Manuel and Wendy were a couple.
For the longest time, Under the Revised Penal Code abortion is also
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 of Roe 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]
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.
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
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.
Situation 3
Three years later, on March 2001, Manuel went on a
business trip. The plane on which he boarded crashed
into the Pacific Ocean, with few survivors and many
passengers unaccounted for. Despite efforts to locate
Manuel’s body, he was never found. Wendy was
devastated. She felt in her heart that Manuel was truly
dead. About a year and a half passed since the plane
crash, Wendy met another man, Omar. They fell in love,
and decided to marry on June 2003. But in the months
of January and February 2003, Wendy received
information from three different sources (see
Appendixes E, F, G) indicating that Manuel may be alive,
and is living in Hong Kong. Despite efforts to verify,
there was no confirmation from the Hong Kong
authorities. Wendy informs Louis that she has broken off
her engagement to Omar and asks Louis to help her
locate Manuel. Louis feels guilty about Wendy being so
concerned about Manuel, whom he considered
undeserving of her love. Not wanting to see Wendy
more depressed and anguished, he finally tells Wendy
that Ben is the child of Manuel with Cora. Wendy was
shocked and furious at both Manuel and Louis. To gain
back Wendy’s trust, Louis suggests that she should
disregard any information about Manuel since these
were all hearsay. Thus, he says, having received no news
that Manuel may be alive, she can secure a declaration
of presumptive death in a summary proceeding before
her June wedding. He adds that he would do this
without compensation as proof of his friendship and
remorse. He tells her of his uncle who is a family court
judge and assures her that their case will be “raffled” to
his court.
a. Did Louis violate his lawyer-client confidentiality
when he told Wendy that Ben was Manuel’s
child?
b. b. Comment on the correctness, legal and
moral, of his advice on securing a declaration of
presumptive death of Manuel. Is unconfirmed
information enough to destroy the spouse’s
“well-founded belief” that the absentee spouse
is dead?
c. c. Comment on the ethical questions involved in
Louis’ planned legal strategy.
Situation 4
On April 2005, four years after the plane crash, probate
proceedings for Manuel’s will were initiated. In the will,
Manuel left P100, 000 to Cora, and the rest of all his
properties to Wendy and Ben equally (see Appendix H,
Will of Manuel Soriano). Louis, entrusted with the will,
knew that if the will was to be followed, it would be
unfair to Wendy, since Ben was really Manuel’s
illegitimate child. Louis advices Wendy to contest the
will. He adds, however that if she contests the will, she
has to tell the whole world that Ben is not her biological
child. Wendy does not want to give Ben up to his
biological mother, since she (Wendy) has learned to
love him. However, she is adamant about not giving
Cora the P500, 000.
Louie reminds Wendy that in all their years of
friendship, she and Manuel have gone to him for their
legal problems but not once did he charge them a fee.
Due to the time involved in litigating this case (as to not
giving Cora the P500, 000), he accepts the case but
demands from Wendy payment of P150, 000, his
standard fee. Wendy refuses. Can Louis withdraw from
the case?
I. Consider the following:
a. Code of Professional Responsibility, Canons 22, 22.01,
20.04, 14.04
b. Santiago vs. Fojas, 248 SCRA 68
c. If instead, Louie agrees to take the case upon
Wendy’s promise to give him the entire P500,000
meant for Cora, should he win the case but only
P25,000 should he lose, would this be correctly
characterized as a contingent fee?
I. Consider the following:
i. Taganas vs. NLRC, GR 118746, 9/7/95 “A contingent
fee arrangement is an agreement laid down in an
express contract between a lawyer and a client in which
the lawyer's professional fee, usually a fixed percentage
of what may be recovered in the action is made to
depend upon the success of the litigation. This
arrangement is valid in this jurisdiction.”
d. Distinguish between a champertous contract and a
contingent fee.
I.
The case of Bautista vs Gonzales (182 SCRA 151)
describes a champertous agreement as one “whereby
an attorney agrees to pay expenses of proceedings to
enforce the client’s rights.” In champertous contracts,
the lawyer is the one paying for all the costs and fees of
the case, without reimbursement from the client. 23
II.
On the other hand, a contingent fee is defined in the
case of Taganas vs NLRC as “an agreement laid down in
an express contract between a lawyer and a client in
which the lawyer's professional fee, usually a fixed
percentage of what may be recovered in the action is
made to depend upon the success of the litigation.”
Thus, in contingent fees, the lawyer gets paid the
agreed amount if the case is successful, otherwise, he
does not get paid, or gets paid a lower agreed amount.
This does not mean though that the lawyer necessarily
pays the costs and fees of the suit. The clients may still
be paying for the costs of the suit, but the lawyer gets
paid his agreed fee if they win.
e. What are the criteria in considering the
reasonableness of Attorney’s fees?

I. Consider the following:

i. Code of Professional Responsibility, Canon 20.01

ii. Rules of Court, Rule 138, Section 24

iii. Del Rosario vs. CA, 237 SCRA 39

f. Presume that Louis does not take the case and Wendy
seeks the services of a media-savvy female lawyer, Atty.
Evie Escaler. She believes that there is little chance that
the case will prosper considering that Wendy wanted
the bequest to Cora to be voided on moral grounds but
did not want any proof to be presented that could
identify Cora as Ben’s biological mother. Nevertheless,
she keeps these thoughts to herself and accepts the
case considering that it presented a real challenge and
was a good 25 test case in addition to having the
makings of a high profile case of “show-biz”
proportions.

Discuss the legal and moral issues involved.

I. Consider the following: i. Code of Professional

Responsibility, Canons 15, 15.05, 15.07, 17

1. Is it proper to cross-examine for the purpose of

discrediting the reliability or credibility of an adverse
witness whom you know to be telling the truth?

2. Is it proper to put a witness on the stand when you

know he will commit perjury?

3. Is it proper to give your client legal advice when you

have reason to believe that the knowledge you give
him will tempt him to commit perjury?