The Bersamin Dicta in Disini v. Sandiganbayan, Attorney-Client Privilege, and the In- House Counsel

The expanding scope of legal practice in the Philippines certainly requires a re-examination of existing professional and ethical rules which, when originally crafted, did not contemplate these special and unique roles which have thus far been undertaken by members of the Philippine Bar. Of particular note are the ethical and professional issues surrounding the conduct of in-house counsel, whose unique relationship and proximity to the corporation result in issues of independence, conflict-of-interest, and lawyer-client privilege. Departing from the dicta laid down by Justice Lucas Bersamin in Disini v. Sandiganbayan, this Comment highlights the difficulty at drawing the line between privileged and non-privileged communication using, as yardstick, the existing jurisprudential guidelines more properly applicable to the traditional lawyer-client relationship. In this respect, the established rule that only communication to lawyers “made in his professional capacity, for the purpose of seeking legal advice” becomes muddled because of the often intertwined roles that the in-house counsel plays within the modern corporate structure. By serving as both legal manager and legal counsel, in-house lawyers receive communication which, following Disini, would likely be removed from the ambit of the privilege because of the absence of evidence as to which “hat” the in-house counsel was wearing when he received the communication from the corporation.This Comment therefore attempts to explore the application of the rule on privilege with respect to the in-house counsel within the Philippine corporate and judicial setting. Considering the unique role of an in-house counsel as legal manager and legal counsel within the modern corporation, the Comment aims to provide a descriptive discussion of the limits and application of the privilege, drawing, in particular, from U.S. experience, and highlighting the difficulties implied by the recent dicta found in Disini. The Comment also proposes possible approaches to balancing the interests of the Court in properly discovering the truth, while preserving the value of free communication between lawyer and client, even within the corporate setting.