolved by the death of her husband, she is no longer
his wife, and therefore not subject to any disqualification arising from the
status of marriage.
RTC – objection of the fiscal as to the testimony of the woman Ezpeleta was
sustained.
Section 58 of General Orders No. 58 (1900) reads as follows:
 Except with the consent of both, or except in cases of crime
committed by one against the other, neither husband nor
wife shall be a competent witness for or against the other in
a criminal action or proceeding to which one or both shall be
parties.
The reasons for this rule are thus stated
a very serious injury would be done to the harmony and
happiness of husband and wife and the confidence which
should exist between them.
secure domestic happiness by placing the protecting seal of
the law upon all confidential communications between
husband and wife; and whatever has come to the knowledge
of either by means of the hallowed confidence which that
relation inspires, cannot be afterwards divulged in testimony
even though the other party be no longer living.
This case does not fall with the text of the statute or the reason upon which it
is based. The purpose of section 58 is to protect accused persons against
statements made in the confidence engendered by the marital relation, and
to relieve the husband or wife to whom such confidential communications
might have been made from the obligation of revealing them to the
prejudice of the other spouse.
afterwards, be, without the consent of the other, examined as
to any communication made by one to the other during the
marriage; but this exception does not apply to a civil action
or proceeding by one against the other, or to a criminal
action or proceeding for a crime committed by one against
the other.
Construed as a whole it is evident that it relates only to cases in which the
testimony of a spouse is offered for or against the other in a proceeding to
which the other is a party. The use of the word "afterwards" in the phrase
"during the marriage or afterwards" was intended to cover cases in which a
marriage has been dissolved otherwise than by death of one of the spouses
— as, for instance, by decree of annulment or divorce.
The declarations of a deceased person while in anticipation of certain
impending death, concerning the circumstances leading up to the death, are
admissible in a prosecution of the person charged with killing the declarant.
Such dying declarations are admissible in favor of the defendant as well as
against him. It has been expressly held in several jurisdictions in the United
States that the widow of the deceased may testify regarding his dying
declarations.

Obviously, when a person at the point of death as a result of injuries he has

suffered makes a statement regarding the manner in which he received those
injuries, the communication so made is in no sense confidential. On the
contrary, such a communication is made for the express purpose that it may
be communicated after the death of the declarant to the authorities
concerned in inquiring into the cause of his death.

The same theory as that upon which section 58 of General Orders No. 58 is
based, underlies section 383, paragraph 3 of Act No. 190, which reads as
follows:

A husband cannot be examined for or against his wife

without her consent; nor a wife for or against her husband
without his consent; nor can either, during the marriage or
ATTORNEY-CLIENT PRIVILEGE
UY CHICO vs UNION LIFE ASSURANCE SOCIETY
The plaintiff seeks to recover the face value of two insurance policies upon a
stock of dry goods destroyed by fire. It appears that the father of the plaintiff
died in 1897, at which time he was conducting a business under his own
name, Uy Layco.
The plaintiff and his brother took over the business and continued it under
the same name, "Uy Layco." Sometime before the date of the fire, the plaintiff
purchased his brother's interest in the business and continued to carry on the
business under the father's name. At the time of the fire "Uy Layco" was
heavily indebted and subsequent thereto the creditors of the estate of the
plaintiff's father. During the course of these proceedings, the plaintiff's
attorney surrendered the policies of insurance to the administrator of the
estate, who compromised with the insurance company for one-half their face
value, or P6,000. This money was paid into court and is now being held by
the sheriff.
The plaintiff now brings this action, maintaining that the policies and goods
insured belonged to him and not to the estate of his deceased father and
alleges that he is not bound by the compromise effected by the administrator
of his father's estate.
The defendant insurance company sought to show that the plaintiff had
agreed to compromise settlement of the policies, and for that purpose
introduced evidence showing that the plaintiff's attorney had surrendered the
policies to the administrator with the understanding that such a compromise
was to be effected.
The plaintiff was asked, while on the witness stand, if he had any objection to
his attorney's testifying concerning the surrender of the policies, to which he
replied in the negative.
Counsel for the plaintiff formally withdrew the waiver previously given by the
plaintiff and objected to the testimony of the attorney on the ground that it
was privileged
Issue: Was the testimony in question privileged?
HELD:
Our practice Act provides: "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.)
A similar provision is inserted in section 383, No. 4, of the same Act. It will be
noted that the evidence in question concerned the dealings of the plaintiff's
attorney with a third person. Of the very essence of the veil of secrecy which
surrounds communications made between attorney and client, is that such
communications are not intended for the information of third persons or to
be acted upon by them, put of the purpose of advising the client as to his
rights. It is evident that a communication made by a client to his attorney for
the express purpose of its being communicated to a third person is
essentially inconsistent with the confidential relation. When the attorney has
faithfully carried out his instructions be delivering the communication to the
third person for whom it was intended and the latter acts upon it, it cannot,
by any reasoning whatever, be classified in a legal sense as a privileged
communication between the attorney and his client. It is plain that such a
communication, after reaching the party for whom it was intended at least, is
a communication between the client and a third person, and that the
attorney simply occupies the role of intermediary or agent.
Sases cover a variety of communications made by an authority in behalf of
his client to third persons. And cases wherein evidence of the attorney as to
compromises entered into by him on behalf of his client were allowed to be
proved by the attorney's testimony are not wanting.
It is manifest that the objection to the testimony of the plaintiff's attorney as
to his authority to compromise was properly overruled. The testimony was to
the effect that when the attorney delivered the policies to the administrator,
he understood that there was a compromise to be effected, and that when he
informed the plaintiff of the surrender of the policies for that purpose the
plaintiff made no objection whatever. The evidence is sufficient to show that
the plaintiff acquiesced in the compromise settlement of the policies. Having
agreed to the compromise, he cannot now disavow it and maintain an action
for the recovery of their face value.
REAGALA vs SANDIGANBAYAN
Among the dependants named in the case are herein petitioners who all
were then partners of the law firm Angara, Abello, Concepcion, Regala and
Cruz Law Offices (hereinafter referred to as the ACCRA Law Firm).
ACCRA Law Firm performed legal services for its clients, which included,
among others, the organization and acquisition of business associations
and/or organizations, with the correlative and incidental services where its
members acted as incorporators, or simply, as stockholders. More specifically,
in the performance of these services, the members of the law firm delivered
to its client documents which substantiate the client's equity holdings, i.e.,
stock certificates endorsed in blank representing the shares registered in the
client's name, and a blank deed of trust or assignment covering said shares
In the course of their dealings with their clients, the members of the law firm
acquire information relative to the assets of clients as well as their personal
and business circumstances.
As members of the ACCRA Law Firm, petitioners and private respondent Raul
Roco admit that they assisted in the organization and acquisition of the
companies included in Civil Case No. 0033, and in keeping with the office
practice, ACCRA lawyers acted as nominees-stockholders of the said
corporations involved in sequestration proceedings. 2
Respondent Presidential Commission on Good Government (hereinafter
referred to as respondent PCGG) filed a "Motion to Admit Third Amended
Complaint" and "Third Amended Complaint" which excluded private
respondent Raul S. Roco from the complaint in PCGG Case No. 33 as party-
defendant. 3Respondent PCGG based its exclusion of private respondent
Roco as party-defendant on his undertaking that he will reveal the identity of
the principal/s for whom he acted as nominee/stockholder in the companies
involved in PCGG Case No. 33. 4
Petitioners were included in the Third Amended Complaint that through the
use of the coconut levy funds, the financial and corporate framework and
structures that led to the establishment of UCPB, UNICOM, COCOLIFE,
COCOMARK, CIC, and more than twenty other coconut levy funded
corporations, including the acquisition of San Miguel Corporation shares and
its institutionalization through presidential directives of the coconut
monopoly. Through insidious means and machinations, ACCRA, being the
wholly-owned investment arm, ACCRA Investments Corporation, became the
holder of approximately fifteen million shares representing roughly 3.3% of
the total outstanding capital stock of UCPB as of 31 March 1987.
Petitioners ACCRA lawyers alleged that it was in furtherance of legitimate
lawyering and in the course of rendering professional and legal services to
clients, defendants-ACCRA lawyers, Jose C. Concepcion, Teodoro D. Regala,
Rogelio A. Vinluan and Eduardo U. Escueta, became holders of shares of
stock in the corporations as incorporating or acquiring stockholders only and,
as such, they do not claim any proprietary interest in the said shares of stock.
Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR
OPPOSITION" 1 with Counter-Motion that respondent PCGG similarly grant
the same treatment to them as accorded private respondent Roco. 8
In its "Comment," respondent PCGG set the following conditions precedent
for the exclusion of petitioners, namely: (a) the disclosure of the identity of its
clients; (b) submission of documents substantiating the lawyer-client
relationship; and (c) the submission of the deeds of assignments petitioners
executed in favor of its client covering their respective
shareholdings. 9
It is noteworthy that during said proceedings, private respondent Roco did
not refute petitioners' contention that he did actually not reveal the identity
of the client involved in PCGG Case No. 33, nor had he undertaken to reveal
the identity of the client for whom he acted as nominee-stockholder. 11
Sandiganbayan - denied the exclusion of petitioners in PCGG Case No. 33, for
their refusal to comply with the conditions required by respondent PCGG.
ISSUE: the attorney-client privilege prohibits petitioners ACCRA lawyers from
revealing the identity of their client(s) and the other information requested
by the PCGG – in refusing to disclose the client’s name
Petitioners contend that the exclusion of respondent Roco as party-
defendant in PCGG Case No. 33 grants him a favorable treatment, on the
pretext of his alleged undertaking to divulge the identity of his client, giving
him an advantage over them who are in the same footing as partners in the
ACCRA law firm. Petitioners further argue that even granting that such an
undertaking has been assumed by private respondent Roco, they are
prohibited from revealing the identity of their principal under their sworn
mandate and fiduciary duty as lawyers to uphold at all times the
confidentiality of information obtained during such lawyer-client relationship.
Respondent PCGG, through its counsel, refutes petitioners' contention,
alleging that the revelation of the identity of the client is not within the ambit
of the lawyer-client confidentiality privilege, nor are the documents it
required (deeds of assignment) protected, because they are evidence of
nominee status. 13
HELD:
Petitioners' contentions are impressed with merit.
The nature of lawyer-client relationship is premised on the Roman Law
concepts of locatio conductio operarum(contract of lease of services) where
one person lets his services and another hires them without reference to the
object of which the services are to be performed, wherein lawyers' services
may be compensated by honorariumor for hire, 17 and mandato (contract of
agency) wherein a friend on whom reliance could be placed makes a contract
in his name, but gives up all that he gained by the contract to the person
who requested him. 18
But the lawyer-client relationship is more than that of the principal-agent and
lessor-lessee.
In modern day perception of the lawyer-client relationship, an attorney is
more than a mere agent or servant, because he possesses special powers of
trust and confidence reposed on him by his client. 19 A lawyer is also as
independent as the judge of the court, thus his powers are entirely different
from and superior to those of an ordinary agent.20 Moreover, an attorney
also occupies what may be considered as a "quasi-judicial office" since he is
in fact an officer of the Court 21 and exercises his judgment in the choice of
courses of action to be taken favorable to his client.
An effective lawyer-client relationship is largely dependent upon the degree
of confidence which exists between lawyer and client which in turn requires a
situation which encourages a dynamic and fruitful exchange and flow of
information. It necessarily follows that in order to attain effective
representation, the lawyer must invoke the privilege not as a matter of option
but as a matter of duty and professional responsibility.
As a matter of public policy, a client's identity should not be shrouded in
mystery 30 Under this premise, the general rule in our jurisdiction as well as in
the United States is that a lawyer may not invoke the privilege and refuse to
divulge the name or identity of this client. 31
The reasons advanced for the general rule are well established.
First, the court has a right to know that the client whose privileged
information is sought to be protected is flesh and blood.
Second, the privilege begins to exist only after the attorney-client
relationship has been established. The attorney-client privilege does not
attach until there is a client.
Third, the privilege generally pertains to the subject matter of the
relationship.
Finally, due process considerations require that the opposing party should, as
a general rule, know his adversary. "A party suing or sued is entitled to know
who his opponent is." 32 He cannot be obliged to grope in the dark against
unknown forces. 33
Notwithstanding these considerations, the general rule is however qualified
by some important exceptions.
1) Client identity is privileged where a strong probability exists that revealing
the client's name would implicate that client in the very activity for which he
sought the lawyer's advice.
2) Where disclosure would open the client to civil liability; his identity is
privileged.
3) Where the government's lawyers have no case against an attorney's client
unless, by revealing the client's name, the said name would furnish the only
link that would form the chain of testimony necessary to convict an individual
of a crime, the client's name is privileged.
Apart from these principal exceptions, there exist other situations which
could qualify as exceptions to the general rule.
the content of any client communication to a lawyer lies within the privilege if
it is relevant to the subject matter of the legal problem on which the client
seeks legal assistance. 44
Moreover, where the nature of the attorney-client relationship has been
previously disclosed and it is the identity which is intended to be confidential,
the identity of the client has been held to be privileged, since such revelation
would otherwise result in disclosure of the entire transaction. 45
Summarizing these exceptions, information relating to the identity of a client
may fall within the ambit of the privilege when the client's name itself has an
independent significance, such that disclosure would then reveal client
confidences. 46
The circumstances involving the engagement of lawyers in the case at bench,
therefore, clearly reveal that the instant case falls under at least two
exceptions to the general rule. First, disclosure of the alleged client's name
would lead to establish said client's connection with the very fact in issue of
the case, which is privileged information, because the privilege, as stated
earlier, protects the subject matter or the substance (without which there
would be not attorney-client relationship).
The link between the alleged criminal offense and the legal advice or legal
service sought was duly establishes in the case at bar, by no less than the
PCGG itself.
There is no question that the preparation of the aforestated documents was
part and parcel of petitioners' legal service to their clients. More important, it
constituted an integral part of their duties as lawyers. Petitioners, therefore,
have a legitimate fear that identifying their clients would implicate them in
the very activity for which legal advice had been sought, i.e., the alleged
accumulation of ill-gotten wealth in the aforementioned corporations.
Furthermore, under the third main exception, revelation of the client's name
would obviously provide the necessary link for the prosecution to build its
case, where none otherwise exists.
Case should be built upon evidence painstakingly gathered by them from
their own sources and not from compelled testimony requiring them to
reveal the name of their clients, information which unavoidably reveals much
about the nature of the transaction which may or may not be illegal.
The uberrimei fidei relationship between a lawyer and his client therefore
imposes a strict liability for negligence on the former. The ethical duties
owing to the client, including confidentiality, loyalty, competence, diligence
as well as the responsibility to keep clients informed and protect their rights
to make decisions have been zealously sustained.
We have no choice but to uphold petitioners' right not to reveal the identity
of their clients under pain of the breach of fiduciary duty owing to their
clients, because the facts of the instant case clearly fall within recognized
exceptions to the rule that the client's name is not privileged information.
If we were to sustain respondent PCGG that the lawyer-client confidential
privilege under the circumstances obtaining here does not cover the identity
of the client, then it would expose the lawyers themselves to possible
litigation by their clients in view of the strict fiduciary responsibility imposed
on them in the exercise of their duties.
IN RE JURY PROCEEDINGS, LAST LINK DOCTRINE
To summarize, the last link doctrine, in this and other circuits,
protects a client's identity when disclosure of that identity would
disclose other, privileged communications (e.g., motive or strategy) and
when the incriminating nature of the privileged communications has
created in the client a reasonable expectation that the information
would be kept confidential.
Samuel Rabin, appellee, received a subpoena duces tecum from a grand jury
investigating the activities of his former client, Armando Garcia. The
subpoena ordered Rabin to appear before the grand jury and to produce
certain documents relating to the amount of fees Garcia paid Rabin during
the investigation and trial of pending federal criminal charges. Rabin moved
the district court to quash the subpoena, and the court granted that motion.
The Government now appeals. We reverse and remand.
 This appeal arises out of the highly visible prosecution of seven Miami
police officers known as the "River Cops." An intensive investigation by the
Dade County State Attorney's Office culminated in the filing of an
information in the Dade County Circuit Court on December 27, 1985. The
information contained various RICO, drug-trafficking, and larceny charges
against six of the officers. One of those officers, Armando Garcia, was Rabin's
client. Apparently, during the investigation, Garcia had contacted Rabin for
the purpose of hiring Rabin to provide a defense against the forthcoming
charges.
Federal grand jury returned an indictment against the seven officers,
charging them with RICO, drug-trafficking, and civil rights violations.
Simultaneously, the State Attorney's Office, citing the federal government's
involvement in the case, made public a nolle prosse report.
The grand jury continued its investigation into the activities of the seven
officers by issuing subpoenas for additional financial records, and on
September 4, 1986, it returned a superseding indictment against the officers
that also contained tax evasion charges against three of the officers.
Garcia was one of the four officers not indicted at that time for tax evasion.
All of the officers' attorneys, including Rabin, filed motions to withdraw as
counsel, and those motions were granted. The court appointed new attorneys
for those officers who requested counsel and appointed standby attorneys
for those officers who did not request counsel.
As part of its continuing investigation into possible tax evasion and failure to
file income tax returns, the grand jury issued subpoenas duces tecum to the
four former attorneys of those officers who had not been charged with tax
evasion in the 1986 superseding indictment. Thus, Rabin was among those
attorneys subpoenaed.
The four attorneys jointly moved to quash the subpoena, arguing that
enforcement of the subpoena would intrude on the attorney-client privilege,
violate the officers' sixth amendment right to counsel, and constitute an
abuse of the grand jury.
The district court, granted the motion. See In re Williams, 717 F.Supp. 1502,
1510 (S.D.Fla.1987). The court based its decision on the last link doctrine of
the attorney-client privilege, holding that, under In re Grand Jury Proceedings
(Jones), 517 F.2d 666, 670 (5th Cir.1975)1 and its progeny, the requested
information might constitute "the [last] link in the Government's proof of the
[officers'] unexplained wealth." 717
HELD:
We think that the district court misapplied the last link doctrine to the
information in Rabin's possession and that the attorney-client privilege does
not shield the requested information from discovery by the grand jury.
Because we hold that the attorney-client privilege cannot support Rabin's
motion to quash the subpoena, we must address the other arguments
advanced in support of that motion.
When determining the reach of the attorney-client privilege, we look to "the
principles of the common law as they may be interpreted by the courts of the
United States in the light of reason and experience." From those principles,
we learn that the attorney-client privilege--the oldest of the confidential
communication privileges--exists "[i]n order to promote freedom of
consultation of legal advisers by clients." Sound legal advice and advocacy
depend upon full and frank communication between attorney and client. The
attorney-client privilege, however, is inconsistent with the goal of discovering
the truth at trial and, therefore, "ought to be strictly confined within the
narrowest possible limits consistent with the logic of its principle
In light of these principles, courts have been careful to define
"communication" between attorney and client to include only those verbal
statements or physical acts that the client intends as information regarding
the "subject matter" of his problem.
Thus, courts have distinguished between underlying facts--facts existing
independently of any communication between the attorney and client--and
communications about those facts, extending the privilege to the latter but
not the former.
This brings us to the last link doctrine. Because courts generally refuse to
extend the privilege to underlying facts, the identity of an attorney's client
has rarely been held to be a privileged communication. announced a notable
exception to this general rule – that is disclosure of the clients' identities
"would disclose the 'ultimate motive of litigation' which Wigmore says the
privilege should protect,"2 the court held the clients' identities to be
privileged. Id. at 630.3
 [j]ust as the client's verbal communications are protected, it follows that
other information, not normally privileged, should also be protected when so
much of the substance of the communications is already in the government's
possession that additional disclosures would yield substantially probative
links in an existing chain of inculpatory events or transactions.
Since disclosure of the clients' identities in those circumstances would
reveal their (presumably incriminating) motive for seeking legal advice, the
court held that the last link doctrine protected the clients' identities.
Whether the clients' motive for retaining the attorneys' services
constituted an incriminating last link. A client's motive for hiring a lawyer
normally will be privileged, but the privilege may be invoked in a given case
only if, under the circumstances of the case, the client expected his motive to
be kept confidential.
In other words, the incriminating nature of the client's motive creates a
reasonable expectation in the client that his identity will be kept confidential.
In contrast, when disclosure of the client's identity would not disclose other
privileged information (e.g., motive), the general rule applies and the
information regarding identity is not privileged even if disclosure of that
information itself might be incriminating.
The grand jury and the federal investigators already knew the client's
identity and sought only information relating to the amount of fees paid by
the client. The identity of the client is known, as well as the existence of the
fee. What is unknown is the amount of the fee[,] and such information is
properly discoverable by a Grand Jury
To summarize, we think that the requested information is protected by the
attorney-client privilege only if the district court finds, on remand, that
ordinarily privileged information will be disclosed along with the fee
information and that the privileged information cannot be redacted from the
requested information. The district court should make this determination in
camera. Furthermore, we hold that Rabin's sixth amendment claim is not ripe
for adjudication and that Rabin does not have standing to assert, in his
motion to quash, Garcia's sixth amendment right to counsel. Finally, we find
no clear evidence indicating that the Government abused the grand jury's
subpoena power. We therefore reverse the district court's order quashing the
subpoena directed to Rabin and remand for further proceedings consistent
with this opinion.
BARTON VS LEYTE ASPHALT
supposing that the letter was within the privilege which protects
communications between attorney and client, this privilege was lost
when the letter came to the hands of the adverse party. And it makes no
difference how the adversary acquired possession. The law protects the
client from the effect of disclosures made by him to his attorney in the
confidence of the legal relation, but when such a document, containing
admissions of the client, comes to the hand of a third party, and reaches
the adversary, it is admissible in evidence. In
The plaintiff is a citizen of the United States, resident in the City of Manila,
while the defendant is a corporation organized under the law of the
Philippine Islands with its principal office in the City of Cebu, Province of
Cebu, Philippine Islands.
The company was the owner by a valuable deposit of bituminous limestone
and other asphalt products, located on the Island of Leyte and known as
the Lucio mine.
On April 21, 1920, one William Anderson, as president and general manager
of the defendant company, addressed a letter Exhibit B, to the plaintiff
Barton, authorizing the latter to sell the products of the Lucio mine in the
Commonwealth of Australia and New Zealand upon a scale of prices
indicated in said letter.
In the third cause of action stated in the complaint the plaintiff alleges that
during the life of the agency indicated in Exhibit B, he rendered services to
the defendant company in the way of advertising and demonstrating the
products of the defendant and expended large sums of money in visiting
various parts of the world for the purpose of carrying on said advertising and
demonstrations, in shipping to various parts of the world samples of the
products of the defendant, and in otherwise carrying on advertising work. For
these services and expenditures the plaintiff sought, in said third cause of
action, to recover the sum of $16,563.80, United States currency.
The court, however, absolved the defendant from all liability on this cause of
action and the plaintiff did not appeal, with the result that we are not now
concerned with this phase of the case. Besides, the authority contained in
said Exhibit B was admittedly superseded by the authority expressed in a later
letter, Exhibit A, dated October 1, 1920. This document bears the approval of
the board of directors of the defendant company and was formally accepted
by the plaintiff.
Upon careful perusal of the fourth paragraph from the end of this letter it is
apparent that some negative word has been inadvertently omitted before
"prepared," so that the full expression should be "unless we should notify you
specifically prior to that date that we are unprepared to load at that rate," or
"not prepared to load at that rate."
The plaintiff requested the defendant company to give him a similar selling
agency for Japan. the defendant company, through its president, Wm.
Anderson, replied, the same commission on all sales made by you in Japan,
on the same basis as your Australian sales, but we do not feel like giving you
a regular agency for Japan until you can make some large sized sales
Meanwhile the plaintiff had embarked for San Francisco and upon arriving at
that port he entered into an agreement with Ludvigsen & McCurdy, of that
city. The territory assigned to Ludvigsen & McCurdy included San Francisco
and all territory in California north of said city. Upon an earlier voyage during
the same year to Australia, the plaintiff had already made an agreement with
Frank B. Smith, of Sydney, whereby the latter was to act as the plaintiff's sales
agent for bituminous limestone mined at the defendant's quarry in Leyte,
until February 12, 1921. Later the same agreement was extended for the
period of one year from January 1, 1921. (Exhibit Q.)
On February 5, 1921, Ludvigsen & McCurdy, of San Francisco, addressed a
letter to the plaintiff, then in San Francisco, advising him that he might enter
an order for six thousand tons of bituminous limestone to be loaded at Leyte
not later than May 5, 1921, upon terms stated in the letter Exhibit G. Upon
this letter the plaintiff immediately indorsed his acceptance.
The plaintiff then returned to Manila; and on March 2, 1921, Anderson wrote
to him from Cebu, to the effect that the company was behind with
construction and was not then able to handle big contracts.
On March 5, 1921, Frank B. Smith, of Sydney, had cabled the plaintiff an order
for five thousand tons of bituminous limestone; and in his letter of March 15
to the defendant, the plaintiff advised the defendant company to be
prepared to ship another five thousand tons of bituminous limestone, on or
about May 6, 1921, in addition to the intended consignment for San
Francisco. The name Henry E. White was indicated as the name of the person
through whom this contract had been made, and it was stated that the
consignee would be named later, no destination for the shipment being
given. The plaintiff explains that the name White, as used in this letter, was
based on an inference which he had erroneously drawn from the cable sent
by Frank B. Smith, and his intention was to have the second shipment
consigned to Australia in response to Smith's order.
It will be noted in connection with this letter of the plaintiff, of March 15,
1921, that no mention was made of the names of the person, or firm, for
whom the shipments were really intended. The obvious explanation that
occurs in connection with this is that the plaintiff did not then care to reveal
the fact that the two orders had originated from his own subagents in San
Francisco and Sydney.
The assistant manager of the defendant company replied on March, 25, 1921,
acknowledging the receipt of an order for five thousand tons of bituminous
limestone to be consigned to John Chapman Co., of San Francisco, and the
further amount of five thousand tons of the same material to be consigned
to Henry E. White, and it was stated that "no orders can be entertained unless
cash has been actually deposited with either the International Banking
Corporation or the Chartered Bank of India, Australia and China, Cebu."
(Exhibit Z.)
To this letter the plaintiff in turn replied from Manila, under date of March,
1921, questioning the right of the defendant to insist upon a cash deposit in
Cebu prior to the filling of the orders.
It will be noted that the only written communications between the plaintiff
and the defendant company in which the former gave notice of having any
orders for the sale of bituminous limestone are the four letters Exhibit Y, AA,
BB, and II
In the first of these letters, dated March 15, 1921, the plaintiff advises the
defendant company to be prepared to ship five thousand tons of bituminous
limestone, to be consigned to John Chapman, Co., of San Francisco, to be
loaded by March 5, and a further consignment of five thousand tons, through
a contract with Henry E. White, consignees to be named later.
In the letter Exhibit BB dated May 17, 1921, the plaintiff's attorney gives
notice of the acceptance by plaintiff of an order from Hiwatari, of Tokio,
approved by the Bank of Taiwan
In the letter Exhibit H the plaintiff gives notice of an "additional" (?) order
from H. E. White, Sydney, for two lots of bituminous limestone of five
thousand tons each
The plaintiff filed an amendment to his complaint in which he set out, in
tabulated form, the orders which he claims to have received and upon which
his letters of notification to the defendant company were based.
trial judge gave in favor of the plaintiff are all based upon the orders given by
Ludvigsen & McCurdy (Exhibit G), by Frank B. Smith (Exhibit L and M), and by
Hiwatari in Exhibit W; and the appealed does not involve an order which
came from Shanghai, China.
ISSUE: whether or not the orders contained in Exhibit G, L, M, and W, in
connection with the subsequent notification thereof given by the plaintiff to
the defendant, are sufficient to support the judgment rendered by the trial
court.
HELD:
The original contract by which the plaintiff was appointed sales agent for a
limited period of time in Australia and the United States contemplated that
he should find reliable and solvent buyers who should be prepared to
obligate themselves to take the quantity of bituminous limestone contracted
for upon terms consistent with the contract.
These conditions were not met by the taking of these orders from the
plaintiff's own subagents, which was as if the plaintiff had bought for himself
the commodity which he was authorized to sell to others. Article 267 of the
Code of Commerce declares that no agent shall purchase for himself or for
another that which he has been ordered to sell.
We think, therefore, that the position of the defendant company is
indubitably sound in so far as it rest upon the contention that the plaintiff has
not in fact found any bona fidepurchasers ready and able to take the
commodity contracted for upon terms compatible with the contract which is
the basis of the action.
It will be observed that the contract set out at the beginning of this opinion
contains provisions under which the period of the contract might be
extended. That privilege was probably considered a highly important incident
of the contract and it will be seen that the sale of five thousand tons which
the plaintiff reported for shipment to San Francisco was precisely adjusted to
the purpose of the extension of the contract for the United States for the
period of an additional year; and the sales reported for shipment to Australia
were likewise adjusted to the requirements for the extention of the contract
in that territory. Given the circumstances surrounding these contracts as they
were reported to the defendant company and the concealment by the
plaintiff of the names of the authors of the orders, -- who after all were
merely the plaintiff's subagents, — the officers of the defendant company
might justly have entertained the suspicion that the real and only person
behind those contracts was the plaintiff himself. Such at least turns out to
have been the case.
Exhibit 14, which was offered in evidence by the defendant, consists of a
carbon copy of a letter dated June 13, 1921, written by the plaintiff to his
attorney, Frank B. Ingersoll, Esq., of Manila, and in which plaintiff states,
among other things, that his profit from the San Francisco contract would
have been at the rate of eigthy-five cents (gold) per ton. Former attorneys of
the defendant without explanation of the manner in which the document had
come into their possession, the attorney for the plaintiff made this propose
to object to its admission on the ground that it is a confidential
communication between client and lawyer."
ORIENT INSURANCE vs REVILLA
*Contract related to fees are not privileged
The respondent Teal Motor Co., Inc. is plaintiff in a civil action instituted in
the Court of First Instance of Manila (civil case No. 35825) for the purpose of
recovering upon two fire insurance policies issued by the Orient Insurance
Company, was destroyed by a fire on or about January 6, 1929.
In one of the clauses of the policies sued upon is a stipulation to the effect
that all benefit under the policy would be forfeited if, in case of loss, the claim
should be rejected by the insurer and action or suit should not be
commenced within three months after such rejection.
Orient Insurance Company alleged that the company rejected the claim on
April 15, 1929, that notice of such rejection was given to the plaintiff by letter
on the same day, and that suit was not instituted on the policy until August 3,
1929, which was more than three months after the rejection of the claim.
The plaintiff admitted that the adjusters of the defendant company had, on
April 15, 1929, notified the plaintiff that the Orient Insurance Company would
not pay the claim, basing refusal upon alleged incendiarism and fraud on the
part of the plaintiff; and by way of avoidance, it was alleged in the replication
that, after notification of denial of liability by the insurance company, one E.
E. Elser, as representative of the company, expressly requested the plaintiff to
defer judicial action until after the following July 31, stating that three were
great possibilities that an extrajudicial compromise might be arranged in the
matter; and it was further asserted, in the replication, that the plaintiff had
deferred action, relying upon this request.
It will thus be seen that the reason for the admitted delay in the institution of
the action is an important issue in the case, or case, now in course of trial.
The witness E. M. Bachrach, president of the Teal Motor Co., Inc., while being
examined in chief by the attorneys for the plaintiff, and speaking of the
circumstances surrounding the institution of the action, said that he had
reported certain conversations to plaintiff's attorneys, and he added: "I
waited for about a week longer and not having heard anything about it, in
the meantime, on the 13th of July, I received a letter from our attorneys,
Guevara, Francisco & Recto, urging me to file these cases."
The attorney for the defendant, Orient Insurance Company, thereupon
interposed, saying: "I ask that the witness be required to produce the letter
referred to from Mr. Guevara, or else his answer be stricken out. (To the
witness) Have you got the letter there?" The witness replied that he had the
letter with him and that he had no objection to show that part of the letter in
which Guevara urged him to proceed with the cases. Upon being asked
about the other part of the letter, the witness said that the other part
contained private matter, "between the attorney and ourselves," meaning
between the Teal Motor Co., Inc., and its attorneys.
In the course of the colloquy which thereupon unsued between the attorney
for the plaintiff and the attorney for the defendant, it was stated by the
attorney for the plaintiff that only a part of the letter had anything to do with
the urging of the presentation of the complaints in the cases to which the
witness had testified, and that the other part of the letter referred to the
contract of fees, or retaining of the services of plaintiff's attorneys in
connection with said cases, a matter, so the attorney suggested, entirely
distinct from the urging of the presentation of the cases.
The attorney for the defendant thereupon insisted before the court that,
inasmuch as all the letter refers to the case then in court, the entire
document should be exhibited, in conformity with the rule that when part of
a document is offered in evidence, the entire document must be presented.
RTC judge– ruled in favor of plaintiff, that only that part of the letter which
has been referred to by Mr. Bachrach in his testimony be read and
transcribed into the record
Defendant to cross-examine the same witness E. M. Bachrach, when the
attorney for the defendant, having ascertained from the witness that he still
had the letter in his possession, and that he had not answered it in writing,
formally offered the letter in evidence. The attorney for the plaintiff again
objected, on the ground that the letter was of a privileged nature and that it
was the personal property of the witness.
The court sustained the objection of the attorney for the plaintiff and refused
to admit in evidence so much of the letter as had not already been read into
the record.
ISSUE:
is that the attorney for the defendant procured a subpoena duces tecum to
be issued by the clerk of court requiring the attorneys for the plaintiff to
produce in court certain papers including the letter which gave rise to the
present controversy
HELD:
The incorporation of the excerpt from the letter was a necessary support of
the oral statement which the witness had made, and if this basis for such
statement had not been laid by the incorporation of the excerpt into the
record, the oral statement of the witness concerning the tenor of the letter
should properly have been stricken out. But instead of withdrawing the oral
statement of the witness concerning the nature of the written
communication, the witness produced the letter and the part of it already
quoted was read into the record. The excerpt in question must therefore be
considered as proof submitted by the plaintiff; and there can be no question
that, part of the letter having been introduced in behalf of the plaintiff, the
whole of the letter could properly be examined by the other party.
With respect to this point it is difficult to see how a contract for fees could be
considered privileged. Irrelevant it might, under certain circumstances,
certainly be, but not privileged. Of course contracts between attorneys and
clients are inherently personal and private matters, but they are a constant
subject of litigation, and contracts relating to fees are essentially not of
privileged nature. Privilege primarily refers to communications from client to
attorney, an idea which of course includes communications from attorney to
client relative to privileged matters.
But, even supposing that the matter contained in the letter and withheld
from the inspection of the adversary was originally of a privileged nature, the
privilege was waived by the introduction in evidence of part of the letter.
The provision in section 283 of the Code of Civil Procedure making the whole
of a declaration, conversation, or writing admissible when part has been
given in evidence by one party, makes no exception as to privileged matter;
and the jurisprudence on the subject does not recognize any exception.
From the foregoing decision and other cases contained in the note referred
to, we are led to the conclusion that the attorney for the defendant in the
court below was entitled to examine the whole of the letter (Exhibit 49 and
49-A), with a view to the introduction in evidence of such parts thereof as
may be relevant to the case on trial, and the respondent judge was in error in
refusing to permit the inspection of the letter by said attorney.
HICKMAN vs TAYLOR, WORK PRODUCT DOCTRINE
Facts
When a tug boat with nine crew members sank, five of them were drowned.
The four remaining crew members were questioned at a public hearing, after
which their testimony was recorded and made available to interested parties.
The owner of the tug boat, Taylor, enlisted an attorney in anticipation of
litigation. The attorney conducted another interview of the survivors, as well
as talking to other people who were believed to have information about the
accident. Representatives of the dead crew members brought wrongful death
claims. Hickman was the only claimant who did not settle his claim.
During interrogatories in the discovery process, Hickman asked for any
statements taken from crew members as well as oral or written statements,
records, reports, or other memorandums that related to any matters
connected to the towing company's operation, the sinking of the vessel, the
salvaging and repair process, and the death of the crew member who was the
subject of the claim. Taylor argued that there was no need to provide this
information because it was protected by the attorney-client privilege.
After a hearing on objections to the interrogatories, the District Court held
that the requested matters were not privileged and decreed that they be
produced and that memoranda of defendants' counsel containing statements
of fact by witnesses either be produced or submitted to the court for
determination of those portions which should be revealed to plaintiff.
Defendants and their counsel refused, and were adjudged guilty of contempt.
Third Circuit Court of Appeals reversed the judgment of the - District Court
erred in holding defendants in contempt for failure to produce that which
was in the possession of their counsel, and in holding their counsel in
contempt for failure to produce that which he could not be compelled to
produce.
It held that the information here sought was part of the "work product of the
lawyer,”
Memoranda, statements, and mental impressions prepared or obtained
from interviews with witnesses by counsel in preparing for litigation
after a claim has arisen are not within the attorney-client privilege, and
are not protected from discovery on that basis.
Held:
Petitioner emphasizes that the deposition-discovery portions of the Federal
Rules of Civil Procedure are designed to enable the parties to discover the
true facts, and to compel their disclosure wherever they may be found. It is
said that inquiry may be made under these rules, epitomized by Rule 26, as
to any relevant matter which is not privileged, and, since the discovery
provisions are to be applied as broadly and liberally as possible, the privilege
limitation must be restricted to its narrowest bounds. On the premise that the
attorney-client privilege is the one involved in this case, petitioner argues
that it must be strictly confined to confidential communications made by a
client to his attorney. And, since the materials here in issue were secured by
Fortenbaugh from third persons, rather than from his clients, the tug owners,
the conclusion is reached that these materials are proper subjects for
discovery under Rule 26.

Thus, to the extent that petitioner was seeking the production of the
We agree, of course, that the deposition-discovery rules are to be accorded a
memoranda and statements gathered by Fortenbaugh in the course of his
broad and liberal treatment. No longer can the time-honored cry of "fishing
activities as counsel, petitioner misconceived his remedy. Rule 33 did not
expedition" serve to preclude a party from inquiring into the facts underlying
permit him to obtain such memoranda and statements as adjuncts to the
his opponent's case. [Footnote 8] Mutual knowledge of all the relevant facts
interrogatories addressed to the individual tug owners. A party clearly cannot
gathered by both parties is essential to proper litigation. To that end, either
refuse to answer interrogatories on the ground that the information sought is
party may compel the other to disgorge whatever facts he has in his
solely within the knowledge of his attorney. But that is not this case. Here,
possession. The deposition-discovery procedure simply advances the stage at
production was sought of documents prepared by a party's attorney after the
which the disclosure can be compelled from the time of trial to the period
claim has arisen. Rule 33 does not make provision for such production, even
preceding it, thus reducing the possibility of surprise. But discovery, like all
when sought in connection with permissible interrogatories. Moreover, since
matters of procedure, has ultimate and necessary boundaries. As indicated by
petitioner was also foreclosed from securing them through an order under
Rules 30(b) and (d) and 31(d), limitations inevitably arise when it can be
Rule 34, his only recourse was to take Fortenbaugh's deposition under Rule
shown that the examination is being conducted in bad faith or in such a
26 and to attempt to force Fortenbaugh to produce the materials by use of a
manner as to annoy, embarrass, or oppress the person subject to the inquiry.
subpoena duces tecum in accordance with Rule 45. Holtzoff, "Instruments of
And, as Rule 26(b) provides, further limitations come into existence when the
Discovery under the Federal Rules of Civil Procedure," 41
inquiry touches upon the irrelevant or encroaches upon the recognized
domains of privilege.
We also agree that the memoranda, statements, and mental impressions in
issue in this case fall outside the scope of the attorney-client privilege, and
hence are not protected from discovery on that basis. For present purposes,
it suffices to note that the protective cloak of this privilege does not extend
to information which an attorney secures from a witness while acting for his
client in anticipation of litigation. Nor does this privilege concern the
memoranda, briefs, communications, and other writings prepared by counsel
for his own use in prosecuting his client's case, and it is equally unrelated to
writings which reflect an attorney's mental impressions, conclusions,
opinions, or legal theories.
contravenes the public policy underlying the orderly prosecution and defense
of legal claims. Not even the most liberal of discovery theories can justify
unwarranted inquiries into the files and the mental impressions of an
attorney.
Historically, a lawyer is an officer of the court, and is bound to work for the
advancement of justice while faithfully protecting the rightful interests of his
clients. In performing his various duties, however, it is essential that a lawyer
work with a certain degree of privacy, free from unnecessary intrusion by
opposing parties and their counsel.

Proper preparation of a client's case demands that he assemble information,

The District Court, after hearing objections to petitioner's request,
sift what he considers to be the relevant from the irrelevant facts, prepare his
commanded Fortenbaugh to produce all written statements of witnesses and
legal theories, and plan his strategy without undue and needless interference.
to state in substance any facts learned through oral statements of witnesses
That is the historical and the necessary way in which lawyers act within the
to him. Fortenbaugh was to submit any memoranda he had made of the oral
framework of our system of jurisprudence to promote justice and to protect
statements, so that the court might determine what portions should be
their clients' interests. This work is reflected, of course, in interviews,
revealed to petitioner. All of this was ordered without any showing by
statements, memoranda, correspondence, briefs, mental impressions,
petitioner, or any requirement that he make a proper showing, of the
personal beliefs, and countless other tangible and intangible ways -- aptly
necessity for the production of any of this material or any demonstration that
though roughly termed by the Circuit Court of Appeals in this case as the
denial of production would cause hardship or injustice. The court simply
"work product of the lawyer." Were such materials open to opposing counsel
ordered production on the theory that the facts sought were material and
on mere demand, much of what is now put down in writing would remain
were not privileged as constituting attorney-client communications.
unwritten. An attorney's thoughts, heretofore inviolate, would not be his own.
In our opinion, neither Rule 26 nor any other rule dealing with discovery Inefficiency, unfairness, and sharp practices would inevitably develop in the
contemplates production under such circumstances. That is not because the giving of legal advice and in the preparation of cases for trial. The effect on
subject matter is privileged or irrelevant, as those concepts are used in these the legal profession would be demoralizing. And the interests of the clients
rules. [Footnote 9] Here is simply an attempt, without purported necessity or and the cause of justice would be poorly served.
justification, to secure written statements, private memoranda, and personal
We do not mean to say that all written materials obtained or prepared by an
recollections prepared or formed by an adverse party's counsel in the course
adversary's counsel with an eye toward litigation are necessarily free from
of his legal duties. As such, it falls outside the arena of discovery and
discovery in all cases. Where relevant and nonprivileged facts remain hidden
in an attorney's file, and where production of those facts is essential to the
preparation of one's case, discovery may properly be had. Such written
statements and documents might, under certain circumstances, be admissible
in evidence, or give clues as to the existence or location of relevant facts. Or
they might be useful for purposes of impeachment or corroboration. And
production might be justified where the witnesses are no longer available or
can be reached only with difficulty. Were production of written statements
and documents to be such circumstances, the liberal ideals of the deposition-
discovery portions of the Federal Rules of Civil Procedure would be stripped
of much of their meaning. But the general policy against invading the privacy
of an attorney's course of preparation is so well recognized and so essential
to an orderly working of our system of legal procedure that a burden rests on
the one who would invade that privacy to establish adequate reasons to
justify production through a subpoena or court order. That burden, we
believe, is necessarily implicit in the rules as now constituted. [Footnote 10]
Rule 30(b), as presently written, gives the trial judge the requisite discretion
to make a judgment as to whether discovery should be allowed as to written
statements secured from witnesses. But, in the instant case, there was no
room for that discretion to operate in favor of the petitioner. No attempt was
made to establish any reason why Fortenbaugh should be forced to produce
the written statements. There was only a naked, general demand for these
materials as of right, and a finding by the District Court that no recognizable
privilege was involved. That was insufficient to justify discovery under these
circumstances, and the court should have sustained the refusal of the tug
owners and Fortenbaugh to produce.
But, as to oral statements made by witnesses to Fortenbaugh, whether
presently in the form of his mental impressions or memoranda, we do not
believe that any showing of necessity can be made under the circumstances
of this case so as to justify production. Under ordinary conditions, forcing an
attorney to repeat or write out all that witnesses have told him and to deliver
the account to his adversary gives rise to grave dangers of inaccuracy and
untrustworthiness. No legitimate purpose is served by such production. The
practice forces the attorney to testify as to what he remembers or what he
saw fit to write down regarding witnesses' remarks. Such testimony could not
qualify as evidence, and to use it for impeachment or corroborative purposes
would make the attorney much less an officer of the court and much more an
ordinary witness. The standards of the profession would thereby suffer.
Denial of production of this nature does not mean that any material,
nonprivileged facts can be hidden from the petitioner in this case. He need
not be unduly hindered in the preparation of his case, in the discovery of
facts, or in his anticipation of his opponents' position. Searching
interrogatories directed to Fortenbaugh and the tug owners, production of
written documents and statements upon a proper showing, and direct
interviews with the witnesses themselves all serve to reveal the facts in
Fortenbaugh's possession to the fullest possible extent consistent with public
policy. Petitioner's counsel frankly admits that he wants the oral statements
only to help prepare himself to examine witnesses and to make sure that he
has overlooked nothing. That is insufficient under the circumstances to
permit him an exception to the policy underlying the privacy of
Fortenbaugh's professional activities. If there should be a rare situation
justifying production of these matters, petitioner's case is not of that type.
We fully appreciate the widespread controversy among the members of the
legal profession over the problem raised by this case. [Footnote 11] It is a
problem that rests on what has been one of the most hazy frontiers of the
discovery process. But, until some rule or statute definitely prescribes
otherwise, we are not justified in permitting discovery in a situation of this
nature as a matter of unqualified right. When Rule 26 and the other discovery
rules were adopted, this Court and the members of the bar in general
certainly did not believe or contemplate that all the files and mental
processes of lawyers were thereby opened to the free scrutiny of their
adversaries. And we refuse to interpret the rules at this time so as to reach so
harsh and unwarranted a result.
We therefore affirm the judgment of the Circuit Court of Appeals.
Affirmed.
GENATO VS SILAPAN
William Ong Genato filed a disbarment complaint against respondent
Atty. Essex L. Silapan.
In July 1992, respondent asked if he could rent a small office space in
complainants building in Quezon City for his law practice. Complainant
acceded and introduced respondent to Atty. Benjamin Dacanay,
complainants retained lawyer, who accommodated respondent in the
building and made him handle some of complainants cases. Hence, the start
of the legal relationship between complainant and respondent.
The conflict between the parties started when respondent borrowed two
hundred thousand pesos (P200,000.00) from complainant which he intended
to use as downpayment for the purchase of a new car. In return, respondent
issued to complainant a postdated check in the amount of P176,528.00 to
answer for the six (6) months interest on the loan. He likewise mortgaged to
complainant his house and lot in Quezon City but did not surrender its title
claiming that it was the subject of reconstitution proceedings before the
Quezon City Register of Deeds.
With the money borrowed from complainant, respondent purchased a
new car. However, the document of sale of the car was issued in
complainants name and financed through City Trust Company.
In January 1993, respondent introduced to complainant a certain
Emmanuel Romero. Romero likewise wanted to borrow money from
complainant. Complainant lent Romero the money and, from this transaction,
respondent earned commission in the amount of P52,289.90. Complainant
used the commission to pay respondents arrears with the car financing firm.
Subsequently, respondent failed to pay the amortization on the car and
the financing firm sent demand letters to complainant. Complainant tried to
encash respondents postdated check with the drawee bank but it was
dishonored as respondents account therein was already closed.
Respondent failed to heed complainants repeated demands for
payment. Complainant then filed a criminal case against respondent for
violation of Batas PambansaBlg. 22 and a civil case for judicial
foreclosure of real estate mortgage.
In the foreclosure case, respondent made the following allegation in his
Answer:
x xx xxx xxx
4. That complainant is a businessman who is engaged in the real estate
business, trading and buy and sell of deficiency taxed imported cars,
shark loans and other shady deals and has many cases pending in court;
x xx xxx xxx
Complainant denied respondents charges and claimed that respondents
allegation is libelous and not privilege as it was irrelevant to the foreclosure
case. Complainant further pointed to paragraph 12 of respondents Answer,
thus:
12. That on January 29, 1993, before paying for the next installment on his
car on January 30, 1993, defendant Essex L. Silapan asked the complainant to
execute a Deed of Sale transferring ownership of the car to him but the latter
said that he will only do so after the termination of his criminal case at Branch
138 of the Regional Trial Court of Makati, Metro Manila, x xx where he
(complainant) wanted Essex L. Silapan, his former counsel in that case,
to offer bribe money to the members of the review committee of the
Department of Justice where a petition for review of the resolution of
the Investigating Prosecutor was pending at the time, x xx or, in the
event that the said petition for review is denied, he wanted Essex L.
Silapan to offer bribe money to the prosecutor assigned at the above-
mentioned Court, and even to the presiding Judge, for his eventual
acquittal, which defendant Essex L. Silapan all refused to do not only
because such acts are immoral and illegal, but also because the
complainant confided to him that he was really involved in the
commission of the crime that was charged of in the above-mentioned
case. (emphasis supplied)
Complainant gripes that the foregoing allegations are false, immaterial
to the foreclosure case and maliciously designed to defame him. He charged
that in making such allegations, respondent is guilty of breaking their
confidential lawyer-client relationship and should be held administratively
liable therefor. Consequently, he filed this complaint for disbarment, praying
also that an administrative sanction be meted against respondent for his
issuance of a bouncing check.
RESPONDENT - He argued that he is not guilty of breaking his
confidential lawyer-client relationship with complainant as he made the
disclosure in defense of his honor and reputation.
the Board of Governors of the IBP approved the report of the
investigating commissioner finding the respondent guilty as charged and
recommending his suspension from the practice of law for one (1) year.
cease with the termination of the litigation, nor is it affected by the partys
ceasing to employ the attorney and retaining another, or by any other
change of relation between them. It even survives the death of the client.[4]
It must be stressed, however, that the privilege against disclosure of
confidential communications or information is limited only to
communications which are legitimately and properly within the scope of a
lawful employment of a lawyer. It does not extend to those made in
contemplation of a crime or perpetration of a fraud.[5] If the unlawful purpose
is avowed, as in this case, the complainants alleged intention to bribe
government officials in relation to his case, the communication is not
covered by the privilege as the client does not consult the lawyer
professionally. It is not within the profession of a lawyer to advise a client as
to how he may commit a crime as a lawyer is not a gun for hire. Thus, the
attorney-client privilege does not attach, there being no professional
employment in the strict sense.
The disclosures were not indispensable to protect his rights as they
were not pertinent to the foreclosure case. It was improper for the
respondent to use it against the complainant in the foreclosure case as it
was not the subject matter of litigation therein and respondents
professional competence and legal advice were not being attacked in
said case

ISSUE:

Whether respondent committed a breach of trust and confidence by

imputing to complainant illegal practices and disclosing complainants
alleged intention to bribe government officials in connection with a pending
case.

HELD:

We affirm the findings and recommendation of the IBP.

Canon 17 of the Code of Professional Responsibility provides that a

lawyer owes fidelity to the cause of his client and shall be mindful of the trust
and confidence reposed on him. The long-established rule is that an attorney
is not permitted to disclose communications made to him in his professional
character by a client, unless the latter consents. This obligation to preserve
the confidences and secrets of a client arises at the inception of their
relationship.[3] The protection given to the client is perpetual and does not
PP vs SANDIGANBAYAN
Through the special civil action for certiorari at bar, petitioner seeks the
annulment of the resolution of respondent Sandiganbayan, promulgated
on December 22, 1993, which denied petitioner's motion for the
discharge of respondent Generoso S. Sansaet to be utilized as a state
witness, and its resolution of March 7, 1994 denying the motion for
reconsideration of its preceding disposition. 1
The records show that during the dates material to this case, respondent
Honrada was the Clerk of Court and Acting Stenographer of the First
Municipal Circuit Trial Court, San Francisco-Bunawan-Rosario in Agusan
del Sur. Respondent Paredes was successively the Provincial Attorney of
Agusan del Sur, then Governor of the same province, and is at present a
Congressman. Respondent Sansaet was a practicing attorney who served
as counsel for Paredes in several instances pertinent to the criminal
charges involved in the present recourse.
The same records also represent that sometime in 1976, respondent
Paredes applied for a free patent over Lot No. 3097-A, Pls-67 of the
Rosario Public Land Subdivision Survey. His application was approved
and, pursuant to a free patent granted to him, an original certificate of
title was issued in his favor for that lot which is situated in
thepoblacion of San Francisco, Agusandel Sur.
However, in 1985, the Director of Lands filed an action 2 for the
cancellation of respondent Paredes' patent and certificate of title since the
land had been designated and reserved as a school site in the
aforementioned subdivision survey. The trial court rendered
judgment 3 nullifying said patent and title after finding that respondent
Paredes had obtained the same through fraudulent misrepresentations in his
application. Pertinently, respondent Sansaet served as counsel of Paredes in
that civil case. 4
Consequent to the foregoing judgment of the trial court, upon the
subsequent complaint of the Sangguniang Bayan and the preliminary
investigation conducted thereon, an information for perjury 5 was filed
against respondent Paredes in the Municipal Circuit Trial Court. 6 On
November 27, 1985, the Provincial Fiscal was, however, directed by the
Deputy Minister of Justice to move for the dismissal of the case on the
ground inter alia of prescription, hence the proceedings were terminated. 7 In
this criminal case, respondent Paredes was likewise represented by
respondent Sansaet as counsel.
Nonetheless, respondent Sansaet was thereafter haled before the
Tanodbayan for preliminary investigation on the charge that, by using his
former position as Provincial Attorney to influence and induce the Bureau
of Lands officials to favorably act on his application for free patent, he
had violated Section 3(a) of Republic Act No. 3019, as amended. For the
third time, respondent Sansaet was Paredes' counsel of record therein.
On August 29, 1988, the Tanodbayan, issued a resolution 8 recommending
the criminal prosecution of respondent Paredes. Atty. Sansaet, as counsel for
his aforenamed co-respondent, moved for reconsideration and, because of
its legal significance in this case, we quote some of his allegations in that
motion:
. . . respondent had been charged already by the
complainants before the Municipal Circuit Court
of San Francisco, Agusan del Sur, went to jail on
detention in 1984 under the same set of facts and
the same evidence . . . but said case after
arraignment, was ordered dismissed by the
court upon recommendation of the Department
of Justice. Copy of the dismissal order, certificate
of arraignmentand the recommendation of the
Department of Justice are hereto attached for
ready reference; thus the filing of this case will be
a case of double jeopardy for respondent herein . .
. 9 (Emphasis supplied.)
A criminal case was subsequently filed with the Sandiganbayan 10 charging
respondent Paredes with a violation of Section 3 (a) of Republic Act No. 3019,
as amended. However, a motion to quash filed by the defense was later
granted in respondent court's resolution of August 1, 1991 11 and the case
was dismissed on the ground of prescription.
On January 23, 1990, one TeofiloGelacio, a taxpayer who had initiated the
perjury and graft charges against respondent Paredes, sent a letter to the
Ombudsman seeking the investigation of the three respondents herein
for falsification of public documents. 12 He claimed that respondent
Honrada, in conspiracy with his herein co-respondents, simulated and
certified as true copies certain documents purporting to be a notice of
arraignment, dated July 1, 1985, and transcripts of stenographic notes
supposedly taken during the arraignment of Paredes on the perjury
charge. 13These falsified documents were annexed to respondent Paredes'
motion for reconsideration of the Tanodbayan resolution for the filing of a
graft charge against him, in order to support his contention that the same
would constitute double jeopardy.
In support of his claim, Gelacio attached to his letter a certification that
no notice of arraignment was ever received by the Office of the Provincial
Fiscal of Agusan del Sur in connection with that perjury case; and a
certification of Presiding Judge CiriacoAriño that said perjury case in his
court did not reach the arraignment stage since action thereon was
suspended pending the review of the case by the Department of
Justice. 14
Respondents filed their respective counter-affidavits, but Sansaet
subsequently discarded and repudiated the submissions he had made in
his counter-affidavit. In a so-called Affidavit of Explanations and
Rectifications, 15respondent Sansaet revealed that Paredes contrived to have
the graft case under preliminary investigation dismissed on the ground of
double jeopardy by making it appear that the perjury case had been
dismissed by the trial court after he had been arraigned therein.
For that purpose, the documents which were later filed by respondent
Sansaet in the preliminary investigation were prepared and falsified by his
co-respondents in this case in the house of respondent Paredes. To evade
responsibility for his own participation in the scheme, he claimed that he
did so upon the instigation and inducement of respondent Paredes. This
was intended to pave the way for his discharge as a government witness
in the consolidated cases, as in fact a motion therefor was filed by the
prosecution pursuant to their agreement.
Withal, in a resolution 16 dated February 24, 1992, the Ombudsman
approved the filing of falsification charges against all the herein private
respondents. The proposal for the discharge of respondent Sansaet as a state
witness was rejected by the Ombudsman on this evaluative legal position:
. . . Taking his explanation, it is difficult to believe
that a lawyer of his stature, in the absence of
deliberate intent to conspire, would be unwittingly
induced by another to commit a crime. As counsel
for the accused in those criminal cases, Atty.
Sansaet had control over the case theory and the
evidence which the defense was going to present.
Moreover, the testimony or confession of Atty.
Sansaet falls under the mantle of privileged
communication between the lawyer and his client
which may be objected to, if presented in the trial.
The Ombudsman refused to reconsider that resolution 17 and, ostensibly to
forestall any further controversy, he decided to file separate informations for
falsification of public documents against each of the herein respondents.
Thus, three criminal cases, 18 each of which named one of the three private
respondents here as the accused therein, were filed in the graft court.
However, the same were consolidated for joint trial in the Second Division of
the Sandiganbayan.
As stated at the outset, a motion was filed by the People on July 27, 1993
for the discharge of respondent Sansaet as a state witness. It was
submitted that all the requisites therefor, as provided in Section 9, Rule
119 of the Rules of Court, were satisfied insofar as respondent Sansaet
was concerned. The basic postulate was that, except for the eyewitness
testimony of respondent Sansaet, there was no other direct evidence to
prove the confabulated falsification of documents by respondents
Honrada and Paredes.
Unfortunately for the prosecution, respondent Sandiganbayan, hewing to
the theory of the attorney-client privilege adverted to by the
Ombudsman and invoked by the two other private respondents in their
opposition to the prosecution's motion, resolved to deny the desired
discharge on this ratiocination:
 From the evidence adduced, the opposition was
able to establish that client and lawyer
relationship existed between Atty. Sansaet and
CeferinoParedes, Jr., before, during and after the
period alleged in the information. In view of such
relationship, the facts surrounding the case, and
other confidential matter must have been
disclosed by accused Paredes, as client, to accused
Sansaet, as his lawyer in his professional capacity.
Therefore, the testimony of Atty. Sansaet on the
facts surrounding the offense charged in the
information is privileged. 19
Reconsideration of said resolution having been likewise denied, 20 the
controversy was elevated to this Court by the prosecution in an original
action for the issuance of the extraordinary writ of certiorari against
respondent Sandiganbayan.
The principal issues on which the resolution of the petition at bar actually
turns are therefore (1) whether or not the projected testimony of
respondent Sansaet, as proposed state witness, is barred by the attorney-
client privilege; and (2) whether or not, as a consequence thereof, he is
eligible for discharge to testify as a particepscriminis.
As already stated, respondent Sandiganbayan ruled that due to the
lawyer-client relationship which existed between herein respondents
Paredes and Sansaet during the relevant periods, the facts surrounding
the case and other confidential matters must have been disclosed by
respondent Paredes, as client, to respondent Sansaet, as his lawyer.
Accordingly, it found "no reason to discuss it further since Atty. Sansaet
cannot be presented as a witness against accused Ceferino S. Paredes, Jr.
without the latter's consent." 21
The Court is of a contrary persuasion. The attorney-client privilege cannot
apply in these cases, as the facts thereof and actuations of both
respondents therein constitute an exception to the rule. For a clearer
understanding of that evidential rule, we will first sweep aside some
distracting mental cobwebs in these cases.
1. It may correctly be assumed that there was a confidential
communication made by Paredes to Sansaet in connection with Criminal
Cases Nos. 17791-93 for falsification before respondent court, and this
may reasonably be expected since Paredes was the accused and Sansaet
his counsel therein. Indeed, the fact that Sansaet was called to witness the
preparation of the falsified documents by Paredes and Honrada was as
eloquent a communication, if not more, than verbal statements being
made to him by Paredes as to the fact and purpose of such falsification. It
is significant that the evidentiary rule on this point has always referred to
"any communication," without distinction or qualification. 22
In the American jurisdiction from which our present evidential rule was
taken, there is no particular mode by which a confidential communication
shall be made by a client to his attorney. The privilege 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. 23
Nor can it be pretended that during the entire process, considering their
past and existing relations as counsel and client and, further, in view of
the purpose for which such falsified documents were prepared, no word
at all passed between Paredes and Sansaet on the subject matter of that
criminal act. The clincher for this conclusion is the undisputed fact that
said documents were thereafter filed by Sansaet in behalf of Paredes as
annexes to the motion for reconsideration in the preliminary investigation
of the graft case before the Tanodbayan. 24 Also, the acts and words of the
parties during the period when the documents were being falsified were
necessarily confidential since Paredes would not have invited Sansaet to his
house and allowed him to witness the same except under conditions of
secrecy and confidence.
2. It is postulated that despite such complicity of Sansaet at the instance
of Paredes in the criminal act for which the latter stands charged, a
distinction must be made between confidential communications relating
to past crimes already committed, and future crimes intended to be
committed, by the client. Corollarily, it is admitted that the announced
intention of a client to commit a crime is not included within the
confidences which his attorney is bound to respect. Respondent court
appears, however, to believe that in the instant case it is dealing with a
past crime, and that respondent Sansaet is set to testify on alleged
criminal acts of respondents Paredes and Honrada that have already been
committed and consummated.
The Court reprobates the last assumption which is flawed by a somewhat
inaccurate basis. It is true that by now, insofar as the falsifications to be
testified to in respondent court are concerned, those crimes were
necessarily committed in the past. But for the application of the attorney-
client privilege, however, the period to be considered is the 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. In other words, if the client seeks
his lawyer's advice with respect to a crime that the former has theretofore
committed, he is given the protection of a virtual confessional seal which
the attorney-client privilege declares cannot be broken by the attorney
without the client's consent. The same privileged confidentiality, however,
does not attach with regard to a crime which a client intends to commit
thereafter or in the future and for purposes of which he seeks the lawyer's
advice.
Statements and communications regarding the commission of a
crime already committed, made by a party who committed it, to an
attorney, consulted as such, are privileged communications. Contrarily,
the unbroken stream of judicial dicta is to the effect that communications
between attorney and client having to do with the client'scontemplated
criminal acts, or in aid or furtherance thereof, are not covered by the
cloak of privileges ordinarily existing in reference to communications
between attorney and client. 25 (Emphases supplied.)
3. In the present cases, the testimony sought to be elicited from Sansate
as state witness are the communications made to him by physical acts
and/or accompanying words of Parades at the time he and Honrada,
either with the active or passive participation of Sansaet, were about to
falsify, or in the process of falsifying, the documents which were later filed
in the Tanodbayan by Sansaet and culminated in the criminal charges
now pending in respondent Sandiganbayan. 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.
4. Furthermore, Sansaet was himself a conspirator in the commission of
that crime of falsification which he, Paredes and Honrada concocted and
foisted upon the authorities. 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. 26 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 once in the interest of justice." 27
It is evident, therefore, that it was error for respondent Sandiganbayan to
insist that such unlawful communications intended for an illegal purpose
contrived by conspirators are nonetheless covered by the so-called
mantle of privilege. 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.
II
On the foregoing premises, we now proceed to the consequential inquiry
as to whether respondent Sansaet qualifies, as a particepscriminis, for
discharge from the criminal prosecution in order to testify for the State.
Parenthetically, respondent court, having arrived at a contrary conclusion
on the preceding issue, did not pass upon this second aspect and the
relief sought by the prosecution which are now submitted for our
resolution in the petition at bar. We shall, however, first dispose likewise
of some ancillary questions requiring preludial clarification.
1. The fact that respondent Sandiganbayan did not fully pass upon the
query as to whether or not respondent Sansaet was qualified to be a state
witness need not prevent this Court from resolving that issue as prayed
for by petitioner. Where the determinative facts and evidence have been
submitted to this Court such that it is in a position to finally resolve the
dispute, it will be in the pursuance of the ends of justice and the
expeditious administration thereof to resolve the case on the merits,
instead of remanding it to the trial court. 28
2. A reservation is raised over the fact that the three private respondents
here stand charged in three separate informations. It will be recalled that
in its resolution of February 24, 1992, the Ombudsman recommended the
filing of criminal charges for falsification of public documents against all
the respondents herein. That resolution was affirmed but, reportedly in
order to obviate further controversy, one information was filed against
each of the three respondents here, resulting in three informations for the
same acts of falsification.
This technicality was, however, sufficiently explained away during the
deliberations in this case by the following discussion thereof by Mr.
Justice Davide, to wit:
Assuming no substantive impediment exists to
block Sansaet's discharge as state witness, he can,
nevertheless, be discharged even if indicted under
a separate information. I suppose the three cases
were consolidated for joint trial since they were all
raffled to the Second Division of the
Sandiganbayan. Section 2, Rule XV of the Revised
Rules of the Sandiganbayan allows consolidation
in only one Division of cases arising from the
same incident or series of incidents, or involving
common questions of law and fact. Accordingly,
for all legal intents and purposes, Sansaet stood
as co-accused and he could be discharged as
state witness. It is of no moment that he was
charged separately from his co-accused. While
Section 9 of Rule 119 of the 1985 Rules of
Criminal Procedure uses the word jointly, which
was absent in the old provision, the consolidated
and joint trial has the effect of making the three
accused co-accused or joint defendants, especially
considering that they are charged for the same
offense. In criminal law, persons indicted for the
same offense and tried together are called joint
defendants.
As likewise submitted therefor by Mr. Justice Francisco along the same
vein, there having been a consolidation of the three cases, the several
actions lost their separate identities and became a single action in which
a single judgment is rendered, the same as if the different causes of
action involved had originally been joined in a single action. 29
Indeed, the former provision of the Rules referring to the situation
"(w)hen two or more persons are charged with the commission of a
certain offense" was too broad and indefinite; hence the word "joint" was
added to indicate the identity of the charge and the fact that the accused
are all together charged therewith substantially in the same manner in
point of commission and time. The word "joint" means "common to two
or more," as "involving the united activity of two or more," or "done or
produced by two or more working together," or "shared by or affecting
two or more. 30 Had it been intended that all the accused should always be
indicted in one and the same information, the Rules could have said so with
facility, but it did not so require in consideration of the circumstances
obtaining in the present case and the problems that may arise from
amending the information. After all, the purpose of the Rule can be achieved
by consolidation of the cases as an alternative mode.
2. We have earlier held that Sansaet was a conspirator in the crime of
falsification, and the rule is that since in a conspiracy the act of one is the
act of all, the same penalty shall be imposed on all members of the
conspiracy. Now, one of the requirements for a state witness is that he
"does not appear to be the most guilty." 31 not that he must be the least
guilty 32 as is so often erroneously framed or submitted. The query would
then be whether an accused who was held guilty by reason of membership in
a conspiracy is eligible to be a state witness.
To be sure, in People vs. Ramirez, et al. 33 we find this obiter:
It appears that ApolonioBagispas was the real
mastermind. It is believable that he persuaded the
others to rob Paterno, not to kill him for a
promised fee. Although he did not actually
commit any of the stabbings, it was a mistake to
discharge Bagispas as a state witness. All the
perpetrators of the offense, including him, were
bound in a conspiracy that made them equally
guilty.
However, prior thereto, in People vs. Roxas, et al., 34 two conspirators
charged with five others in three separate informations for multiple murder
were discharged and used as state witnesses against their confederates.
Subsequent thereto, in Lugtu, et al. vs. Court of Appeals, et al., 35 one of the
co-conspirators was discharged from the information charging him and two
others with the crime of estafa. The trial court found that he was not the most
guilty as, being a poor and ignorant man, he was easily convinced by his two
co-accused to open the account with the bank and which led to the
commission of the crime.
On appeal, this Court held that the finding of respondent appellate court
that Lugtu was just as guilty as his co-accused, and should not be
discharged as he did not appear to be not the most guilty, is untenable.
In other words, the Court took into account the gravity or nature of the
acts committed by the accused to be discharged compared to those of
his co-accused, and not merely the fact that in law the same or equal
penalty is imposable on all of them.
Eventually, what was just somehow assumed but not explicity articulated
found expression in People vs. Ocimar, et al., 36 which we quote in extenso:
Ocimar contends that in the case at bar Bermudez does not satisfy the
conditions for the discharge of a co-accused to become a state witness.
He argues that no accused in a conspiracy can lawfully be discharged and
utilized as a state witness, for not one of them could satisfy the requisite
of appearing not to be the most guilty. Appellant asserts that since
accused Bermudez was part of the conspiracy, he is equally guilty as the
others.
We do not agree. First, there is absolute necessity for the testimony of
Bermudez. For, despite the presentation of four (4) other witnesses, none
of them could positively identify the accused except Bermudez who was
one of those who pulled the highway heist which resulted not only in the
loss of cash, jewelry and other valuables, but even the life of Capt.
Cañeba, Jr. It was in fact the testimony of Bermudez that clinched the
case for the prosecution. Second, without his testimony, no other direct
evidence was available for the prosecution to prove the elements of the
crime. Third, his testimony could be, as indeed it was, substantially
corroborated in its material points as indicated by the trial court in its
well-reasoned decision. Fourth, he does not appear to be the most guilty.
As the evidence reveals, he was only invited to a drinking party without
having any prior knowledge of the plot to stage a highway robbery. But
even assuming that he later became part of the conspiracy, he does not
appear to be the most guilty. What the law prohibits is that the most
guilty will be set free while his co-accused who are less guilty will be sent
to jail. And by "most guilty" we mean the highest degree of culpability in
terms of participation in the commission of the offense and not
necessarily the severity of the penalty imposed. While all the accused may
be given the same penalty by reason of conspiracy, yet one may be
considered least guilty if We take into account his degree of participation
in the perpetration of the offense. Fifth, there is no evidence that he has
at any time been convicted of any offense involving moral turpitude.
xxxxxxxxx
Thus, We agree with the observations of the
Solicitor General that the rule on the discharge of
an accused to be utilized as state witness clearly
looks at his actual and individual participation in
the commission of the crime, which may or may
not have been perpetrated in conspiracy with the
other accused. Since Bermudez was not
individually responsible for the killing committed
on the occasion of the robbery except by reason
 of conspiracy, it cannot be said then that
Bermudez appears to be the most guilty. Hence,
his discharge to be a witness for the government
is clearly warranted. (Emphasis ours.)
The rule of equality in the penalty to be imposed upon
conspirators found guilty of a criminal offense is based on
the concurrence of criminal intent in their minds and
translated into concerted physical action although of
varying acts or degrees of depravity. Since the Revised
Penal Code is based on the classical school of thought, it
is the identity of the mensrea which is considered the
predominant consideration and, therefore, warrants the
imposition of the same penalty on the consequential
theory that the act of one is thereby the act of all.
Also, this is an affair of substantive law which should not
be equated with the procedural rule on the discharge of
particepscriminis. This adjective device is based on other
considerations, such as the need for giving immunity to
one of them in order that not all shall escape, and the
judicial experience that the candid admission of an
accused regarding his participation is a guaranty that he
will testify truthfully. For those reasons, the Rules provide
for certain qualifying criteria which, again, are based on
judicial experience distilled into a judgmental policy.
III
The Court is reasonably convinced, and so holds, that the other requisites
for the discharge of respondent Sansaet as a state witness are present
and should have been favorably appreciated by the Sandiganbayan.
Respondent Sansaet is the only cooperative eyewitness to the actual
commission of the falsification charged in the criminal cases pending
before respondent court, and the prosecution is faced with the
formidable task of establishing the guilt of the two other co-respondents
who steadfastly deny the charge and stoutly protest their innocence.
There is thus no other direct evidence available for the prosecution of the
case, hence there is absolute necessity for the testimony of Sansaet
whose discharge is sought precisely for that purpose. Said respondent
has indicated his conformity thereto and has, for the purposes required
by the Rules, detailed the substance of his projected testimony in his
Affidavit of Explanation and Rectifications.
His testimony can be substantially corroborated on its material points by
reputable witnesses, identified in the basic petition with a digest of their
prospective testimonies, as follows: Judge Ciriaco C. Ariño, Municipal
Circuit Trial Court in San Francisco, Agusan del Sur; Provincial Prosecutor
and Deputized Ombudsman Prosecutor Claudio A. Nistal; TeofiloGelacio,
private complainant who initiated the criminal cases through his letter-
complaint; Alberto Juvilan of the Sangguniang Bayan of San Fernando,
Agusan del Sur, who participated in the resolution asking their Provincial
Governor to file the appropriate case against respondent Paredes, and
Francisco Macalit, who obtained the certification of non-arraignment
from Judge Ariño.
On the final requirement of the Rules, it does not appear that respondent
Sansaet has at any time been convicted of any offense involving moral
turpitude. Thus, with the confluence of all the requirements for the
discharge of this respondent, both the Special Prosecutor and the
Solicitor General strongly urge and propose that he be allowed to testify
as a state witness.
This Court is not unaware of the doctrinal rule that, on this procedural
aspect, the prosecution may propose but it is for the trial court, in the
exercise of its sound discretion, to determine the merits of the proposal
and make the corresponding disposition. It must be emphasized,
however, that such discretion should have been exercised, and the
disposition taken on a holistic view of all the facts and issues herein
discussed, and not merely on the sole issue of the applicability of the
attorney-client privilege.
This change of heart and direction respondent Sandiganbayan eventually
assumed, after the retirement of two members of its Second
Division 37 and
the reconstitution thereof. In an inversely anticlimactic Manifestation and
Comment 38 dated June 14, 1995, as required by this Court in its resolution
on December 5, 1994, the chairman and new members thereof 39 declared:
4) That the questioned Resolutions of December
22, 1993 and March 7, 1994 upon which the
Petition for Certiorari filed by the prosecution are
based, was penned by Associate Justice Narciso T.
Atienza and concurred in by the undersigned and
Associate Justice Augusto M. Amores;
5) That while the legal issues involved had been
already discussed and passed upon by the Second
Division in the aforesaid Resolution, however,
after going over the arguments submitted by the
Solicitor-General and re-assessing Our position on
the matter, We respectfully beg leave of the
Honorable Supreme Court to manifest that We are
amenable to setting aside the questioned
Resolutions and to grant the prosecution's motion
to discharge accused GenerosoSansaet as state
witness, upon authority of the Honorable
Supreme Court for the issuance of the proper
Resolution to that effect within fifteen (15) days
from notice thereof.
WHEREFORE, the writ of certiorari prayed for is hereby granted SETTING
ASIDE the impunged resolutions and ORDERING that the present reliefs
sought in these cases by petitioner be allowed and given due course by
respondent Sandiganbayan.
SO ORDERED.
MERCADO vs VITRIOLO
Complainant is a Senior Education Program Specialist of the Standards
Development Division, Office of Programs and Standards while
respondent is a Deputy Executive Director IV of the Commission on
Higher Education (CHED).1
Complainant's husband filed Civil Case No. 40537 entitled "Ruben G.
Mercado v. Rosa C. Francisco," for annulment of their marriage with the
Regional Trial Court (RTC) of Pasig City. This annulment case had been
dismissed by the trial court, and the dismissal became final and executory
on July 15, 1992.2
In August 1992, Atty. Anastacio P. de Leon, counsel of complainant, died.
On February 7, 1994, respondent entered his appearance before the trial
court as collaborating counsel for complainant.3
On March 16, 1994, respondent filed his Notice of Substitution of
Counsel,4 informing the RTC of Pasig City that he has been appointed as
counsel for the complainant, in substitution of Atty. de Leon.
It also appears that on April 13, 1999, respondent filed a criminal action
against complainant before the Office of the City Prosecutor, Pasig City,
entitled "Atty. Julito Vitriolo, et al. v. Rose Dela Cruz F. Mercado," and
docketed as I.S. No. PSG 99-9823, for violation of Articles 171 and 172
(falsification of public document) of the Revised Penal Code.5 Respondent
alleged that complainant made false entries in the Certificates of Live
Birth of her children, Angelica and Katelyn Anne. More specifically,
complainant allegedly indicated in said Certificates of Live Birth that she is
married to a certain Ferdinand Fernandez, and that their marriage was
solemnized on April 11, 1979, when in truth, she is legally married to
Ruben G. Mercado and their marriage took place on April 11, 1978.
Complainant denied the accusations of respondent against her. She
denied using any other name than "Rosa F. Mercado." She also insisted
that she has gotten married only once, on April 11, 1978, to Ruben G.
Mercado.
In addition, complainant Mercado cited other charges against respondent
that are pending before or decided upon by other tribunals – (1) libel suit
before the Office of the City Prosecutor, Pasig City;6 (2) administrative
case for dishonesty, grave misconduct, conduct prejudicial to the best
interest of the service, pursuit of private business, vocation or profession
without the permission required by Civil Service rules and regulations,
and violations of the "Anti-Graft and Corrupt Practices Act," before the
then Presidential Commission Against Graft and Corruption;7 (3)
complaint for dishonesty, grave misconduct, and conduct prejudicial to
the best interest of the service before the Office of the Ombudsman,
where he was found guilty of misconduct and meted out the penalty of
one month suspension without pay;8 and, (4) the Information for violation
of Section 7(b)(2) of Republic Act No. 6713, as amended, otherwise
known as the Code of Conduct and Ethical Standards for Public Officials
and Employees before the Sandiganbayan.9
Complainant Mercado alleged that said criminal complaint for falsification
of public document (I.S. No. PSG 99-9823) disclosed confidential facts
and information relating to the civil case for annulment, then handled by
respondent Vitriolo as her counsel. This prompted complainant Mercado
to bring this action against respondent. She claims that, in filing the
criminal case for falsification, respondent is guilty of breaching their
privileged and confidential lawyer-client relationship, and should be
disbarred.
Respondent filed his Comment/Motion to Dismiss on November 3, 1999
where he alleged that the complaint for disbarment was all hearsay,
misleading and irrelevant because all the allegations leveled against him
are subject of separate fact-finding bodies. Respondent claimed that the
pending cases against him are not grounds for disbarment, and that he is
presumed to be innocent until proven otherwise.10 He also states that the
decision of the Ombudsman finding him guilty of misconduct and
imposing upon him the penalty of suspension for one month without pay
is on appeal with the Court of Appeals. He adds that he was found guilty,
only of simple misconduct, which he committed in good faith.11
In addition, respondent maintains that his filing of the criminal complaint
for falsification of public documents against complainant does not violate
the rule on privileged communication between attorney and client
because the bases of the falsification case are two certificates of live birth
which are public documents and in no way connected with the
confidence taken during the engagement of respondent as counsel.
According to respondent, the complainant confided to him as then
counsel only matters of facts relating to the annulment case. Nothing was
said about the alleged falsification of the entries in the birth certificates of
her two daughters. The birth certificates are filed in the Records Division
of CHED and are accessible to anyone.12
In a Resolution dated February 9, 2000, this Court referred the
administrative case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.13
The IBP Commission on Bar Discipline set two dates for hearing but
complainant failed to appear in both. Investigating Commissioner
Rosalina R. Datiles thus granted respondent's motion to file his
memorandum, and the case was submitted for resolution based on the
pleadings submitted by the parties.14
On June 21, 2003, the IBP Board of Governors approved the report of
investigating commissioner Datiles, finding the respondent guilty of
violating the rule on privileged communication between attorney and
client, and recommending his suspension from the practice of law for one
(1) year.
On August 6, 2003, complainant, upon receiving a copy of the IBP report
and recommendation, wrote Chief Justice Hilario Davide, Jr., a letter of
desistance. She stated that after the passage of so many years, she has
now found forgiveness for those who have wronged her.
At the outset, we stress that we shall not inquire into the merits of the
various criminal and administrative cases filed against respondent. It is
the duty of the tribunals where these cases are pending to determine the
guilt or innocence of the respondent.
We also emphasize that the Court is not bound by any withdrawal of the
complaint or desistance by the complainant. The letter of complainant to
the Chief Justice imparting forgiveness upon respondent is
inconsequential in disbarment proceedings.
We now resolve whether respondent violated the rule on privileged
communication between attorney and client when he filed a criminal case
for falsification of public document against his former client.
A brief discussion of the nature of the relationship between attorney and
client and the rule on attorney-client privilege that is designed to protect
such relation is in order.
In engaging the services of an attorney, the client reposes on him special
powers of trust and confidence. Their relationship is strictly personal and
highly confidential and fiduciary. The relation is of such delicate, exacting
and confidential nature that is required by necessity and public
interest.15 Only by such confidentiality and protection will a person be
encouraged to repose his confidence in an attorney. The hypothesis is
that abstinence from seeking legal advice in a good cause is an evil which
is fatal to the administration of justice.16 Thus, the preservation and
protection of that relation will encourage a client to entrust his legal
problems to an attorney, which is of paramount importance to the
administration of justice.17 One rule adopted to serve this purpose is the
attorney-client privilege: an attorney is to keep inviolate his client's
secrets or confidence and not to abuse them.18 Thus, the duty of a lawyer
to preserve his client's secrets and confidence outlasts the termination of
the attorney-client relationship,19 and continues even after the client's
death.20 It is the glory of the legal profession that its fidelity to its client
can be depended on, and that a man may safely go to a lawyer and
converse with him upon his rights or supposed rights in any litigation
with absolute assurance that the lawyer's tongue is tied from ever
disclosing it.21 With full disclosure of the facts of the case by the client to
his attorney, adequate legal representation will result in the
ascertainment and enforcement of rights or the prosecution or defense of
the client's cause.
Now, we go to the rule on attorney-client privilege. Dean Wigmore cites
the factors essential to establish the existence of the privilege, viz:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in confidence
(5) by the client, (6) are at his instance permanently protected (7)
from disclosure by himself or by the legal advisor, (8) except the
protection be waived.22
In fine, the factors are as follows:
(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.
Matters disclosed by a prospective client to a lawyer are protected by the
rule on privileged communication even if the prospective client does not
thereafter retain the lawyer or the latter declines the employment.23 The
reason for this is to make the prospective client free to discuss whatever
he wishes with the lawyer without fear that what he tells the lawyer will be
divulged or used against him, and for the lawyer to be equally free to
obtain information from the prospective client.24
On the other hand, a communication from a (prospective) client to a
lawyer for some purpose other than on account of the (prospective)
attorney-client relation is not privileged. Instructive is the case of Pfleider
v. Palanca,25 where the client and his wife leased to their attorney a
1,328-hectare agricultural land for a period of ten years. In their contract,
the parties agreed, among others, that a specified portion of the lease
rentals would be paid to the client-lessors, and the remainder would be
delivered by counsel-lessee to client's listed creditors. The client alleged
that the list of creditors which he had "confidentially" supplied counsel
for the purpose of carrying out the terms of payment contained in the
lease contract was disclosed by counsel, in violation of their lawyer-client
relation, to parties whose interests are adverse to those of the client. As
the client himself, however, states, in the execution of the terms of the
aforesaid lease contract between the parties, he furnished counsel with
the "confidential" list of his creditors. We ruled that this indicates that
client delivered the list of his creditors to counsel not because of the
professional relation then existing between them, but on account of the
lease agreement. We then held that a violation of the confidence that
accompanied the delivery of that list would partake more of a private and
civil wrong than of a breach of the fidelity owing from a lawyer to his
client.
(2) The client made the communication in confidence.
The mere relation of attorney and client does not raise a presumption of
confidentiality.26 The client must intend the communication to be
confidential.27
A confidential communication refers to information transmitted by
voluntary act of disclosure between attorney and client in confidence and
by means which, so far as the client is aware, discloses the information to
no third person other than one reasonably necessary for the transmission
of the information or the accomplishment of the purpose for which it was
given.28
Our jurisprudence on the matter rests on quiescent ground. Thus, a
compromise agreement prepared by a lawyer pursuant to the instruction
of his client and delivered to the opposing party,29 an offer and counter-
offer for settlement,30 or a document given by a client to his counsel not
in his professional capacity,31 are not privileged communications, the
element of confidentiality not being present.32
(3) The legal advice must be sought from the attorney in his professional
capacity.33
The communication made by a client to his attorney must not be
intended for mere information, but for the purpose of seeking legal
advice from his attorney as to his rights or obligations. The
communication must have been transmitted by a client to his attorney for
the purpose of seeking legal advice.34
If the client seeks an accounting service,35 or business or personal
assistance,36 and not legal advice, the privilege does not attach to a
communication disclosed for such purpose.
Applying all these rules to the case at bar, we hold that the evidence on
record fails to substantiate complainant's allegations. We note that
complainant did not even specify the alleged communication in
confidence disclosed by respondent. All her claims were couched in
general terms and lacked specificity. She contends that respondent
violated the rule on privileged communication when he instituted a
criminal action against her for falsification of public documents because
the criminal complaint disclosed facts relating to the civil case for
annulment then handled by respondent. She did not, however, spell out
these facts which will determine the merit of her complaint. The Court
cannot be involved in a guessing game as to the existence of facts which
the complainant must prove.
Indeed, complainant failed to attend the hearings at the IBP. Without any
testimony from the complainant as to the specific confidential
information allegedly divulged by respondent without her consent, it is
difficult, if not impossible to determine if there was any violation of the
rule on privileged communication. Such confidential information is a
crucial link in establishing a breach of the rule on privileged
communication between attorney and client. It is not enough to merely
assert the attorney-client privilege.37 The burden of proving that the
privilege applies is placed upon the party asserting the privilege.38
IN VIEW WHEREOF, the complaint against respondent Atty. Julito D.
Vitriolo is hereby DISMISSED for lack of merit.
SO ORDERED.
PHYSICIAN CLIENT PRIVILEGE
CHAN vs CHAN
On February 6, 2006 petitioner Josielene Lara Chan (Josielene) filed before
the Regional Trial Court (RTC) of Makati City, Branch 144 a petition for the
declaration of nullity of her marriage to respondent Johnny Chan (Johnny),
the dissolution of their conjugal partnership of gains, and the award of
custody of their children to her. Josielene claimed that Johnny failed to care
for and support his family and that a psychiatrist diagnosed him as mentally
deficient due to incessant drinking and excessive use of prohibited drugs.
Indeed, she had convinced him to undergo hospital confinement for
detoxification and rehabilitation.
Decision 2 G.R. No.
179786
Johnny resisted the action, claiming that it was Josielene who failed in her
wifely duties. To save their marriage, he agreed to marriage counseling but
when he and Josielene got to the hospital, two men forcibly held him by both
arms while another gave him an injection. The marriage relations got worse
when the police temporarily detained Josielene for an unrelated crime and
released her only after the case against her ended. By then, their marriage
relationship could no longer be repaired.
During the pre-trial conference, Josielene pre-marked the Philhealth Claim
Form1 that Johnny attached to his answer as proof that he was forcibly
confined at the rehabilitation unit of a hospital. The form carried a
physician’s handwritten note that Johnny suffered from “methamphetamine
and alcohol abuse.” Following up on this point, on August 22, 2006 Josielene
filed with the RTC a request for the issuance of a subpoena duces tecum
addressed to Medical City, covering Johnny’s medical records when he was
there confined. The request was accompanied by a motion to “be allowed to
submit in evidence” the records sought by subpoena duces tecum.2
Johnny opposed the motion, arguing that the medical records were covered
by physician-patient privilege. On September 13, 2006 the RTC sustained the
opposition and denied Josielene’s motion. It also denied her motion for
reconsideration, prompting her to file a special civil action of certiorari before
the Court of Appeals (CA) in CA-G.R. SP 97913, imputing grave abuse of
discretion to the RTC. On September 17, 2007 the CA3 denied Josielene’s
petition. It ruled that, if courts were to allow the production of medical
records, then patients would be left with no assurance that whatever relevant
disclosures they may have made to their physicians would be kept
confidential. The prohibition covers not only testimonies, but also affidavits,
certificates, and pertinent hospital records. The CA added that, although
Johnny can waive the privilege, he did not do so in this case. He attached the
Philhealth form to his answer for the limited purpose of showing his alleged
forcible confinement.
Question Presented
The central question presented in this case is:
1 Annex “B.” 2 Rollo, pp. 69-72. 3 Penned by
Associate Justice Jose L. Sabio, Jr. and concurred in by Associate Justices Jose
C. Reyes, Jr. and Myrna Dimaranan Vidal.
Decision 3 G.R.
No. 179786
Whether or not the CA erred in ruling that the trial court correctly denied the
issuance of a subpoena duces tecum covering Johnny’s hospital records on
the ground that these are covered by the privileged character of the
physician-patient communication.
The Ruling of the Court
Josielene requested the issuance of a subpoena duces tecum covering the
hospital records of Johnny’s confinement, which records she wanted to
present in court as evidence in support of her action to have their marriage
declared a nullity. Respondent Johnny resisted her request for subpoena,
however, invoking the privileged character of those records. He cites Section
24(c), Rule 130 of the Rules of Evidence which reads:
SEC. 24. Disqualification by reason of privileged communication.— The
following persons cannot testify as to matters learned in confidence in the
following cases:
xxxx
(c) A person authorized to practice medicine, surgery or obstetrics cannot in
a civil case, without the consent of the patient, be examined as to any advice
or treatment given by him or any information which he may have acquired in
attending such patient in a professional capacity, which information was
necessary to enable him to act in that capacity, and which would blacken the
reputation of the patient.
The physician-patient privileged communication rule essentially means that
a physician who gets information while professionally attending a patient
cannot in a civil case be examined without the patient’s consent as to any
facts which would blacken the latter’s reputation. This rule is intended to
encourage the patient to open up to the physician, relate to him the history
of his ailment, and give him access to his body, enabling the physician to
make a correct diagnosis of that ailment and provide the appropriate cure.
Any fear that a physician could be compelled in the future to come to court
and narrate all that had transpired between him and the patient might
prompt the latter to clam up, thus putting his own health at great risk.4
1. The case presents a procedural issue, given that the time to object to the
admission of evidence, such as the hospital records, would be at the time
they are offered. The offer could be made part of the physician’s testimony
or as independent evidence that he had made entries in those records that
concern the patient’s health problems.
4 Francisco, The Revised Rules of Court of the
Philippines, Volume VII, Part I, 1997 ed., p. 282, citing Will of Bruendi, 102
Wis. 47, 78 N.W. 169. and McRae v. Erickson, 1 Cal. App. 326.
Decision 4 G.R.
No. 179786
Section 36, Rule 132, states that objections to evidence must be made after
the offer of such evidence for admission in court. Thus:
SEC. 36. Objection.— Objection to evidence offered orally must be made
immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of
a witness shall be made as soon as the grounds therefor shall become
reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after
notice of the offer unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified.
Since the offer of evidence is made at the trial, Josielene’s request for
subpoena duces tecum is premature. She will have to wait for trial to begin
before making a request for the issuance of a subpoena duces tecum
covering Johnny’s hospital records. It is when those records are produced for
examination at the trial, that Johnny may opt to object, not just to their
admission in evidence, but more so to their disclosure. Section 24(c), Rule
130 of the Rules of Evidence quoted above is about non-disclosure of
privileged matters.
2. It is of course possible to treat Josielene’s motion for the issuance of a
subpoena duces tecum covering the hospital records as a motion for
production of documents, a discovery procedure available to a litigant prior
to trial. Section 1, Rule 27 of the Rules of Civil Procedure provides:
SEC. 1. Motion for production or inspection; order.— Upon motion of any
party showing good cause therefor, the court in which an action is pending
may (a) order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible
things, not privileged, which constitute or contain evidence material to any
matter involved in the action and which are in his possession, custody or
control; or (b) order any party to permit entry upon designated land or other
property in his possession or control for the purpose of inspecting,
measuring, surveying, or photographing the property or any designated
relevant object or operation thereon. The order shall specify the time, place
and manner of making the inspection and taking copies and photographs,
and may prescribe such terms and conditions as are just. (Emphasis supplied)
But the above right to compel the production of documents has a limitation:
the documents to be disclosed are “not privileged.”
Decision 5 G.R.
No. 179786
Josielene of course claims that the hospital records subject of this case are
not privileged since it is the “testimonial” evidence of the physician that may
be regarded as privileged. Section 24(c) of Rule 130 states that the physician
“cannot in a civil case, without the consent of the patient, be examined”
regarding their professional conversation. The privilege, says Josielene, does
not cover the hospital records, but only the examination of the physicin at
the trial.
To allow, however, the disclosure during discovery procedure of the hospital
records—the results of tests that the physician ordered, the diagnosis of the
patient’s illness, and the advice or treatment he gave him— would be to
allow access to evidence that is inadmissible without the patient’s consent.
Physician memorializes all these information in the patient’s records.
Disclosing them would be the equivalent of compelling the physician to
testify on privileged matters he gained while dealing with the patient, without
the latter’s prior consent.
3. Josielene argues that since Johnny admitted in his answer to the petition
before the RTC that he had been confined in a hospital against his will and in
fact attached to his answer a Philhealth claim form covering that
confinement, he should be deemed to have waived the privileged character
of its records. Josielene invokes Section 17, Rule 132 of the Rules of Evidence
that provides:
SEC. 17. When part of transaction, writing or record given in evidence, the
remainder admissible.— When part of an act, declaration, conversation,
writing or record is given in evidence by one party, the whole of the same
subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, any other
act, declaration, conversation, writing or record necessary to its
understanding may also be given in evidence. But, trial in the
case had not yet begun. Consequently, it cannot be said that Johnny had
already presented the Philhealth claim form in evidence, the act
contemplated above which would justify Josielene into requesting an inquiry
into the details of his hospital confinement. Johnny was not yet bound to
adduce evidence in the case when he filed his answer. Any request for
disclosure of his hospital records would again be premature.
For all of the above reasons, the CA and the RTC were justified in denying
Josielene her request for the production in court of Johnny’s hospital records.
ACCORDINGLY, the Court DENIES the petition and AFFIRMS the Decision of
the Court of Appeals in CA-G.R. SP 97913 dated September 17, 2007.
GONZALES vs CA
On April 18, 1972, petitioners Carolina Abad Gonzales, Dolores de Mesa Abad
and Cesar de Mesa Tioseco sought the settlement of the intestate estate of
their brother, Ricardo de Mesa Abad, before the then Court of First Instance
of Manila. In their petition, docketed as Special Proceedings No. 86792,
petitioners claimed that they were the only heirs of Ricardo de Mesa Abad, as
the latter allegedly died a bachelor, leaving no descendants or ascendants,
whether legitimate or illegitimate. On May 9, 1972, petitioners amended their
petition by alleging that the real properties covered by TCT Nos. 13530,
53671, and 64021, listed therein as belonging to the decedent, were actually
only administered by the latter, the true owner being their late mother, Lucila
de Mesa. On June 16, 1972, the trial court appointed Cesar de Mesa Tioseco
as administrator of the intestate estate of Ricardo de Mesa Abad. Meanwhile,
on May 2, 1972, petitioners executed an extra-judicial settlement of the
estate of their late mother Lucila de Mesa, copying therein the technical
descriptions of the lots covered by TCT Nos. 13530, 53671, and 64021. By
virtue thereof, the Register of Deeds cancelled the above-mentioned TCTs in
the name of Ricardo Abad and issued, in lieu thereof, TCT No. 108482 in the
name of Dolores de Mesa Abad, TCT No. 108483 in the name of Cesar de
Mesa Tioseco and TCT No. 108484 in the name of Carolina Abad Gonzales.
The three promptly executed real estate mortgages over the real properties
in favor of Mrs. Josefina Viola, the wife of their counsel, Escolastico Viola. On
July 7, 1972, private respondents Honoria
Empaynado, Cecilia Abad Empaynado, and Marian Abad Empaynado filed a
motion to set aside proceedings and for leave to file opposition in Special
Proceedings No. 86792. In their motion, they alleged that Honoria
Empaynado had been the common-law wife of Ricardo Abad for twenty-
seven years before his death, or from 1943 to 1971, and that during this
period, their union had produced two children, Cecilia Abad Empaynado and
Marian Abad Empaynado. Private respondents also disclosed the existence of
Rosemarie Abad, a child allegedly fathered by Ricardo Abad with another
woman, Dolores Saracho. As the law awards the entire estate to the surviving
children to the exclusion of collateral relatives, private respondents charged
petitioners with deliberately concealing the existence of said three children in
order to deprive the latter of their rights to the estate of Ricardo Abad. On
July 24, 1972, private respondents filed a motion to withdraw their first
motion and, in lieu thereof, filed a motion for reconsideration praying that
Cecilia Abad be appointed administrator instead of Cesar Tioseco. The trial
court denied private respondents’ motion to remove Cesar Tioseco as
administrator, but allowed them to appear in the proceedings to establish
their right as alleged heirs of Ricardo Abad. Private respondents later
discovered that petitioners had managed to cancel TCT Nos. 13530, 53671,
and 64021 through the stratagem of extra-judicially partitioning their
mother’s estate. Accordingly, on October 4, 1973, private respondents filed a
motion to annul the extra-judicial partition executed by petitioners, as well as
TCT Nos. 108482, 108483, and 108484, the Torrens titles issued in
substitution of TCT Nos. 13530, 53671, and 64021 and the real estate
mortgages constituted by the latter on said properties. After due trial, the
lower court, on November 2, 1973, rendered the following judgment:
WHEREFORE, judgment is hereby rendered as follows:
Declaring Cecilia E. Abad, Marian E. Abad and Rosemarie S. Abad
acknowledged natural children of the deceased Ricardo M. Abad; Declaring
said acknowledged natural children, namely: Cecilia E. Abad, Marian E. Abad,
and Rosemarie S. Abad the only surviving legal heirs of the deceased Ricardo
M. Abad and as such entitled to succeed to the entire estate of said
deceased, subject to the rights of Honoria Empaynado, if any, as co-owner of
any of the property of said estate that may have been acquired thru her joint
efforts with the deceased during the period they lived together as husband
and wife; Denying the petition of decedent’s collateral relatives, namely:
Dolores M. Abad, Cesar M. Tioseco and Carolina M. Abad to be declared as
heirs and excluding them from participating in the administration and
settlement of the estate of Ricardo Abad; Appointing Honoria Empaynado as
the administratrix in this intestacy with a bond of THIRTY THOUSAND
(P30,000.00) PESOS; and Ordering Cesar Tioseco to surrender to the new
administratrix all property or properties, monies and such papers that came
into his possession by virtue of his appointment as administrator, which
appointment is hereby revoked. 1
The trial court, likewise, found in favor of private respondents with respect to
the latter’s motion for annulment of certain documents. On November 19,
1974, it rendered the following judgment:
WHEREFORE, this Court finds oppositors’ Motion for Annulment, dated
October 4, 1973 to be meritorious and accordingly—
Declares that the six (6) parcels of land described in TCT Nos. 13530, 53671
and 64021, all registered in the name of Ricardo Abad, as replaced by TCT
No. 108482 in the name of Dolores de Mesa Abad, TCT No. 108483 in the
name of
Cesar de Mesa Tioseco and TCT No. 108484 in the name of Carolina de Mesa
Abad-Gonzales, and the residential house situated at 2432 Opalo Street, San
Andres Subdivision, Manila, to be the properties of the late Ricardo Abad;
Declares the deed of Extra Judicial Settlement of the Estate of the Deceased
Lucila de Mesa, executed on May 2, 1972 (Doc. No. 445, Page No. 86, Book
No. VII, Series of 1972 of the notarial book of Faustino S. Cruz) by petitioners
and Carolina de Mesa Abad-Gonzales, to be inexistent and void from the
beginning; Declares as null and void the cancellation of TCT Nos. 13530,
53671 and 64021 and issuance in lieu thereof, of TCT Nos. 108482, 108483
and 108484;
Petitioners’ motion for reconsideration of the November 2, 1973 decision was
denied by the trial court. Their notice of appeal was likewise denied on the
ground that the same had been filed out of time. Because of this ruling,
petitioners instituted certiorari and mandamus proceedings with the Court of
Appeals, docketed there as C.A.-G.R. No. SP-03268-R. On November 2, 1974,
the appellate court granted petitioners’ petition and ordered the lower court
to give due course to the latter’s appeal. The trial court, however, again
dismissed petitioners’ appeal on the ground that their record on appeal was
filed out of time. Likewise, on January 4, 1975, petitioners filed their notice of
appeal of the November 19, 1974 ruling of the trial court. On March 21, 1975,
this appeal was similarly denied on the ground that it had been filed out of
time.
Due to the dismissal of their two appeals, petitioners again instituted
certiorari and mandamus proceedings with the Court of Appeals, docketed
therein as C.A.-G.R. No. SP- 04352. The appellate court affirmed the dismissal
of the two appeals, prompting petitioners to appeal to the Supreme Court.
On July 9, 1985, this Court directed the trial court to give due course to
petitioners’ appeal from the order of November 2, 1973 declaring private
respondents heirs of the deceased Ricardo Abad, and the order dated
November 19, 1974, annulling certain documents pertaining to the intestate
estate of deceased. The two appeals were accordingly elevated by the trial
court to the appellate court. On October 19, 1994, the Court of Appeals
rendered judgment as follows:
WHEREFORE, all the foregoing considered, the instant appeal is DENIED for
lack of merit. The orders of the court a quo in SP No. 86792, to wit:
Order dated November 2, 1973, declaring in substance that Cecilia, Marian
and Rosemarie, all surnamed Abad as the acknowledged natural children and
the only surviving heirs of the deceased Ricardo Abad; Order dated
November 19, 1974, declaring in substance that the six (6) parcels of land
described in TCT Nos. 13530, 53671 and 64021 are the properties of Ricardo
Abad; that the extra-judicial partition of the estate of the deceased Lucila de
Mesa executed on May 2, 1972 is inexistent and void from the beginning; the
cancellation of the aforementioned TCTs is null and void; the Register of
Deeds be ordered to restore and/or issue the corresponding Certificates of
Title in the name of Ricardo Abad; and Order dated March 21, 1975 denying
the appeal of Dolores de Mesa Abad and Cesar de Mesa Tioseco from the
latter Order, for being filed out of time, are all AFFIRMED in toto. With costs
against petitioner-appellants.
SO ORDERED.
Petitioners now seek to annul the foregoing judgment on the following
grounds:
THE COURT OF APPEALS AND THE TRIAL COURT GRAVELY ERRED IN
HOLDING THAT RESPONDENTS CECILIA E. ABAD, MARIAN E. ABAD AND
ROSEMARIE S. ABAD ARE THE ACKNOWLEDGED NATURAL CHILDREN OF
THE DECEASED RICARDO DE MESA ABAD.
II.
PETITIONERS ARE ENTITLED TO THE SUBJECT ESTATE WHETHER THE SAME IS
OWNED BY THE DECEASED RICARDO DE MESA ABAD OR BY LUCILA DE
MESA, THE MOTHER OF PETITIONERS AND RICARDO DE MESA ABAD.
We are not persuaded. Petitioners, in contesting Cecilia, Marian and
Rosemarie Abad’s filiation, submit the startling theory that the husband of
Honoria Empaynado, Jose Libunao, was still alive when Cecilia and Marian
Abad were born in 1948 and 1954, respectively. It is undisputed that prior to
her relationship with Ricardo Abad, Honoria Empaynado was married to Jose
Libunao, their union having produced three children, Angelita, Cesar, and
Maria Nina, prior to the birth of Cecilia and Marian. But while private
respondents claim that Jose Libunao died in 1943, petitioners claim that the
latter died sometime in 1971. The date of Jose Libunao’s death is important,
for if he was still alive in 1971, and given that he was legally married to
Honoria Empaynado, the presumption would be that Cecilia and Marian are
not Ricardo Abad’s children with the latter, but of Jose Libunao and Honoria
Empaynado. Article 256, the applicable provision of the Civil Code, provides:
Art. 256. The child shall be presumed legitimate, although the mother may
have declared against its legitimacy or may have been sentenced as an
adulteress. 4
To bolster their theory, petitioners presented in evidence the application for
enrolment at Mapua Institute of Technology of Angelita Libunao,
accomplished in 1956, which states:
Father’s Name: Jose Libunao Occupation: Engineer (mining) Mother’s Name:
Honoria Empaynado 5
as well as Cesar Libunao’s 1958 application for enrolment at the Mapua
Institute of Technology, which states:
Father’s Name: Jose Libunao Occupation: none Mother’s Name: Honoria
Empaynado 6
Petitioners claim that had Jose Libunao been dead during the time when said
applications were accomplished, the enrolment forms of his children would
have stated so. These not being the case, they conclude that Jose Libunao
must have still been alive in 1956 and 1958. Additionally, petitioners
presented the joint affidavit of Juan Quiambao and Alejandro Ramos 7
stating that to their knowledge Jose Libunao had died in 1971, leaving as his
widow, Honoria Empaynado, and that the former had been interred at the
Loyola Memorial Park. Lastly, petitioners presented the affidavit of Dr. Pedro
Arenas, 8 Ricardo Abad’s physician, declaring that in 1935, he had examined
Ricardo Abad and found him to be infected with gonorrhea, and that the
latter had become sterile as a consequence thereof.
With these pieces of evidence, petitioners claim that Cecilia and Marian Abad
are not the illegitimate children of
Ricardo Abad, but rather the legitimate children of the spouses Jose Libunao
and Honoria Empaynado. At the outset, it must be noted that petitioners are
disputing the veracity of the trial court’s finding of facts. It is a fundamental
and settled rule that factual findings of the trial court, adopted and
confirmed by the Court of Appeals, are final and conclusive and may not be
reviewed on appeal. 9 Petitioners, however, argue that factual findings of the
Court of Appeals are not binding on this Court when there appears in the
record of the case some fact or circumstance of weight and influence which
has been overlooked, or the significance of which has been misinterpreted,
that if considered, would affect the result of the case. 10 This Court finds no
justifiable reason to apply this exception to the case at bar. First, the evidence
presented by petitioners to prove that Jose Libunao died in 1971 are, to say
the least, far from conclusive. Failure to indicate on an enrolment form that
one’s parent is “deceased” is not necessarily proof that said parent was still
living during the time said form was being accomplished. Furthermore, the
joint affidavit of Juan Quiambao and Alejandro Ramos as to the supposed
death of Jose Libunao in 1971 is not competent evidence to prove the latter’s
death at that time, being merely secondary evidence thereof. Jose Libunao’s
death certificate would have been the best evidence as to when the latter
died. Petitioners have, however, inexplicably failed to present the same,
although there is no showing that said death certificate has been lost or
destroyed as to be unavailable as proof of Jose Libunao’s death. More telling,
while the records of Loyola Memorial Park show that a certain Jose Bautista
Libunao was indeed buried there in 1971, this person appears to be different
from Honoria Empaynado’s first husband, the latter’s name being Jose Santos
Libunao. Even the name of the wife is different. Jose Bautista Libunao’s wife is
listed as Josefa Reyes while the wife of Jose Santos Libunao was Honoria
Empaynado. As to Dr. Arenas’ affidavit, the same was objected to by private
respondents as being privileged communication under Section 24 (c), Rule
130 of the Rules of Court. 11 The rule on confidential communications
between physician and patient requires that: a) the action in which the advice
or treatment given or any information is to be used is a civil case; b) the
relation of physician and patient existed between the person claiming the
privilege or his legal representative and the physician; c) the advice or
treatment given by him or any information was acquired by the physician
while professionally attending the patient; d) the information was necessary
for the performance of his professional duty; and e) the disclosure of the
information would tend to blacken the reputation of the patient. 12
Petitioners do not dispute that the affidavit meets the first four requisites.
They assert, however, that the finding as to Ricardo Abad’s “sterility” does not
blacken the character of the deceased. Petitioners conveniently forget that
Ricardo Abad’s “sterility” arose when the latter contracted gonorrhea, a fact
which most assuredly blackens his reputation. In fact, given that society holds
virility at a premium, sterility alone, without the attendant embarrassment of
contracting a sexually-transmitted disease, would be sufficient to blacken the
reputation of any patient. We thus hold the affidavit inadmissible in evidence.
And the same remains inadmissible in evidence, notwithstanding the death of
Ricardo Abad. As stated by the trial court:
In the case of Westover vs. Aetna Life Insurance Company, 99 N.Y. 59, it was
pointed out that: “The privilege of secrecy is not abolished or terminated
because of death as stated in established precedents. It is an established rule
that the purpose of the law would be thwarted and the policy intended to be
promoted thereby would be defeated, if death removed the seal of secrecy,
from the communications and disclosures which a patient should make to his
physician. After one has gone to his grave, the living are not permitted to
impair his name and disgrace his memory by dragging to light
communications and disclosures made under the seal of the statute.
Given the above disquisition, it is clearly apparent that petitioners have failed
to establish their claim by the quantum of evidence required by law. On the
other hand, the evidence presented by private respondents overwhelmingly As to petitioners’ claim that the properties in the name of Ricardo Abad
prove that they are the acknowledged natural children of Ricardo Abad. We actually belong to their mother Lucila de Mesa, both the trial court and the
quote with approval the trial court’s decision, thus: appellate court ruled that the evidence presented by private respondents
proved that said properties in truth belong to Ricardo Abad. As stated earlier,
In his individual statements of income and assets for the calendar years 1958
the findings of fact by the trial court are entitled to great weight and should
and 1970, and in all his individual income tax returns for the years 1964,
not be disturbed on appeal, it being in a better position to examine the real
1965, 1967, 1968, 1969 and 1970, he has declared therein as his legitimate
evidence, as well as to observe the demeanor of the witnesses while
wife, Honoria Empaynado; and as his legitimate dependent children, Cecilia,
testifying in the case. 13 In fact, petitioners seem to accept this conclusion,
Marian (except in Exh. 12) and Rosemarie Abad (Exhs. 12 to 19; TSN, February
their contention being that they are entitled to the subject estate whether the
26, 1973, pp. 33-44). x x x xxx x x x In December 1959, Ricardo Abad
same is owned by Ricardo Abad or by Lucila de Mesa. Digressing from the
insured his daughters Cecilia, then eleven (11) years old, and Marian, then (5)
main issue, in its decision dated October 19, 1994, the Court of Appeals
years old, on [a] twenty (20) year-endowment plan with the Insular Life
affirmed the trial court’s order dated March 21, 1975 denying the appeal of
Assurance Co., Ltd. and paid for their premiums (Exhs. 34 and 34-A; 34-B to
Dolores de Mesa Abad and Cesar de Mesa Tioseco on the ground that the
C; 35, 35-A to D; TSN, February 27, 1973, pp. 7-20). In 1966, he and his
same was filed out of time. This affirmance is erroneous, for on July 9, 1985,
daughter Cecilia Abad opened a trust fund account of P100,000.00 with the
this Court had already ruled that the same was not filed out of time.
People’s Bank and Trust Company which was renewed until (sic) 1971,
Well-settled is the dictum that the rulings of the Supreme Court are binding
payable to either of them in the event of death (Exhs. 36-A; 36-E). On January
upon and may not be reversed by a lower court.
5, 1971, Ricardo Abad opened a trust fund of P100,000.00 with the same
bank, payable to his daughter Marian (Exh. 37-A). On January 4, 1971, Ricardo WHEREFORE, premises considered, the instant petition is hereby DENIED.
Abad and his sister Dolores Abad had (sic) agreed to stipulate in their PBTC The decision of the Court of Appeals in CA-G.R. CV No. 30184 dated October
Trust Agreement that the 9% income of their P100,000.00 trust fund shall (sic) 19, 1994 is AFFIRMED with the MODIFICATION that the affirmance of the
be paid monthly to the account reserved for Cecilia, under PBTC Savings Order dated March 21, 1975 denying the appeal of Dolores de Mesa Abad
Account No. 49053 in the name of Ricardo Abad and/or Cecilia Abad (Exh. and Cesar de Mesa Tioseco for being filed out of time is SET ASIDE. Costs
38) where the income of the trust fund intended for Cecilia was also against petitioners. SO ORDERED.
deposited monthly (TSN, February 27, 1973, pp. 21-36). Ricardo Abad had
also deposited (money) with the Monte de Piedad and Savings Bank in the
name of his daughter Marian, represented by him, as father, under Savings
Account 17348 which has (sic) a balance of P34,812.28 as of June 30, 1972.
(Exh. 60-B) . . .

With the finding that private respondents are the illegitimate children of
Ricardo Abad, petitioners are precluded from inheriting the estate of their
brother. The applicable provisions are:
KROHN vs CA
Art. 988. In the absence of legitimate descendants or ascendants, the
illegitimate children shall succeed to the entire estate of the deceased. Art. On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at
1003. If there are no . . . illegitimate children, or a surviving spouse, the the Saint Vincent de Paul Church in San Marcelino, Manila. The union
collateral relatives shall succeed to the entire estate of the deceased in produced three children, Edgar Johannes, Karl Wilhelm and Alexandra. Their
accordance with the following articles.(Italics supplied) blessings notwithstanding, the relationship between the couple developed
into a stormy one. In 1971, Ma. Paz underwent psychological testing
purportedly in an effort to ease the marital strain. The effort however proved
futile. In 1973, they finally separated in fact. In 1975, Edgar was able to secure
a copy of the confidential psychiatric report on Ma. Paz prepared and signed
by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. On 2 November 1978,
presenting the report among others, he obtained a decree (“Conclusion”)
from the Tribunal Metropolitanum Matrimoniale in Manila nullifying his
church marriage with Ma. Paz on the ground of “incapacitas assumendi onera
conjugalia due to lack of due discretion existent at the time of the wedding
and thereafter.” 1 On 10 July 1979, the decree was confirmed and
pronounced “Final and Definite.” 2 Meanwhile, on 30 July 1982, the then
Court of First Instance (now Regional Trial Court) of Pasig, Br. II, issued an
order granting the voluntary dissolution of the conjugal partnership.
On 23 October 1990, Edgar filed a petition for the annulment of his marriage
with Ma. Paz before the trial court. 3 In his petition, he cited the Confidential
Psychiatric Evaluation Report which Ma. Paz merely denied in her Answer as
“either unfounded or irrelevant.”
At the hearing on 8 May 1991, Edgar took the witness stand and tried to
testify on the contents of the Confidential Psychiatric Evaluation Report. This
was objected to on the ground that it violated the rule on privileged
communication between physician and patient. Subsequently, Ma. Paz filed a
Manifestation expressing her “continuing objection” to any evidence, oral or
documentary, “that would thwart the physician­patient privileged
communication rule,” 5 and thereafter submitted a Statement for the Record
asserting among others that “there is no factual or legal basis whatsoever for
petitioner (Edgar) to claim ‘psychological incapacity’ to annul their marriage,
such ground being completely false, fabricated and merely an afterthought.”
6 Before leaving for Spain where she has since resided after their separation,
Ma. Paz also authorized and instructed her counsel to oppose the suit and
pursue her counterclaim even during her absence. On 29 May 1991, Edgar
opposed Ma. Paz’ motion to disallow the introduction of the confidential
psychiatric report as evidence, 7 and afterwards moved to strike out Ma. Paz’
Statement for the Record. 8 On 4 June 1991, the trial court issued an Order
admitting the Confidential Psychiatric Evaluation Report in evidence and
ruling that—
x x x the Court resolves to overrule the objection and to sustain
the Opposition to the respondent’s Motion; first, because the very issue in
this case is whether or not the respondent had been suffering from
psychological incapacity; and secondly, when the said psychiatric report was
referred to in the complaint, the respondent did not object thereto on the
ground of the supposed privileged communication between patient and
physician. What was raised by the respondent was that the said psychiatric
report was irrelevant. So, the Court feels that in the interest of justice and for
the purpose of determining whether the respondent as alleged in the
petition was suffering from psychological incapacity, the said psychiatric
report is very material and may be testified to by petitioner (Edgar Krohn, Jr.)
without prejudice on the part of the respondent to dispute the said report or
to cross-examine first the petitioner and later the psychiatrist who prepared
the same if the latter will be presented. 9
On 27 November 1991, the trial court denied the Motion to Reconsider Order
dated June 4, 1991, and directed that the Statement for the Record filed by
Ma. Paz be stricken off the record. A subsequent motion for reconsideration
filed by her counsel was likewise denied. Counsel of Ma. Paz then elevated
the issue to respondent Court of Appeals. In a Decision promulgated 30
October 1992, the appellate court dismissed the petition for certiorari. 10 On
5 February 1993, the motion to reconsider the dismissal was likewise denied.
Hence, the instant petition for review. Petitioner now seeks to enjoin the
presentation and disclosure of the contents of the psychiatric report and
prays for the admission of her Statement for the Record to form part of the
records of the case. She argues that since Sec. 24, par. (c), Rule 130, of the
Rules of Court 11 prohibits a physician from testifying on matters which he
may have acquired in attending to a patient in a professional capacity, “WITH
MORE REASON should a third person (like respondent-husband in this
particular instance) be PROHIBITED from testifying on privileged matters
between a physician and patient or from submitting any medical report,
findings or evaluation prepared by a physician which the latter has acquired
as a result of his confidential and privileged relation with a patient.” 12 She
says that the reason behind the prohibition is—
x x x to facilitate and make safe, full and confidential disclosure by a patient
to his physician of all facts, circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure and publication
on the witness stand, to the end that the physician may form a correct
opinion, and be enabled safely and efficaciously to treat his patient. 13
She further argues that to allow her husband to testify on
the contents of the psychiatric evaluation report “will set a very bad and
dangerous precedent because it abets circumvention of the rule’s intent in
preserving the sanctity, security and confidence to the relation of physician
and his patient.” 14 Her thesis is that what cannot be done directly should
not be allowed to be done indirectly. Petitioner submits that her Statement
for the Record simply reiterates under oath what she asserted in her Answer,
which she failed to verify as she had already left for Spain when her Answer
was filed. She maintains that her “Statement for the Record is a plain and
simple pleading and is not as it has never been intended to take the place of
her testimony;” 15 hence, there is no factual and legal basis whatsoever to
expunge it from the records. Private respondent Edgar Krohn, Jr., however
contends that “the rules are very explicit: the prohibition applies only to a
physician. Thus x x x x the legal prohibition to testify is not applicable to the
case at bar where the person sought to be barred from testifying on the
privileged communication is the husband and not the physician of the
petitioner.” 16 In fact, according to him, the Rules sanction his testimony
considering that a hus band may testify against his wife in a civil case filed by
one against the other. Besides, private respondent submits that privileged
communication may be waived by the person entitled thereto, and this
petitioner expressly did when she gave her unconditional consent to the use
of the psychiatric evaluation report when it was presented to the Tribunal
Metropolitanum Matrimoniale which took it into account among others in
deciding the case and declaring their
marriage null and void. Private respondent further argues that petitioner also
gave her implied consent when she failed to specifically object to the
admissibility of the report in her Answer where she merely described the
evaluation report as “either unfounded or irrelevant.” At any rate, failure to
interpose a timely objection at the earliest opportunity to the evidence
presented on privileged matters may be construed as an implied waiver. With
regard to the Statement for the Record filed by petitioner, private respondent
posits that this in reality is an amendment of her Answer and thus should
comply with pertinent provisions of the Rules of Court, hence, its exclusion
from the records for failure to comply with the Rules is proper. The treatise
presented by petitioner on the privileged nature of the communication
between physician and patient, as well as the reasons therefor, is not
doubted. Indeed, statutes making communications between physician and
patient privileged are intended to inspire confidence in the patient and
encourage him to make a full disclosure to his physician of his symptoms and
condition. 17 Consequently, this prevents the physician from making public
information that will result in humiliation, embarrassment, or disgrace to the
patient. 18 For the patient should rest assured with the knowledge that the
law recognizes the communication as confidential, and guards against the
possibility of his subsequent disclosure. 19 The physician-patient privilege
creates a zone of privacy, intended to preclude the humiliation of the patient
that may follow the disclosure of his ailments. Indeed, certain types of
information communicated in the context of the physician-patient
relationship fall within the constitutionally protected zone of privacy, 20
including a patient’s interest in keeping his mental health records
confidential. 21 Thus, it has been observed that the psychotherapist-patient
privilege is founded upon the notion that certain forms of antisocial behavior
may be prevented by encouraging those in need of treatment for emotional
problems to secure the services of a psychotherapist. Petitioner’s discourse
while exhaustive is however misplaced. Lim v. Court of Appeals 22 clearly lays
down the requisites in order that the privilege may be successfully invoked:
(a) the privilege is claimed in a civil case; (b) the person against whom the
privilege is claimed is one duly authorized to practice medicine, surgery or
obstetrics; (c) such person acquired the information while he was attending
to the patient in his professional capacity; (d) the information was necessary
to enable him to act in that capacity; and, (e) the information was confidential
and, if disclosed, would blacken the reputation (formerly character) of the
patient.” In the instant case, the person against whom the privilege is claimed
is not one duly authorized to practice medicine, surgery or obstetrics. He is
simply the patient’s husband who wishes to testify on a document executed
by medical practitioners. Plainly and clearly, this does not fall within the
claimed prohibition. Neither can his testimony be considered a circumvention
of the prohibition because his testimony cannot have the force and effect of
the testimony of the physician who examined the patient and executed the
report.
Counsel for petitioner indulged heavily in objecting to the testimony of
private respondent on the ground that it was privileged. In his Manifestation
before the trial court dated 10 May 1991, he invoked the rule on privileged
communications but never questioned the testimony as hearsay. It was a fatal
mistake. For, in failing to object to the testimony on the ground that it was
hearsay, counsel waived his right to make such objection and, consequently,
the evidence offered may be admitted. The other issue raised by petitioner is
too trivial to merit the full attention of this Court. The allegations contained
in the Statement for the Records are but refutations of private respondent’s
declarations which may be denied or disproved during the trial. The instant
appeal has taken its toll on the petition for annulment. Three years have
already lapsed and private respondent herein, as petitioner before the trial
court, has yet to conclude his testimony thereat. We thus enjoin the trial
judge and the parties’ respective counsel to act with deliberate speed in
resolving the main action, and avoid any and all stratagems that may further
delay this case. If all lawyers are allowed to appeal every perceived
indiscretion of a judge in the course of trial and include in their appeals
depthless issues, there will be no end to litigations, and the docket of
appellate courts will forever be clogged with inconsequential cases. Hence,
counsel should exercise prudence in appealing lower court rulings and raise
only legitimate issues so as not to retard the resolution of cases. Indeed,
there is no point in unreasonably delaying the resolution of the petition and
prolonging the agony of the wedded couple who after coming out from a
storm still have the right to a renewed blissful life either alone or in the
company of each other. 23

WHEREFORE, the instant petition for review is DENIED for lack of merit. The
assailed Decision of respondent Court of Appeals promulgated on 30
October 1992 is AFFIRMED. SO ORDERED.