Legal Ethics in Family Law I
Asong,
J.P. Leo
Buca,
Julie Merriam
Laman,
Ralph James
Lauban,
Norhussein
Leguin,
Queenie
INTRODUCTION
Writing
in 1949, Macolm, a renowned legal luminary, defines legal ethics as that
“branch of moral science which treats of the duties which an attorney owes to
the court, to his client, to his colleagues in the profession to the public.”
It is with this backdrop that the Code of Professional Responsibility was
promulgated by the Supreme Court in 1988 to serve as a “judicial command” to
lawyers in the performance of their profession. It should be borne in mind,
however, that every dilemma that a lawyer finds himself in should be considered
in the light of the factual milieu of each case. Thus the Code is purely a
“general guide” that addresses issues that center on the lawyer and his
interaction with his client, the courts, and society as a whole.
Situation 1
Manuel
and Wendy were a couple. For the longest time, they tried to conceive a baby
but to no avail. One day, Wendy found out that she was pregnant. Elated, she
broke the news to her husband, Manuel. The happiness that surrounded the
couple’s home was, however, short lived as Wendy found out later on that she
was suffering from mitral valve stenosis,
a heart problem. Because of this, her pregnancy was plagued with difficulties.
According to her doctors, her chances of delivering the baby was “slim.” Thus,
she sought the advice of his husband’s classmate, Louis, who was a lawyer.
Prescinding
from the facts of the case, the following problems may be posed:
A.
If Louis, as a family friend, advises Wendy to have an abortion, would he be
breaking his oath as a lawyer?
B.
Would abortion be justified if there was a serious risk to the life of the
mother?
C.
If the situation were reverse and Louis, acting instinctively on his religious
conviction, gives a legal opinion that abortion is criminal and does not allow
for any exception, does he violate any law or ethical principle?
DISCUSSION
Abortion in Philippines
The Philippines
Under
the Revised Penal Code abortion is also penalized, to wit:
“Art. 256. Intentional Abortion. — Any person
who shall intentionally cause an abortion shall suffer:
1. The penalty of reclusión temporal, if he shall use any violence upon the person of
the pregnant woman.
2. The penalty of prisión mayor if, without using violence, he shall act without the
consent of the woman.
3. The penalty of prisión correccional in its medium and maximum periods, if the
woman shall have consented.
Art. 257. Unintentional Abortion. —
The penalty of prisión correccional
in its minimum and medium period shall be imposed upon any person who shall
cause an abortion by violence, but unintentionally.
Art. 258. Abortion Practiced by the
Woman Herself or by Her Parents. — The penalty of prisión correccional in
its medium and maximum periods shall be imposed upon a woman who shall practice
an abortion upon herself or shall consent that any other person should do so.
Any woman who shall commit this offense
to conceal her dishonor, shall suffer the penalty of prisión correccional in
its minimum and medium periods.
If this crime be committed by the
parents of the pregnant woman or either of them, and they act with the consent
of said woman for the purpose of concealing her dishonor, the offenders shall
suffer the penalty of prisión correccional in its medium and maximum
periods.
Art. 259. Abortion Practiced by a
Physician or Midwife and Dispensing of Abortives. — The penalties provided in
article 256 shall be imposed in its maximum period, respectively, upon any
physician or midwife who, taking advantage of their scientific knowledge or
skill, shall cause an abortion or assist in causing the same.
Any pharmacist who, without the proper
prescription from a physician, shall dispense any abortive shall suffer arresto mayor and a fine not exceeding 1,000 pesos.”
In sum, a person who
intentionally causes an abortion with the consent of the pregnant woman is
subject to a penalty of prison correccional (i.e., imprisonment for from
six months to six years) in its medium or maximum period. A physician or
midwife who causes or assists in the performance of an abortion is subject to
the maximum period of this penalty, as well as suspension from the right to
follow a profession. A woman performing an abortion on herself to conceal her
dishonour is subject to the minimum or medium period of this penalty. A person performing an abortion without the
consent of the pregnant woman is subject to a penalty of prison major
(i.e., 6-12 years’ imprisonment).
- If
Louis, as a family friend, advises Wendy to have an abortion, would he be
breaking his oath as a lawyer?
Louis
will definitely be breaking his oath as a lawyer.
If
Louis were consulted in his capacity as a lawyer, his advice to Wendy to have
an abortion would certainly run counter to the Constitution and other laws. The
same conclusion would also be arrived at if Louis was asked on the matter as a
family friend. Unlike an ordinary person, he is looked up to by law to practice
his profession with highest regard. A defender of the law cannot be at the same
time the primary violator of the law.
As a
lawyer, Louis has the duty to uphold the
Constitution, obey the laws of the land and promote respect for law of and
legal processes (CANON 1, CPR). Moreover, he should not engage in unlawful, dishonest, immoral or deceitful conduct (RULE
1.01) The laws demand that lawyers should live up to its high exacting demands
and standards both in their private or personal and public lives. He therefore
has to weigh every word he says especially on a matter that touches on a
sensitive issue such as abortion. Taking
into account the legal ramifications of his advice, Louis should be able
explain to Wendy the possible outcome and result if she were to undergo the
said medical operation and perhaps provide for viable alternatives. Section 12, Article II of the 1987
Constitution espouses the conservative view that “in dealing with the
protection of life, it is necessary to take the safer approach.”[2]
- Would
abortion be justified if there was a serious risk to the life of the
mother?
At
the outset, it is notable from the above-mentioned statutes that there exists
no express provision specifically allowing abortion in order to save the woman's
life. In times when the mother’s life is put at risk during her pregnancy, the
law does not qualify as such to justify the abortion.
However,
it may be argued that under the Principle
of necessity as set forth in Article 11(4) of the RPC, abortion may be
legally adopted to save the pregnant woman’s life, to wit:
Article
11: Justifying Circumstance – the
following do not incur any criminal liability: xx
4. Any person who, in order to avoid
an evil or injury, does an act which causes damage to another, provided that
the following requisites are present;
First. That the evil sought to be
avoided actual exists;
Second. That the injury feared be
greater than that done to avoid it;
Third. That there be no other
practical and less harmful means of preventing it.
Unfortunately,
the said justification is not recognized by the Supreme Court as there is yet
no existing decision relative to this issue. It is indubitable that the life of
the unborn child is recognized and sacred, still, often than not, we fail to notice
the equal importance of the life of the mother who carries and give life to the
unborn.
Despite
the tenor of the Section 12, Article II of the 1987 Constitution of “equally
protecting” the mother and the unborn child, Fr. Bernas elucidates:
“[The
second sentence of Section 12, Article II of the 1987 Constitution] does not
assert that the life of the unborn is placed on exactly the same level as the
life of the mother. It recognizes that, when necessary to save the life of the
mother, it may be necessary and legitimate to sacrifice the life of the unborn.
It however denies that the life of the unborn maybe sacrificed merely to save
the matter from emotional suffering or to spare the child from a life of
poverty.”[3]
The
factual circumstances of the case at hand would readily show that the life of
the mother is at stake. It would be no less than reasonable to choose the life
of the latter over the unborn child since Wendy has only a very low chance to
continue the pregnancy due to her aforementioned illness, thus, if insisted, it
might end up that both Wendy and her baby would die eventually. At the end of
the day, it is Wendy who has the ultimate decision to terminate her pregnancy.
This is highlighted by the fact of her unique medical situation. Thus, whether
to have an abortion requires a difficult and painful moral decision that not
only affects her, a soon-to-be mother, who may no longer be able to express her
ultimate love and affection for her child, but also the people surrounding her. Repercussions on her health and emotional
well being must all be taken into consideration.
C. If the situation were
reverse and Louis, acting instinctively on his religious conviction, gives a
legal opinion that abortion is criminal and does not allow for any exception,
does he violate any law or ethical principle?
Yes.
We believe so. Louis should not give a value-laden answer based on religious
considerations given the fact that what was asked of him was a legal opinion.
Asking for a legal opinion is not the same as asking for personal advice
especially when the same is tainted with religious overtones. Being a man of
the law, it is his paramount duty to inform the couple of the choices that they
can avail of. He should neither twist the law nor take advantage of the
couple’s supposed lack of legal knowledge. To this end, he should take the
situation head on by using his legal expertise to the best interest of his
client. As a lawyer, he should able to delineate his religious belief from his
profession. Otherwise, he would be doing a disservice to the profession.
Alternative answer: No, there is no violation of any law or ethical
principle when Louis instinctively acted on his religious conviction and gives
a legal opinion that abortion is criminal. Abortion is a crime mala in se which
means an offense that is evil or wrong from its own nature or by the natural
law irrespective of statute[4]. It is punishable by the
Revised Penal Code (RPC) of the Philippines which mandates imprisonment for a
woman who undergoes abortion as well as for any person who assists in the
procedure, even if they be the woman’s parents, physician, midwife or
pharmacist. The following are the pertinent provisions of the RPC:
Art. 256. Intentional abortion. — Any person who
shall intentionally cause an abortion shall suffer:
1. The penalty of reclusion temporal, if he shall
use any violence upon the person of the pregnant woman.
2. The penalty of prision mayor if, without using
violence, he shall act without the consent of the woman.
3. The penalty of prision correccional in its
medium and maximum periods, if the woman shall have consented.
Art. 257. Unintentional abortion. — The penalty of
prision correccional in its minimum and medium period shall be imposed upon any
person who shall cause an abortion by violence, but unintentionally.
Art. 258. Abortion practiced by the woman herself
of by her parents. — The penalty of prision correccional in its medium and
maximum periods shall be imposed upon a woman who shall practice abortion upon
herself or shall consent that any other person should do so.
Any woman who shall commit this offense to conceal
her dishonor, shall suffer the penalty of prision correccional in its minimum
and medium periods.
If this crime be committed by the parents of the
pregnant woman or either of them, and they act with the consent of said woman
for the purpose of concealing her dishonor, the offenders shall suffer the
penalty of prision correccional in its medium and maximum periods.
Art. 259. Abortion practiced by a physician or
midwife and dispensing of abortives. — The penalties provided in Article 256
shall be imposed in its maximum period, respectively, upon any physician or
midwife who, taking advantage of their scientific knowledge or skill, shall
cause an abortion or assist in causing the same.
Any pharmacist who, without the proper prescription
from a physician, shall dispense any abortive shall suffer arresto mayor and a
fine not exceeding 1,000 pesos.
The fact that Louis’ religious beliefs coincides with the law
is not unethical. In fact it is in line with the law, public order, public
policy, morals, or good customs. A lawyer must uphold the constitution, obey
the laws of the land and promote respect for law and legal processes (Canon 1,
Code of Professional Responsibility). He is also mandated by Canon 1.02 that he
shall not counsel or abet activities aimed at defiance of the law or at
lessening confidence in the legal system. Canon 15.07 further mandates him to impress
upon his client compliance with the laws and the principles of fairness.
Situation 2
Wendy’s
pregnancy was not smooth sailing. Eventually, she lost the baby. This untimely
event put the marriage on the rocks and took a toll on Manual who had eagerly
wanted to have a child of his own. Nursing his broken ego, Manuel left for his
hometown in Negros Occidental. There, he met a girl named Cora, a niece by
marriage of his Aunt Ysabel, in one of the fiestas he had attended. In one of
his fits of drunkenness, Manuel succumbed to his lustful feelings towards Cora,
who also felt obliged to fill the void. Feeling guilty, he hastily returned to Manila
The
couple reconciled. But this did not end Wendy’s longing to have a child of her
own so she insisted that they adopt. Thus, Manuel concocted the plan of
adopting the child of Cora, whom he referred to as a ‘distant cousin.’ Raring
to have this idea become a reality, the couple devised a scheme by simulating
the birth of the unborn child. With this in mind, they sought the advice of
Louis, a family friend, on the said matter.
Manuel even went the distance of sending an email to his friend
confiding that the baby was his and that he was only telling half of the
story.
Prescinding from the facts of the case, the following problems may
be posed:
- Should Atty. Paulina Paz have
prepared the support and custody contract between Cora and Manuel?
- Comment on the plan of Manuel and
Wendy to simulate the birth of the baby.
- Is there a lawyer-client
relationship between the couple and Louis? Between Manuel and Louis?
- Does a request for a legal
opinion and a response done through the internet give rise to a
lawyer-client relationship?
- Will duties of confidentiality be
less strict, since as a rule, messages thru the internet are not secure?
DISCUSSION:
- Should Atty. Paulina Paz have
prepared the support and custody contract between Cora and Manuel?
No, Atty. Paz should not prepare the support and custody contract. Cora
cannot demand support for herself for her unborn child. The support contract is still premature
because the child is not yet born. Under Article 40 of the Civil Code, Birth
determines personality; but the conceived child shall be considered born for
all purposes that are favorable to it, provided it be born later with the
conditions specified in the following article. (29a) Also, under Article 41 of
the Civil Code, for civil purposes, the fetus is considered born if it is alive
at the time it is completely delivered from the mother's womb xxx. Hence,
Manuel’s responsibility to give support to his illegitimate child under Article
176 of the Family Code has not yet taken effect.
In addition, the contract (Appendix “B”) which was signed and
acknowledge by Atty. Ricardo Q. Romano was contract of donation is void. Cora
is not qualified to become a donee because under Article 739(1) of the Civil
Code, a donation made between persons guilty of adultery or concubinage is
void.
Second, statement VII of the Contract prepared (Appendix “B”) must
be deleted because it is void. Article 6
of the Civil Code of the Philippines states that rights may be waived, unless
the waiver is contrary to law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right recognized by law. In
the case of Herrera vs. Borromeo, G.R. No. L-41171, July 23, 1987, for a waiver
to exist, three elements are essential:
(1)
the existence of a right;
(2)
the knowledge of the existence thereof;
and (3) an intention to relinquish such right.
In the case at bar, the prepared contract contained a clause that
the Cora shall desist from filing any and all future claims against the Manuel.
Cora cannot waive future claims because any future support or
the right thereto cannot be waived nor compromised (Arts. 301, 2035, Civil
Code). A right to be validly
waived, must be in existence at the time of the waiver, and must be exercised
by a duly capacitated person actually possessing the right to make the waiver
Third, Statement VIII of the prepared contract should likewise be
deleted for being contrary to law. Under Article 176 of the Family Code, Illegitimate
children shall use the surname and shall be under the parental authority of
their mother. In the case of Dacasin vs. Dacasin, G.R. No. 168785, February 5,
2010, the relevant Philippine law on child custody for spouses separated in
fact or in law (Article 213(2) of the
Family Code) is also undisputed: “no child under seven years of age shall be separated
from the mother x x x This statutory awarding of sole parental custody to the
mother is mandatory, grounded on sound policy consideration, subject only to a
narrow exception.
Lastly, the law specifically enumerate the instances where parental
authority is terminated (Art 327). These are as follows: (1) Upon the death of
the parents or of the child; (2) Upon emancipation; (3) Upon adoption of the
child; (4) Upon the appointment of a general guardian. Manuel merely intends to
simulate the birth of the child, the parental authority of Cora still subsists
because simulation of birth is illegal and does not validly terminate the
parental authority of the mother over a child below seven years old.
Note, under Canon 1, a lawyer shall uphold the constitution, obey
the laws of the land and promote respect for law of and legal processes. A
lawyer shall not counsel or abet activities aimed at defiance of the law or at
lessening confidence in the legal system (Canon 1.02) and shall not, for any
corrupt motive or interest, encourage any suit or proceeding or delay any man's
cause (Canon 1.03).
Alternative Answer:
Yes, Atty. Paulina Paz should prepare the support and custody
contract between Cora and Manuel. Under Article 176 of the Family Code, Illegitimate
children shall use the surname and shall be under the parental authority of
their mother, and shall be entitled to support in conformity with this Code.
b.
The couple’s plan is contrary to law. Despite their clear intention to have a
child, they should not put the law into their own hands. The Revised Penal Code
is very clear on this:
Art. 347. Simulation of births,
substitution of one child for another and concealment or abandonment of a
legitimate child. — The simulation of births and the substitution of one
child for another shall be punished by prision mayor and a fine of not
exceeding 1,000 pesos.
The same penalties shall be imposed
upon any person who shall conceal or abandon any legitimate child with intent
to cause such child to lose its civil status.
Any physician or surgeon or public
officer who, in violation of the duties of his profession or office, shall
cooperate in the execution of any of the crimes mentioned in the two next
preceding paragraphs, shall suffer the penalties therein prescribed and also
the penalty of temporary special disqualification.
The
purpose of the acts enumerated by Art. 347 of the Revised Penal Code is the
creation of a false civil status. Reyes aptly illustrates: The simulation of
birth takes place when the woman pretends to be pregnant when in fact she is
not, and on the day of the supposed delivery, takes the child of another as her
own.[5]
c.
Jurisprudence is replete with cases that enunciate how lawyer-client
relationship commences. This in one case, the Supreme Court held: “If a person,
in respect to his business affairs or troubles of any kind, consults with his
attorney in his professional capacity with the view to obtaining professional
advice or assistance, and the attorney voluntarily permits or acquiesces in
such consultation, then the professional employment must be regarded as
established.”[6]
d. Does a request for a legal opinion and
response done through the internet give rise to a lawyer-client relationship?
Yes.
To constitute professional employment it is not essential that the client
should have employed the attorney professionally on any previous occasion. If a
person, in respect to his business affairs or troubles of any kind, consults
with his attorney in his professional capacity with the view of obtaining
professional advice or assistance, and attorney voluntarily permits or
acquiesces in such consultation, then the professional employment must be
regarded as established (Jones Commentaries on Evidence).
Formality
is not essential element of the employment of an attorney. The contract may be
express or implied and it is sufficient that the advice and assistance of the
attorney is sought and received, in matters pertinent to his profession (Hirach
Bros. & Co. vs. R.E Kennington Co.)
When
Manuel request for legal opinion through internet, the response of Louis is considered
as legal service since such response and request is in professional capacity of
Louis. It does not matter whether such opinion was only through internet. There
is no formality in the employment of an attorney. An attorney can be employed
through internet as such in this case.
e.
will duties of confidentiality be less strict, as a rule, messages sent thru
internet are not secure?
Canon
21.01 – A lawyer shall not reveal the confidences or secrets of his client
except:
a.
when
authorized by the client after aquaintong him of the consequence of the
disclosure;
b.
when
required by law;
c.
when
necessary to collect his fees or to defend himself, his employees or associates
or by judicial action.
The
duties of confidentiality even though messages sent thru internet are not
secured. It is duty of the lawyer to keep the secret and confidence of his
client in good faith. Canon 21.01 provides for exception where the attorney can
reveal the secrets and confidences of his client. In this case, it did not fall
to any of such exception. It does not matter whether the legal services was
thru internet, the duties of confidentiality still applies since it is the
responsibility of the lawyer to keep the secrets of his client and to prevent
its revelation.
[1][1]
Bernas, Joaquin, The 1987 Constitution of
the Philippines : A
Commentary, Quezon City
[2]
Bernas, ibid.
[3]
Ibid.
[5]
Reyes, Luis, The Revised Penal Code; Book
Two, Quezon City
[6]
Junio vs. Grupo, AM 5020, December 18, 2001, citing Hilado vs. David, 84 Phil.
569.
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