Confidentiality between lawyers and clients

Problem Areas in Legal Ethics

Arellano University School of Law – Arellano Law Foundation
2019-2020

 Rule 12.06 - A lawyer shall not knowingly assist a witness to misrepresent himself or to
impersonate another.

Rule 12.07 - A lawyer shall not abuse, browbeat or harass a witness nor needlessly inconvenience him.
Rule 12.08 - A lawyer shall avoid testifying in behalf of his client, except:

(a) on formal matters, such as the mailing, authentication or custody of an instrument, and the like; or

(b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event
he must, during his testimony, entrust the trial of the case to another counsel.

 Canon 17. A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust
and confidence reposed in him.

 CANON 19 - A LAWYER SHALL REPRESENT HIS CLIENT WITH ZEAL WITHIN THE BOUNDS OF THE
LAW.

Rule 19.01 - A lawyer shall employ only fair and honest means to attain the lawful objectives of his
client and shall not present, participate in presenting or threaten to present unfounded criminal
charges to obtain an improper advantage in any case or proceeding.
Rule 19.02 - A lawyer who has received information that his client has, in the course of the
representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to
rectify the same, and failing which he shall terminate the relationship with such client in accordance
with the Rules of Court.
Rule 19.03 - A lawyer shall not allow his client to dictate the procedure in handling the case.

 CANON 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and
transactions with his clients

Rule 15.02. - A lawyer shall be bound by the rule on privilege communication in respect of
matters disclosed to him by a prospective client.

Rule 130 Sec. 24.Disqualification by reason of privileged communication. — The following

persons cannot testify as to matters learned in confidence:

(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;

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  Canon 21 – A lawyer shall preserve the confidence and secrets of his client even after the
attorney-client relation is terminated

Rule 21.01 - A lawyer shall not reveal the confidences or secrets of his client except;
(a) When authorized by the client after acquainting him of the consequences of the disclosure;
(b) When required by law;
(c) When necessary to collect his fees or to defend himself, his employees or associates or by judicial
action.

Rule 21.02 - A lawyer shall not, to the disadvantage of his client, use information acquired in the
course of employment, nor shall he use the same to his own advantage or that of a third person,
unless the client with full knowledge of the circumstances consents thereto.

Rule 21.03 - A lawyer shall not, without the written consent of his client, give information from
his files to an outside agency seeking such information for auditing, statistical, bookkeeping,
accounting, data processing, or any similar purpose.

 Cont…
Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or associates thereof
unless prohibited by the client.
Rule 21.05 - A lawyer shall adopt such measures as may be required to prevent those whose services
are utilized by him, from disclosing or using confidences or secrets of the clients.
Rule 21.06 - A lawyer shall avoid indiscreet conversation about a client's affairs even with members of
his family.
Rule 21.07 - A lawyer shall not reveal that he has been consulted about a particular case except to avoid
possible conflict of interest.

 Rule 138 of the Rules of Court

Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the confidence, and at every peril to
himself, to preserve the secrets of his client, and to accept no compensation in connection with his
client's business except from him or with his knowledge and approval.

 Revised Penal Code

Art. 209. Betrayal of trust by an attorney or solicitor. — Revelation of secrets. — In addition to the
proper administrative action, xxx shall be imposed upon any attorney-at-law or solicitor ( procurador
judicial) who, by any malicious breach of professional duty or of inexcusable negligence or ignorance,
shall prejudice his client, or reveal any of the secrets of the latter learned by him in his professional
capacity.
The same penalty shall be imposed upon an attorney-at-law or solicitor (procurador judicial) who,
having undertaken the defense of a client or having received confidential information from said client
in a case, shall undertake the defense of the opposing party in the same case, without the consent of
his first client.

 No confidential information
No privileged communication

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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. – Jimenez v.
Atty. Francisco, A.C. No. 10548, December 10, 2014

 Extent of Confidentiality Rule

The confidentiality rule, for example, applies not only to matters communicated in confidence by the
client but also to all information relating to the representation, whatever its source. A lawyer may not
disclose such information except as authorized or required by the Rules of Professional Conduct or other
law.

 Confidentiality is not the same as the attorney-client privilege

The lawyer’s duty of confidentiality (an ethical duty) is not the same as the client’s right to assert
the attorney client privilege (a rule of evidence).

The attorney/client privilege extends only to communications between lawyers and clients
relating to legal services and which the client reasonably believes is confidential.

Any disclosure may waive the attorney/client privilege as to other otherwise protected matters;
not so with the duty of confidentiality.

The privilege applies only to limiting testimony in a legal proceeding. The duty of confidentiality
limits voluntary disclosures anywhere.

 Why lawyer-client relationships requires confidentiality

Considerations favoring confidentially in lawyer-client relationships are many and serve several
constitutional and policy concerns.
In the constitutional sphere, the privilege gives flesh to one of the most sacrosanct rights available to
the accused, the right to counsel. If a client were made to choose between legal representation without
effective communication and disclosure and legal representation with all his secrets revealed then he
might be compelled, in some instances, to either opt to stay away from the judicial system or to lose
the right to counsel.
If the price of disclosure is too high, or if it amounts to self incrimination, then the flow of information
would be curtailed thereby rendering the right practically nugatory. The threat this represents against
another sacrosanct individual right, the right to be presumed innocent is at once self-evident. - Regala
et. al. v. Sandiganbayan, G. R. No. 105938 [1996]

 Lawyer’s duty to keep the confidentiality

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. - Regala et. al. v. Sandiganbayan, G. R. No. 105938 [1996]

 Duty of lawyer when receiving a material not intended for him

A lawyer who receives on an unauthorized basis materials of an adverse party that she knows to be
privileged or confidential should, upon recognizing the privileged or confidential nature of the materials,

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either refrain from reviewing such materials or review them only to the extent required to determine
how appropriately to proceed;
She should notify her adversary's lawyer that she has such materials and should either follow
instructions of the adversary's lawyer with respect to the disposition of the materials, or refrain from
using the materials until a definitive resolution of the proper disposition of the materials is obtained
from a court.

 Extent of confidentiality
An attorney's duty of confidentiality, which totally covers the client's admission of guilt, does not
extend to a client's announced plans to engage in future criminal conduct.

 Cause of client defense is not absolute

Whatever the contours of the line between traditional lawyering and criminal conduct, they must
inevitably be drawn case-by-case. We refuse to accept the notion that lawyers may do anything,
including violating the law, to zealously advocate their clients' interests and then avoid criminal
prosecution by claiming that they were "just doing their job."

 Permanent nature of duty to keep confidentiality

The duty to maintain inviolate the client’s confidences and secrets is not temporary but permanent. It
is in effect perpetual for "it outlasts the lawyer’s employment" (Canon 37, Code of Professional
Responsibility) which means even after the relationship has been terminated, the duty to preserve the
client’s confidences and secrets remains effective.

This obligation to preserve the confidences and secrets of a client arises at the inception of their
relationship. The protection given to the client is perpetual and does not cease with the termination of
the litigation, nor is it affected by the party’s 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. – Genato v.
Atty. Silapan, A.C. No. 4078. July 14, 2003

 Secrets or confidential communications must be obtained in a lawyer-client relationship

The alleged "secrets" of complainant were not specified by him in his affidavit-complaint. Whatever
facts alleged by respondent against complainant were not obtained by respondent in his professional
capacity but as a redemptioner of a property originally owned by his deceased son and therefore, when
respondent filed the complaint for estafa against herein complainant, which necessarily involved
alleging facts that would constitute estafa, respondent was not, in any way, violating Canon 21. xxx To
hold otherwise would be precluding any lawyer from instituting a case against anyone to protect his
personal or proprietary interests. – Uy v. Atty. Gonzales, A.C. No. 5280, March 30, 2004

 Starting point of duty of confidentiality

The moment complainant approached the then receptive respondent to seek legal advice, a veritable
lawyer-client relationship evolved between the two. Such relationship imposes upon the lawyer certain
restrictions circumscribed by the ethics of the profession. Among the burdens of the relationship is that
which enjoins the lawyer, respondent in this instance, to keep inviolate confidential information
acquired or revealed during legal consultations. - Hadjula v. Atty. Madianda, A.C. No. 6711 [2007]

This duty of confidentiality also extends to prospective clients even though an attorney-client
relationship is never established.

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  Not a defense to justify breaching the duty of confidentiality

Lawyer not inclined to handle the client's case after consultation.

no formal professional engagement follows the consultation.

no contract whatsoever was executed by the parties to memorialize the relationship.

- Hadjula v. Atty. Madianda, A.C. No. 6711 [2007]

 The essential factors to establish the existence of the attorney-client privilege communication
(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.
- Hadjula v. Atty. Madianda, A.C. No. 6711 [2007]


Characteristics of the Attorney-Client Privilege

1. A-C privilege where legal advice is professionally sought from an attorney.

2. The client must intend the above communication to be confidential.
3. A-C privilege embraces all forms of communication and action.
4. As a general rule, A-C privilege also extends to the attorney’s secretary, stenographer, clerk or
agent with reference to any fact required in such capacity.
5. The above duty is perpetual and is absolutely privileged from disclosure.

……..
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.

……..
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.

……..
The duty to preserve client information is broad and exacting; it is violated even by a revelation made
with honest intentions and motives.
 Factors essential to establish the existence of privileged communication

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(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.
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. xxx

………
(2) The client made the communication in confidence.

The mere relation of attorney and client does not raise a presumption of confidentiality. The client must
intend the communication to be confidential.
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.

……….
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, an offer and
counter-offer for settlement, or a document given by a client to his counsel not in his professional
capacity, are not privileged communications, the element of confidentiality not being present.

……..
(3) The legal advice must be sought from the attorney in his professional capacity.

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.

If the client seeks an accounting service, or business or personal assistance, and not legal advice,
the privilege does not attach to a communication disclosed for such purpose.

 For the attorney-client privilege to apply, the following requisites must be present

1. Relationship of lawyer and client;

2. Communication made by the client to the attorney, or advice given by the latter to the former;
3. Communication or advice must have been made confidentially.
4. Such communication must have been made in the course of professional employment.

 Attorney-Client Privilege cannot be invoked

1. There is consent or waiver or client.

2. Such is required by law.

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3. Such is made to protect the lawyer’s rights (i.e. to collect his fees or associates or by judicial action).
4. When such communication are made in contemplation of a crime or the perpetuation of a fraud.

 The principle of client-lawyer confidentiality is given effect by related bodies of law

the attorney-client privilege,

the work product doctrine and

the rule of confidentiality established in professional ethics.

 Attorney-client privilege vs. Work-product doctrine

Though they both operate to protect information from discovery, the work-product doctrine and the
attorney-client privilege serve different purposes. The purpose behind the attorney-client privilege is
"`to encourage clients to make full disclosure of facts to counsel so that he may properly, competently,
and ethically carry out his representation. The ultimate aim is to promote the proper administration of
justice.”
The work-product doctrine, by contrast, "promotes the adversary system directly by protecting the
confidentiality of papers prepared by or on behalf of attorneys in anticipation of litigation. Protecting
attorneys' work product promotes the adversary system by enabling attorneys to prepare cases without
fear that their work product will be used against their clients.“

 2 kinds of Work Product

By contrast, the work product doctrine applies to "materials prepared in anticipation of litigation by or
for a party or its representative" and may be discovered, depending on the type of work product, where
"the party seeking discovery has need of the material and is unable to obtain the substantial equivalent
without undue hardship."
Fact work product traditionally protects that information which relates to the case and is gathered in
anticipation of litigation. Opinion work product consists primarily of the attorney's mental impressions,
conclusions, opinions, and theories. Whereas fact work product is subject to discovery upon a showing
of "need" and "undue hardship," opinion work product generally remains protected from disclosure.

 The attorney-client privilege and work-product doctrine apply in judicial and other proceedings
in which a lawyer may be called as a witness or otherwise required to produce evidence
concerning a client.

The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought
from the lawyer through compulsion of law.

 When confidentiality does not extend

to partners and associates
Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to
a client of the firm, unless the client has instructed that particular information be confined to specified
lawyers.

Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to partners or associates thereof
unless prohibited by the client.

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  Protection from third party
This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected
information but could reasonably lead to the discovery of such information by a third person.

 Information from other sources does not affect the duty of confidentiality
"[T]he client's privilege in confidential information disclosed to his attorney `is not nullified by the fact
that the circumstances to be disclosed are part of a public record, or that there are other available
sources for such information, or by the fact that the lawyer received the same information from other
sources.”

On this issue of first impression, therefore, we hold that the rule of confidentiality is breached when an
attorney discloses information learned through the attorney-client relationship even if that information
is otherwise publicly available.

 Duty of loyalty
In this argument, respondents confuse the attorney-client privilege and the duty of confidentiality with
the duty of loyalty. The fact of waiver of the attorney-client privilege does not affect the duty of
loyalty.

 The duty to maintain confidences and secrets is present even in the absence of the attorney-
client relationship
This is to preserve the interest in candor and openness.
"At the inception of the contacts between the layman and the lawyer it is essential that the layman feel
free of danger in stating facts of the case to the lawyer whom he consults. Even though the lawyer
rejects the case and the relation of attorney and client never arose, the usual duties as to privileged
communications and conflicting interest should apply.“

 Corporate employee’s communication

is privileged
In order for a communication of a corporate employee [] be covered by the attorney-client privilege it
must be demonstrated that:
(1) the communication would not have been made but for the contemplation of legal services;
(2) the employee making the communication did so at the direction of his or her corporate superior;
(3) the superior made the request of the employee as part of the corporation's effort to secure legal
advice or services;
(4) the content of the communication relates to the legal services being rendered, and the subject
matter of the communication is within the scope of the employee's duties;
(5) the communication is not disseminated beyond those persons who, because of the corporate
structure, need to know its contents.

 General Rule on client’s identity

As a matter of public policy, a client's identity should not be shrouded in mystery. 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. - Regala et. al. v. Sandiganbayan, G. R.
No. 105938 [1996]

 Reasons advanced for the general rule

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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." He cannot be obliged to
grope in the dark against unknown forces.

 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. - Regala et. al. v.
Sandiganbayan, G. R. No. 105938 [1996]

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. - Regala et. al. v. Sandiganbayan, G. R. No. 105938 [1996]

 Disclosure of the Client's Identity and Whereabouts

The general rule is that a client's identity and whereabouts are not covered by the attorney-client
privilege, as opposed to the ethical duty of confidentiality.
However, exceptions have been made if disclosure would implicate the client in the criminal activity for
which legal advice was sought or "if the net effect of the disclosure would be to reveal the nature of a
client communication."

 Lawyer must testify about identity of client who paid with counterfeit $100 bill.

Client's name not considered confidential unless "intertwined" with confidential information or
last link tying client to crime.

 Client identity is privileged in exceptional cases when disclosure would provide "last link" in
chain of evidence leading to conclusion that client committed crime, and would reveal
confidential communication between lawyer and client;

Client who accused divorce lawyer of improper sexual advances may not obtain client list in discovery.

 Lawyer for client sought in hit-and-run accident may withhold client's identity when disclosure
would implicate client in criminal activity for which legal advice sought.

Certain instances where a court order is not involved, courts have held the client's
whereabouts protected

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Lawyer may not be compelled to disclose address
of defendant father in child custody proceeding when he specifically requested that lawyer not reveal
the home address and telephone number of the father and the name and address of the school the
children were attending; information that the client requests be kept confidential is protected unless
protection permits a fraud or crime or clearly frustrates the administration of justice.

Domestic relations case where confidentiality of address was necessary for client safety.

 As a rule a lawyer should challenge an order to disclose information about client

In sum, the attorney-client privilege ordinarily will not cover the information sought by a subpoena
directed to a lawyer. Yet even when faced with a subpoena seeking fee information or a client's
identity, the lawyer should generally assert the attorney-client privilege and obtain a court ruling
rather than make his own determination whether the information is privileged. The existence of
exceptions to the general rule holding that fee and client identity are not privileged, as well as the
lawyer's ethical duty to oppose disclosure of information learned during a client's representation,
make it advisable to follow this course of action.
A lawyer faced with a subpoena for information about a client must resist the subpoena if the lawyer's
testimony or the document production would violate either the attorney-client privilege or the ethical
duty of confidentiality and the client does not consent to the disclosure.

A lawyer who receives a subpoena to testify about a client may file a motion to quash asserting the
attorney-client privilege, along with any other possible grounds for refusing to comply.

A subpoena duces tecum issued to a lawyer that makes no attempt whatsoever to confine its scope to
relevant, non-privileged matters is unenforceable and must be quashed.

 Representing a fugitive
Assuming the client is indeed properly characterized as a fugitive, defense counsel must take into
account the boundaries of permissible advocacy. It bears noting that any physical act intended to
harbor or conceal a fugitive so as to prevent his discovery or arrest arguably could constitute a separate
criminal violation.

A lawyer “is free to continue to give legal advice to [a fugitive] client and to represent him before the
authorities, as long as [the lawyer] does nothing to aid the client to escape trial.

 Client is under conditions of bail

“Where a client is under conditions of bail and defies a lawful court order to appear, his 'whereabouts'
are not unqualifiedly protected by the attorney-client privilege, and the attorney may be compelled to
disclose information of the client's whereabouts."

Lawyer who learned from client's wife that client had left with suitcase for "parts unknown" had firm
factual basis for believing client jumped bond and did not intend to appear for trial, thus had duty to
advise court to avoid assisting in criminal act.

 An attorney representing an individual who has violated the terms of bail and fled the
jurisdiction arguably has an even greater obligation as an officer of the court to seek the
prompt return of the client in compliance with a judicial release order.

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 An attorney “may not assist the [fugitive] client in any way that the lawyer knows will further an illegal
or fraudulent purpose.”
…….
Where an attorney believes, but does not know, conduct to be illegal or fraudulent, the attorney may
act on behalf of the fugitive client, but “only after assuring him or herself that there is reasonable
support for an argument that the client’s intended use of the fruits of the representation will not
further a criminal scheme or act.

 The attorney of the plaintiff in an action may be compelled to disclose the address of his client
where the purpose of the disclosure is:

(1) making service of a court order;

(2) obtaining security for costs;
(3) fixing venue;
(4) determining the court's jurisdiction;
(5) determining the existence of the plaintiff;
(6) examining plaintiff before trial.

An attorney will not be required to disclose the address of his client

(1) when the client is not a party to the action in which the information is sought;
(2) when the client is not seeking the use of the courts;
(3) when the action in which the client was involved has gone to judgment and the attorney - client
relationship has ceased;
(4) when the action involving the client has gone to judgment and the purpose in seeking the address is
to enable the client to be pursued in subsequent actions; or
(5) when the attorney is not representing any of the parties in an action and the purpose in seeking the
address is to enable the plaintiff in the action to serve process on the attorney's client.

 Perjured Testimony
But, a defendant's right to effective assistance of counsel and an attorney's duty to his client do not
mean that an attorney has a duty to present testimony that he knows to be perjured.

Rule 19.02 - A lawyer who has received information that his client has, in the course of the
representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to
rectify the same, and failing which he shall terminate the relationship with such client in accordance
with the Rules of Court.

 Attorney's first duty when confronted with a proposal for perjurious testimony
It is universally agreed that at a minimum the attorney's first duty when confronted with a proposal for
perjurious testimony is to attempt to dissuade the client from the unlawful course of conduct.

 When false evidence

is offered by the client
"When false evidence is offered by the client, however, a conflict may arise between the lawyer's duty
to keep the client's revelations confidential and the duty of candor to the court. Upon ascertaining that

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material evidence is false, the lawyer should seek to persuade the client that the evidence should not be
offered or, if it has been offered, that its false character should immediately be disclosed."

 Example of statements of an attorney in court withdrawing as counsel because of client’s

perjured evidence
"I am totally unable to proceed in accordance with my duties as an attorney, under the rules laid down
by the Supreme Court [], and in accordance with the oath of office I took. In addition, I am unable to
proceed in accordance with my client's wishes. I cannot reconcile the two.”
"And I think that if I am forced to go forward that I am placed in the position of either not rendering
effective assistance to my client in accordance with his wishes, or being unethical.“

 When making his motion to withdraw

We agree that the attorney's duty to protect privileged communications between himself and his client
is paramount. In cases such as the one now before this court, the attorney, when making his motion to
withdraw, should maintain silence with respect to all privileged communications.
Trial counsel should not have revealed the specific facts which led him to move for withdrawal.

 Court relies upon the veracity of the attorney's statement

Further, when an attorney states to the court that ethical considerations require that he withdraw from
a case, the court may rely upon the veracity of the attorney's statement because “attorneys are officers
of the court and `when they address the judge solemnly upon a matter before the court, their
declarations are virtually made under oath.”

 Client’s confidentiality
prevails over perjury
Thus, the attorney may not breach his duty of maintaining his client's confidences even when he
knows his client has previously perjured himself. Indeed, in recognition of the preeminence of this
duty, Code of Professional Responsibility [was amended in 1974] to carve out an exception to an
attorney's duty to reveal fraud when the knowledge of the fraud is based upon a privileged
communication.

The trial court may explore the adequacy of trial counsel's representations regarding his grounds for
withdrawal, but in the course of this inquiry, the court may not compel the attorney to disclose any
confidential communications.

 Span of Confidentiality
"The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege
(which includes the work product doctrine) in the law of evidence and the rule of confidentiality
established in professional ethics.
attorney-client privilege applies in judicial
The and other proceedings in which a lawyer may be called as a witness or otherwise required to
produce evidence concerning a client.

……..
The rule of client-lawyer confidentiality applies in all situations other than those where evidence is
sought from the lawyer through compulsion of law.
The confidentiality rule applies not merely to matters communicated in confidence by the client but also
to all information relating to the representation, whatever its source. A lawyer may not disclose such

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information except as authorized or required by the Rules of Professional Conduct or other law.“ – In re:
David McLane Bryan, 61 P.3d 641 (2003)

 Exceptions to the attorney-client privilege

waiver by client consent,

the crime-fraud exception,

the testamentary exception,

the attorney self-defense exception, and

the government entity exception.

 The waiver exception allows the client to waive the attorney-client privilege. Since the waiver is
at the will, and for the most part, the control of the client, it does not hinder open
communications.

 The crime-fraud exception applies where, by an in camera review, a court determines that the
confidential communications were made in furtherance of, or in an attempt to conceal, a crime
or fraud. While the knowledge that such communications are not privileged might hinder a
client's open communication, that is an acceptable result, since legal advice should not be used
for illegal purposes.

 The testamentary exception, as the only exception dealing with a deceased client, allows
disclosure of information necessary to reconcile a disputed estate. Presumably the client would
want his confidential communications disclosed to further such a purpose.

 The attorney-self defense exception allows an attorney to reveal confidential communications

only as necessary to put on a defense, which‘ should not hinder communication since such a
situation is usually the unforeseen consequence of an attorney-client relationship gone bad.

 Apart from the crime-fraud exception, some situations ethically require lawyers to disclose
communications

Perjury. If the attorney knows a witness is about to give, or has given, perjured testimony, she must
inform the court. (Importantly, though, this obligation may not apply if the perjuring witness is the
client. See I told my lawyer I’m planning on telling a lie on the stand. What will happen?)
Crucial evidence. If the client gives the attorney a crucial piece of evidence, the attorney may have to
turn it over.
Missing person. If the client tells the attorney the location of a missing witness or victim whose life is in
imminent danger, the attorney may have to disclose it.
Threats. If the client threatens to harm someone—for instance, a witness, attorney or judge—the lawyer
may have to report the threat.

 Communication to commit crime or fraud not privileged

13
 "The reason of the principle which holds such communications not to be privileged is that it is not
within the professional character of a lawyer to give advice upon such subjects, and that it is no
part of the profession of an attorney or counselor at law to be advising persons as to how they
may commit crimes or frauds, or how they may escape the consequences of contemplated
crimes and frauds.

The relation of attorney and client cannot exist for the purpose of counsel in concocting crimes.

The protection which the law affords to communications between attorney and client has
reference to those which are legitimately and properly within the scope of a lawful employment,
and does not extend to communications made in contemplation of a crime, or perpetration of a
fraud. -Dissenting opinion, Regala et. al. v. Sandiganbayan, G. R. No. 105938 [1996]

……..

When an attorney presents a motion to the court to withdraw from a case because he knows that his
client intends to present perjured testimony, he is confronted with the dilemma between informing the
court of the grounds which require him to withdraw and his duty to his client to maintain the
confidentiality of privileged communications.

 The privileged information bears a relationship to the alleged crime or fraud

In order to vitiate the attorney-client privilege, the court must make a finding that the attorney-client
relationship was intended to further continuing or future criminal or fraudulent activity.
The party challenging the privilege must (1) make an independent prima facie case that a crime has
been committed, and (2) then demonstrate that the privileged information bears a relationship to the
alleged crime or fraud.
In the instant case, the district court determined that CITGO engaged in fraud, but did not determine
whether the privileged information bore a relationship to that fraud. Without such a finding, we cannot
determine whether the district court erred in applying the crime-fraud exception.

 Prior knowledge of counsel not required

The crime or fraud exception applies even where the attorney is completely unaware that his advice is
sought in furtherance of such an improper purpose. – USA and Christopher v. Hodge and Zweig, law
partnership, 548 F.2d 1347 (1977)
Lawyers' skills may not be employed, even without their knowledge, in furthering crimes.

 Confidential information must be revealed only in the appropriate forum

A lawyer can reveal confidential client information only in the appropriate forum and only to the extent
necessary to offer protection.

 WON invoices for work on currently pending litigation are within the scope of the
attorney-client privilege
GENERAL RULE:
Invoices for legal services are generally not communicated for the purpose of legal consultation.
While invoices may convey some very general information about the process through which a client
obtains legal advice, their purpose is to ensure proper payment for services rendered, not to seek or
deliver the attorney‘s legal advice or representation.
Unlike an opinion letter, a billing invoice is not ―made for the purpose of the legal representation.

14
But while billing invoices are generally not ―made for the purpose of legal representation, the
information contained within certain invoices may be within the scope of the privilege.

………
To the extent that billing information is conveyed ―for the purpose of legal representation –– perhaps
to inform the client of the nature or amount of work occurring in connection with a pending legal
issue –– such information lies in the heartland of the attorney-client privilege. And even if the
information is more general, such as aggregate figures describing the total amount spent on continuing
litigation during a given quarter or year, it may come close enough to this heartland to threaten the
confidentiality of information directly relevant to the attorney‘s distinctive professional role.
When a legal matter remains pending and active, the privilege encompasses everything in an invoice,
including the amount of aggregate fees. This is because, even though the amount of money paid for
legal services is generally not privileged, an invoice that shows a sudden uptick in spending―might
very well reveal much of [a government agency]‘s investigative efforts and trial strategy.

…….
Midlitigation swings in spending, for example, could reveal an impending filing or outsized concern
about a recent event.
The same may not be true for fee totals in legal matters that concluded long ago. In contrast to
information involving a pending case, a cumulative fee total for a long-completed matter does not
always reveal the substance of legal consultation.
When a legal matter remains pending and active, the privilege encompasses everything in an invoice,
including the amount of aggregate fees. This is because, even though the amount of money paid for
legal services is generally not privileged, an invoice that shows a sudden uptick in spending―might
very well reveal much of [a government agency]‘s investigative efforts and trial strategy.

 WON possession of the legal counsel of unprivileged information is protected from discovery
A client cannot protect unprivileged information from discovery by transmitting it to an attorney.
Knowledge which is not otherwise privileged does not become so merely by being communicated to an
attorney.

 Searches of law offices and seizures of materials

The law firm involved in these appeals was served with a search warrant authorizing the search of its
office and the seizure of certain identified files and other material. The application for the warrant was
supported by an affidavit of a special agent asserting the bases for probable cause to believe that
evidence of certain identified federal crimes would be found at the office. Because of a recognized
concern for privacy interests, the terms of the warrant provided that certain files were not to be
inspected without leave of court, pursuant to a notice procedure.
……….
Courts have consistently allowed searches of law offices when the attorneys involved were the targets
of criminal investigations.
This court stated that the appropriate role of the reviewing court in such circumstances is to "scrutinize
carefully the particularity and breadth of the warrant authorizing the search, the nature and scope of
the search, and any resulting seizure."
In so holding, we are cognizant of the concern that some of the items seized might contain privileged
information. We are satisfied that the attorney-client privilege is sufficiently protected by the procedure
established by the magistrate requiring that the government obtain leave of the court before examining
any seized items.

15
  Search warrant of law office
Upon petition of the agent and representatives of the Bureau of Internal Revenue, named Narciso
Mendiola, who alleged that, according to information given him by a person whom he considered
reliable, certain fraudulent book letters and papers or records were being kept in the building marked
No. 482 on Juan Luna Street, Binondo, Manila, occupied by Santiago Sy Juco, a warrant to search the
building in question was issued against said person on March 7, 1933, by the Court of First Instance of
Manila, through Judge Mariano A. Albert.
…..
In said warrant, the peace officers to whom it was directed for execution were required to seize the
above-stated articles for the purpose of delivering them to the court, for the proper action to be taken
in due time. After making the required search the officers concerned seized, among things, an art metal
filing cabinet claimed by Attorney Teopisto B. Remo to be his and to contain some letters, documents
and papers belonging to his clients. - PP v. Sy Juco, G.R. No. L-41957 August 28, 1937

……….
The search warrant in question could not and should not in any way affect the appellant attorney on the
ground that he is not the person against whom it had been sought. It is Santiago Sy Juco alone against
whom the search warrant could be used, because it had been obtained precisely against him.
It is clear that the court could not and cannot order the opening of the art metal filing cabinet in
question because, it having been proven that it belongs to the appellant attorney and that in it he
keeps the records and documents of his clients, to do so would be in violation of his right as such
attorney, since it would be tantamount to compelling him to disclose or divulge facts or things belonging
to his clients, which should be kept secret, unless she is authorized by them to make such disclosure, it
being a duty imposed by law upon an attorney to strictly preserve the secrets or communications made
to him. - PP v. Sy Juco, G.R. No. L-41957 August 28, 1937

 WON information demanded by an Internal Revenue Service subpoena is protected by the

attorney-client privilege, by the fifth amendment privilege against self-incrimination
Hodge and Zweig, appellants are both members of the State Bar and are partners in the practice of law.
In November 1973 IRS issued a summons directed to appellants, individually and as a law partnership.
The summons directed the attorneys to produce various business records pertaining to a client for the
calendar years 1970, 1971, and 1972.

…….
The requested information pertains to:

(1) payments received by the attorneys from [client] for legal services rendered to him;

(2) payments received from [client] for services rendered to Rena Sandino Joseph, Cindy Purdy, and
Stephen Purdy;

(3) payments received from [client] on behalf of any other person;

(4) payments received from any other person on behalf of [client].

…….

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Appellants next contend that the attorney-client privilege precludes enforcement of the IRS summons.
They assert the privilege on behalf of [a client] and other named clients, and on behalf of unnamed
clients whose identity would necessarily be disclosed if the summons were enforced.

As a general rule, where a party demonstrates that there is a legitimate need for a court to require
disclosure of such matters, the identity of an attorney's clients and the nature of his fee arrangements
with his clients are not confidential communications protected by the attorney-client privilege.

The IRS has demonstrated that the information at issue is sought for a legitimate purpose—the
collection of tax revenues. As a threshold matter, therefore, the information is not privileged.

…….
The general rule, however, is qualified by an important exception: A client's identity and the nature of
that client's fee arrangements may be privileged where the person invoking the privilege can show that
a strong probability exists that disclosure of such information would implicate that client in the very
criminal activity for which legal advice was sought.

In light of the above, we conclude that a prima facie case exists that payments to appellants, if any,
made during the years 1970, 1971, and 1972 by and on behalf of Sandino were made pursuant to the
conspiratorial agreement and thus in furtherance of the continuing drug conspiracy. We therefore hold
that disclosure of the information requested in the IRS summons is required.

……..
Because neither the client's identity nor the nature of his fee arrangements are generally privileged, the
intrusive effect of our ruling in this case is minimal. And to the extent that appellants' clients had an
expectation of confidentiality, that expectation was ill-founded; it has been sufficiently shown that the
attorneys were retained in furtherance of a continuing conspiracy. There was a failure of one of the
essential preconditions of the privilege. While this is a difficult case, we are convinced that disclosure is
required.

 WON a lawyer can refuse to disclose the identity of one who paid fees and furnished bond
money for third persons
[The suspects were] apprehended on a shrimper with eighteen tons of marihuana, were tried and
convicted in the Eastern District of Louisiana. Appellee Andrew C. Pavlick, a [law] practitioner,
represented them. Thereafter each was granted immunity and brought before a grand jury investigating
the transaction. Each waived the attorney-client privilege and testified that he knew nothing of where
the funds came from that were used to post bond and compensate Pavlick.
……..
[One of the suspects] added that when he was recruited for the drug-smuggling venture, he was
promised that he would be "taken care of" if arrested. At his bond hearing, Pavlick, whom [one of the
suspects] had never seen or heard of before, appeared, introduced himself, stated that an unidentified
person had put up funds for him to represent the three and secure their release on bond, and
proceeded to do so.
When the grand jury called Pavlick, he refused to identify the smugglers' benefactor, maintaining that he
also was a client and invoking the attorney-client privilege.

……..

17
We therefore adopt the holding of the Ninth Circuit in Hodge & Zweig as our own: where the
government makes a prima facie showing that an agreement to furnish legal assistance was part of a
conspiracy, the crime or fraud exception applies to deny a privilege to the identity of him who foots the
bill-and this even though he be a client of the attorney and the attorney unaware of the improper
arrangement.

Such an agreement, of course, need only be an effective one, need not be express, and might in a
proper case be found to arise even from a custom or a prior course of conduct toward other
apprehendees. Our case is an easy one, the agreement being express and Mr. Pavlick's services having
rather clearly been furnished in redemption of it.

 WON respondent committed a breach of trust and confidence by disclosing complainant's

alleged intention to bribe government officials in connection with a pending case
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, xxx
…….
x x x 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 x x 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.
…...
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 insisted that there was nothing libelous in his imputations of dishonest business practices to
complainant and his revelation of complainant's desire to bribe government officials in relation to his
pending criminal case. He claimed to have made these statements in the course of judicial proceedings
to defend his case and discredit complainant's credibility by establishing his criminal propensity to
commit fraud, tell lies and violate laws. 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.
……..
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. If the unlawful purpose is avowed, as in this case, the complainant's 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

18
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.
……..
Be that as it may, respondent's explanation that it was necessary for him to make the disclosures in his
pleadings fails to satisfy us. 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 respondent's
professional competence and legal advice were not being attacked in said case. A lawyer must conduct
himself, especially in his dealings with his clients, with integrity in a manner that is beyond reproach. His
relationship with his clients should be characterized by the highest degree of good faith and fairness.
Thus, the Court agrees with the evaluation of the IBP and finds that respondent's allegations and
disclosures in the foreclosure case amount to a breach of fidelity sufficient to warrant the imposition of
disciplinary sanction against him. – Genato v. Atty. Silapan, A.C. No. 4078, July 14, 2003

WON the Sixth Amendment right of a criminal defendant to assistance of counsel is violated
when an attorney refuses to cooperate with the defendant in presenting perjured testimony
at his trial.

……..
[Accused] was charged with murder, and when counsel was appointed, he objected to the lawyer
initially appointed, claiming that he felt uncomfortable with a lawyer who had formerly been a
prosecutor.
[Another counsel] was then appointed, and immediately began an investigation. [Accused] gave him a
statement that he had stabbed [the victim] as the latter "was pulling a pistol from underneath the pillow
on the bed."
Upon [further] questioning by counsel, however, [accused] indicated that he had not actually seen a
gun, but that he was convinced that [the victim] had a gun.
…….
No pistol was found on the premises; shortly after the police search following the stabbing, which had
revealed no weapon, the victim's family had removed all of the victim's possessions from the apartment.
[Counsel] interviewed [accused’s] companions who were present during the stabbing, and none had
seen a gun during the incident.
[Counsel] advised [the accused] that the existence of a gun was not necessary to establish the claim of
self-defense, and that only a reasonable belief that the victim had a gun nearby was necessary, even
though no gun was actually present.
…….
"[W]e could not allow him to [testify falsely], because that would be perjury, and, as officers of the
court, we would be suborning perjury if we allowed him to do it; . . . I advised him that, if he did do that,
it would be my duty to advise the Court of what he was doing, and that I felt he was committing
perjury; also, that I probably would be allowed to attempt to impeach that particular testimony."
…….
"When false evidence is offered by the client, however, a conflict may arise between the lawyer's duty
to keep the client's revelations confidential and the duty of candor to the court.
Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the
evidence should not be offered or, if it has been offered, that its false character should immediately be
disclosed."
…….

19
That court held that the right to have counsel present all appropriate defenses does not extend to using
perjury, and that an attorney's duty to a client does not extend to assisting a client in committing
perjury.
It is universally agreed that, at a minimum, the attorney's first duty when confronted with a proposal
for perjurious testimony is to attempt to dissuade the client from the unlawful course of conduct.

………
Rule 19.02 - A lawyer who has received information that his client has, in the course of the
representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to
rectify the same, and failing which he shall terminate the relationship with such client in accordance
with the Rules of Court.

 "Does the attorney-client privilege protect an attorney from revealing information on the
whereabouts of his or her client?"
…..
Appellant's client, Carlos Aquino, was scheduled to stand trial on April 7, 1983, on a charge of rape.
When Aquino did not appear for trial, the [state] moved the trial court to compel appellant to "disclose
the address and telephone number of the Defendant.”
…….
Appellant is an attorney. She was before the trial court representing one Carlos Aquino, who was
scheduled to stand trial on a charge of rape. On the Commonwealth's petition, the trial court granted
appellant immunity from the use against her of her testimony disclosing "any information she may
have regarding the whereabouts of the . . . Defendant, Carlos Aquino, and any information she may
have on how to locate the Defendant Aquino."
When the court ordered appellant to provide this information, appellant declined to do so on the
grounds that the court lacked jurisdiction to compel her testimony; that the grant of immunity did not
effectively protect her rights under the Fifth Amendment; and that the information she had been
ordered to disclose was protected by the attorney-client privilege.
The court then found appellant guilty of civil contempt and ordered her to pay a fine…
……
We are not asking [appellant] to tell us how to find [defendant] or anything. We have a right to know.
This court has a right to know where he is, if she knows, and that's all.
We are not asking what communications he has had with her, anything he said with regard to where he
has been hiding. . . . We are merely asking is there an address, if she knows his address and the Court
deserves to know that.
…..
At the first hearing, the [state’s] motion was "to [c]ompel defense counsel [appellant] to disclose the
address and telephone number of the Defendant,"
"We are not asking [appellant] to tell us how to find him or anything. . . . We are merely asking is there
an address, if she knows his address and the Court deserves to have that,"
……
Then the trial court asked "whether [appellant] knows the whereabouts of the Defendant.
- Commonwealth v. [Atty.] Maguigan, 323 Pa. Superior Ct. 317 (1983)

 WON the attorney involved in this case properly declined to disclose to a grand jury the
whereabouts of a client who had consulted the attorney about a fugitive warrant.

[Counsel] refused to answer five questions, asserting the attorney-client privilege:

20
(1) What number did you call when you called him back [during the week of June 29, 1987]?
(2) Did you advise your client that in the opinion of the Warren County Prosecutor's Office, he was a
fugitive from justice?
(3) Have you advised him that he should comply with the law?
(4) Can you tell the Grand Jury what his occupation is?
(5) Can you tell the Grand Jury by whom he is employed at the present time?

……
We perceive no sound reason why the communication that consists of, or includes, a client's address
should not, at least in a case such as this, be governed by the same considerations that obtain as to
other communications that are accorded the privilege. We therefore decide the issues involved not on
the basis of whether an address is, or may ever be, the subject of a protected confidential
communication between a client and attorney but on the basis of the purposes for which the privilege
exists and the reasons for its assertion in the context of the particular case.
Thus, whether a client's address may be considered a confidence protected by the attorney-client
privilege necessarily depends on the surrounding circumstances in which the address was given.

In deciding whether the "crime or fraud" exception applies, the relevant factor to consider is whether
the client consulted with the attorney in order:
(1) to aid the client "in the commission of any crime";
(2) to enable the client "to avoid any criminal investigation or proceeding pending at the time the advice
was given"; or
(3) to assist the client to "avoid lawful process in any proceeding pending at the time the advice was
given."

In the current case we need to address three questions:

first, whether an address is to be regarded as a confidence by a client or as a communication related to
the representation;
second, whether the so-called "crime or fraud" exception to the privilege requires disclosure of the
address; and
finally, whether the circumstances are such that the privilege must yield to other fundamental values of
our justice system. We will treat the client's telephone number and employer as a form of address.
…….
Our conceptual resistance to recognizing the privilege here stems from the near certainty that the client
is a wrong-doer. Unlike a suspect accused of crime, who must be presumed to be innocent, we are
virtually positive that this client has done something wrong by jumping bail.

Courts that have addressed the question of disclosure have uniformly held that a determination of
whether a client's whereabouts must be disclosed will depend on an analysis of the facts of the case
and the nature of the communication involved.

 WON an attorney in the Office of the President, having been called before a federal grand
jury, may refuse, on the basis of a government attorney-client privilege, to answer questions
about possible criminal conduct by government officials and others. -In re Bruce R. Lindsey, 158
F.3d 1263 (1998)

21
  “Government entity" exception
As the newest exception, the "government entity" exception is a companion to the crime-fraud
exception. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8t Cir. 1997), the Eighth Circuit held
that the confidential communications privilege does not operate between a government attorney and a
White House official in a federal criminal investigation.
By this decision, confidentiality took a back seat to the government's need for criminal justice. Like the
crime-fraud exception, the government entity exception is not concerned with promoting confidentiality
but rather with preventing misuse or abuse of the legal profession towards unsavory purposes.

 Thank you for your attention!!

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