Problem Areas in Legal Ethics

Problem Areas in Legal Ethics Legal Ethics in Family Law

Submitted by: Apordo, Mark Christian B. Enalpe, Rodolfo Jr. Guasque, Jacqueline Lagman, Ivy Xenia Mabbun, Ma. Antonette

Submitted to: Atty. Victor Eleazar

3 December 2010

Legal Ethics in Family

PROBLEM AREAS IN LEGAL ETHICS Law

LEGAL ETHICS IN FAMILY LAW

I.

FACTS:

Manuel and Wendy were married in 1992. They are both professionals, with stable jobs. In the five years that they were married, they tried to have a baby but have not been successful. Manuel wanted to have a baby for so long that on the day Wendy received news that she was pregnant, Manuel was ecstatic. As Wendy’s pregnancy progressed, she started having difficulty breathing and was easily fatigued. One day, she was rushed to the hospital because she could not breathe. The doctors diagnosed her as having mitral valve stenosis, a congestion of the heart due to a valve defect. As explained by the doctors, her heart has to work double time to be able to circulate blood in her system. Her condition was one of functional class III, and women with functional class III to IV heart conditions are strongly advised against pregnancy because of high maternal mortality rate. The Medical Certificate issued to Wendy is found hereunder:

MEDICAL CERTIFICATE Date: January 21, 1997 Name of Patient Age Sex • • • • • • • • •

• • • • •

:

Wendy G. Soriano : 30 years : Female

SYMPTOMS: Difficulty of breathing Pounding of heart Easily tired without doing anything PHYSICAL EXAMINATION: Intrauterine pregnancy 9 4/7 weeks age of gestation by last menstrual period * 10 3/7 by first ultrasound * currently not in labor G1PO BP 130/90 Cardiac rate 110 (normal 60-100) Respiratory rate 30 (normal 16-20) Head & neck: * (+) neck vein engorgement * jugular venous pressure 10 cm H20 Chest & lungs: * crackles all lung fields * enlargement of the left atrium * (+) grade 3/6 murmur of the heart, best heard at the left 5th intercostal space, parasternal border and at the apex, with radiation to anterior axillary line, systolic Extremities: edema, grade 3, pitting MEDICAL HISTORY: Rheumatic fever at age 15, poor follow up Paroxysmal nocturnal dyspnea (difficulty of breathing before going to sleep) Easy fatigability, relieved by 3-4 pillows Bipedal edema (swelling of feet) FINAL DIAGNOSIS: Mitral valve stenotic: congestive heart failure functional class II, secondary to acquired valvular heart disease, secondary to rheumatic heart disease. (Signed) DR. BETTINA COLORO, MD Attending Physician License Number: 0987-35593

The doctors say that the chances of Wendy carrying the baby to term are slim because her heart would not be able to take it. She was then 10 weeks pregnant. Wendy was scared; she does not want to die. She contemplates the possibility of abortion. Wendy and Manuel sought the advice of Louis, their close friend who was the high school buddy of Manuel and who happened to be a lawyer.

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PROBLEM AREAS IN LEGAL ETHICS Law II. PROBLEMS:

A. AFTER EXPLAINING WENDY’S MEDICAL CONDITION, MANUEL TOLD LOUIS THAT THEY ARE THINKING OF HAVING THE CHILD ABORTED. HE THEN ASKS, “WHAT DO YOU THINK OF THIS? IS THIS LEGALLY PERMISSIBLE?” A common dilemma is determining if the advice sought is one solicited from a friend who happens to be a lawyer making it more of a “friendly” advice or was it asked from you because you are a lawyer who happens to be a friend also making it more of a “lawyerly” advice. Lawyers tend to blurt out off-thecuff opinions without considering the possible implications of their giving an advice to a friend and whether that act establishes a lawyer-client relationship. If Louis were to answer the query of Wendy, would a lawyer-client relationship be established? Consider the case of Hadjula v. Atty. Madianda, A.C. No. 6711, July 3, 2007, 526 SCRA 241, where the Supreme Court held that from the moment the client approached a receptive lawyer to seek legal advice, a veritable lawyer-client relationship evolved between the two. Consider also the case of Burbe v. Atty. Magulta, AC No. 99-634, June 10, 2002, 383 SCRA 276, where the Supreme Court held that a lawyerclient relationship was established from the very first moment client asked the lawyer for legal advice regarding the former's business. Bearing in mind this caveat, should a lawyer qualify his advice that it is being made as a friend or as a lawyer? Note that Wendy could have asked a priest or a second opinion from another doctor but she chose to ask Louis who is a lawyer. B. IF LOUIS, AS A FAMILY FRIEND, ADVISES WENDY TO HAVE AN ABORTION, WOULD HE BE BREAKING HIS OATH AS A LAWYER? Consider the following: i.

ii.

iii.

Code of Professional Responsibility, Canons 1, 1.01, 9, 15.08 and 17 Canon 1: A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW OF AND LEGAL PROCESSES. Canon 1.01: A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Canon 9: A LAWYER SHALL NOT, DIRECTLY OR INDIRECTLY, ASSIST IN THE UNAUTHORIZED PRACTICE OF LAW. Canon 15.08 : A lawyer who is engaged in another profession or occupation concurrently with the practice of law shall make clear to his client whether he is acting as a lawyer or in another capacity. Canon 17 : A LAWYER OWES FIDELITY TO THE CAUSE OF HIS CLIENT AND HE SHALL BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN HIM. 1987 Constitution, Section 12, Article II Section 12: 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. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. Revised Penal Code, Articles 256-259 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.

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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.

iv.

Civil Code, Art. 41-42 Art. 41: For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. Art 42: Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will. (32a)

v.

You have known the couple since your high school days. C. WOULD ABORTION BE JUSTIFIED IF THERE WAS A SERIOUS RISK TO THE LIFE OF THE MOTHER?

Consider Canons 15, 15.05 and 15.07 of the CPR. Canon 15: A LAWYER SHALL OBSERVE CANDOR, FAIRNESS AND LOYALTY IN ALL HIS DEALINGS AND TRANSACTIONS WITH HIS CLIENTS. Canon 15.05 : A lawyer when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understating the prospects of the case. Canon 15.07: A lawyer shall impress upon his client compliance with the laws and the principles of fairness D. IF LOUIS ACTS INSTINCTIVELY BASED 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? Consider Canons 1, 15, 15.05 and 15.07 of the CPR. Comment on the action of some lawyers who because of their strong religious conviction would not handle cases of declaration of nullity of marriage due to psychological incapacity because of the policy of the Church against divorce. Read the case of People v. Judge Veneracion, 249 SCRA 244. When the Civil Rights Act of 1964 was put to vote in the US Senate, Republican Senator Barry Goldwater of Arizona voted against the bill and remarked: “You can’t legislate morality.” Comment on this proposition. E. IN ADDITION TO THE ABORTION ISSUE, WENDY CONSIDERS UNDERGOING A TUBAL LIGATION. SHE AGAIN ASKS LOUIS IF THIS IS LEGALLY PERMISSIBLE. IF LOUIS ACTS INSTINCTIVELY BASED ON HIS RELIGIOUS CONVICTION, GIVES A LEGAL OPINION THAT TUBAL LIGATION IS A FORM OF ABORTION AND THEREFORE CRIMINAL AND DOES NOT ALLOW FOR ANY EXCEPTION, DOES HE VIOLATE ANY LAW OR ETHICAL PRINCIPLE?

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CONSIDER ALSO THE PENDING REPRODUCTIVE HEALTH BILL BEFORE CONGRESS. IN ARGUING FOR OR AGAINST THE RH BILL, DO YOU THINK YOU CAN LIMIT THE DISCUSSION ON PURELY LEGAL ISSUES – WHETHER MODERN METHODS OF FAMILY PLANNING SHOULD INCLUDE METHODS TO PREVENT PREGNANCY SUCH AS THE PILL, IUD, INJECTIBLES, CONDOM, LIGATION, AND VASECTOMY – OR IS THE ISSUE, AS THE CHURCH PUTS IT, INEXTRICABLY INTERTWINED WITH MORAL ISSUES?

III. COMMENTS: A. AFTER EXPLAINING WENDY’S MEDICAL CONDITION, MANUEL TOLD LOUIS THAT THEY ARE THINKING OF HAVING THE CHILD ABORTED. HE THEN ASKS, “WHAT DO YOU THINK OF THIS? IS THIS LEGALLY PERMISSIBLE?” The question raises the following considerations vis-a vis the facts presented: • Friendly advice versus lawyerly advice • If Louis were to answer the query of Wendy, would a lawyer-client relationship be established? • Should a lawyer qualify his advice that it is being made as a friend or as a lawyer? • In the Philippines, abortion is considered illegal. Article II, Section 12 of the 1987 of the Constitution provides that 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. In addition, the Revised Penal Code (RPC), particularly, Articles 256, 257, 258 and 259, penalizes abortion, to wit: “ARTICLE 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. ARTICLE 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. ARTICLE 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. ARTICLE 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.

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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.” (emphasis supplied) Applying the foregoing in the case of Wendy, there is in fact, no express provision which authorizes abortion in order to save the woman's life. More so, there is no qualification provided that in case the woman's life is endangered during her pregnancy, abortion may be justified. However, it may be arguable that under the principles of necessity as set forth in Article 11(4) of the RPC, abortion may be legally performed to save the pregnant woman’s life. Nonetheless, there is still no existing Supreme Court decision relative to this issue (see related discussion below). Considering the intricacy of the said issue vis-à-vis the personal relationship of the parties involved, it is relevant to determine whether there would already be an attorney-client relationship that would be established the moment Louis gives an advice. Taking the case of Hadjula vs. Atty. Madianda, A.C. No. 6711, July 3, 2007,526 SCRA 241, the complainant, Luisa Hadjula, in this case, seeks the suspension and/or disbarment of respondent, Atty. Roceles Madianda, for the latter's act of disclosing personal secrets and confidential information she revealed in the course of seeking respondent's legal advice. The complainant alleged that she and respondent, Atty. Roseles Madianda, used to be friends as they both worked at the Bureau of Fire Protection (BFP) where the respondent was the Chief Legal Officer while she was the Chief Nurse of the Medical, Dental and Nursing Services. Complainant claimed that, sometime in 1998, she approached respondent for some legal advice. Complainant further alleged that, in the course of their conversation which was supposed to be kept confidential, she disclosed personal secrets and produced copies of a marriage contract, a birth certificate and a baptismal certificate, only to be informed later by the respondent that she (respondent) would refer the matter to a lawyer friend. Respondent, in refuting the allegations, denied giving legal advice to the complainant and dismissed any suggestion about the existence of a lawyer-client relationship between them on the basis that the complainant was never her client and that she never entertained legal queries or consultation regarding personal matters. Ruling in favor of the complainant, the Court ruled that “the moment complainant approached the then receptive respondent to seek legal advice, a veritable lawyer-client relationship evolved between the two. Such relationship imposes upon the lawyer certain restrictions circumscribed by the ethics of the profession.” Further it provides that “the fact that one is, at the end of the day, not inclined to handle the client's case is hardly of consequence. Of little moment, too, is the fact that no formal professional engagement follows the consultation. Nor will it make any difference that no contract whatsoever was executed by the parties to memorialize the relationship.” (emphasis supplied) Another case is Burbe vs. Atty. Magulta, AC No. 99-634, June 10, 2002, 383 SCRA 276. It was alleged in this case that the complainant was the kumpadre of a law partner of the respondent, and that respondent dispensed legal advice to complainant as a personal favor to the kumpadre. In tackling the issue of attorney-client relationship, the court ruled that “if a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional employment is established. Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the complainant or the nonpayment of the former's fees.” (emphasis supplied). In view of the above-mentioned cases, it appears that a lawyer-client relationship will be established between the Louis and the spouses, Manuel and Wendy, the moment the former answers the query Manuel. This is on the basis that Manuel primarily desires to have a legal advice on Wendy’s situation and Louis, on the other hand, consents to the consultation by providing his advice. As regards the issue on whether a lawyer should qualify his advice (i.e., it is being made as a friend), we believe that this cannot be a solid excuse to claim that an attorney-client relationship has not existed because normally, a person seeks an advice from a lawyer-friend in view of obtaining a straightforward answer based on the latter’s knowledge of the law. Further, even if a lawyer qualifies his advice as a friendly advice, it cannot be eliminated that the same still came from a lawyer. It is worth noting however, that in the following cases the court ruled that there is no attorney-client relationship when the relationship was based on a personal transaction:

•

In Virgo vs. Atty. Amorin, A.C. No. 7861, January 30, 2009, the court ruled that “no attorney-client relationship exists xxx, such as when the relationship stemmed from a personal transaction xxx rather than the practice of law of respondent or when the legal acts done were only incidental to their personal transaction.”

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This case is about a sale transaction between the complainant, Wilhelma Virgo and respondent, Atty. Oliver Amorin (i.e., sale of complainant’s house to respondent). Although it was established in the case that Atty. Amorin provided the free legal services and consultations to the complainant, the court ruled that said legal services were only incidental to the business relationship.

•

In Uy vs. Atty. Gonzales, A.C. No. 5280, March 30, 2004, the respondent, Atty. Fermin Gonzales offered to redeem the complainant’s 4.9 hectare-property. For this, he paid complainant P340,000.00 and demanded the delivery of the certificate of title of the property. However, it turned out that the complainant misplaced the certificate of title. Wanting to protect his interest over the property coupled with his desire to get hold of said certificate the earliest possible time, the respondent offered his assistance pro bono to prepare a petition for lost title. In the issue of attorney-client relationship, the court ruled that there was no attorney-client relationship between respondent and complainant on the basis that the preparation and the proposed filing of the petition was only incidental to their personal transaction. Notwithstanding that in the above cases the court ruled no attorney-client relationship will be established if the relationship is based on personal transaction, we believe that this will not be applicable to the case of Wendy and Manuel. This is because, as mentioned above, the spouses specifically requests for a legal advice and such request do not fall squarely within the ambit of a personal transaction. Further, clearly there is no separate personal transaction involved in the case. In relation to the above, we wish to mention that the existence of attorney-client relationship may not always be relevant. In the case of Mendoza vs. Atty. Deciembre, A.C. No. 5338. February 23, 2009, the Court ruled that “the fact that there is no attorney-client relationship xxx and the transactions entered into by respondent were done in his private capacity cannot shield respondent, as a lawyer, from liability. A lawyer may be disciplined for acts committed even in his private capacity for acts which tend to bring reproach on the legal profession or to injure it in the favorable opinion of the public. Indeed, there is no distinction as to whether the transgression is committed in a lawyer's private life or in his professional capacity, for a lawyer may not divide his personality as an attorney at one time and a mere citizen at another.” Thus, in this case, if Louis will give an advice which would likely bring reproach to the legal profession, attorney-client relationship need not be proved. B. IF LOUIS, AS A FAMILY FRIEND, ADVISES WENDY TO HAVE AN ABORTION, WOULD HE BE BREAKING HIS OATH AS A LAWYER? The most difficult thing about being a lawyer and a friend to someone is that thin line as to whether you can actually act in different capacities when a question of legality is on hand. However as we explained in the first question, Louis will definitely be breaking his oath as a lawyer. Let us consider the following laws as to determine the laminate our sensible and logical answer to the question at bar. As provided for by Canon 1 of the Code of Professional Responsibility (CPR): “A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law of and legal processes.” “Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.” We all know that in the Philippines, abortion, whether intentional or unintentional, is punishable by law. This is found in Articles 256 to 259 of the RPC, as indicated above. If we are to base in the analogy presented by the laws, we can conclude that even as a family friend, Louis would be breaking his oath as a lawyer when he advises Wendy to have an abortion. The rules and ethics of the legal profession demand that the personal and private duties of an attorney should be subordinate to those which he owes to the public. No greater responsibility devolves upon a member of the bar than that of living up to its high and exacting standards. Based on Section 12, Article II of the 1987 Constitution: “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. The natural and primary right and duty

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of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.” In the case on hand, the life of the mother is at stake. It would be reasonable enough to choose the life of the mother over the unborn child. Wendy’s unborn child has a great probability of not being able to be completely delivered. However, there is already life, life of the unborn, which a lawyer should not only consider but instead protect as member of the bar which such privilege demands a high degree of good moral character, not only as a condition precedent to admission, but also as a continuing requirement for the practice of law. At any rate, if he advice abortion, Louis will violate his oath as lawyer. C. WOULD ABORTION BE JUSTIFIED IF THERE WAS A SERIOUS RISK TO THE LIFE OF THE MOTHER? The Roman Catholic Church has consistently condemned abortion — the direct and purposeful taking of the life of the unborn child. In principle, Catholic Christians believe that all life is sacred from conception until natural death, and the taking of innocent human life, whether born or unborn, is morally wrong. The Church teaches that “human life is sacred because from its beginning it involves the creative action of God and it remains forever in a special relationship with the Creator, who is its sole end. God alone is the Lord of life from its beginning until its end: no one can under any circumstance claim for himself the right directly to destroy an innocent human being" ("Donum vitae," 5)...(Church Has Always Condemned Abortion By Fr. William Saunders) Law defines it as the willful killing of the fetus in the uterus, or the violent expulsion of the fetus from the maternal womb which results in the death of the fetus. On both definitions, abortion is seen as a negative act. The Church perceives it as a sin where the person who committed the act or is involved in the commission of the act will see his afterlife spent in hell; law lists it as felony under Articles 255 to 259 of the Revised Penal Code. The Church has never in any situation justified the commission of abortion --- even if there was a serious risk to the life of the mother. Lawyers, on the other hand, attempted to argue in support of abortion. In order to save the life of the mother, they argue that abortion may be excluded from criminal liability based on the justifying and exempting circumstance under the Revised Penal Code (RPC). Article 11: Justifying Circumstance – the following do not incur any criminal liability: xxx 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. However, the mentioned justification is not yet recognized, relative to abortion, by the Supreme Court. For obvious reason that there is no case yet, as similarly as the case of Wendy, was passed or submitted to the Supreme Court for decision. There is no debate that life of the unborn is important and sacred, so to speak. But what might be missing point here the equal importance of the life of the mother who carries and give life to the unborn. Not to mention the vital, if not indispensable, role of the mother in rearing their children. Section 12 of the 1987 Constitution, which states that: “The State xxx shall equally protect the life of the mother and the life of the unborn from conception xxx,” maintains that both lives are equally protected however one may be preferred over the other under certain circumstances. And this hiatus in the law is a continuing violation of the following constitutional guarantees: (1) Section 11 Article 2 of the 1987 Constitution, which states that, “The State values the dignity of every human person and guarantees full respect for human rights”, and (2) Section 15 also of Article 2 of the 1987 Constitution that states that, “The State shall protect and promote the right to health of the people and instill health consciousness among them”. It may be recommended that there is the need to clarify the grounds for exception such as (1) to save the life and health of the mother; (2) if a woman is a victim of rape or incest; or (3) if the fetus is impaired.

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The fundamental reason that abortion is condemnable is because it kills an innocent human being. What do you do, then, when the existence of one human being, through no fault of their own, threatens the life of another human being? Do you end the life of the child, to save the life of the mother? This is the dilemma we face. Philosophically, we might justify the decision to abort a life-threatening pregnancy this way: (A) If the pregnancy continues, the mother will die. If the mother dies, the child will die. (B) If the pregnancy is ended through abortion, the child will die, but the mother will live. In both instances the child will die. Since there is no way to save the child, but there is a way to save the mother, it is morally expedient (even necessary, perhaps) to save the mother by ending the life of the child – on the premise that is better to save one life, than to lose two. This conclusion has nothing to do with valuing one life over the other. It merely recognizes that since there is no way to save the baby, the most ethical course of action is to save the mother(Source: http://www.abort73.com/end_abortion/is_abortion_ever_justified/). If continued pregnancy threatens the life of the mother, and there is no way to save the child, an ethical case can be made for the justifiability of abortion, however, such ethical dilemma may be altogether unnecessary(Source: http://www.abort73.com/end_abortion/is_abortion_ever_justified/). There is only one pregnancy-related condition that poses a significant threat to a woman’s life and it is ectopic pregnancy, a condition that occurs when the embryo implants in the fallopian tubes (or in the ovary, abdomen, or cervix) instead of in the uterus. It has been generally reported and generally believed that an ectopic pregnancy is always fatal to the child and, if left untreated, often fatal to the mother (Source: http://www.abort73.com/end_abortion/is_abortion_ever_justified/). A report on ectopic pregnancy published by the American Academy of Family Physicians tells us a number of things: (1) Ectopic pregnancy occurs at a rate of 19.7 cases per 1,000 pregnancies in North America; (2) In the United States, the case-fatality rate has declined from 35.5 maternal deaths per 10,000 ectopic pregnancies in 1970 to only 3.8 maternal deaths per 10,000 ectopic pregnancies in 1989, and; (3) to date, at least 14 studies have documented that 68 to 77 percent of ectopic pregnancies resolve without intervention (Source: http://www.abort73.com/end_abortion/is_abortion_ever_justified/). If for one case, the mother whose life is seriously threatened by her pregnancy comes to seek legal counsel on her intention to abort the fetus in her womb, any lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his client (Canon 15 of the Code of Professional Responsibility). The lawyer, also, when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understating the prospects of the case (Rule 15.05, CPR). And finally, the lawyer shall impress upon his client compliance with the laws and the principles of fairness (Rule 15.07, CPR). A lawyer has to provide his legal opinion in any situation should his advice be sought. But, as in any case involving medical recommendations, it is still science which has the final say on the case at the end of the day. Law will only have jurisdiction over the case should any person files a case against the mother or party with or without any direct involvement in the process.

D. IF LOUIS ACTS INSTINCTIVELY BASED 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. Louis should not have given a value-laden answer based on religious considerations given the fact that what was asked of him was a legal opinion. As a lawyer, he should have maintained the secular nature of the law and all the remedies attached to it. This would have given Manuel and Wendy the options to solve their problem solely based on legal parameters. The CPR provides the following: “Canon 1 - A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law of and legal processes. xxx Canon 15 - A lawyer shall observe candor, fairness and loyalty in all his dealings and transactions with his clients. xxx

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Legal Ethics in Family

PROBLEM AREAS IN LEGAL ETHICS Law

Rule 15.05. - A lawyer when advising his client, shall give a candid and honest opinion on the merits and probable results of the client's case, neither overstating nor understating the prospects of the case.” Although our laws, particularly the RPC, does not specifically give out exemptions regarding abortion, still there is what is termed as “Therapeutic Abortion”. If the abortion is produced by a physician to save the life of the mother, there is no liability. This is known as Therapeutic Abortion. (Feria and Gregorio, II, p. 315) Asking for a legal opinion is not the same as asking for personal advice. It was Louis’s job to inform the couple of their options. Being a man of the law, it is his job to inform his friends, regardless of his religious convictions, of the choices that they can avail of and let them take it from there. Regardless of his personal beliefs, the opinion being sought from him was that of a LAWYER and he is duty-bound as a lawyer to give his five-cents worth on the matter. In the case of People v. Judge Veneracion, 249 SCRA 244, the Supreme Court held: “We are aware of the trial judge's misgivings in imposing the death sentence because of his religious convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death as a penalty in specific and well-defined instances. The discomfort faced by those forced by law to impose the death penalty is an ancient one, but it is a matter upon which judges have no choice. Courts are not concerned with the wisdom, efficacy or morality of laws. In People vs. Limaco,we held that: [W]hen . . . private opinions not only form part of their decision but constitute a decisive factor in arriving at a conclusion and determination of a case or the penalty imposed, resulting in an illegality and reversible error, then we are constrained to state our opinion, not only to correct the error but for the guidance of the courts. We have no quarrel with the trial judge or with anyone else, layman or jurist as to the wisdom or folly of the death penalty. Today there are quite a number of people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. However, as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions. It is a well settled rule that the courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of the Legislature which enacts them and the Chief Executive who approves or vetoes them. The only function of the judiciary is to interpret the laws and, if not in disharmony with the Constitution, to apply them. And for the guidance of the members of the judiciary we feel it incumbent upon us to state that while they as citizens or as judges may regard a certain law as harsh, unwise or morally wrong, and may recommend to the authority or department concerned, its amendment, modification, or repeal, still, as long as said law is in force, they must apply it and give it effect as decreed by the law-making body.” Relating this issue to annulment cases, we wish to comment that some lawyers, because of their personal and religious beliefs, refuse to take on annulment cases because of the stand of the church on annulment. We view this on the basis that while separation of church and state is paramount, it is a fact that majority of the Filipinos are catholic, a great number of our population adhere to the Catholic church’s teachings. Thus, in cases of lawyers refusing to take on annulment cases, then I guess they are merely expressing their freedom of choice. If they do not want to take on annulment cases, then let just let them be --just as long as such personal choices do not get in their way of being lawyers. Lawyers are not like judges, as in the above-mentioned case. While lawyers always have an option or choice in choosing the cases that they may handle, judges have no such options except in limited instances. A judge has no choice but to render judgment based on facts given and proved and may not divert from it based on his own personal beliefs. A lawyer at the outset may refuse to take on a case because it may be against his moral or personal convictions to do so. I believe that in doing one’s job, one can always choose on whether you “actually” want to do it or not…a person may not be forced in doing something which is against his will. However, taking on a case is different from giving legal advice. A lawyer is always duty-bound to inform his clients of the real facts on a certain issue whether they may be against his principles or not. This is in

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Legal Ethics in Family

PROBLEM AREAS IN LEGAL ETHICS Law

line with his duties according to the Code of Professional Responsibility. He is mandated to give his clients the best advise based on the law, not on his personal beliefs. E. IN ADDITION TO THE ABORTION ISSUE, WENDY CONSIDERS UNDERGOING A TUBAL LIGATION. SHE AGAIN ASKS LOUIS IF THIS IS LEGALLY PERMISSIBLE. Tubal ligation is legally permissible in our jurisdiction. There is no law that prohibits tubal ligation in the Philippines thus it is only but logical to conclude that it is legally permissible. Nullum crimen nulla poena sine lege. The maximum Nullum crimen nulla poena sine lege has its roots in history. It is in accordance with both centuries of civil law and common law tradition. Moreover, it is an indispensable coronary to a regime of liberty enshrined in our Constitution. It is of the essence then that while anti-social acts should be penalized, there must be a clear definition of the punishable offense as well as the penalty that may be imposed a penalty, to repeat, that can be fixed by the legislative body, and the legislative body alone. So constitutionalism mandates, with its stress on jurisdiction rather than guvernaculum. (Concurring opinion of then Chief Justice Fernando in the of People vs. Cabural, GR no. L-34105, 4 February 1983) Moreover, just to fill the fill the gap in the argument, there many laws in our jurisdiction that provide and seem to support tubal ligation as an option for surgical family planning. To mention few: • Section 1 of EO 949, 1 May 1984 (Increasing Medicare Allowance) • Section 3(e), Rule III, IRR of Program I of the Revised Philippine Medical Care Act, 27 August 1987 (Tubal ligation was added as benifit) • Section 41, PhilHealth Board Resolution no. 324-00 (Tubal ligation was included in benefit package as surgical family planning) • IRR of Medical Care Program for FOCWS, EO 195 s 1994 (Tubal ligation was classified as one of the benefits) • Section (6)(ii) of PD 1146, Revised Government Service Insurance ACT of 1977 (gives expense allowances for sterilization procedure to its member or latter’s dependent) Therefore, it can be well said that tubal ligation is legally permissible in our jurisdiction. IF LOUIS ACTS INSTINCTIVELY BASED ON HIS RELIGIOUS CONVICTION, GIVES A LEGAL OPINION THAT TUBAL LIGATION IS A FORM OF ABORTION AND THEREFORE CRIMINAL AND DOES NOT ALLOW FOR ANY EXCEPTION, DOES HE VIOLATE ANY LAW OR ETHICAL PRINCIPLE? Yes, Louis violates the Canon 1, Chapter I – The Lawyer and Society, Code of Professional Responsibility, which provides: A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and legal process. Section 12, Art II of the 1987 Philippine Constitution provides that: Section 12. 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. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. When the Constitution recognizes both the protection of the life of the mother and the life of the unborn, it does not mean that the life of the mother is place on exactly the same level as the life of the unborn. It is well settled rule that when necessary to save the life of the mother, it may be legitimate to sacrifice the life of the unborn. Need not to say that such rule is not applicable life of the unborn will be sacrificed merely to save the mother from emotional suffering or to spare the child from poverty (Joaquin G. Bernas, S.J., The 1987 Constitution of the Philippines: A Commentary). Applying the same in the case at bar, Wendy‘s life will be always in danger if she will get pregnant. Wendy’ chances of carrying a baby are slim because her heart would not be able to take it. That is the very reason why she considers tubal ligation. Moreover, if tubal ligation would be undertaken by Wendy, choosing between life of a mother and unborn will never occur because pregnancy will never occur after tubal ligation. And as a lawyer, personal judgment and religious conviction should be, but not absolutely, set aside. If a lawyer will advice anyone on a legal issues, he should be certain if he giving the same on a legal basis or on his religious conviction in order not to lead anyone to a false impression.

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Legal Ethics in Family

PROBLEM AREAS IN LEGAL ETHICS Law

CONSIDER ALSO THE PENDING REPRODUCTIVE HEALTH BILL BEFORE CONGRESS. IN ARGUING FOR OR AGAINST THE RH BILL, DO YOU THINK YOU CAN LIMIT THE DISCUSSION ON PURELY LEGAL ISSUES – WHETHER MODERN METHODS OF FAMILY PLANNING SHOULD INCLUDE METHODS TO PREVENT PREGNANCY SUCH AS THE PILL, IUD, INJECTIBLES, CONDOM, LIGATION, AND VASECTOMY – OR IS THE ISSUE, AS THE CHURCH PUTS IT,INEXTRICABLY INTERTWINED WITH MORAL ISSUES? Discussion on RH Bill should be limited to legal issues. Section 6 and 15, Art II of the 1987 Philippine Constitution provides that: Section 6. The separation of Church and State shall be inviolable. xx

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Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. Moreover, Section 5, Article III of the 1987 Philippine Constitution provides that: No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the estate will use the church, and the church the state, as a weapon in the furtherance of their recognized this principle of separation of church and state in the early stages of our constitutional development; it was inserted in the Treaty of Paris between the United States and Spain of December 10, 1898, reiterated in President McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of August 29, 1916, and finally embodied in the constitution of the Philippines as the supreme expression of the Filipino people. It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere religious toleration. Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not denial of its influence in human affairs (Aglipay vs. Ruiz, GR no. L-45459, 13 March 1937) The rationale of the principle of the separation of church and state is summed up in the familiar saying, "Strong fences make good-neighbors." The idea advocated by this principle is to delineate the boundaries between the two institutions and thus avoid encroachments by one against the other because of a misunderstanding of the limits of their respective exclusive jurisdictions.The demarcation line calls on the entities to "render therefore unto Ceasar the things that are Ceasar's and unto God the things that are God's." While the state is prohibited from interfering in purely ecclesiastical affairs, the Church is likewise barred from meddling in purely secular matters (Austria vs. NLRC, GR no. 124382, 16 August 1999). At bottom, what our non-establishment clause calls for is "government neutrality in religious matters." Clearly, "governmental reliance on religious justification is inconsistent with this policy of neutrality". Otherwise stated, government must act for secular purposes and in ways that have primarily secular effects (Ang LADLAD Party-list vs. COMELEC, GR no. 190582, 8 April 2010). Therefore, Issue on RH bill should be settled on legal facet setting aside, but not absolutely, morality.

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