MemoirsSaturday, March 17, 2012

Problem Areas in Legal Ethics

Legal Ethics in Family Law I

Asong, J.P. LeoBuca, Julie Merriam

Laman, Ralph JamesLauban, 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: A Background on Laws and Jurisprudence

The Philippines by and large considers abortion as illegal. No less than the 1987 of the Constitution buttresses this fact, thus: “the State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception…” According to one constitutionalist, the provision was “primarily intended to prevent the state from adopting the doctrine in the United States Supreme Court decision ofRoe vs. Wade (410 US 113) which liberalized abortion laws up to the sixth month of pregnancy by allowing abortion to the discretion of the mother any time during the first six months when it can be done without danger to the mother.”[1]

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).

A. 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]

B. 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. That unfateful day came into fruition upon Cora’s pregnancy. She contacted Manuel demanding for support for herself and the child. Manuel asked Atty. Paulina Paz, his tax lawyer to draft a contract where Cora promised to drop all claims against Manuel if he took full responsibility for Cora’s financial needs until a year after her delivery and the baby’s until he/she finished college. Cora also agreed that should Manuel exercise the option of supporting the child in his home, she will give up all her parental rights over the baby since this was clearly “in the best interest of the child (Appendix “B”).

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:

A. Should Atty. Paulina Paz have prepared the support and custody contract between Cora and Manuel?

B. Comment on the plan of Manuel and Wendy to simulate the birth of the baby.

C. Is there a lawyer-client relationship between the couple and Louis? Between Manuel and Louis?

D. Does a request for a legal opinion and a response done through the internet give rise to a lawyer-client relationship?

E. Will duties of confidentiality be less strict, since as a rule, messages thru the internet are not secure?

DISCUSSION:

A. 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.