NOVEMBER 17, 2018

ATTY. ULPIANO SARMIENTO

Senior Partner

RE: PEOPLE VS. JUDGE FLEMING

CASE ORDER NO: 129192

Dear Atty. Sarmiento;

In reference with the above cited case, we are writing this memorandum

based on the evidence gathered and the revelations made by the defense counsel

regarding the guilt of the accused. In view of this, we could not use such revelation

to support the present case.

Following are the reasons regarding this matter:

1. The Relationship of the Accused and his Lawyer

We know that there was a relationship issue between the accused Judge

Fleming and Kirkland. Judge Rayford referred to a prior case Kirkland handled in

which he violated the attorney-client privilege. Kirkland believed that going

against the said privilege was the only way to prevent a pre-meditated crime. Since

he feared for the loss of his profession, he agreed to handle Judge Fleming’s rape

case. In Rule 130, the attorney cannot disclose an information without the consent

of his client.

Section 24. Disqualification by reason of privileged communication. — The following persons

cannot testify as to matters learned in confidence in the following cases:

(b) An attorney cannot, without the consent of his client, be examined as to any
communication made by the client to him, or his advice given thereon in the course of, or
with a view to, professional employment, nor can an attorney's secretary, stenographer,
or clerk be examined, without the consent of the client and his employer, concerning any
fact the knowledge of which has been acquired in such capacity;

Rules of Court, Article 130 (Rules of Evidence), Section 4

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 The attorney-client privilege is a relationship of utmost trust and confidence.

It is this faith that the attorney would not divulge any information prejudicial to his

client. It is also the confidence on the part of the client that he would confess every

detail to his counsel that the latter may aptly defend him. It is sacred in that

violating the privilege would cause great disgrace on the part of the attorney and

discredit the integrity of the legal profession. It would create an environment of

distrust for lawyers and for what they stand. Thus, this privilege is treated with

extremely high regard. Discounting such would merit that lawyer an identity as an

outcast in the legal system.

The attorney’s oath requires him to be absolutely honest even though his

client’s interest may demand a contrary course.2 This may be viewed as a means to

reconcile a lawyer’s duty to the public vis-à-vis his duty to his client. In the

hierarchy of priorities in the rules and ethics of the legal profession, a lawyer must

first put the interest of the court above everything else. His client comes in second

while his personal interest must come last.

The attorney-client privilege is placed on a precarious pedestal at times

because it may be a source of abuse for cunning clients, a trap for the most

unsuspecting lawyers. In the tangled legal web we weave, even clients are capable

of wreaking havoc in the legal system, using the law to shield their misdoings.

2. Weight of Values

We could definitely rely on the weight of our evidence and the candor and

demeanor of the victim during the testimony can be given probative weight and

value.

Rules of Court, Article 130 (Rules of Evidence), Section 4

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 Rape is committed when the accused has carnal knowledge of the victim by

force or intimidation and without consent (People vs. Durano, 519 SCRA 466).

The gravamen of the offense of rape is sexual congress with a woman by force and

without consent. (People vs. Jalbuena, 526 SCRA 500). Jurisprudence has told us

that even though sole witness is the victim herself, positive identification destroys

the defense of alibi and renders it impotent, especially where such identification is

credible and categorical (People of the Philippines vs. Romeo Bandin, G.R. No.

176531, April 24, 2009).

In rape cases specifically, the credibility of the complaint is of paramount

importance as oftentimes her testimony, when it satisfies the test of credibility, may

be the sole basis for an accused’s conviction. The rule is that when a rape victim’s

testimony is straightforward and candid, unshaken by rigid cross-examination and

unflawed by inconsistencies or contradictions in its vital points, the same must be

given full faith and credit. (People vs. Suyat, 518 SCRA 582).

In the prosecution of rape cases, conviction or acquittal depends on the

credence to be accorded to the complainant’s testimony because of the fact that

usually the participants are the only witnesses to the occurrences. Factual findings

of fact of the trial court should not be disturbed on appeal. It has been an oft-

repeated rule that mere denial, if unsubstantiated by clear and convincing evidence,

has no weight in law and cannot be given greater evidentiary value than the

positive testimony of a rape victim. (People vs. Lizano, 522 SCRA 803).

Moreover, citing People vs. Bejic (525 SCRA 488), denial is inherently a

weak defense, as it is negative and self-serving and cannot prevail over the positive

identification and testimony of witnesses unless buttressed by strong evidence of

Rules of Court, Article 130 (Rules of Evidence), Section 4

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non-culpability—corollarily, alibi is the weakest of all defenses for it is easy to

contrive and difficult to disprove. Rape victims do not cherish keeping in their

memory an accurate account of the manner in which they were sexually violated—

errorless recollection of a harrowing experience cannot be expected of a witness,

especially when she is recounting details from an experience so humiliating and

painful as rape.

As an ethical practitioner, he knew he had sworn to defend his client to the

best of his knowledge and ability. What left doubt in his mind was that, whether

ethics called for discounting integrity and justice in favor being true to the letter of

the law.

We are confident that we can win this case, and finally, carry out the justice

that the victim foremost deserves. This is also to teach morals against proponents

and agents of the law, who hide under the cloak and chambers of their public

authorities, that one way or another, justice will surely prevail.

Rules of Court, Article 130 (Rules of Evidence), Section 4

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