The duty of a lawyer to preserve the client's confidences has two overlapping sources that are often confused. The first is the ETHICAL DUTY of confidentiality, which is broad: a lawyer shall preserve the confidences and secrets of the client even AFTER the attorney-client relation is terminated, and the duty extends to all information relating to the representation, whatever its source, not merely to what the client said. The second is the EVIDENTIARY PRIVILEGE under the Rules on Evidence, which is narrower and operates to exclude testimony: an attorney or person reasonably believed by the client to be licensed to engage in the practice of law cannot, without the client's consent, be examined as to any communication made by the client to them, or their advice given thereon, in the course of, or with a view to, professional employment; the protection extends as well to the attorney's secretary, stenographer, clerk, or other persons assisting the attorney. For the privilege to attach, there must be a communication made in confidence, by a client or prospective client, to a lawyer acting as such, for the purpose of seeking legal advice or assistance. Several boundaries matter. The privilege belongs to the CLIENT, so only the client may waive it. It covers communications, not the underlying FACTS: a client cannot shield a fact from discovery merely by telling it to a lawyer. It attaches to a PROSPECTIVE client, so consultations that do not ripen into an engagement are still protected. It survives the termination of the relationship and, as to the evidentiary privilege, the client's death, subject to the recognized exceptions. The exceptions are narrow. The CRIME-FRAUD exception is the principal one: communications made for the purpose of committing or planning a FUTURE crime or fraud are not privileged, though communications about a PAST crime are. Others include a communication relevant to an issue between parties claiming through the same deceased client, one relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, and disclosure permitted where necessary to collect the lawyer's fees or to defend the lawyer against an accusation of wrongful conduct. Confidentiality also underpins the rule against CONFLICTS OF INTEREST, which is why a lawyer may not represent conflicting interests or use a former client's confidences against them in a substantially related matter. So confidentiality is broad and perpetual, the evidentiary privilege is narrower and belongs to the client, and the chief exception is communications in furtherance of a future crime or fraud.
Two Different Duties
The ETHICAL duty of confidentiality is broad — it covers all information relating to the representation, whatever its source, and survives the termination of the relationship. The EVIDENTIARY privilege is narrower and operates only to exclude testimony.
What the Privilege Requires
A communication made in confidence, by a client or prospective client, to a lawyer acting as such, for the purpose of seeking legal advice or assistance. It extends to the attorney's secretary, stenographer, clerk, and assistants.
Its Boundaries
- It belongs to the CLIENT — only the client may waive it;
- It covers communications, not the underlying FACTS — a fact is not shielded merely by telling a lawyer;
- It attaches to a PROSPECTIVE client, even if no engagement follows; and
- It survives the end of the relationship and the client's death, subject to the exceptions.
The Exceptions
The CRIME-FRAUD exception is the chief one: communications to commit or plan a FUTURE crime or fraud are not privileged — though those about a PAST crime are. Others: issues between parties claiming through the same deceased client; a breach of duty between lawyer and client; and disclosure necessary to collect fees or to defend against an accusation.
Why It Drives Conflicts Rules
Confidentiality underpins the bar on CONFLICTS OF INTEREST — a lawyer may not represent conflicting interests or use a former client's confidences against them in a substantially related matter.
Frequently Asked Questions
Does lawyer-client privilege end when the case ends? No. The ethical duty to preserve the client's confidences continues even after the attorney-client relation is terminated, and the evidentiary privilege likewise survives, subject to the recognized exceptions.
Is a consultation privileged if I never hired the lawyer? Yes. The privilege attaches to communications by a prospective client made for the purpose of seeking legal advice, even if the consultation does not ripen into an engagement.
Can a lawyer reveal that a client is planning a crime? Communications made for the purpose of committing or planning a future crime or fraud are not privileged under the crime-fraud exception. Communications about a past crime remain privileged.
Who can waive the privilege? The client. The privilege belongs to the client, so only the client may consent to the lawyer's examination on the privileged communication.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you have questions about your rights or options under Philippine law, our firm is available to assist. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.