APPROPRIATE IN THE CIRCUMSTANCES (1994,1995,1997,2000,2001,2004,2005, 2008
Bar Question)
2. Serve a copy of this petition upon his client and the adverse party at least 3 days before the date set for hearing.
Note: He should present his petition well in advance of the trial of the action to enable the client to secure the services of another lawyer.
If the application is filed under circumstances that do not afford a substitute counsel sufficient time to prepare for trial or that work prejudice to the client’s cause, the court may deny his application and require him to conduct the trial.
A lawyer should not presume that the court will grant his petition for withdrawal. Until his withdrawal shall have been proved, the lawyer remains counsel of record who is expected by his client as well as by the court to do what the interests of his client require.
a. Discharge of the Attorney by the Client (1994,1997,1998 Bar Question)
Q: Can a client discharge the services of his lawyer without a cause?
A: Yes. A client has the right to discharge his attorney at any time with or without a cause or even against his consent.
1. With just cause – lawyer is not necessarily deprived of his right to be paid for his services. He may only be deprived of such right if the cause for his dismissal constitutes in itself a sufficient legal obstacle to recovery.
2. Without just cause
a. No express written agreement as to fees- reasonable value of his services up to the date of his dismissal (quantum meruit).
b. There is written agreement and the fee stipulated is absolute and reasonable – full payment of compensation.
c. The fee stipulated is contingent.
d. If dismissed before the conclusion of the action- reasonable value of his services (quantum meruit)
e. If contingency occurs or client prevents its occurrence – full amount.
Note: Lawyer should question his discharge otherwise he will only be allowed to recover on quantum meruit basis.
Note: The existence or non-existence of a just cause is important only in determining the right of an
Note: While clients have the right to terminate their relations with their counsel and make substitution or change at any stage of the proceedings, the exercise of such right is subject to compliance with the prescribed requirements. This rule is intended to ensure the orderly disposition of cases, without it there will be confusion in the service of processes, pleadings and other papers.
Q: What are the limitations on client’s right to discharge the services of his lawyer?
A:
1. When made with justifiable cause, it shall negate the attorney’s right to full payment of compensation.
2. The attorney may, in the discretion of the court, intervene in the case to protect his right to fees.
3. A client may not be permitted to abuse his right to discharge his counsel as an excuse to secure repeated extensions of time to file a pleading or to indefinitely avoid a trial.
Q: Is notice of discharge necessary?
A: It is not necessary between client and attorney. But insofar as the court and the adverse party is concerned, the severance of the relation of attorney and client is not effective until:
1. A notice of discharge by the client or a manifestation clearly indicating that purpose is filed with the court; and 2. A copy thereof served upon the adverse
party.
Q: What should a lawyer do if no notice of discharge was filed by the client with the court?
A: If the client has not filed a notice of discharge, the duty of the attorney, upon being informed by his client that his services have been dispensed with, is to file:
1. A notice of withdrawal with the client’s conformity; or
2. An application to retire from the case, he being released from professional responsibility only after his dismissal or withdrawal is made of record.
Q: What are the conditions for substitution of counsel?
A:
1. Written application
2. Written consent of the client
3. Written consent of the attorney to be substituted, or in the absence thereof,
111
ACADEMICS CHAIR:LESTER JAY ALAN E.FLORES II
U N I V E R S I T Y O F S A N T O T O M A S proof of service of notice of said motion to
the attorney to be substituted in the manner prescribed by the rules.
b. Withdrawal by the Attorney
Note: In all the a-e cases above, the lawyer must file a written motion with an express consent of his client and the court shall determine whether he ought to be allowed to retire.
Note: He may also retire at any time from an action or special proceeding without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. (Sec. 26, Rule 138, RRC)
Q: What is Hot Potato Doctrine?
A: It refers to the prohibition from dropping smaller clients (like hot potatoes) in order to pick up more lucrative clients.
Q: On the eve of the initial hearing for the reception of evidence for the defense, the defendant and his counsel had a conference where the client directed the lawyer to present as principal defense witnesses 2 persons whose testimonies were personally known to the lawyer to have been perjured. The lawyer informed his client that he refused to go along with the unwarranted course of action proposed
by the defendant. But the client insisted on the directive, or else he would not pay the agreed attorney’s fees.
When the case was called for hearing the next morning the lawyer forthwith moved in open court that he be relieved as counsel for the defendant. Both the defendant and the plaintiff’s counsel objected to the motion.
Under the given facts, is the defense lawyer legally justified in seeking withdrawal from the case? Why or why not? Reason briefly.
A: Yes, he is justified. Under rule 22.01 of the CPR, a lawyer may withdraw his services “if the client insists that the lawyer pursue conduct violative of these canon and rules”. The insistence of the client that the lawyer present witnesses whom he personally knows to have been perjured, will expose him to criminal and civil liability and violate his duty of candor, fairness and good faith to the court.
Q: Was the motion for relief as counsel made by the defense lawyer in full accord with the procedural requirements for a lawyer’s withdrawal from a court case? Explain briefly.
A: No his actuation is not in accord with the procedural requirements for the lawyer’s withdrawal from a court case. Whether or not a lawyer has a valid cause to withdraw from a case, he cannot just do so and leave the client in the cold unprotected. He must serve a copy of his petition upon the client and the adverse party.
He should, moreover, present his petition well in advance of the trial of the action to enable the client to secure the services of another lawyer.
(2004 Bar Question)
Q: Atty. X filed a notice of withdrawal of appearance as counsel for the accused Y after the prosecution rested its case. The reason for the withdrawal of Atty. X was the failure of accused Y to affix his conformity to the demand of Atty. X for increase in attorney's fees. Is the ground for withdrawal justified? Explain.
A: The ground for the withdrawal is not justified.
Rule 22.01 (e) of the Code of Professional Responsibility provides that a lawyer may withdraw his services when the client deliberately fails to pay the fees for his services or fails to comply with the retainer agreement. In this case, the client has not failed to pay the lawyer's fees or to comply with the retainer agreement. He has only refused to agree with the lawyer's demand Rule 22.01, Canon 22, CPR - A lawyer may
withdraw his services in any of the following case:
a. When the client pursues an illegal or immoral course of conduct in connection with the matter he is handling;
b. When the client insists that the lawyer pursue conduct violative of these canons and rules;
c. When the inability to work with co-counsel will not promote the best interest of the client;
d. When the mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively;
e. When the client deliberately fails to pay the fees for the services or fails to comply with the retainer agreement
f. When the lawyer is elected or appointed to public office; and g. Other similar cases.
for an increase in his fees. It is his right to refuse that is part of his freedom of contract. (2000 Bar Question)
Q: What are the duties of a discharged lawyer or one who withdraws?
A:
1. Immediately turn-over all papers and property to which the client is entitled;
and
2. To cooperate with his successor in the orderly transfer of the case.
c. Liabilities of a Lawyer
Q: What are the requisites for the liability of a lawyer for damages?
A: AWI
1. Attorney-client relationship;
2. Want of reasonable care and diligence by lawyer
3. Injury sustained by client as a proximate result of the lawyer’s negligence.
Q: What are the kinds of damages?
A:
1. Nominal – where client lost the litigation as a consequence of lawyer’s gross omission of negligence
2. Actual/ Compensatory 3. Moral
4. Attorney’s fees
Note: For nos. 2-4 there should be a showing that:
1. The lawyer had exercised due diligence 2. His client would have succeeded in
recovering from adverse party.
Q: When will civil liability arise?
A:
1. Client is prejudiced by lawyer's negligence or misconduct;
2. Breach of fiduciary obligation;
3. Civil liability to third persons;
5. Violation of communication privilege;
6. Liability for costs of suit (treble costs) – when lawyer is made liable for insisting on client's patently unmeritorious case or interposing appeal merely to delay litigation.
Q: When will the liability of a lawyer for “breach of fiduciary obligation” arise?
A: A lawyer may be held liable if he fails in his obligation to make an accounting of funds or property that may come to his possession for a lawyer holds his client’s funds or property in trust for his client.
Q: What are the effects of lawyer’s failure to return client’s money or property after demand?
A:
1. There will be a presumption that the lawyer misappropriated the same;
2. It will give rise to civil liability of the lawyer;
3. Criminal liability 4. Administrative liability.
Q: What is the remedy of the client?
A: Recover property from lawyer, together with its fruits, subject to client’s returning to his lawyer the purchase price thereof and the legal interests thereon.
Q: When is a lawyer not liable for libelous words in the pleadings?
A: A lawyer is exempted from liability for slander, libel or for words otherwise defamatory, published in the course of judicial proceedings, provided the statements are connected with, relevant, pertinent and material to the cause in hand or subject of inquiry.
Note: Test of relevancy – The matter to which the privilege does not extend must be palpably wanting in relation to the subject of controversy, that no reasonable man can doubt its relevancy or propriety.
Pleadings should contain plain and concise statements of material facts and if pleader goes beyond requisites of law and alleges irrelevant matter, which is libelous, he loses his privilege and may be liable in a separate suit.
Q: Who is liable for the payment of costs of suits?
Rule 22.02, Canon 22,CPR - A lawyer who