Professional Documents
Culture Documents
Writing in 1949, Macolm, a renowned legal luminary, defines “Art. 256. Intentional Abortion. — Any person who shall
legal ethics as that “branch of moral science which treats of the intentionally cause an abortion shall suffer:
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 1. The penalty of reclusión temporal, if he shall use any violence
that the Code of Professional Responsibility was promulgated upon the person of the pregnant woman.
by the Supreme Court in 1988 to serve as a “judicial command”
2. The penalty of prisión mayor if, without using violence, he
to lawyers in the performance of their profession. It should be
shall act without the consent of the woman.
borne in mind, however, that every dilemma that a lawyer finds
himself in should be considered in the light of the factual milieu 3. The penalty of prisión correccional in its medium and
of each case. Thus the Code is purely a “general guide” that maximum periods, if the woman shall have consented.
addresses issues that center on the lawyer and his interaction
with his client, the courts, and society as a whole. 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
Situation 1 violence, but unintentionally.
4. Any person who, in order to avoid an evil or injury, does an Alternative answer: No, there is no violation of any law or ethical
act which causes damage to another, provided that the following principle when Louis instinctively acted on his religious
requisites are present; conviction and gives a legal opinion that abortion is criminal.
Abortion is a crime mala in se which means an offense that is
First. That the evil sought to be avoided actual exists; evil or wrong from its own nature or by the natural law
irrespective of statute[4]. It is punishable by the Revised Penal
Second. That the injury feared be greater than that done to avoid Code (RPC) of the Philippines which mandates imprisonment
it; for a woman who undergoes abortion as well as for any person
who assists in the procedure, even if they be the woman’s
Third. That there be no other practical and less harmful means parents, physician, midwife or pharmacist. The following are the
of preventing it. pertinent provisions of the RPC:
Unfortunately, the said justification is not recognized by the Art. 256. Intentional abortion. — Any person who shall
Supreme Court as there is yet no existing decision relative to intentionally cause an abortion shall suffer:
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 1. The penalty of reclusion temporal, if he shall use any violence
equal importance of the life of the mother who carries and give upon the person of the pregnant woman.
life to the unborn.
2. The penalty of prision mayor if, without using violence, he
Despite the tenor of the Section 12, Article II of the 1987 shall act without the consent of the woman.
Constitution of “equally protecting” the mother and the unborn
child, Fr. Bernas elucidates: 3. The penalty of prision correccional in its medium and
maximum periods, if the woman shall have consented.
“[The second sentence of Section 12, Article II of the 1987
Constitution] does not assert that the life of the unborn is placed Art. 257. Unintentional abortion. — The penalty of prision
on exactly the same level as the life of the mother. It recognizes correccional in its minimum and medium period shall be
that, when necessary to save the life of the mother, it may be imposed upon any person who shall cause an abortion by
necessary and legitimate to sacrifice the life of the unborn. It violence, but unintentionally.
however denies that the life of the unborn maybe sacrificed
merely to save the matter from emotional suffering or to spare Art. 258. Abortion practiced by the woman herself of by her
the child from a life of poverty.”[3] 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 Prescinding from the facts of the case, the following problems
dishonor, shall suffer the penalty of prision correccional in its may be posed:
minimum and medium periods.
A. Should Atty. Paulina Paz have prepared the support
If this crime be committed by the parents of the pregnant woman and custody contract between Cora and Manuel?
or either of them, and they act with the consent of said woman
for the purpose of concealing her dishonor, the offenders shall B. Comment on the plan of Manuel and Wendy to
suffer the penalty of prision correccional in its medium and simulate the birth of the baby.
maximum periods.
C. Is there a lawyer-client relationship between the couple
Art. 259. Abortion practiced by a physician or midwife and and Louis? Between Manuel and Louis?
dispensing of abortives. — The penalties provided in Article 256
D. Does a request for a legal opinion and a response done
shall be imposed in its maximum period, respectively, upon any
through the internet give rise to a lawyer-client
physician or midwife who, taking advantage of their scientific
relationship?
knowledge or skill, shall cause an abortion or assist in causing
the same. E. Will duties of confidentiality be less strict, since as a
rule, messages thru the internet are not secure?
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.
DISCUSSION:
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 A. Should Atty. Paulina Paz have prepared the support
policy, morals, or good customs. A lawyer must uphold the and custody contract between Cora and Manuel?
constitution, obey the laws of the land and promote respect for
law and legal processes (Canon 1, Code of Professional No, Atty. Paz should not prepare the support and custody
Responsibility). He is also mandated by Canon 1.02 that he shall contract. Cora cannot demand support for herself for her unborn
not counsel or abet activities aimed at defiance of the law or at child. The support contract is still premature because the child
lessening confidence in the legal system. Canon 15.07 further is not yet born. Under Article 40 of the Civil Code, Birth
mandates him to impress upon his client compliance with the determines personality; but the conceived child shall be
laws and the principles of fairness. 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
Situation 2 is completely delivered from the mother's womb xxx. Hence,
Manuel’s responsibility to give support to his illegitimate child
Wendy’s pregnancy was not smooth sailing. Eventually, she lost
under Article 176 of the Family Code has not yet taken effect.
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 In addition, the contract (Appendix “B”) which was signed and
his own. Nursing his broken ego, Manuel left for his hometown acknowledge by Atty. Ricardo Q. Romano was contract of
in Negros Occidental. There, he met a girl named Cora, a niece donation is void. Cora is not qualified to become a donee
by marriage of his Aunt Ysabel, in one of the fiestas he had because under Article 739(1) of the Civil Code, a donation made
attended. In one of his fits of drunkenness, Manuel succumbed between persons guilty of adultery or concubinage is void.
to his lustful feelings towards Cora, who also felt obliged to fill
the void. Feeling guilty, he hastily returned toManila. That Second, statement VII of the Contract prepared (Appendix “B”)
unfateful day came into fruition upon Cora’s pregnancy.She must be deleted because it is void. Article 6 of the Civil Code of
contacted Manuel demanding for support for herself and the the Philippines states that rights may be waived, unless the
child. Manuel asked Atty. Paulina Paz, his tax lawyer to draft a waiver is contrary to law, public order, public policy, morals, or
contract where Cora promised to drop all claims against Manuel good customs, or prejudicial to a third person with a right
if he took full responsibility for Cora’s financial needs until a year recognized by law. In the case of Herrera vs. Borromeo, G.R.
after her delivery and the baby’s until he/she finished college. No. L-41171, July 23, 1987, for a waiver to exist, three elements
Cora also agreed that should Manuel exercise the option of are essential:
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 (1) the existence of a right;
the child (Appendix “B”).
(2) the knowledge of the existence thereof;
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, and (3) an intention to relinquish such right.
Manuel concocted the plan of adopting the child of Cora, whom In the case at bar, the prepared contract contained a clause that
he referred to as a ‘distant cousin.’ Raring to have this idea the Cora shall desist from filing any and all future claims against
become a reality, the couple devised a scheme by simulating the the Manuel. Cora cannot waive future claims because any future
birth of the unborn child. With this in mind, they sought the support or the right thereto cannot be waived nor compromised
advice of Louis, a family friend, on the said matter. Manuel even (Arts. 301, 2035, Civil Code). A right to be validly waived, must
went the distance of sending an email to his friend confiding that be in existence at the time of the waiver, and must be exercised
the baby was his and that he was only telling half of the story. by a duly capacitated person actually possessing the right to
make the waiver
Third, Statement VIII of the prepared contract should likewise be c. Jurisprudence is replete with cases that enunciate how
deleted for being contrary to law. Under Article 176 of the Family lawyer-client relationship commences. This in one case, the
Code, Illegitimate children shall use the surname and shall be Supreme Court held: “If a person, in respect to his business
under the parental authority of their mother. In the case of affairs or troubles of any kind, consults with his attorney in his
Dacasin vs. Dacasin, G.R. No. 168785, February 5, 2010, the professional capacity with the view to obtaining professional
relevant Philippine law on child custody for spouses separated advice or assistance, and the attorney voluntarily permits or
in fact or in law (Article 213(2) of the Family Code) is also acquiesces in such consultation, then the professional
undisputed: “no child under seven years of age shall be employment must be regarded as established.”[6]
separated from the mother x x x This statutory awarding of sole
parental custody to the mother is mandatory, grounded on d. Does a request for a legal opinion and response done
sound policy consideration, subject only to a narrow exception. through the internet give rise to a lawyer-client relationship?
Lastly, the law specifically enumerate the instances where Yes. To constitute professional employment it is not essential
parental authority is terminated (Art 327). These are as follows: that the client should have employed the attorney professionally
(1) Upon the death of the parents or of the child; (2) Upon on any previous occasion. If a person, in respect to his business
emancipation; (3) Upon adoption of the child; (4) Upon the affairs or troubles of any kind, consults with his attorney in his
appointment of a general guardian. Manuel merely intends to professional capacity with the view of obtaining professional
simulate the birth of the child, the parental authority of Cora still advice or assistance, and attorney voluntarily permits or
subsists because simulation of birth is illegal and does not acquiesces in such consultation, then the professional
validly terminate the parental authority of the mother over a child employment must be regarded as established (Jones
below seven years old. Commentaries on Evidence).
Note, under Canon 1, a lawyer shall uphold the constitution, Formality is not essential element of the employment of an
obey the laws of the land and promote respect for law of and attorney. The contract may be express or implied and it is
legal processes. A lawyer shall not counsel or abet activities sufficient that the advice and assistance of the attorney is sought
aimed at defiance of the law or at lessening confidence in the and received, in matters pertinent to his profession (Hirach Bros.
legal system (Canon 1.02) and shall not, for any corrupt motive & Co. vs. R.E Kennington Co.)
or interest, encourage any suit or proceeding or delay any man's
When Manuel request for legal opinion through internet, the
cause (Canon 1.03).
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.
Alternative Answer: There is no formality in the employment of an attorney. An
attorney can be employed through internet as such in this case.
Yes, Atty. Paulina Paz should prepare the support and custody
contract between Cora and Manuel. Under Article 176 of the e. will duties of confidentiality be less strict, as a rule, messages
Family Code, Illegitimate children shall use the surname and sent thru internet are not secure?
shall be under the parental authority of their mother, and shall
be entitled to support in conformity with this Code. Canon 21.01 – A lawyer shall not reveal the confidences or
secrets of his client except:
Art. 347. Simulation of births, substitution of one child for b. when required by law;
another and concealment or abandonment of a legitimate
c. when necessary to collect his fees or to defend himself, his
child. — The simulation of births and the substitution of one child
employees or associates or by judicial action.
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 The duties of confidentiality even though messages sent thru
conceal or abandon any legitimate child with intent to cause internet are not secured. It is duty of the lawyer to keep the
such child to lose its civil status. secret and confidence of his client in good faith. Canon 21.01
provides for exception where the attorney can reveal the secrets
Any physician or surgeon or public officer who, in violation of the
and confidences of his client. In this case, it did not fall to any of
duties of his profession or office, shall cooperate in the execution
such exception. It does not matter whether the legal services
of any of the crimes mentioned in the two next preceding
was thru internet, the duties of confidentiality still applies since it
paragraphs, shall suffer the penalties therein prescribed and
is the responsibility of the lawyer to keep the secrets of his client
also the penalty of temporary special disqualification.
and to prevent its revelation.
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]
[1][1] Bernas, Joaquin, The 1987 Constitution of the Philippines:
A Commentary, Quezon City: Rex Printing, 2009, p. 84.
[3] Ibid.
[4] http://www.merriam-
webster.com/dictionary/malum%20in%20se
[5] Reyes, Luis, The Revised Penal Code; Book Two, Quezon
City: Rex Printing, 2008, p. 962.
[6] Junio vs. Grupo, AM 5020, December 18, 2001, citing Hilado
vs. David, 84 Phil. 569.
Lawyer's Oath