ARELLANO UNIVERSITY SCHOOL OF LAW Problem Areas in Legal Ethics Fridays, 7:30 to 9:30 pm 2nd Semester SY 2010-11

LEGAL ETHICS IN FAMILY LAW

INSTRUCTIONS The problem presented here is patterned after Prof. Elizabeth A. Pangalangans work, A Teaching Manual on Ethical Issues in Family Law which is part of the Teaching Manual on Legal Ethics prepared through the joint efforts of University of the Philippines College of Law, U.P. College of Law Faculty Development Foundation, Inc., American Bar Association Asia Law Initiative, and the United States Agency for International Development. The problem seeks to expose the law students who have taken the basic courses on Legal Ethics and Family Law on the practical application of what they have learned to specific situations. Do not confine yourself to the cases, rules, canons or laws mentioned in the problems. They only serve as a guideline. Please do your own research! Also, do not confine yourself to the problems indicated in the Dilemma. If you believe that there are other ethical problems involved, discuss them in your report. DILEMMA 1 (for Group I): 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 Wendys 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 a lawyer. Problem I: a. After explaining Wendys 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-the-cuff opinions without considering the possible implications of their giving an advice to a friend and whether that act establishes a lawyerclient 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 lawyer-client 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. iv. v. c.

Code of Professional Responsibility, Canons 1, 1.01, 9, 15.08 and 17 1987 Constitution, Section 12, Article II Revised Penal Code, Articles 256-259 Civil Code, Art. 41-42 You have known the couple since your high school days.

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. 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 cant 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? 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?

DILEMMA 2 (for Group II): Wendy lost the baby. Manuel was devastated. As much as he hated to admit it, he blamed Wendy for not taking good care of her health. They ended up having a big fight. Manuel decided he needed some time away from her, so he went to his home town in Candoni, Negros Occidental to clear his head. His aunt, Ysabel Ynares was very happy to see him again after years of absence. She made sure that Manuel attended all the fiestas in their own town and nearby areas. Manuel was glad to oblige. On one of such occasions, he got so drunk that he lost his way home. Fortunately, Cora, Ysabels household helper, recognized Manuel and helped him get to his room safely. Overcome by a mixture of lust and drunkenness, Manuel forced himself on Cora who was too afraid to resist him. The next day, Manuel woke up and saw Cora crying in the corner. He was stricken with guilt and feared losing Wendy forever because of what he did to Cora. He then revealed the incident to Ysabel and begged her to keep the incident secret from Wendy or their relatives and friends. Cora was only 18 years of age when this incident happened. Her mother entrusted her to the care and custody of Ysabel since she was only 12 years old. Thereafter, Ysabel or even Cora had no communication with the parents or relatives of Cora. In fact, Ysabel acted as the guardian of Cora for school purposes. Ysabel then called Atty. Paulina Paz, a practitioner in Candoni and asked for her legal advice on what can be done to avoid any scandal. Atty. Paz then talked to Cora and explained to her that Manuel was willing to compensate her. Since Cora also did not want any scandal, she agreed to keep quiet about the incident. Atty. Paz managed to convince Manuel to pay P300,000.00, which was acceptable to Cora. Problem II: a. To what extent are you willing to go to defend and protect the

interest of your client? In this case, Atty. Paz was willing to go to the extent of concealing the commission of a crime inasmuch as Cora was also willing to keep quiet about the incident to avoid the scandal.

Comment on the action of Atty. Paz. Note that it is not uncommon for the victim or his/her family in a criminal case to settle with the accused, and after the settlement of the civil aspect of the crime, would desist from prosecuting the case. Or, even after the case has been filed in Court, a complainant would desist from further prosecuting the case; in which case, the prosecution would be constrained to have the case dismissed because it is unable to prove beyond reasonable doubt the guilt of the accused, the complaining witness having turned hostile. Note further that the matter has not reached the court and the task of Atty. Paz was precisely to prevent the incident from being filed in court. This case involves rape of an 18-year old barrio lass. We will assume that you (Atty. Paz) decided to take on the case and prepared all of the documents needed. In what kinds of cases would you be willing to do this? Will you do this in a case involving rape of a minor or a murder case? What circumstances or factors would impel you to consider handling these cases and prepare for the accused the documents needed to settle the civil aspect with the complainant? b. legal Assume the role of Atty. Paz who was asked to prepare all of the necessary to ensure that after Cora receives the

documents

P300,000.00 there was no way for her to have a change of heart and still charge Manuel of rape. Present these legal documents and explain the various provisions in class. The rest of the class should look for possible loopholes in the documents and determine if a case will still prosper should Cora change her mind in the future. c. Manuel paid Atty. Paz attorneys fees for her services. Is there a

standard fee for this kind of legal services? How much should Atty. Paz charge as attorneys fees? Explain to the class your basis in coming out with the amount.

Report on the cases of Pineda v. Atty. De Jesus, August 23, 2006, 499 SCRA 608, Roxas v. De Zuzuarregui, January 31, 2006, 481 SCRA 258, and

other cases involving attorneys fees and relate to the class what you have learned from these cases.

d.

Considering that Atty. Paz had to explain the documents to Cora

she had asked her to sign, would this be a case of conflict of interest considering that Atty. Paz acted for both parties Manuel and Cora? In this situation, would you ask Cora to sign the documents without the assistance of a lawyer of her own choice? This involves another common dilemma: whether you, as a lawyer, should insist that the other party be counseled also by a lawyer to ensure fairness? But then if Cora were to be counseled also by a lawyer, it may make things more difficult for Atty. Paz and Manuel. Read the cases of Likong v. Lim, 235 SCRA 414, Camacho v. Pangulayan, 328 SCRA 631, and other related cases. Recall the case of People v. Carpentier, et al., where Lance Corporal Daniel Smith was accused of raping Suzette Nicolas. Smith was convicted and appealed before the Court of Appeals. Before the Court of Appeals came out with its Decision reversing the judgment of conviction, Suzette executed an Affidavit of Retraction before Smiths lawyers and without the assistance of Suzettes lawyer whom she had dismissed as her counsel. Comment on the ethical implications of this situation and report to the class on whether you as a group would do something similar as what Smiths lawyers did. These cases involve a party being represented by a counsel. In situations wherein one party is not assisted by counsel, what steps should you as a lawyer representing the other party take in order to avoid any suspicion or accusation of using undue influence or taking improper advantage of the situation under Art. 1337 of the Civil Code? DILEMMA 3 (for Group III): Back together, Wendy and Manuel have never been happier. They decided to put the past behind them and think of their future. Since Wendy could not be pregnant, she broached to Manuel the possibility of adopting a child. Manuel was lukewarm to the idea and asked for time to mull over it.

The following month, Manuel received word from Cora that she was pregnant with his baby and that she wanted financial support for herself and the child. Manuel immediately called up Atty. Paz and asked if he can still be held liable for support considering the documents that Cora signed. Atty. Paz explained that at the time she prepared the settlement documents, no one knew that Cora was pregnant. The parties never contemplated on this situation. Although Atty. Paz believes that Cora will encounter difficulty in claiming for support considering the documents she had signed but then, she told Manuel to also consider the scandal that Cora could cause should she go to court. Manuel then asked Atty. Paz to talk to Cora so that he can settle the claim for support without having to go to court. Before doing so, Atty. Paz made it clear to Manuel that this would be another engagement. She then mentioned her fees. Atty. Paz and Manuel however could not agree on the fees. Thus, Manuel decided to talk to another lawyer, Louis. On the part of Cora, she did not know any other lawyer and thus when she learned that Manuel got another lawyer, she called up Atty. Paz to handle her claim for support. According to Cora, she was willing to go to court since she was pregnant and has nothing to lose. Problem III: a. In general, would you consider handling a case against a former

client? And if so, what factors or circumstances would you consider for you to handle a case against a former client? Note that simply because you handle a case against a former client does not mean that there is conflict of interest. Consider the cases of Palm v. Atty. Iledan Jr., 602 SCRA 12, Mercado v. Atty. Vitriolo, 459 SCRA 1 and related cases. b. In the event you consider it unethical for Atty. Paz to represent

Cora, would you (Atty. Paz) consider referring Cora to a lawyer-friend? In other words, would it be unethical for Atty. Paz to help Cora look for another lawyer since she declined to handle the case?

At first blush, referring Cora to a lawyer-friend would seem to be a harmless gesture. Do not lose sight however that Cora was once an adversary of your client Manuel and that the only reason why you are no longer representing Manuel is because you failed to agree on the fees. c. Assume that Manuel is represented by Louis while Cora is

represented by Atty. Cruz. The group will be divided to two sub-groups, one to play the role of Louis and the other, Atty. Cruz. The sub-groups should prepare and present in class a Settlement Agreement and whatever documents they deem necessary to protect the interest of their clients. They should explain in class all of the provisions of the documents they have prepared. They should also consider the following matters agreed upon by the parties: i. That Cora agreed to drop all claims against Manuel if

he will take full responsibility for the financial needs of Cora and the child to be born until he/she reaches the age of majority; ii. That Cora agreed to give Manuel the option of supporting the child in his home; in which case, Cora will have to give up all her parental rights over the child. The rest of the class should look for possible loopholes in the documents and determine if they can withstand judicial scrutiny. d. If you were in the shoe of Atty. Cruz, would you accept the case

for Cora? Explain your answer. If you were in the shoe of Louis, would you accept the case for Manuel? Explain your answer. e. What factors and circumstances should a lawyer take into

account before he agrees to handle a particular case? DILEMMA 4 (for Group IV): After the execution of the settlement documents, Manuel complied with his obligation and supported Cora until she gave birth to a baby boy. Unfortunately, Cora died of complications while giving birth. Ysabel took custody of the baby boy as there was no one else to do so.

It was about at this time that Manuel expressed to Wendy his agreement to adopt. He mentioned to Wendy that his aunt Ysabel knows of a child in Candoni who was abandoned by the mother and that she could make arrangements for the simulation of the birth certificate to make it appear as though they were the parents of the child. Wendy wanted to be sure of the legality of the action suggested by Manuel. Without the knowledge of Manuel, Wendy then called up Louis and asked for his advice on this matter. Problem IV: a. Comment on the plan of Manuel and Wendy to stimulate the

birth of the baby. Consider the following: i. ii. Revised Penal Code, Articles 347-348 Republic Act 8552, Domestic Adoption Law

Will the fact that Cora, the natural mother, is dead and thus, there is no one else to take care of the child, be a factor in your deciding whether or not you would go along with the simulation of the birth of the child, or short cutting the adoption proceedings? b. Is there a lawyer-client relationship between Wendy and Louis?

Is there a lawyer-client relationship between Manuel and Louis? If your answer is yes to both, is there a conflict of interest since Wendy and Manuel may have diverse interest on the child? Wendy simply wants to adopt a child and although Manuel also wants to adopt, he not only wants his own child to adopt but also wants to conceal the childs paternity. Consider the following: i. ii. iii. iv. Canons 2, 2.01, 2.02, 15.08 and 19.02 of the CPR Santiago v. Fojas, 248 SCRA 68 Hilado v. David, 84 Phil. 569 Junio v. Grupo, 372 SCRA 525

c.

Knowing the story about Cora, what advice would you give

Wendy on how she could proceed to adopt the baby boy without having to disclose the identity of the father? d. At the time Louis prepared the documents mentioned in

Dilemma 3, he was of the impression that the engagement was only for a specific purpose and confined only to the preparation of the documents. Can Louis consider the engagement terminated after the execution of the settlement documents with Cora, and thus was at liberty to freely advice Wendy? e. Consider the following cases on lawyer-client relationship:

Regala v. Sandiganbayan, 262 SCRA 122 including the concurring and dissenting opinions; People v. Sandiganbayan, 275 SCRA 505. oooOOOooo