ROSA F. MERCADO, COMPLAINANT, VS. ATTY. JULITO D. VITRIOLO, RESPONDENT.

Mercado versus Vitriolo

The Case

This is an administrative complaint for disbarment filed by Rosa F. Mercado against Attorney Julito D. Vitriolo, a lawyer who had once appeared for her as counsel in a civil case for annulment of marriage. Mercado accused Vitriolo of betraying the attorney-client relationship by using confidential information from that engagement to file a criminal complaint for falsification of public documents against her. The case matters because it is the Supreme Court's clearest statement of the elements of the attorney-client privilege and of who bears the burden of proving it — a doctrine that reaches far beyond this single complaint.

Procedural History

Mercado filed her administrative complaint directly with the Supreme Court. The Court, by resolution, referred the matter to the Integrated Bar of the Philippines for investigation, report, and recommendation. The Commission on Bar Discipline set two hearing dates, but the complainant failed to appear at both, so the investigating commissioner granted the respondent's motion to submit a memorandum and resolved the case on the pleadings. The Board of Governors approved the commissioner's report, found Vitriolo guilty of violating the rule on privileged communication, and recommended his suspension from the practice of law for one year. The complainant then wrote a letter of desistance to the Chief Justice. The case thus reached the Supreme Court as an original administrative matter, which the Court decided on the merits notwithstanding the desistance.

Facts

Mercado was a Senior Education Program Specialist in the Commission on Higher Education, where Vitriolo served as a Deputy Executive Director. Her husband filed a civil case for annulment of their marriage before the Regional Trial Court of Pasig City; the case was dismissed, and the dismissal became final and executory in July 1992. In August 1992, Mercado's counsel, Attorney Anastacio de Leon, died. In February 1994, Vitriolo entered his appearance as collaborating counsel for Mercado, and in March 1994 he filed a notice of substitution of counsel, informing the court that he had been appointed as her counsel in substitution of the deceased attorney.

In April 1999, Vitriolo filed a criminal complaint against Mercado before the Office of the City Prosecutor of Pasig City for falsification of public documents under the Revised Penal Code. He alleged that she had made false entries in the certificates of live birth of her two daughters, stating that she was married to a certain Ferdinand Fernandez on a date in 1979, when in truth she was legally married to Ruben Mercado on the same date one year earlier. Mercado denied the charges, insisting she had used no other name and had married only once.

Mercado then filed this disbarment complaint, claiming that the criminal complaint disclosed confidential facts relating to the annulment case that Vitriolo had handled as her counsel. She also cited several other cases pending against him before other tribunals. Vitriolo answered that the complaint was hearsay and that the birth certificates were public documents, accessible to anyone, and unconnected to any confidence reposed in him as counsel. At the Integrated Bar proceedings, Mercado never appeared and never testified.

Issues

• Whether or not the respondent violated the rule on privileged communication between attorney and client when he filed a criminal case for falsification of public documents against his former client.
• Whether or not the complainant's letter of desistance operates to terminate or bar the disbarment proceedings.

Applicable Provisions

Rule 15.02 of the Code of Professional Responsibility provides:

A lawyer shall be bound by the rule on privileged communication in respect of matters disclosed to him by a prospective client.

This fixes the duty even before a lawyer is retained, which frames the privilege the respondent is said to have breached.

Canon 21 of the Code of Professional Responsibility provides:

A lawyer shall preserve the secrets of his client even after the attorney and client relation is terminated.

This is the provision that makes the duty survive the end of the engagement, which is precisely the situation here, since the criminal complaint came years after the annulment case had ended.

Ruling

On the first issue, the Court held that the evidence failed to substantiate the complaint. The complainant never specified the confidential communication allegedly disclosed; her claims were couched in general terms. She did not spell out the facts that would determine the merit of her complaint, and the Court refused to be drawn into a guessing game. Because she never testified at the Integrated Bar hearings, there was no proof of any specific confidential information divulged without her consent. It is not enough to merely assert the attorney-client privilege; the burden of proving that the privilege applies rests on the party asserting it.

The Court laid down the elements of the privilege, drawn from Wigmore: an attorney-client or prospective attorney-client relationship, the communication made by reason of that relationship, and the communication made in confidence. It stressed that the mere relation of attorney and client does not raise a presumption of confidentiality; the client must intend the communication to be confidential. A communication for some purpose other than the professional relation — such as a document given to counsel not in his professional capacity — is not privileged.

On the second issue, the Court held that it is not bound by any withdrawal of the complaint or desistance by the complainant. The letter imparting forgiveness is inconsequential in disbarment proceedings, because the duty to discipline members of the bar belongs to the Court and is not a matter of private settlement.

Doctrine

To claim the attorney-client privilege, the proponent must establish that there was an attorney-client or prospective attorney-client relationship, that the communication was made by reason of that relationship, and that it was made in confidence. The mere existence of the relation does not create a presumption of confidentiality; the client must intend the communication to be confidential. The burden of proving that the privilege applies lies on the party asserting it. The lawyer's duty to preserve secrets survives termination of the engagement, as Canon 21 commands, and extends to matters disclosed by a prospective client under Rule 15.02. Finally, disbarment is not a private action; the complainant's desistance does not divest the Court of its authority to discipline.

Disposition

The complaint against Attorney Julito D. Vitriolo was dismissed for lack of merit.

Remember This

The single line to memorize: the attorney-client privilege is not presumed from the relation — it must be proved by the one asserting it, element by element. Examiners use this case to test the elements of the privilege, the burden of proof in disbarment, and the rule that a complainant's desistance does not bind the Supreme Court.