Vous êtes sur la page 1sur 12

ETHICS SCENARIOS

Scenario 1

Employment Dismissal

Atty. Victor Reyes girlfriend Jaclyn, is a teacher at the International School of


Cebu (IS Cebu). She4 was born and raised in the United States of America and
acquired Philippine citizenship on the basis of the Philippine Dual Citizenship on the
basis of the new Philippine Dual Citizen Act. She obtained a Bachelors Degree in
English Literature at Radcliff College.

She was recruited by the International School Cebu (IS Cebu) to teach
English literature. The IS-Cebu has to categories of teachers : foreign hired and local
hired.

Although Jaclyn was born and raised in United States of America, she is a
Filipina at heart and found it odd that local hired teachers hired in the Philippines
received compensation and benefits are 20% less than those given to foreign hired
teachers like her.

She started discussing these issue with Victor who was pleased to answer her
questions and provide her legal guidance. Under other circumstances, Victor, who is
a Senior Associate of law firm XYZ would have required a clients signature on the
engagement letter. Since Jaclyn was his girlfriend, he considered it unnecessary to
make her sign an engagement letter.

As it happened, Jaclyn raised the following question and Victor answered


them to the best that he can:

Whether or not it is legally permissible for an employer to distinguish


between foreign hired and local hired employees in terms of compensation and
other economic benefits.

Jaclyn also asked Victor how labor organization may be formed under the
Philippine Labor Code for purposes of collective bargaining.

Unknown to Victor, the law firm of XYZ of which he is associate, is the


retained counsel of International School of Manila ( IS- Manila) . which is following
the same employment practices as IS-Cebu.

When IS-Cebu learned that Jaclyn was encouraging the locally hired teachers
to protest against its equal work , unequal practices, the IS-Cebu management
asked the XYZ law firm whether Jaclyn could be subjected to disciplinary action for
her conduct that the judgment of the school management adversely affected in
management-employee relationship in the school.
Victor had to confront the question whether he can continue to advise Jaclyn
concerning the equal work but unequal pay practices of IS-Cebu, or even to
represent her as a personal client in the threatened disciplinary action against her
by IS-Cebu, which is a retainer client of the XYZ law-firm.

Victor takes the position that he has not rendered any service for IS-Cebu
which has consulted exclusively with Partner D of XYZ the law-firm hence has no
access to any confidential information of IS-Cebu that he could unfairly use against
it in the threatened disciplinary proceeding against Jaclyn.

On the part of partner D, he has to contend with the question whether


Jaclyns conduct in raising questions about IS-Cebu equal work but unequal pay
practices can be considered a form of misconduct that can subject her disciplinary
action, possibly including dismissal.

The partners of the XYZ law firm also had to grapple with the question
whether

1. it is in a conflict of interest situation considering that Victor, a Senior


Associate of the firm, had advised Jaclyn on legal issues concerning IS-Cebus
employment practices.

2. Asking Victor to resign from the firm of dismissing him if he refused will
avoid any conflict of interest situation.

SCENARIO 2

UNION FORMATION

The Alliance of Concerned Teachers (ACT) learned off the equal work, but
unequal pay practices of IS-Cebu and started recruitment activities among its locally
hired teachers. ACT also attempted similar recruitment activities among locally
hired teachers of IS-Manila, which was following the same employment practices of
IS-Cebu. However, the teachers at IS-Manila appeared to be divided on the issue of
union formation.

About 60% of the teachers wanted to form an independent union, while the
other 40% wanted to join ACT. The counsel of ACT complied with the requirement
under Title IV, Chapter I, Articles 234 et seq. of the Labor Code of the Philippines for
the registration of ACT.
Since ACT is already a registered labor organization, the teachers of IS-Cebu
directly affiliated with it without any need to constitute the chapter into a separately
registered labor organization.

On the other hand, the teachers at IS- Manila remained divided. 60% of the
teachers formed an independent union, which they registered with the Department
of Labor and Employment under Title IV, Chapter I., Article 234 et seq. of the Labor
Code. Only 40% directly affiliated with ACT.

ACTs counsel was consulted by the union officers on the question whether
they can assail the legality of IS-Manilas independent union on the basis of the
provisions Title IV, Chapter I that tend to favor the formation of industry wide
federations with the apparent objective of strengthening labor unionism the country.
ACTs officers requested counsel to render an opinion on whether this approach has
a reasonable basis under the Labor Code and whether suppressing the formation of
an independent union ACT would expose ACT to an unfair labor practice charge
under the Labor Code by the majority of the employees who prefer to be
represented by an independent union under Title IV, Chapter III, Article 249 et seq.
of the Labor Code.

On the other hand, having learned that 60% of the teachers actually
constituted themselves into an independent registered union, IS-Manilas
management subtly and discreetly encourage its members to maintain their
independence and permanently reject affiliation with ACT.

The schools management asked its legal counsel whether the approach is
legally permissible and would not expose the school to charges of unfair labor
practices under Title IV, Chapter ___. Article ___ of the Labor Code. Counsel was also
asked to set forth in writing whether there are ethical concerns that would prevent
him from carrying out the school Managements instructions.

Scenario 1 employment dismissal

Statement of factual situation and issues:

1. A dismissal case where an employer seeks to take reprisal action against


an International School Teacher who raised legitimate questions about the
employment practices of the employer. The questions concerned the legality of
granting locally-hired teachers terms and conditions of employment that inferior to
those extended to foreign-hired teachers.
CONDITIONS OF EMPLOYMENT; EQUAL WORK FOR EQUAL PAY; APPLIED IN
CASE AT BAR. This rule applies to the School, its "international character"
notwithstanding. The School contends that petitioner has not adduced evidence
that local-hires perform work equal to that of foreign-hires. The Court finds this
argument a little cavalier. If an employer accords employees the same position and
rank, the presumption is that these employees perform equal work. This
presumption is borne by logic and human experience. If the employer pays one
employee less than the rest, it is not for that employee to explain why he receives
less or why the others receive more. That would be adding insult to injury. The
employer has discriminated against that employee; it is for the employer to explain
why the employee is treated unfairly. The employer in this case has failed to
discharge this burden. There is no evidence here that foreign-hires perform 25%
more efficiently or effectively than the local-hires. Both groups have similar
functions and responsibilities, which they perform under similar working conditions.
The School cannot invoke the need to entice foreign-hires to leave their domicile to
rationalize the distinction in salary rates without violating the principle of equal
work for equal pay.||| (International School Alliance of Educators v. Quisumbing, G.R.
No. 128845, [June 1, 2000])

2. ethical issues arise from the fact that the teachers lawyers- boyfriend is a
senior associate at a law firm which the retained counsel of another international
school that follows the same employment as IS- Cebu.

Professional engagement starts the moment the lawyer listens to his


prospective client.

An attorney is employed that is, he is engaged in his professional capacity as


a lawyer or counselor when he is listening to his client s preliminary
statement of his case, or when he is giving advice thereon, just as truly as
when he is drawing his client s pleadings, or advocating his client s pleadings,
or advocating his client s cause in open court. - Atty. Catalan v. Atty. Silvosa
A.C. No. 7360 [2012]

Doctrine of imputed knowledge

Doctrine of imputed knowledge is based on the assumption that an attorney,


who has notice of matter affecting his client, has communicated the same
to his principal in the course of professional dealings. The doctrine applies
regardless of whether or not the lawyer actually communicated to the client
what he learned in his professional capacity, the attorney and his client
being one judicial person.

Knowledge of one member of a law firm will be imputed by inference to all


members of that firm; free flow of information within the partnership.
Degree of adverse interest, intention or motive are not material

An attorney owes to his client undivided allegiance. After being retained and
receiving the confidences of the client, he cannot, without the free and
intelligent consent of his client, act both for his client and for one whose
interest is adverse to, or conflicting with that of his client in the same general
matter. The prohibition stands even if the adverse interest is very
slight; neither is it material that the intention and motive of the attorney
may have been honest- Lim Jr. v. Atty. Villarosa, A.C. No. 5303, June 15, 2006

Retained counsel of either party cannot act as mediator without


consent

Even respondents alleged effort to settle the existing controversy among the
family members was improper because the written consent of all
concerned was still required. A lawyer who acts as such in settling a
dispute cannot represent any of the parties to it. - Lim Jr. v. Atty.
Villarosa, A.C. No. 5303, June 15, 2006

Rule 15.04. - A lawyer may, with the written consent of all concerned,
act as mediator, conciliator or arbitrator in settling disputes.

The partners of the XYZ law firm also had to grapple with the question
whether

1. it is in a conflict of interest situation considering that Victor, a Senior


Associate of the firm, had advised Jaclyn on legal issues concerning IS-Cebus
employment practices.

2. Asking Victor to resign from the firm of dismissing him if he refused will
avoid any conflict of interest situation.

1. Rule on Conflicting Interests

It is generally the rule based on sound public policy that attorney cannot
represent diverse interest. It is highly improper to represent both sides of an issue.

Degree of adverse interest, intention or motive are not material

An attorney owes to his client undivided allegiance. After being retained and
receiving the confidences of the client, he cannot, without the free and
intelligent consent of his client, act both for his client and for one whose
interest is adverse to, or conflicting with that of his client in the same general
matter. The prohibition stands even if the adverse interest is very
slight; neither is it material that the intention and motive of the attorney
may have been honest- Lim Jr. v. Atty. Villarosa, A.C. No. 5303, June 15, 2006

Limit of full disclosure

A lawyer is forbidden from representing a subsequent client against a


former client when the subject matter of the present controversy is related,
directly or indirectly, to the subject matter of the previous litigation in
which he appeared for the former client. Conversely, he may properly act as
counsel for a new client, with full disclosure to the latter, against a former
client in a matter wholly unrelated to that of the previous employment,
there being in that instance no conflict of interests.

Where, however, the subject matter of the present suit between the lawyers
new client and his former client is in some way connected with that of
the former clients action, the lawyer may have to contend for his new
client that which he previously opposed as counsel for the former client or to
use against the latter information confided to him as his counsel. - Pormento,
Sr. v. Atty. Pontevedra, A.C. No. 5128. March 31, 2005

Acquired knowledge of former clients doings is indelible

The reason for this is that a lawyer acquires knowledge of his former client's
doings, whether documented or not, that he would ordinarily not have
acquired were it not for the trust and confidence that his client placed
on him in the light of their relationship. It would simply be impossible for the
lawyer to identify and erase such entrusted knowledge with faultless
precision or lock the same into an iron box when suing the former client on
behalf of a new one. - Santos Ventura Hocorma Foundation, Inc. v. Atty. Funk,
A.C. No. 9094 August 15, 2012

2. Client of law firm is the client of every partners and associates

Respondent further argued that it was his brother who represented Gonzales
in the civil case and not him, thus, there could be no conflict of interests. We
do not agree. As respondent admitted, it was their law firm which represented
Gonzales in the civil case. Such being the case, the rule against representing
conflicting interests applies. - Gonzales v. Atty. Cabucana, A.C. No. 6836,
January 23, 2006

Vicarious disqualification
Traditionally, if a lawyer is ineligible to represent a particular client, all
members of the lawyer's firm also are ineligible.

The basis for vicarious disqualification is the "presumption of shared


confidences," which seeks to prevent disclosure of client confidences, preserve
counsel loyalty, and avoid the appearance of impropriety

General Rule in a law firm

Rule 21.04 - A lawyer may disclose the affairs of a client of the firm to
partners or associates thereof unless prohibited by the client.

An information obtained from a client by a member or assistant of a law firm


is information imparted to the firm. This is not a mere fiction or an
arbitrary rule; for such member or assistant, as in our case, not only acts in
the name and interest of the firm, but his information, by the nature of his
connection with the firm is available to his associates or employers.
Hilado v. David, et. Al., G.R. No. L-961, September 21, 1949

Scenario 2.

The schools management asked its legal counsel whether the approach:

1. legally permissible and would not expose the school to charges of unfair
labor practices under Title IV, Chapter III Article 249 of the Labor Code.

LABOR RELATIONS; UNION AFFILIATION; ROLE OF MOTHER UNION IN ACTING


FOR THE LOCAL UNION. Where the Collective Bargaining Agreement
recognized the mother union as the bargaining agent for all employees of the
company, it appearing in said contract that the mother union, represented by
its national treasurer, and duly authorized representative, was acting for and
in behalf of its affiliate, said mother union had the status of an agent while
the local union remained the basic unit of the association free to serve the
common interest of all its members including the freedom to disaffiliate
when the circumstance warrant.
2. ID.; LABOR ORGANIZATION; ROLE AND IDENTITY OF THE LOCAL UNION.
The local union is a separate and distinct unit primarily designed to secure
and maintain an equality of bargaining power between the employer and
their employee-members in the economic struggle for the fruits of the joint
productive effort of labor and capital, and the association of the locals into
the national union is in furtherance of the same end. These associations are
consensual entities capable of entering into legal relations with their
members. The essential purpose is the affiliation of the local unions into a
common enterprise to increase by collective action the common bargaining
power with respect to the terms and condition of labor. Yet the locals
remained the basic units of association, free to serve their own and the
common interest of all subject to the restraints imposed by the Constitution
and By-laws of the Association, and free also to renounce the affiliation for
mutual welfare upon the terms laid down in the agreement which brought it
into existence.

3. ID.; ID.; DISAFFILIATION; LOCAL UNION HAS RIGHT TO DISAFFILIATE FROM


THE MOTHER FEDERATION. The claim of the Philippine Association of Free
Labor Unions that the local union cannot validly disaffiliate from it as the
Union Security Clause of the Collective Bargaining Agreement so provided is
not correct, because the operation of such clause is limited by Article X of
the local union's Constitution and By-laws which provides that the local shall
remain as affiliate of the federation as long as ten (10) or more of its
members evidence their desire to continue the local union's affiliation. And
where 32 of the 36 members of the local union signed the Resolution of
disaffiliation, such disaffiliation is valid under its Constitution and By-laws
which, taken together with the Collective Bargaining Agreement, is
controlling.
||| (Liberty Cotton Mills Workers Union v. Liberty Cotton Mills, Inc., G.R.
No. L-33987, [September 4, 1975], 160-A PHIL 18-29)

The concept of ULP is embodied in Article 256 (formerly Article 247) of the Labor
Code,14 which provides:

Article 256. Concept of unfair labor practice and procedure for


prosecution thereof. Unfair labor practices violate the constitutional
right of workers and employees to self-organization, are inimical to the
legitimate interests of both labor and management, including their right to
bargain collectively and otherwise deal with each other in an atmosphere
of freedom and mutual respect, disrupt industrial peace and hinder the
promotion of healthy and stable labor-management relations.

xxx xxx xxx

In essence, ULP relates to the commission of acts that transgress the workers'
right to organize. As specified in Articles 248 [now Article 257] and 249 [now
Article 258] of the Labor Code,the prohibited acts must necessarily relate to the
workers' right to self-organization . . . .

In the case of Insular Life Assurance Co., Ltd. Employees Association NATU v.
Insular Life Assurance Co. Ltd., this Court had occasion to lay down the test of
whether an employer has interfered with and coerced employees in the exercise
of their right to self-organization, that is, whether the employer has engaged in
conduct which, it may reasonably be said, tends to interfere with the free exercise
of employees' rights; and that it is not necessary that there be direct evidence
that any employee was in fact intimidated or coerced by statements of threats of
the employer if there is a reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-organization and collective
bargaining.
The questioned acts of petitioners, namely: 1) sponsoring a field trip to Zambales
for its employees, to the exclusion of union members, before the scheduled
certification election; 2) the active campaign by the sales officer of petitioners
against the union prevailing as a bargaining agent during the field trip; 3)
escorting its employees after the field trip to the polling center; 4) the continuous
hiring of subcontractors performing respondents' functions; 5) assigning union
members to the Cabangan site to work as grass cutters; and 6) the enforcement
of work on a rotational basis for union members, all reek of interference on the
part of petitioners.

Indubitably, the various acts of petitioners, taken together, reasonably support an


inference that, indeed, such were all orchestrated to restrict respondents' free
exercise of their right to self-organization. The Court is of the considered view
that petitioners' undisputed actions prior and immediately before the scheduled
certification election, while seemingly innocuous, unduly meddled in the affairs of
its employees in selecting their exclusive bargaining representative. In Holy Child
Catholic School v. Hon. Patricia Sto. Tomas, 17 the Court ruled that a certification
election was the sole concern of the workers, save when the employer itself had
to file the petition . . ., but even after such filing, its role in the certification process
ceased and became merely a bystander. Thus, petitioners had no business
persuading and/or assisting its employees in their legally protected independent
process of selecting their exclusive bargaining representative. The fact and
peculiar timing of the field trip sponsored by petitioners for its employees not
affiliated with THS-GQ Union, although a positive enticement, was undoubtedly
extraneous influence designed to impede respondents in their quest to be
certified. This cannot be countenanced.

||| (T & H Shopfitters Corp./Gin Queen Corp. v. T & H Shopfitters Corp./Gin


Queen Workers Union, G.R. No. 191714, [February 26, 2014])
2. Counsel was also asked to set forth in writing whether there are ethical
concerns that would prevent him from carrying out the school Managements
instructions.

Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law
or at lessening confidence in the legal system.

the Court agrees with the IBP Board of Governors that Atty. Mendoza made
irresponsible advices to her clients in violation of Rule 1.02 and Rule 15.07 of
the Code of Professional Responsibility. It is the mandate of Rule 1.02 that "a
lawyer shall not counsel or abet activities aimed at defiance of the law or at
lessening confidence in the legal system." Rule 15.07 states that "a lawyer shall
impress upon his client compliance with the laws and the principles of fairness."

Atty. Mendoza's improper advice only lessens the confidence of the public in our
legal system. Judges must be free to judge, without pressure or influence from
external forces or factors 22 according to the merits of a case. Atty. Mendoza's
careless remark is uncalled for.

It must be remembered that a lawyer's duty is not to his client but to the
administration of justice. To that end, his client's success is wholly subordinate.
His conduct ought to and must always be scrupulously observant of the law and
ethics. Any means, not honorable, fair and honest which is resorted to by the
lawyer, even in the pursuit of his devotion to his client's cause, is condemnable
and unethical.

||| (Areola v. Mendoza, A.C. No. 10135 (Resolution), [January 15, 2014], 724 PHIL
155-165)

O kayong may mga kasong drugs na may pangpiyansa o pang- areglo ay maging praktikal
sana kayo kung gusto ninyong makalaya agad. Upang makatiyak kayo na hindi
masasayang ang pera ninyo ay sa akin ninyo ibigay o ng kamag-anak ninyo ang pera at
ako na ang bahalang maglagay kay Judge Martin at Fiscal banqui; at kayong mga
detenidong mga babae na no bail ang kaso sa drugs, iyak-iyakan lang ninyo si Judge
Martin at palalayain na kayo. Malambot ang puso noon."
3