THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES – ARTICLE VI

Section 11:

A Senator or Member of the House of Representatives shall, in all offenses punishable by not more
than six years imprisonment, be privileged from arrest while the Congress is in session. No Member
shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in
any committee thereof.

Privilege of Speech and Debate : No Member shall be questioned nor be held liable in any other
place for any speech or debate in the Congress or in any committee thereof.

Purpose: It is intended to protect members of congress against government pressure and intimidation
aimed at influencing the decision‐making prerogatives of Congress and its members.

The following requirements must be observed:

1. That the remarks must be made while the legislature or the legislative committee is functioning,
that is in session

2. That they must be made in connection with the discharge of official duties.

To invoke the privilege of speech, the matter must be oral and must be proven to be indeed privileged.

Speech or debate includes a vote or passage of a resolution, all the utterances made by Congressmen
in the performance of their functions such as speeches delivered, statements made, or votes casts in
the halls of Congress. It also includes bills introduced in Congress (whether or not it is in session) and
all the other utterances (made outside or inside the premises of Congress) provided they are made in
accordance with a legislative function.

 It is intended to protect members of congress against government pressure and intimidation

aimed at influencing the decision‐making prerogatives of Congress and its members.
 Moreover, a senator‐lawyer cannot be disbarred or disciplined by the Supreme Court for
statements made during a privilege speech. The senator‐lawyer’s privilege speech is not
actionable criminally or in a disciplinary proceeding under the Rules of Court.

BETWEEN LAWYER AND CLIENT

Rules of Court, Rule 130, Section 24 (b): 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.

II. REASON: The rule is grounded on public policy and the proper administration of justice. It is to
encourage clients to make a full disclosure of all facts relative to a problem for which he sought the
professional services of a lawyer, without fear or reservation that these facts will later be revealed
especially if the nature of the facts are such that they might adversely affect his rights, property or
reputation. This is to inspire confidence and thus it is also to enable the lawyer to give the appropriate
advice or to undertake such action that will best serve the interest of the client.
III. REQUIREMENTS

1. There must be a lawyer-client relationship

 The term “lawyer” refers to:

(a). a member of the Philippine Bar in good standing acting in such a capacity, whether in
active practice or not

(b). non-lawyers allowed by law to appear as counsel pursuant to section 7 of Rule 118. ( But
in localities where such members of the bar are not available, the court may appoint any person,
resident of the province and of good repute for probity and ability, to defend the accused.)

(c). Non-lawyers who misrepresent themselves as members of the bar in order to obtain the
confidence of a person and believed as such by the latter.

 The relationship maybe created by mutual consent at the initiative of the client, or is created
by Order of the Court as in the case of a counsel de officio.

a). the relationship exists whenever the client consults with a lawyer in relation to a matter
which needs the professional services of the lawyer be it for advice or representation in a future or
present legal action.

b). it does not matter that no fee was paid, or that the lawyer later refused to represent the
client or that he withdrew from the action.

c). however the rule does not cover situations where the lawyer was consulted merely as a
notary

2. There must be a communication by the client to the lawyer or advice given thereon by the
lawyer.

 The communication must be for the purpose of creating a lawyer-client relationship or was
given in the course of such relationship.
 The term communication includes the following:

a). Any data or information supplied by the client personally or through confidential agents,
either to the lawyer or to the lawyer’s employees. This may have been supplied through any form of
oral or written communication.

b). All documents, objects or thing delivered to the lawyer except those the existence and/or
contents of which are or maybe known.

Thus titles to land, contracts, reply-communications, bank pass books, dishonored checks, cannot
be considered as confidential.

c). Acts or conduct by the client, such as physical demonstration of actions or events, or
giving a sample of his handwriting to show he is not the falsifier.
 d).The advice given by the lawyer to the client orally or through any mode of written
communication.

e).The identity of the client. As a matter of public policy a lawyer may not invoke the
privilege and refuse to divulge the name or identity of the client except in the situation when the
client’s name has an independent significance such that disclosure would reveal the client’s
confidences.

 The identity may not be disclosed in the following situations:

1. where a strong probability exists that revealing the client’s name would implicate the client in
the very activity for which he sought the lawyer’s advise

2. Where the disclosure would open the client to civil liability

3. Where the government prosecutors have no case against the client and compelling the lawyer
to reveal his client’s name would furnish the only link that would form a chain of testimony
necessary to convict the client of a crime.

4. Where it is the identity of the client which is sought to be confidential

5. Those covered by the “Doctrine of Work Product”. The pleadings prepared by the lawyer or
his private files containing either facts and data obtained by him or resulting from his own
investigation or by any investigator hired by him; and/or his impressions or conclusions
whether reduced in writing or not, about the client or the clients cause.

The following communications are not covered and the lawyer may reveal them:

a). those intended to be made public

b). or intended to be communicated to a third person

c). intended for an unlawful purpose or for a future crime or act

d). received from a third person not acting in behalf or as agent of the client

e). those made in the presence of third persons

f). those which are irrelevant

g). the effects of a crime as well as weapons or instruments of a crime.

h). opinions on abstract questions or hypothetical questions of law

3. The communication was confidential

4. The consent of the client to the disclosure was not obtained

IV. Duration and Waiver:

A. The duration is perpetual even after the lawyer-client relationship has already ceased.

B. The rule maybe waived by the client alone, or by his representatives in case of his death, expressly
or by implication.

Exceptions:

1. If he is a party to a case and his lawyer was called as a witness by his opponent, by failure of the
client to object to the questions concerning the privileged communications or having objected on
direct, the client cross-examines on the privileged communications.

2. When the client presents evidence on the privileged communication, the opposing party may call on
the lawyer to rebut the evidence.

3. When the client calls on the lawyer to testify on the privileged communication

4. In case of a suit by and between the lawyer and the client, the rule does not apply

5. When the lawyer is accused of a crime in relation to the act of the client which was the subject of
their professional relationship, he may reveal the privileged communications to prove he had nothing
to do with the crime.

V. Liability:

If the lawyer, as witness to a case which does not involve the client, divulges confidential
communication without the prior consent of the client, he may be liable criminally, civilly and
administratively.

Rules of Court, Rule 7, Section 3. Signature and address. — Every pleading must be signed by the
party or counsel representing him, stating in either case his address which should not be a post office
box.

The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best
of his knowledge, information, and belief there is good ground to support it; and that it is not
interposed for delay.

An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not
intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in
violation of this Rule, or alleges scandalous or indecent matter therein, or fails promptly report to the
court a change of his address, shall be subject to appropriate disciplinary action.

Significance of the Signature of Counsel:

1. He has read the pleading;

2. That to the best of his knowledge, information or belief , there is good ground to support it,
and
 3. It is not interposed for delay.

Cases where a counsel is subject to disciplinary action:

1. Deliberately files an unsigned pleading;

2. Signs a pleading in violation of the Rules;
3. Alleges in the pleading scandalous or indecent matter or
4. Fails to promptly report to the court a change of his address

Utterances made in the course of judicial proceedings, including all kinds of pleadings, petitions and
motions belong to the class of communication that are absolutely privileged.

The requirement of materiality and relevancy is imposed so that the protection given to individuals in
the interest of an efficient administration of justice may not be abused as a cloak from beneath which
private malice may be gratified.

CANON 21- A LAWYER SHALL PRESERVE THE CONFIDENCE AND SECRETS OF HIS CLIENT EVEN AFTER
THE ATTORNEY-CLIENT RELATION IS TERMINATED.
CANON 15, RULE 15.02- A LAWYER SHALL BE BOUND BY THE RULE ON PRIVILEGE COMMUNICATION
IN RESPECT OF MATTERS DISCLOSED TO HIM BY A PROSPECTIVE CLIENT

CASES:

[ A.C. NO. 6711, July 03, 2007 ]

MA. LUISA HADJULA, COMPLAINANT, VS. ATTY. ROCELES F. MADIANDA,

RESPONDENT.

Facts: Hadjula claimed that she asked legal advice from her friend, Atty. Madianda. She disclosed
confidential information during that period. However, after the confidential information was given by
Hadjula, Atty. Madianda referred her to another lawyer.

Hadjula filed a complaint against Atty. Madianda because of this, claiming the lawyer just
wanted to hear her secrets. In answering the complaint, Atty. Madianda filed a counter complaint
against Hadjula for falsification of public documents and immorality – using the disclosures as basis
for the charges.

Issue: whether or not there is a violation of the rule on confidentiality.

Held: Yes, The moment complainant approached the then receptive respondent to seek legal advice, a
veritable lawyer-client relationship evolved between the two. Such relationship imposes upon the
lawyer certain restrictions circumscribed by the ethics of the profession. Atty. Madianda should have
kept the information secret and confidential, under the attorney-client privilege rule.
 [G.R. Nos. 115439-41. July 16, 1997]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE SANDIGANBAYAN,

MANSUETO V. HONRADA, CEFERINO S. PAREDES, JR. and GENEROSO S. SANSAET,
respondents.

Facts: A case of perjury against was filed against respondent Ceferino Paredes, Jr. for fraudulent
misrepresentations in his application for a free patent over a vast trat of land. However, the same was
dismissed on the ground of prescription. Then again, another case was filed against him for violation
of RA 3019 (Anti-Graft and Corrupt Practices Act) for using his former position as Provincial
Attorney to influence and induce the Bureau of Lands officials to favourably act on his application for
patent. In all these cases, Paredes was represented by respondent Atty. Sansaet, a practicing attorney.

Respondent Paredes contends that he has already been charged under the same set of facts and the
same evidence where such complaint (perjury case where he was already arraigned) has already been
dismissed. Hence, double jeopardy has already attached. In support hereof, Paredes presented court
records and transcripts as proof of his arraignment in the perjury case.

However, the documents were found to be falsified, in conspiracy with Paredes’ counsel and the clerk
of court where the perjury case was filed. One Teofilo Gelacio claims that no notice of arraignment
was ever received by the Office of the Provincial Fiscal. Hence, another case was filed for
falsification of judicial records. It was then that respondent Sansaet offered to testify as a state witness
against his client Paredes, claiming that the latter contrived and induced him to have the graft case
dismissed on the ground of double jeopardy by having him and co-respondent prepare and falsify the
subject documents.

But the Sandiganbayan denied the motion on the ground of attorney-client privilege since the lawyer
could not testify against his own client. In view of such relationship, confidential matters must have
been disclosed by Paredes, as client, to accused Sansaet, as his lawyer, in his professional capacity,
and therefore privileged.

ISSUE: Whether or not the testimony of respondent Sansaet, as proposed state witness, is barred by
attorney-client privilege.

HELD: No, There is no privileged communication rule to talk about. The privilege applies only if the
information was relayed by the client to the lawyer respecting a past crime. The reckoning point is
when the communication was given, not when the lawyer was made to testify.

The attorney-client privilege cannot apply in these cases as the facts thereof and the actuations of both
respondents therein constitute an exception to the rule.

The announced intention of a client to commit a crime is not included within the confidences which
his attorney is bound to respect. Here, the testimony sought to be elicited from Sansaet as state
witness are the communications made to him by physical acts and/or accompanying words of Paredes
at the time he and Honrada were about to falsify the documents. Clearly, therefore, the confidential
communications thus made by Paredes to Sansaet were for purposes of and in reference to the crime
of falsification which had not yet been committed in the past by Paredes but which he, in confederacy
with his present co-respondents, later committed. Having been made for purposes of a future offense,
those communications are outside the pale of the attorney-client privilege.

It is well settled that communication between a lawyer and his client, to be privileged, must be for a
lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the
privilege from attaching. In fact, the prosecution of the honorable relation of attorney and client will
not be permitted under the guise of privilege, and every communication made to an attorney by a
client for a criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to
divulge, but which the attorney under certain circumstances may be bound to disclose at once in the
interest of justice.

To prevent a conniving counsel from revealing the genesis of a crime which was later committed
pursuant to a conspiracy, because of the objection thereto of his conspiring client, would be one of the
worst travesties in the rules of evidence and practice in the noble profession of law.

[ A.C. No. 7399, August 25, 2009 ]

ANTERO J. POBRE, COMPLAINANT, VS. SEN. MIRIAM DEFENSOR-SANTIAGO,

RESPONDENT.

Facts: Petitioner, Antero Pobre made aware to the court the contents of Senator Miriam Defensor-
Santiago’s speech delivered on the senate floor. According to Pobre, the words of the lady senator
were disrespectful and requested that the latter be disbarred or be subjected to disciplinary action.

Senator Miriam Defensor-Santiago argued that the statements she made were covered by the
constitutional provision on parliamentary immunity, being part of a speech she delivered in the
discharge of her duty as member of Congress or its committee. She claims to have made those
comments to expose anomalies with regard to the selection process of the Judicial Bar Council for the
next Chief Justice. The argument of the respondent is based on Article VI Section 11 of the 1987
Constitution.

Issue: whether or not respondent can be charged for her comments on the Judiciary.

Held: No, The court ruled in favor of Defensor-Santiago in this case. The plea of Senator Santiago for
the dismissal of the complaint for disbarment or disciplinary action is well taken. Indeed, her privilege
speech is not actionable criminally or in a disciplinary proceeding under the Rules of Court.

Despite this, the court feels that the lady senator has gone beyond the limits of decency and good
conduct for the statements made which were intemperate and highly improper in substance. The court
is not hesitant to impose some form of disciplinary sanctions on her, but the factual and legal
circumstances of this case, however, deter the Court from doing so, even without any sign of remorse
from her.
 [ GR No. 59161, Jan 30, 1982 ]

MELQUIADES GUTIERREZ v. ENRIQUE H.R. ABILA

Facts: Plaintiff-appellant filed an action for damages against defendants Restituto Clemente, Manuel
Fransisco, Atty. Enrique H.R. Abila Assistant and Provincial Fiscal Eliseo de Guzman in the Court of
First Instance of Rizal(Caloocan City). Basis of the complaint was the answer filed by defendants.
Petitioner alleges that in the aforesaid answer wilfully, maliciously and malevolently recited false,
sham, redundant, scandalous, impertinent and irrelevant statements which served no purpose than to
put his character, personality and reputation in an utterly bad light and said act being contrary to law.

Upon motion of the defendants on the ground that aforesaid statements, even if defamatory, are
absolutely privileged, the trial court dismissed the complaint and from this order plaintiff filed an
appeal.

Issue: whether or not the pleadings in question are absolutely privileged.

Held: No. The court found that the aforementioned personal opinions of the defendants in their
answer, expressed in vituperative and intemperate language, are palpably devoid of any relation
whatever to the subject of inquiry and have no place in a pleading. In Anonymous vs. Trenkman et al,
the Court defined the restriction to the privilege enjoyed by pleadings thus:

The pleadings should contain but the plain and concise statements of the material facts and not the
evidence by which they are to be proved. ... If the pleader goes beyond the requirements of the statute
and alleges an irrelevant matter which is libellous, he loses his privilege.

The requirement of materiality and relevancy is imposed so that the protection given to individuals in
the interest of an efficient administration of justice may not be abused as a cloak from beneath which
private malice may be gratified.

[ GR No. L-29560, Mar 31, 1976 ]

MIGUEL CUENCO v. MANUEL CUENCO

Facts: Plaintiff, Miguel Cuenco is a well-known member of the bar for many years and a prominent
member of the House of Representatives, filed a complaint against defendants Manuel Cuenco, Jose
P. Velez, and Federico A. Reyes, president, secretary-treasurer, general manager, respectively, and
simultaneously members of the board of directors of the Bisaya Land Transportation Co., Inc.; and
Dioscoro B. Lazaro, as publisher and business manager of "The Republic Daily", a newspaper
published in Cebu City, with general circulation in the province of Cebu and other parts of the
Philippines. The complaint alleges that by conspiring and confederating among themselves defendants
caused the publication of a newspaper article containing false, untrue, and malicious and known to
defendants to be so, and their publication and circulation by defendants was made for no other
purpose than to put the reputation of plaintiff in a bad light and to impeach plaintiff's honesty and
integrity. Defendants contended that the questioned article consisted of the gist of the complaint in
Civil Case No. 5665 and that that the subject matter of the complaint in Civil Case No. 5665 is
identical to that of the counterclaim of the Bisaya corporation contained in its opposition to the
Motion of Atty. Miguel Cuenco (defendant in Civil Case No. 5665) for attorney's fees in the Bisaya-
Ivaran Case (Civil Case No. 3040) and in the latter case, the C.F.I. Cebu had already taken action, so
that the privileged character of the counterclaim in Civil Case No. 3040 can be extended to the
complaint in Civil Case No. 5665. The lower court did not consider defendants' contention
meritorious on the ground that the complaint in Civil Case No. 5665 is a distinct pleading.

Issue: whether or not the newspaper article in question is privileged.

Held: Yes. The reason for the rule that pleadings in judicial proceedings are considered privileged is
not only because said pleadings have become part of public record open to the public to scrutinize, but
also due to the undeniable fact that said pleadings are presumed to contain allegations and assertions
lawful and legal in nature, appropriate to the disposition of issues ventilated before the courts for the
proper administration of justice and, therefore, of general public concern. Moreover, pleadings are
presumed to contain allegations substantially true because they can be supported by evidence
presented in good faith, the contents of which would be under the scrutiny of courts and, therefore,
subject to be purged of all improprieties and illegal statements contained therein.

The court concluded that the published complaint in Civil Case No. 5665, although considered
libelous "per se", would fall under the protective mantle of privileged communication. It follows that
its author (defendant Lazaro) cannot be held liable for its publication.

GMA NETWORK, INC., ET AL. vs. JESUS G. BUSTOS, ET AL.

G.R. No. 146848 October 17, 2006

FACTS:
A libel complaint was filed against GMA NETWORK, INC and newscaster, Rey Vidal. The issue started
from the Petition for Mandamus filed by the unsuccessful examinees of the physician’s licensure
examinations before the RTC of Manila to compel the PRC and the board of medical examiners to re-
check and reevaluate the test papers. As alleged, mistakes in the counting of the total scores and
erroneous checking of answers to test questions vitiated the results of the examinations.

As news writer and reporter of petitioner GMA Network, Inc. assigned to gather news from courts,
among other beats, its co-petitioner Rey Vidal covered the filing of the mandamus petition. After
securing a copy of the petition, Vidal composed and narrated the news coverage for the ten o'clock
evening news edition of GMA's Channel 7 Headline News, quoting thereof the allegations of the
unsuccessful examiners that the gross, massive, haphazard, whimsical and capricious checking that
must have been going on for years should now be stopped once and for all. Simultaneous with the
news, was an old video footage showing physicians wearing black armbands.

Along these lines, respondents claimed that the said report was false, malicious and one-sided. Vidal
and GMA Network, Inc., in reckless disregard for the truth, defamed them by word of mouth and
simultaneous visual presentation on GMA Network, Inc.'s Channel 7. They added that, the showing
of the unrelated old footage was done purposely so as to make a forceful impact on their audience
making it appear that other doctors were supporting and sympathizing with the complaining
unsuccessful examinees.

In defense of the alleged libel, GMA Network argued that the same was but a privileged
communication.

ISSUE:
1. Whether the said news report was within the ambit of privileged communication
2. Whether the said narration of the news reporter and the used of video footage were libelous

HELD:
1. Yes. The disputed news report consists merely of a summary of the allegations in the said Petition
for Mandamus filed by the medical examinees making the same fall within the protected ambit of
privileged communication. GMA and Vidal cannot be held liable for damages claimed by
respondents for simply bringing to fore information on subjects of public concern.

Privileged matters may be absolute or qualified. Absolutely privileged matters are not actionable
regardless of the existence of malice in fact. In absolutely privileged communications, the mala or
bona fides of the author is of no moment as the occasion provides an absolute bar to the action. On
the other hand, in qualifiedly or conditionally privileged communications, the freedom from liability
for an otherwise defamatory utterance is conditioned on the absence of express malice or malice in
fact. The second kind of privilege, in fine, renders the writer or author susceptible to a suit or finding
of libel provided the prosecution established the presence of bad faith or malice in fact. To this
genre belongs "private communications" and "fair and true report without any comments or
remarks" falling under and described as exceptions in Article 354 of the Revised Penal Code.

However, the enumeration under the aforecited Article 354 is not an exclusive list of conditional
privilege communications as the constitutional guarantee of freedom of the speech and of the press
has expanded the privilege to include fair commentaries on matters of public interest.The news
telecast in question clearly falls under the second kind of privileged matter.

2. No, the statement in the news report falls within the ambit of privileged communication. For,
although every defamatory imputation is presumed to be malicious, the presumption does not exist
in matters considered privileged.

Furthermore, neither the insertion of the file video constitute malice on the part of the petitioners.
Contrary to the CA's findings, the identifying character-generated words "file video" appeared to
have been superimposed on screen, doubtless to disabuse the minds of televiewers of the idea that
a particular footage is current. In the words of the trial court, the phrase "file video" was "indicated
on screen purposely to prevent misrepresentation so as not to confuse the viewing public." The trial
court added the observation that "the use of file footage in TV news reporting is a standard
practice." the absence of the accompanying character-generated words "file video" would not
nevertheless, change the legal situation insofar as the privileged nature of the audio-video
publication complained of is concerned. In view of the state of things, the video footage was not
libel in disguise; standing without accompanying sounds or voices, it was meaningless, or, at least,
conveyed nothing derogatory in nature.

People of the Philippines vs. Atty. Raul Sesbreno

G.R. No. L-62449 July 16, 1984
FACTS:
Atty. Sesbreno and Atty. Ramon Ceniza are opposing counsels in a civil case. At one point in said civil
case, Atty. Ceniza asked for a transfer of hearing. It was granted but Sesbreno and his client still
appeared on the supposed trial date because they denied that they ever received notice of the
postponement. Sesbreno then filed a motion to have Ceniza reimburse them the expenses they
made that day. Ceniza opposed said motion and he showed evidence that Sebreno in fact received
the notice of the postponement of the hearing. The trial court then directed Sesbreno to show cause
why he should not be subject to contempt. In the subsequent pleadings, Ceniza accused Sesbreno of
misrepresentation prevarication, and “telling a barefaced and documented lie.” Sesbreno then filed
a Reply where he accused Ceniza of being an irresponsible person, cannot be trusted, like Judas, a
liar and irresponsible childish prankster. Ceniza then filed a libel case against Sesbreno.

ISSUE: Whether or not the libel case should prosper.

HELD:
No. Pleadings filed in court are covered by privileged communication. They are privileged insofar as
they are relevant to the cause in hand or subject of inquiry. HOWEVER, both lawyers are advised by
the Supreme Court to refrain from using language unbecoming of a member of the Bar and to
extend courtesy and respect to their brothers in the profession. They were warned that a repetition
of same infraction will be dealt with severely. In keeping with the dignity of the legal profession, a
lawyer’s language should be dignified. Choice of language is a very important requirement in the
preparation of pleadings. Appropriately, in the assertion of their client’s rights, lawyers — even
those gifted with superior intellect — are enjoined to rein up their tempers. Greater care and
circumspection must be exercised in the preparation of their pleadings and to refrain from using
abrasive and offensive language.

Selby vs. Burgess 712 S.W.2d 898 (1986)

FACTS:

Dr. Michael Selby, is an obstetrician-gynecologist. Melinda Burgess was a patient of Dr. Selby while
she was married to appellee, Robert Burgess. Burgess retained attorney Gary Eubanks to represent
him in bringing an alienation of affections claim against Dr. Selby, claiming that Dr. Selby had caused
Melinda Burgess, who apparently later married Dr. Selby, to abandon Robert Burgess. The complaint
alleged that Dr. Selby had induced Melinda Burgess to undergo an abortion and had thereafter
impregnated her himself.

Dr. Selby counterclaimed contending that Burgess, "personally and through his duly authorized
agent, his lawyer Gary Eubanks," slandered him by stating to third persons that Dr. Selby had
performed an unnecessary abortion on Melinda Burgess.

The alienation of affections claim resulted in a judgment in favor of Dr. Selby. Burgess moved for a
summary judgment on the slander claim, arguing that any statements Eubanks might have made to
third persons in the course of investigating the alienation of affections claim were true as well as
privileged. The argument submitted with the motion, however, did not address the part of the
counterclaim stating that Burgess had "personally" slandered Dr. Selby.

ISSUE: Whether or not appellee Robert Burgess is liable for slander with respect to the allegations of
statements made by his lawyer Gary Eubanks.

HELD:
The Restatement of Torts (Second) § 586 provides:

*900 An attorney at law is absolutely privileged to publish defamatory matter concerning another in
communications preliminary to a proposed judicial proceeding, or in the institution of, or during the
course and as a part of, a judicial proceeding in which he participates as counsel, if it has some
relation to the proceeding.

We adopted the principle of § 586 in Pogue v. Cooper, 284 Ark. 202, 680 S.W.2d 698 (1984). There
we held that absolute privilege attached to allegations made by an attorney in a pleading filed with
the court, as long as the statements alleged to be defamatory were relevant and pertinent to the
issues in the case. We relied heavily on our earlier decision of Mauney v. Millar, 142 Ark. 500, 219
S.W. 1032 (1920), in which we recognized the absolute privilege of an attorney to make statements
in pleadings regardless of their truth or the existence of actual malice on the part of the attorney so
long as the statements were relevant and pertinent to the pleadings.

We have no difficulty extending the privilege to statements by an attorney made, as § 586 says,
"preliminary to a proposed judicial proceeding." The section obviously covers communications made
during investigation of a claim. Comment e. to § 586 is as follows:

As to communications preliminary to a proposed judicial proceeding the rule stated in this Section
applies only when the communication has some relation to a proceeding that is contemplated in
good faith and under serious consideration. The bare possibility that the proceeding might be
instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not
seriously considered.

Although the privilege is absolute where it applies, we consider it to be a privilege narrowed closely
by the "relevancy" and "pertinency" requirements, and we note that while the privilege will prohibit
an attorney from being subject to litigation it will not make him immune from professional
discipline, see Theiss v. Scherer, supra, when it is appropriate. We make no suggestion that any
professional discipline is called for in this case.

It was correct for the court to find no liability with respect to the allegations of statements made by
Gary Eubanks, as the discovery documents showed his publication of the allegedly slanderous
statement occurred preliminary to or in the course of litigation, and that the statements he allegedly
made were relevant and pertinent to that litigation.

REVISED PENAL CODE, ARTICLE 209- Betrayal of Public Trust by an Attorney or Solicitor –Revelation
of Secrets – In addition to the proper administrative action, the penalty of prision correccional in its
medium period or a fine ranging from 200 to 1000 pesos, or both, shall be imposed upon any
attorney- at- law or solicitor who, by ay malicious breach of professional duty or of inexcusable
negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned
by him in his professional capacity.

The same penalty shall be imposed upon any attorney- at- law or solicitor who, having undertaken
the defense of a client or having received confidential information from said client in a case, shall
undertake the defense of the opposing party in the same case, without the consent of the first
client.
Pogue vs. Cooper 680 S.W.2d 698 (1984)

FACTS:
This action began when the appellees, Calvin Cooper, Ray Williams, and Wilma Williams, filed a
complaint against the appellant, the County Judge of Sevier County, on August 12, 1982, in which
they alleged that the County Judge, who was in charge of the county equipment, let it be known and
voiced around the county, that that equipment could be loaned, let, hired, and otherwise used in
making improvements for private citizens, including himself, and did, in fact, do those things. The
appellees sought an accounting, attorney's fees, and a permanent injunction against the appellant.
The complaint was signed by the appellees' attorney, Winford L. Dunn, Jr., who is also an appellee in
this action.
On November 1, 1983, the trial court enjoined Judge Pogue from hiring, letting, leasing, or otherwise
permitting Sevier County property or personnel from being hired, rented, leased, or otherwise
utilized for private property on or off county projects. See 679 S.W.2d 207. The court denied the
appellees' request for accounting and attorney's fees and found there was no personal or individual
use or benefit of any of the services or equipment to the County Judge.
On December 28, 1983, the appellant filed a complaint against the appellees alleging that he was
libeled by the pleadings filed in the earlier case, and that appellee, Winford L. Dunn, as attorney for
the appellees is responsible under Ark.R. Civ.P. Rule 11. The appellees filed a motion for Judgment
on the Pleadings or in the alternative, for Summary Judgment. The trial court found there were no
questions of fact but only a question of law concerning the defense of absolute privilege. The trial
judge followed the test announced by this Court in Mauney v. Millar, 142 Ark. 500, 219 S.W.
1032 (1920), where we stated:
There are two classes of privileged communications recognized in the law governing the publication
of alleged libelous matter: One of these classes constitutes an absolute privilege, and the other a
qualified privilege, and, according to the great weight of authority, pertinent and relevant
statements in pleadings in judicial proceedings are held to be within the first class mentioned, and
are absolutely privileged ... The test as to absolute privilege is relevancy and pertinency to the issue
involved, regardless of the truth of the statements or of the existence of actual malice.

ISSUE: The trial judge therefore found that the pivotal question here was whether the words
contained in the pleadings were relevant to any of the issues raised.
HELD:
The court again quoted from Mauney to the effect that:
As to the degree of relevancy or pertinency necessary to make alleged defamatory matter privileged
the courts favor a liberal rule. The matter to which the privilege does not extend must be so palpably
wanting in relation to the subject-matter of the controversy that no reasonable man can doubt its
irrelevancy and impropriety. In order that matter alleged in a pleading may be privileged, it need not
be in every case material to the issues presented by the pleadings. It must, however, be legitimately
related thereto, or so pertinent to the subject of the controversy that it may become the subject of
inquiry in the course of the trial.

The trial judge found although there was no evidence "that Judge Bill Pogue used County equipment
or personnel in making improvements for himself, it was, however, legitimately related to the
subject of the controversy, and it could have become a subject of inquiry in the course of the trial."
We agree. The rules announced in Mauney have been held to govern similar cases. See Rhode Island
Ins. Co. v. Boatright, 186 Ark. 796, 56 S.W.2d 173 (1933) and Howard v. Ward and Howard v.
Rhine, 238 Ark. 514, 383 S.W.2d 107 (1964). In addition, the Arkansas rule has been recently
mentioned in federal court. In Westridge v. Wright, 466 F. Supp. 234 (E.D. Ark.1979), Judge Roy
applied Arkansas law to the issue of privilege and quoted the standard set out in Mauney, supra. The
court stated:
Thus, under the established law of Arkansas, statements in pleadings in judicial proceedings are
absolutely privileged as long as the statements are relevant and pertinent to the issues raised in the
case. Statements in pleadings, if relevant and pertinent to the issues, are absolutely privileged even
if the statements are false and made maliciously. The issue which the court must resolve ... is...
whether the allegations were relevant and pertinent ... It is clear that this issue is one to be resolved
by the court rather than a jury.

Here, the appellant is not challenging the trial court's factual finding that the allegations were
relevant and pertinent to the issues. Rather, he argues first that A.R.Civ.P. Rule 11 makes a lawyer
liable for false allegations in a pleading since the rule states that a lawyer's signature on a pleading
constitutes a certificate by him that to the best of his knowledge, there is good ground to support
the pleading. Rule 11 goes on, however, to provide that the sanction for a willful violation of this rule
is appropriate disciplinary action for the attorney. The same privilege that extends to pleadings
extends to the attorneys who prepare them. Restatement [Second] Torts § 586 provides that "[a]n
attorney at law is absolutely privileged to publish defamatory matter concerning another ... in the
institution of ... a judicial proceeding in which he participates as counsel, if it has some relation to
the proceeding." The appellant's argument is without merit.
The appellant's other contention is that this Court should adopt the rule followed by Louisiana
courts that pleadings are only qualifiedly privileged. Under this minority view, an allegation is not
privileged unless founded on probable cause and not known to be false. We decline to adopt this
position and adhere to our rules as stated in Mauney, supra.

Jacobs vs Adelson 325 P.3d 1282 (2014)

FACTS:

Steven C. Jacobs filed a wrongful termination complaint against Las Vegas Sands Corporation (LVSC)
and Sands China Ltd. (Sands China) alleging that Sheldon G. Adelson, the chief executive officer and
majority shareholder of LVSC, demanded Jacobs to engage in “illegal” activities. Along with personal
attacks against Adelson, Jacobs further alleged that his refusal to engage in such activities led to
threats by Adelson and his termination. LVSC and Sands China filed a motion to dismiss Jacobs’
complaint, leading to hearing that received much attention from the media. Following the hearing,
the Wall Street Journal published an article that quoted an email Adelson sent stating that Jacobs
had not refuted any of the reasons as to why he was fired, and, instead, he had explained his
termination by using lies and fabrications. Jacobs later amended his complaint to include a
defamation per se claim against Adelson, LVSC, and Sands China regarding the statements published
in the Wall Street Journal. Adelson, LVSC, and Sands China filed motions to dismiss the defamation
claim, arguing that the statements were absolutely privileged communications made in the course of
judicial proceedings or that they were protected by the conditional privilege of reply. The district
court granted the motion to dismiss, determining that Adelson’s statements were absolutely
privileged communications relating to the litigation; the district court declined to consider whether
his statements were covered by the conditional privilege of reply.

ISSUE: Whether or not Adelson’s statements were absolutely privileged communications relating to
the litigation, or merely conditional privilege of reply.
HELD:

The absolute privilege

The existence of an absolute privilege for defamatory statements made during the course of judicial
proceeding has long been recognized in Nevada. The absolute privilege can apply to defamatory
statements made in the context of a judicial proceeding if the proceeding is contemplated in good
faith and under serious consideration and if the communication is related to the litigation.2
Furthermore, statements made to someone who is not directly involved in the judicial proceeding
will only be protected by the absolute privilege if the recipient is “significantly interested” in the
proceeding.3 Here, Jacobs argued that the statements were made outside the judicial proceedings
to disinterested persons; therefore, the statements are unrelated to the litigation and the absolute
privilege does not apply. Conversely, Adelson argued that statements made to the media should be
included in the scope of the absolute privilege rule and that the absolute privilege does apply
because his statements were made during the course of the judicial proceeding and were directly
related to the lawsuit. The Court rejected Adelson’s arguments and agreed with Jacobs that the
absolute privilege did not apply.

Application of the absolute privilege in the media context

The Court has never addressed whether the absolute privilege applies to statements made to the
media; however, it has held that communications are not related to judicial proceedings when made
to someone without an interest in the outcome. Additionally, the majority of states have held that
communications made to the media are not protected by the absolute privilege rule, and the policy
considerations underlying the rule are not applicable to statements made to the media. Thus, the
statements made to the media are not subject to absolute privilege. Here, the statements were
made outside the judicial proceeding because the Wall Street Journal does not have an interest,
other than that of an observer. The dissent argued that the statements are privileged and that the
media and the public have a significant interest due to the widespread media coverage of the
underlying litigation. The Court did not agree and concluded that in order to determine if there is a
significant interest, the recipient’s legal relationship to the litigation must be assessed and not its
interest as an observer. Here, the Wall Street Journal did not have a direct interest in the outcome of
the proceedings and did not have a legal or financial interest in the litigation; therefore, it did not
have a significant interest and Adelson’s statements are not protected by the absolute privilege rule.

The conditional privilege of reply

Additionally, Adelson argued that his statements were privileged because they were made as a
direct response to Jacobs’ defamatory statements in the complaint. The conditional privilege rule
allows a limited right to apply for those who are attacked with defamatory statements. However,
because the district court declined to consider these arguments and because the factual record has
not been developed, the Court declined to address the applicability of the conditional privilege.