LEGAL ETHICS IN FAMILY LAW

I. Dilemma 1: Maternal/Fetal Interdependence; Who are Persons?

Manuel and Wendy were married 1992. They are both professionals, with stable jobs. In
the five years that they were married, they were trying to conceive, 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 couldn’t 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 doctors say that the
chances of Wendy carrying the babying 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, and seeks advice from Louis, a high school buddy of
Manuel’s, who was a lawyer.

1. If Louis, as a family friend, advises Wendy to have an abortion, would he be breaking

his oath as a lawyer?

2. Would abortion be justified if there was a serious risk to the life of the mother?

3. If the situation were reversed 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?

II. Dilemma 2 & 3: Contract for Support and Custody, and Simulated Birth Certificate

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, and 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. All he cared about was getting
drunk on every fiesta he went to. On one of such occasions, he got so drunk that he lost his
way home. Fortunately, Cora, Ysabel’s niece by marriage, recognized Manuel, and helped
him get to his room safely. Overcome by a mixture of emotions and drunkenness, Manuel
took Cora in his arms and to his bed. The next day, Manuel awoke in sweat, overcome by a
terrible guilt and fear of losing Wendy forever because of what he did the night before. He
realized that he could not live without Wendy. He begged Cora to keep this incident secret
from their relatives and friends. He told her that he has no intention of confessing to Wendy
under any circumstance and hastily took the next flight back to Manila. 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 it
over. The following month, Manuel received word from Cora that she was pregnant with his
baby and that she wanted 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 agreed to this and the provision 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.”
Triumphant, Manuel then turned to Wendy and expressed his unequivocal consent and
enthusiasm to adopt. He added that he wanted to adopt a relative, of whose background they
could be sure. He suggested they adopt the child of Cora, whom he passed off as a distant
cousin, without telling Wendy that the baby was actually his. Wendy agreed to this. They also
were of the same mind about not wanting the baby and their neighbors to know of the
arrangement. Neither did they want to bother going through adoption proceedings. They
thought it would be best for Cora to enter the hospital under Wendy’s name, so that the birth
certificate would immediately show that the baby was Wendy’s and Manuel’s very own
child. They then made the necessary plans for Cora to travel to Manila 4 months before the
baby was due and ironed out other details including an apartment in Makati City where she
could live until after she gave birth and was strong enough to return to Negros. At a birthday
dinner among friends, the couple decided to ask the advice of Manuel’s lawyer friend Louis,
on this matter. Furthermore, after the party, Manuel sent an email to Louis, confiding that his
real reason for wanting to simulate the birth of the baby was because the baby was his, and he
wanted the baby to be with him, but did not want Wendy to know that he was adulterous.
Baby Ben was born in 1998. He grows up with the couple, Wendy and Manuel, knowing
them to be his real parents.

1. Should Atty. Paulina Paz have prepared the support and custody contract between
Cora and Manuel?

2. Comment on the plan of Manuel and Wendy to simulate the birth of the baby.

3. Is there a lawyer-client relationship between the couple and Louis? Between Manuel
and Louis?

4. Does a request for a legal opinion and a response done through the internet give rise
to a lawyer-client relationship?

5. Will duties of confidentiality be less strict, since as a rule, messages sent thru the
internet are not secure?

III. Dilemma 4: Declaration of Presumptive Death for Purposes of Remarriage

Three years later, on March 2001, Manuel went on a business trip. The plane on
which he boarded crashed into the Pacific Ocean, with few survivors and many passengers
unaccounted for. Despite efforts to locate Manuel’s body, he was never found. Wendy was
devastated. She felt in her heart that Manuel was truly dead. About a year and a half passed
since the plane crash, Wendy met another man, Omar. They fell in love, and decided to marry
on June 2003. But in the months of January and February 2003, Wendy received information
from three different sources indicating that Manuel may be alive, and is living in Hong Kong.
Despite efforts to verify, there was no confirmation from the Hong Kong authorities. Wendy
informs Louis that she has broken off her engagement to Omar and asks Louis to help her
locate Manuel. Louis feels guilty about Wendy being so concerned about Manuel, whom he
considered undeserving of her love. Not wanting to see Wendy more depressed and
anguished, he finally tells Wendy that Ben is the child of Manuel with Cora. Wendy was
shocked and furious at both Manuel and Louis. To gain back Wendy’s trust, Louis suggests
that she should disregard any information about Manuel since these were all hearsay. Thus,
he says, having received no news that Manuel may be alive, she can secure a declaration of
presumptive death in a summary proceeding before her June wedding. He adds that he would
do this without compensation as proof of his friendship and remorse. He tells her of his uncle
who is a family court judge and assures her that their case will be “raffled” to his court.

1. Did Louis violate his lawyer-client confidentiality when he told Wendy that Ben was
Manuel’s child?

2. Comment on the correctness, legal and moral, of his advice on securing a declaration
of presumptive death of Manuel. Is unconfirmed information enough to destroy the
spouse’s “well-founded belief” that the absentee spouse is dead?

3. Comment on the ethical questions involved in Louis’ planned legal strategy. Consider
the following:

a. On disregarding unconfirmed information about Manuel

b. On the insinuation about influence on the family court judge

IV. Dilemma 5: Last Will and Testament and Succesional Rights

On April 2005, four years after the plane crash, probate proceedings for Manuel’s will
were initiated. In the will, Manuel left P100, 000 to Cora, and the rest of all his properties to
Wendy and Ben equally. Louis, entrusted with the will, knew that if the will was to be
followed, it would be unfair to Wendy, since Ben was really Manuel’s illegitimate child.
Louis advices Wendy to contest the will. He adds, however that if she contests the will, she
has to tell the whole world that Ben is not her biological child. Wendy does not want to give
Ben up to his biological mother, since she (Wendy) has learned to love him. However, she is
adamant about not giving Cora the P500, 000.

a. Should Wendy contest the will?

b. Louie reminds Wendy that in all their years of friendship, she and Manuel have gone
to him for their legal problems but not once did he charge them a fee. Due to the time
involved in litigating this case (as to not giving Cora the P500, 000), he accepts the
case but demands from Wendy payment of P150, 000, his standard fee. Wendy
refuses. Can Louis withdraw from the case?

c. If instead, Louie agrees to take the case upon Wendy’s promise to give him the entire
P500,000 meant for Cora, should he win the case but only P25,000 should he lose,
would this be correctly characterized as a contingent fee?

d. Distinguish between a champertous contract and a contingent fee.

e. What are the criteria in considering the reasonableness of Attorney’s fees?

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