R ESULTADOS OBTENIDOS Y CONCLUSIONES

Right to withdraw

GR: A lawyer lacks the unqualified right to withdraw once he has taken a case. By his acceptance, he has impliedly stipulated that he will prosecute the case to conclusion. This is especially true when such withdrawal will work injustice to a client or frustrate the ends of justice.

XPNs: The right of a lawyer to retire from the case before its final adjudication, which arises only from:

1. The client’s written consent; or

2. By permission of the court after due notice and hearing.

Instances when a lawyer may withdraw his services without the consent of his client (FIC MOVIE)

Canon 22

A lawyer shall withdraw his services only for good cause and upon notice appropriate in the cirtumstances.

1. When the client deliberately Fails to pay the fees for the services or fails to comply with the retainer agreement;

2. When the client pursues an Illegal or immoral course of conduct in connection with the matter he is handling;

3. When the lawyer finds out that he might be appearing for a Conflicting interest;

4. When the Mental or physical condition of the lawyer renders it difficult for him to carry out the employment effectively;

5. Other similar cases;

6. When the client insists that the lawyer pursue conduct in Violation of these canons and rules;

7. When his Inability to work with co-counsel will not promote the best interest of the client; and 8. When the lawyer is Elected or appointed to a public

office (CPR, Rule 22.01).

Procedure to follow when withdrawal is without client’s consent

1. File a petition for withdrawal in court.

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.

Q: Can a client discharge the services of his lawyer without a cause? (1994, 1997, 1998 Bar Question) 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: A lawyer should question his discharge otherwise he will only be allowed to recover on quantum meruit basis.

Limitations on client’s right to discharge the services of his lawyer

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.

Conditions for substitution of counsel 1. Written application

2. Written consent of the client

3. Written consent of the attorney to be substituted, or in the absence thereof, proof of service of notice of said motion to the attorney to be substituted in the manner prescribed by the rules.

Heavy workload as excuse for withdrawal as counsel Standing alone, heavy workload is not sufficient reason for the withdrawal of a counsel. When a lawyer accepts to handle a case, whether for a fee or gratis et amore, he undertakes to give his utmost attention, skill and competence to it regardless of its significance.

Failure to fulfill his duties will subject him to grave administrative liability as a member of the Bar (Ceniza v. Atty. Rubia, A.C. No. 6166, October 2, 2009).

Rule 22.01, Canon 22

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;

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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.

NOTE: In cases a-e (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.

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 (RRC, Sec.

26, Rule 138).

Hot Potato Rule

GR: A lawyer may not unreasonably withdraw from representing a client.

XPN: Withdrawal may be allowed if there is a conflict of interest arising from circumstances beyond the control of the lawyer or the law firm (Black’s Law Dictionary,9^th edition).

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 withdr awal from a court case? Explain briefly. (2004 Bar Question)

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.

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.

(2000 Bar Question)

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 for an increase in his fees. It is his right to refuse as that is part of his freedom of contract.

Rule 22.02, Canon 22

A lawyer who withdraws or is discharged shall, subject to a retaining lien, immediately turn over all papers and property to which the client is entitled, and shall cooperate with his successor in the orderly transfer of the matter, including all information necessary for the proper handling of the matter.

Duties of a discharged lawyer or one who withdraws 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.

SUSPENSION, DISBARMENT AND