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 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]
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 mayorand 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 toManila. 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.
[1][1] Bernas, Joaquin, The 1987 Constitution of the Philippines:
A Commentary, Quezon City: Rex Printing, 2009, p. 84.

[2] Bernas, ibid.

[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

I, do solemnly swear that I will maintain allegiance to the

Republic of the Philippines, I will support the Constitution and
obey the laws as well as the legal orders of the duly constituted
authorities therein; I will do no falsehood, nor consent to the
doing of any in court; I will not wittingly or willingly promote or
sue any groundless, false or unlawful suit, or give aid nor
consent to the same; I will delay no man for money or malice,
and will conduct myself as a lawyer according to the best of my
knowledge and discretion, with all good fidelity as well to the
courts as to my clients; and I impose upon myself these
voluntary obligations without any mental reservation or purpose
of evasion. So help me God.