Lex Mundi Global Attorney-Client Privilege Guide |
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Philippines |
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(Asia Pacific)
Firm
Romulo Mabanta Buenaventura Sayoc & De Los Angeles
Contributors
Tranquil Salvador |
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| Is the ACP recognized in your jurisdiction? | Yes, it is expressly recognized under Section 24(b), Rule 130 of the Revised Rules of Court in the Philippines which provides that “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.” |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | Not applicable as the ACP is recognized in the Philippines. |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | There is no distinction as Section 24(b), Rule 130 covers both civil and criminal proceedings. Government authorities cannot require disclosure of attorney-client communications unless the communication pertains 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. [People v. Sandiganbayan, 275 SCRA 505 (1997)] |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | While there is no formal test in our jurisdiction, the ACP in the corporate context would cover communications between the attorney and all employees of the corporation regardless of rank or position, so long as the communication was in the course of, or with a view to, professional employment of the attorney. [Section 24(b), Rule 130] |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | No. The burden is the same for in-house counsel and outside counsel. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Yes, the in-house counsel, being an attorney, can assert ACP. [Section 24(b), Rule 130] |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | All lawyers, including in-house counsel, are not just allowed but required to be members of the Integrated Bar of the Philippines. [In re: Edillon, A.M. No. 1928, 1978] |
| Is the common interest doctrine recognized in your jurisdiction? | No, the common interest doctrine is not recognized in the Philippines. Common legal interest cannot be used to overcome the ACP, because an attorney’s communication with the client is personal as to the client. |
| How is the doctrine articulated in your jurisdiction? | N/A |
| Must a common interest agreement be in writing? | N/A |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Litigation funding is not allowed in the Philippines. A Champertous agreement whereby a lawyer pays for the litigation expenses in exchange for a portion of the judgment award is not allowed. [Bautista v. Gonzales, A.M. No. 1625, 1990] |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | N/A |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes, the crime-fraud exception is recognized in the Philippines, as 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. [People v. Sandiganbayan, 275 SCRA 505 (1997)] |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | The ACP extends only to communications within the lawful employment of the lawyer and not to those involving crime or fraud, and in that case no ACP attaches. [Genero v. Silapan, A.C. No. 4078, 2003] |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes, information is protected not under the Work Product Doctrine but under Section 24(b), Rule 130 of the Revised Rules of Court of the Philippines which covers information obtained or prepared in anticipation of litigation by the attorney, as this covers an attorney’s work in the course of his professional employment. |
| What are the elements of the protection in your jurisdiction? | First, that the communication was between the attorney and client. Second, that the communication was made in the course of, or with a view to, professional employment of the attorney. Third, the communication does not pertain 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. [Section 24(b), Rule 130 and People v. Sandiganbayan, 275 SCRA 505 (1997)] |
| Does your jurisdiction recognize an accountant-client privilege? | Yes. Section 29 of the Revised Accountancy Law provides that “all working papers, schedules and memoranda made by a certified public accountant and his staff in the course of an examination, including those prepared and submitted by the client, incident to or in the course of an examination, by such certified public accountant, except reports submitted by a certified public accountant to a client shall be treated confidential and privileged and remain the property of such certified public accountant in the absence of a written agreement between the certified public accountant and the client, to the contrary, unless such documents are required to be produced through a subpoena issued by any court, tribunal, or government regulatory or administrative body.” |
| Does your jurisdiction recognize a mediation privilege? | Yes. Section 9 of the Alternative Dispute Resolution Act of 2004 states that “information obtained through mediation shall be privileged and confidential.” This is subject to exceptions found in Section 11 of the same law. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes. Court-Annexed Mediation and Judicial Dispute Resolution rules make settlement negotiations privileged and confidential. |
Lex Mundi Global Attorney-Client Privilege Guide
Philippines
(Asia Pacific) Firm Romulo Mabanta Buenaventura Sayoc & De Los AngelesContributors Tranquil Salvador
Updated 25 Mar 2020Yes, it is expressly recognized under Section 24(b), Rule 130 of the Revised Rules of Court in the Philippines which provides that “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.”
Not applicable as the ACP is recognized in the Philippines.
There is no distinction as Section 24(b), Rule 130 covers both civil and criminal proceedings. Government authorities cannot require disclosure of attorney-client communications unless the communication pertains 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. [People v. Sandiganbayan, 275 SCRA 505 (1997)]
While there is no formal test in our jurisdiction, the ACP in the corporate context would cover communications between the attorney and all employees of the corporation regardless of rank or position, so long as the communication was in the course of, or with a view to, professional employment of the attorney. [Section 24(b), Rule 130]
No. The burden is the same for in-house counsel and outside counsel.
Yes, the in-house counsel, being an attorney, can assert ACP. [Section 24(b), Rule 130]
All lawyers, including in-house counsel, are not just allowed but required to be members of the Integrated Bar of the Philippines. [In re: Edillon, A.M. No. 1928, 1978]
No, the common interest doctrine is not recognized in the Philippines. Common legal interest cannot be used to overcome the ACP, because an attorney’s communication with the client is personal as to the client.
N/A
N/A
Litigation funding is not allowed in the Philippines. A Champertous agreement whereby a lawyer pays for the litigation expenses in exchange for a portion of the judgment award is not allowed. [Bautista v. Gonzales, A.M. No. 1625, 1990]
N/A
Yes, the crime-fraud exception is recognized in the Philippines, as 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. [People v. Sandiganbayan, 275 SCRA 505 (1997)]
The ACP extends only to communications within the lawful employment of the lawyer and not to those involving crime or fraud, and in that case no ACP attaches. [Genero v. Silapan, A.C. No. 4078, 2003]
Further, lawyers are mandated not to counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system [Rule 1.02, Canon 1 of the Code of Professional Responsibility] and to employ only fair and honest means to attain the lawful objectives of his client [Rule 19.01, Canon 19 of the Code of Professional Responsibility].
Yes, information is protected not under the Work Product Doctrine but under Section 24(b), Rule 130 of the Revised Rules of Court of the Philippines which covers information obtained or prepared in anticipation of litigation by the attorney, as this covers an attorney’s work in the course of his professional employment.
First, that the communication was between the attorney and client. Second, that the communication was made in the course of, or with a view to, professional employment of the attorney. Third, the communication does not pertain 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. [Section 24(b), Rule 130 and People v. Sandiganbayan, 275 SCRA 505 (1997)]
Yes. Section 29 of the Revised Accountancy Law provides that “all working papers, schedules and memoranda made by a certified public accountant and his staff in the course of an examination, including those prepared and submitted by the client, incident to or in the course of an examination, by such certified public accountant, except reports submitted by a certified public accountant to a client shall be treated confidential and privileged and remain the property of such certified public accountant in the absence of a written agreement between the certified public accountant and the client, to the contrary, unless such documents are required to be produced through a subpoena issued by any court, tribunal, or government regulatory or administrative body.”
Yes. Section 9 of the Alternative Dispute Resolution Act of 2004 states that “information obtained through mediation shall be privileged and confidential.” This is subject to exceptions found in Section 11 of the same law.
Yes. Court-Annexed Mediation and Judicial Dispute Resolution rules make settlement negotiations privileged and confidential.