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The Lawyer and the [Law] Firm

Problem Area 5
(2) Choice of a Firm Name
Rule 3.02 of the Code of Professional Responsibility which states that in the choice of a firm name,
no false, misleading or assumed name shall be used.
No name not belonging to any of the partners or
(People v. Gonzalez, Jr. G.R. No. 139542. June 10, 2003)

(3) Negligence of Clerks in a Law Firm


Time and again the Court has admonished law firms to adopt a system of distributing pleadings
and notices, whereby lawyers working therein receive promptly notices and pleadings intended for
them, so they will always be informed of the status of their cases.
The Court has also often repeated that the negligence of clerks which adversely affect the cases
handled by lawyers, is binding upon the latter. (B.R. Sebastian Enterprises, Inc. v. CA. G.R. No. No.
L-41862 [1992]).

(4) Law Firm Represents the Client


Respondent judge should have accommodated so many Motions for Postponement filed by the then
ailing Atty. Rosendo Castillo, Sr. Because a law firm (Castillo & Castillo), to which the latter belonged,
was really representing the defendants, there certainly were others competent lawyers who could have
handled the matter (Sps. Reaport v. Judge Mariano, A.M. No. MTJ-00-1253. July 11, 2001.)

(5) Main and branch office constitute one personality


Petitioner's counsel was and is the firm of Ledesma, Saludo and Associates (and not any particular
member or associate of that firm) which firm happens to have a main office in Makati and a branch
office in Cebu City. The Court notes that both the main and branch offices operate under one and the
same name, Saludo Ledesma and Associates. Having represented itself to the public as comprising a
single firm, LSA should not be allowed at this point to pretend that its main office and its branch office
in effect constitute separate law firms with separate and distinct personalities and responsibilities
(Ouano Arrastre Service, Inc. v. Judge Aleonor. G.R. No. 97664. October 10, 1991).

(6) Death of a Handling Lawyer of the Firm


Hence, the death of the latter did not extinguish the lawyer-client relationship between said firm and
petitioner (B.R. Sebastian Enterprises, Inc. v. CA. G.R. No. No. L-41862 [1992]).

(7) Duties of Firms and Lawyers When Someone Leaves


A. Ethical Obligation to Communicate to Certain Clients

B. Trust Account Monies

C. Fee Division in General

D. Files

E. Phones

Partners and Associates Leaving Must Abide By Fiduciary Duties to Firm


(8) Ethical Obligation to Communicate to Certain Clients
1) Lawyers have a duty to tell their clients that they are leaving.
2) Clients are not chattels the firm and departing lawyer cannot decide which clients stay and which
can go the clients decide.

(9) Rule of Confidentiality 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.

(10) Duty to Notify a Client


The departing lawyer and responsible members of the law firm who remain have an obligation to
assure that prompt notice is given to clients on whose active matters she currently is working.
Rule 18.04 A lawyer shall keep the client informed of the status of his case and shall respond
within a reasonable time to the clients request for information.

(11) Lawyer Who Has Had Significant Personal Contacts


A departing lawyer who has had significant personal contacts with the client, should inform the
client that the lawyer is leaving the firm.
Note: this does not mean that an associate who met a client once or twice and has discovered
requests has had significant personal contacts the standard is that if the client were asked which
lawyer(s) at the firm represents you? the lawyers mentioned would be those that have have had
significant personal contacts.

(12) Ethical Obligations of Departing Lawyers


In addition to the ethical obligations departing lawyers have, they also must avoid interfering with
the contracts the firm has with existing clients.
However, the caution to avoid stealing clients must be balanced against the departing lawyers
ethical obligation to notify clients that an attorney is departing.

(13) How to Tell Clients


The preferred method of advising firm clients about the impending departure of any attorney is
a joint letter from the firm and departing lawyer to all clients with whom the lawyer had significant
personal contacts.

(14) A letter should advise the clients


When the lawyer is leaving
The client has the option of going with the lawyer, staying with the firm, or getting a new firm
How any advance fee deposit will be treated
A place for the client to sign and return the letter, with instructions on where their file should go.

(15) Separate letters may be sent by the lawyer (or the firm) to clients with whom the departing
lawyer had substantial personal contact as long as:
1. The letters do not disparage the firm or lawyer; and
2. The letters for not involve improper solicitation.

(16) Trust Account Monies


Clients that have given the firm an advance fee or advance cost deposit take the money with them
(less earned fees and costs), if they go with the departing lawyer. While simple in theory,
application sometimes can be problematic.
The old firm should write a check, consistent with the written instructions of the client, to wither
the client or to the trust account for the departed lawyers new firm.

(17) Fee Divisions in General

In contingent fee cases where some or much of the work was performed at the existing firm, but
the case is going with the departed lawyer, the firm and lawyer must agree how the contingent
fee will be apportioned among them, based upon their respective contributions to the case (i.e.,
quantum meruit) or based upon terms in the partnership agreement.

(18) But can a departing lawyer keep all of the contingent fee case that came into the old firm but
ultimately settled when the lawyer was at a new firm?
Probably not, according to several cases.
A lawyer may be entitled to only his partnership portion of the fees earned on a case, even if he
performed most of the work after the dissolution of the firm.
Nevertheless, some courts will find that when a lawyer leaves a firm and takes a case with him, he
may be entitled to the quantum meruit value of the work he performed.

(19) Clients interest not be prejudiced when the attorney-client relationship is terminated
Do not hold client files hostage, even if the client that is leaving with the lawyer owes the current
firm money.

Model Rule 1.16(d) requires that the clients interests not be prejudiced when the attorney-client
relationship is terminated. Have the client or a runner from the departed lawyers new firm sign for
the file, if it is going to the new firm.

Also, it is appropriate to request in a litigation matter that the departed lawyer file a substitution
with the court, to assure that the old firm is still not listed as counsel of record.

(20) Clients File = Paper and Electronic Documents


When a client asks for their file, you should give them both the paper and the electronic documents
including emails.
And remember that the client file is client property, so you cannot charge the client for the cost of
downloading everything to disks.

(21) Phones
It is ethically inappropriate to have the receptionist tell callers who are looking for a lawyer who
recently left the firm we dont know who he is. That game is not professional and not acceptable.
Assume that all staff are instructed to provide the departed lawyers phone number and mailing
address.
Also, assign a partner to answer any client inquiries.
Moreover, mail should be forwarded to the departed lawyer.
(22) Partners and Associates Leaving Must Abide By Fiduciary Duties to Firm
It is worth noting again that lawyers who are leaving a firm have certain fiduciary duties to the firm to
not interfere with the contracts that the firm has with existing clients, to not use firm resources to set
up their new firm, and to not attempt to steal away associates and staff while the lawyers are still
working for the firm. - Lynda C. Shely

(23) A lawyer whose spouse is associated with a firm representing an opposing party
[T]he lawyer should advise the client of all circumstances that might cause one to question the
undivided loyalty of the law firm and let the client make the decision as to its employment. If the client
prefers not to employ a law firm containing a lawyer whose spouse is associated with a firm representing
an opposing party, that decision should be respected.

(24) WON the firm Velasquez, Rodriguez, Respicio, Ramos, Nidea, and Prado may call itself A Law
Firm of St. Thomas More and Associate Members.
It implies that St. Thomas More is a Law Firm when in fact it is not. It would also convey to the public the
impression that the lawyers are members of the law firm which does not exist. To the public, it would
seem that the purpose or intention of adding The Law Firm of St. Thomas More and Associates
Members is to bask in the name of a Saint, although that may not really, be the purpose or intention of
the lawyers. The appellation only tends to confuse the public and in a way demean both the saints and
the legal profession whose members must depend on their own name and record and merit and not on
the name/glory of other persons living or dead (People v. Gonzalez, Jr. G.R. No. 139542. June 10, 2003).

(25) Duties When Switching Firms


Duties of Lawyers Interviewing With Other Firms
Screening an Infected Lateral Hire
Death of a Lawyer

Confidentiality
Problem Area 6

Extent of Confidentiality Rule


The confidentiality rule, for example, applies not only to matters communicated in confidence by the
client but also to all information relating to the representation, whatever its source. A lawyer may not
disclose such information except as authorized or required by the Rules of Professional Conduct or other
law.

Lawyers duty ____ the confidentiality


An effective lawyer-client relationship is largely dependent upon the degree of confidence which exists
between lawyer and client which in turn requires a situation which encourages a dynamic and fruitful
exchange and flow of information. It necessarily follows that in order to attain effective representation,
the lawyer must invoke the privilege not as a matter of opinion but as a matter of duty and
professional responsibility (Regala et. al. V. Sandiganbayan. G.R. No. 105938 [1996]).

General Rule on Clients Identity


As a matter of public policy, a clients identity should not be shrouded in mystery. Under this premise,
the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the
privilege and refuse to divulge the name or identity of this client (Regala et. al. V. Sandiganbayan. G.R.
No. 105938 [1996]).

Reasons __________ for the General Rule


First, the court has a right to know that the client whose privileged information is sought to be
protected is flesh and blood.
Second, the privilege begins to exist only after the attorney-client relationship has been
established. The attorney-client privilege does not attach until there is a client.
Third, the privilege generally pertains to the subject matter of the relationship.
Finally, due process considerations require that the opposing party should, as a general rule, know
his adversary. A party suing or sued is entitled to know who his opponent is. He cannot be obliged
to grope in the dark against unknown forces.

Communication to Commit Crime or Fraud Not Privileged


The reason of the principle which holds such communication not to be privileged is that it is not
within the professional character of a lawyer to give advice upon such subjects and that it is no
part of the profeesion of an attorney