Origen, modelo pedagógico y componentes de las modalidades de extensión del

(NOT NECESSARILY A PUBLIC OFFICER ALTHOUGH ALL LAWYERS ARE OFFICERS OF THE COURT)

• ACTS PUNISHED:

a.

b.

c.

confidential information from the latter and without the latter’s consent (damage not necessary)

Note: When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance, there must be damage to his client.

* Under the rules on evidence, communications made with prospective clients to a lawyer with a view to engaging his professional services are already privileged even though the client-lawyer relationship did not eventually materialize because the client cannot afford the fee being asked by the lawyer. The lawyer and his secretary or clerk cannot be examined thereon.

* That this communication with a prospective client is considered privileged, implies that the same is confidential. Therefore, if the lawyer would reveal the same or otherwise accept a case from the adverse party, he would already be violating Article 209. Mere malicious breach without damage is not violative of Article 209; at most he will be liable administratively as a lawyer, e.g., suspension or disbarment under the Code of Professional Responsibility.

Illustration:

B, who is involved in the crime of seduction wanted A, an attorney at law, to handle his case. A received confidential information from B. However, B cannot pay the professional fee of A. C, the offended party, came to A also and the same was accepted.

A did not commit the crime under Article 209, although the lawyer’s act may be considered unethical. The client-lawyer relationship between A and B was not yet established. Therefore, there is no trust to violate because B has not yet actually engaged the services of the lawyer A. A is not bound to B. However, if A would reveal the confidential matter learned by him from B, then Article 209 is violated because it is enough that such confidential matters were communicated to him in his professional capacity, or it was made to him with a view to engaging his professional services.

Here, matters that are considered confidential must have been said to the lawyer with the view of engaging his services. Otherwise, the communication shall not be considered privileged and no trust is violated.

Illustration:

A went to B, a lawyer/notary public, to have a document notarized. A narrated to B the detail of the criminal case. If B will disclose what was narrated to him there is no betrayal of trust since B is acting as a notary public and not as a counsel. The lawyer must have learned the confidential matter in his professional capacity.

Several acts which would make a lawyer criminally liable:

(1) Maliciously causing damage to his client through a breach of his professional duty. The breach of professional duty must be malicious. If it is just incidental, it would not give rise to criminal liability, although it may be the subject of administrative discipline;

(2) Through gross ignorance, causing damage to the client; (3) Inexcusable negligence;

(4) Revelation of secrets learned in his professional capacity;

(5) Undertaking the defense of the opposite party in a case without the consent of the first client whose defense has already been undertaken.

Note that only numbers 1, 2 and 3 must approximate malice.

* A lawyer who had already undertaken the case of a client cannot later on shift to the opposing party. This cannot be done.

* Under the circumstances, it is necessary that the confidential matters or information was confided to the lawyer in the latter’s professional capacity.

* It is not the duty of the lawyer to give advice on the commission of a future crime. It is, therefore, not privileged in character. The lawyer is not bound by the mandate of privilege communication if he reports such commission of a future crime. It is only confidential information relating to crimes already committed that are covered by the crime of betrayal of trust if the lawyer should undertake the case of opposing party or otherwise divulge confidential information of a client.

* Under the law on evidence on privileged communication, it is not only the lawyer who is protected by the matter of privilege but also the office staff like the secretary.

* The nominal liability under this article may be constituted either from breach of professional duties in the handling of the case or it may arise out of the confidential relation between the lawyer and the client. BREACH OF PROFESSIONAL DUTY

> Tardiness in the prosecution of the case for which reason the case was dismissed for being non- prosecuted; or tardiness on the part of the defense counsel leading to declaration of default and adverse judgment.

> Professional duties – Lawyer must appear on time. But the client must have suffered damage due to the breach of professional duty. Otherwise, the lawyer cannot be held liable.

> If the prosecutor was tardy and the case was dismissed as non-prosecuted, but he filed a motion for reconsideration which was granted, and the case was continued, the lawyer is not liable, because the client did not suffer damage.

> If lawyer was neglectful in filing an answer, and his client declared in default, and there was an adverse judgment, the client suffered damages. The lawyer is liable.

BREACH OF CONFIDENTIAL RELATION

> Revealing information obtained or taking advantage thereof by accepting the engagement with the adverse party. There is no need to prove that the client suffered damages. The mere breach of confidential relation is punishable.

> In a conjugal case, if the lawyer disclosed the confidential information to other people, he would be criminally liable even though the client did not suffer any damage.

> The client who was suing his wife disclosed that he also committed acts of unfaithfulness. The lawyer talked about this to a friend. He is, thus, liable.

Article 210

DIRECT BRIBERY