Rosa F. Mercado Vs - Julito D. Vitriolo

ROSA F. MERCADO VS . JULITO D.
VITRIOLO
Facts: Rosa F. Mercado filed the instant administrative complaint against Atty. Julito D. Vitriolo,
seeking his disbarment from the practice of law. The complainant alleged that respondent
maliciously instituted a criminal case for falsification of public document against her, a former
client, based on confidential information gained from their attorney-client relationship.
Complainant’s husband filed Civil Case No. 40537 entitled Ruben G. Mercado v. Rosa C.
Francisco, for annulment of their marriage with the Regional Trial Court (RTC) of Pasig City.
This annulment case had been dismissed by the trial court, and the dismissal became final and
executory on July 15, 1992. Atty. Anastacio P. de Leon, counsel of complainant died in August
1992. On February 7, 1994, respondent entered his appearance before the trial court as
collaborating counsel for complainant. Respondent filed his Notice of Substitution of Counsel,
informing the RTC of Pasig City that he has been appointed as counsel for the complainant, in
substitution of Atty. de Leon on March 16, 1994.
On April 13, 1999, respondent filed a criminal action against complainant for violation of
Articles 171 and 172 (falsification of public document) of the Revised Penal Code. Respondent
alleged that complainant made false entries in the Certificates of Live Birth of her children.
Complainant denied the accusations of respondent against her. She denied using any other
name than Rosa F. Mercado. She also insisted that she has gotten married only once, on April
11, 1978, to Ruben G. Mercado. Complainant Mercado alleged that said criminal complaint for
falsification of public document disclosed confidential facts and information relating to the civil
case for annulment, then handled by respondent Vitriolo as her counsel.
IBP Board of Governors found the respondent guilty of violating the rule on privileged
communication between attorney and client, and recommending his suspension from the
practice of law for one (1) year. The complainant, upon receiving a copy of the IBP report and
recommendation, wrote Chief Justice Hilario Davide, Jr., a letter of desistance stating that after
the passage of so many years, she has now found forgiveness for those who have wronged her.
Issue: Did the respondent violate the rule on privileged communication between attorney and
client when he filed a criminal case for falsification of public document against his former client?
Ruling: No. In order to proved that the privileged communication between attorney and
client was violated, it has to be established that: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; 2)The client made the communication in confidence; 3)The legal
advice must be sought from the attorney in his professional capacity; Applying all these rules to
the case at bar, we hold that the evidence on record fails to substantiate complainants
allegations. We note that complainant did not even specify the alleged communication in
confidence disclosed by respondent. All her claims were couched in general terms and lacked
specificity. She contends that respondent violated the rule on privileged communication when
he instituted a criminal action against her for falsification of public documents because the
criminal complaint disclosed facts relating to the civil case for annulment then handled by
respondent. She did not, however, spell out these facts which will determine the merit of her
complaint. The Court cannot be involved in a guessing game as to the existence of facts which
the complainant must prove.
The complainant failed to attend the hearings at the IBP. Without any testimony from the
complainant as to the specific confidential information allegedly divulged by respondent without
her consent, it is difficult, if not impossible to determine if there was any violation of the rule on
privileged communication. Such 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. The burden of proving that the privilege applies is placed
upon the party asserting the privilege.
In view whereof, the complaint against respondent Atty. Julito D. Vitriolo is hereby
DISMISSED for lack of merit.
Upjohn Co. v. United States
Facts: The General Counsel for petitioner pharmaceutical manufacturing corporation (hereafter
petitioner) was informed that one of its foreign subsidiaries had made questionable payments to
foreign government officials in order to secure government business. Thereafter, an internal
investigation of such payments was initiated. Petitioner's attorneys sent a questionnaire to all
foreign managers seeking detailed information concerning such payments as part of the
investigation. Subsequently, based on a report voluntarily submitted by petitioner disclosing the
questionable payments, the Internal Revenue Service (IRS) began an investigation to determine
the tax consequences of such payments and issued a summons pursuant to demanding
production of, inter alia, the questionnaires and the memoranda and notes of the interviews.
Petitioner refused to produce the documents on the grounds that they were protected from
disclosure by the attorney-client privilege and constituted the work product of attorneys
prepared in anticipation of litigation. The United States then filed a petition in Federal District
Court seeking enforcement of the summons. That court adopted the Magistrate's
recommendation that the summons should be enforced since the attorney-client privilege had
been waived, and the Government had made a sufficient showing of necessity to overcome the
protection of the work product doctrine. The Court of Appeals rejected the Magistrate's finding of
a waiver of the attorney-client privilege.
Issue: Did the issuance of summons pursuant to the production of questionnaires, memoranda,
and notes by respondents cover the petitioner’s right to attorney – client privilege?
Ruling: 1. Yes, the issuance of summons pursuant to the production of questionnaires,

memoranda, and notes by respondents covered the petitioner’s right to attorney – client
privilege. The communications by petitioner's employees to counsel are covered by the
attorney-client privilege insofar as the responses to the questionnaires and any notes reflecting
responses to interview questions are concerned. The control group test overlooks the fact that
such privilege exists to protect not only the giving of professional advice to those who can act on
it, but also the giving of information to the lawyer to enable him to give sound and informed
advice. While in the case of the individual client the provider of information and the person who
acts on the lawyer's advice are one and the same, in the corporate context, it will frequently be
employees beyond the control group (as defined by the Court of Appeals) who will possess the
information needed by the corporation's lawyers. Middle-level -- and indeed lower-level --
employees can, by actions within the scope of their employment, embroil the corporation in
serious legal difficulties, and it is only natural that these employees would have the relevant
information needed by corporate counsel if he is adequately to advise the client with respect to
such actual or potential difficulties.
The Magistrate applied the wrong standard when he concluded that the Government had made
a sufficient showing of necessity to overcome the protections of the work product doctrine. The
notes and memoranda sought by the Government constitute work product based on oral
statements. If they reveal communications, they are protected by the attorney-client privilege.
To the extent they do not reveal communications; they reveal attorneys' mental processes in
evaluating the communications. As Federal Rule of Civil Procedure 6, which accords special
protection from disclosure to work product revealing an attorney's mental processes,
and Hickman v. Taylor, 329 U. S. 495, make clear, such work product cannot be disclosed
simply on a showing of substantial need or inability to obtain the equivalent without undue
hardship.

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ROSA F. MERCADO VS . JULITO D.

Upjohn Co. v. United States

Ruling: 1. Yes, the issuance of summons pursuant to the production of questionnaires,

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