The lawyer and the “[Law]

Firm”
Problem Areas in Legal Ethics
2017-2018

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 Choi ce of a Fi r m 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

associates may be used in the firm name for any
purpose. - PP v. Gonzalez, Jr., G.R. No. 139542 June 10,
2003

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 Negligence of clerks in
a law firm
• T im e and aga in the Court has adm on ished law firm s
to adop t a system o f d istribu ting p lead ing s and
no tices , w hereby law yers w o rk ing the re in rece ive
p rom ptly notices and plead ings in tended fo r them ,
so that they w ill a lw ays be in fo rm ed o f the sta tu s
o f the ir cases.
• The ir Cou rt has a lso often repeated that the
neg lig ence o f c le rks w h ich adverse ly a ffect the
cases hand led by law yers , is b inding upon the
la tte r. - B.R . Sebastian Enterprises , Inc . v. CA ,
G .R . N o . L-41862 [1992]

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 Law firm represents the client

• Responden t judge shou ld no t have accomm odated so

m any Mo tions fo r Po stponem en t filed by the then
a ilin g A tty. Ro sendo Castillo S r. b ecause a law
firm (Castillo & Castillo ) , to which the la tte r
be longed , was rea lly rep resen ting the defendan ts ,
the re ce rtain ly w ere othe r com peten t law yers w ho
cou ld have hand led the m atte r. – Sps . R eapo rt v .
Judge Mariano , A .M . N o. MTJ-00-1253 . Ju ly 11 , 2001

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 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
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 Death of a handling lawyer of
the firm
• Hence , the death o f th e la tte r d id no t extin gu ish
the law yer-c lien t re lation sh ip betw een sa id firm
and petitio ner. - B .R . Sebastian Enterprises, Inc .
v . CA , G .R . N o . L-41862 [1992]

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 Dut i es of Fi r ms and Lawyer s When
Someone Leaves
• A. Et hi cal Obli gati on t o Co mmu ni cat e t o Cert ai n
cli ents
• B. Tr ust Account Moni es
• C. Fee Di visi ons In Gener al
• D. Fil es
• E. Phones

• Part ners and Associ ates Leavi ng Must Abi de By

Fi duci ary Duti es t o Fi rm

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Ethical Obligation to Communicate to
Certain Clients

1) law yers have a du ty to te ll “the ir ” c lien ts tha t

they a re le av ing .
2) c lien ts are no t chatte ls – the firm and departin g
law yer canno t dec ide w h ich c lien ts can stay and
wh ich can go – the c lien ts decide.

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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 .

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 Duty to notify a client

• “T h e departing lawyer and respons ib le m em bers o f

the law firm w ho rem ain have an eth ica l ob ligation
to assu re that p rom p t no tice is g iven to c lien ts on
whose active m atte rs she cu rren tly is w o rk in g . ”

• Ru le 18 .04 - A law yer sha ll keep the c lien t

in fo rm ed o f the sta tu s o f h is case and sha ll
respond w ith in a reasonab le tim e to the c lie n t's
request fo r in fo rm atio n .

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Lawyer who has had “ si gni f i cant
per sonal cont act s”
• 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 prepared discovery
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 had“significant personal
contacts.”

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 Ethical obligations of
departing lawyers

• In add ition to the e thica l ob ligation s departin g

law yers have , they a lso m ust avo id in te rfe ring w ith
the con tracts the firm has w ith ex istin g c lien ts .

• How ever, th e cau tion to avo id stea ling c lients m ust

be ba lanced aga in st th e departing lawyer’s eth ica l
ob lig ation to no tify clien ts that an a tto rney is
departing .

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 How to tell clients

• The preferred method of advising firm clients

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

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 A letter should advise
the clients
• When the law yer is leav ing
• The c lien t has the op tio n o f go in g w ith the law yer,
stay ing w ith the firm , o r ge ttin g a new firm
• How any advance fee deposit w ill be trea ted
• A p lace fo r the c lien t to s ign and re tu rn th e
le tte r, w ith in stru ctions on w here the ir file
shou ld go .

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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 le tters do no t d isparage the firm o r the

law yer; and
• 2) the le tters do no t in vo lve im proper so licita tion

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 Trust Account Monies

• C lien ts that have g iven the firm an advance fee o r

advance co st d eposit take the m oney w ith them (le ss
earned fees and co sts), if th ey g o w ith the
departing lawyer. Wh ile sim p le in theo ry ,
app lica tion som etim es can be p roblem atic .
• The “ o ld ” firm shou ld w rite a check , consisten t
w ith the w ritten in struction s o f the c lien t, to
e ithe r the c lien t o r to the tru st accoun t fo r the
departed law yer’s new firm .

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 Fee Divisions In General

• In con tingen t fee cases w here som e o r m uch of the

work w as perfo rm ed a t the ex istin g firm , bu t the
case is go ing w ith the d epartin g law yer, the firm
and lawyer m ust ag ree how the contingen t fee w ill
be appo rtio ned am ong them , based upon the ir
respective con tribu tio ns to the case (i.e ., quantum
meruit) o r based upon te rm s in th e partnership
ag reem en t.

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 But can a departing lawyer keep all of a
contingent fee case that came into
the old firm but ultimately settled when
the lawyer was at a new firm?
• P robab ly not, acco rd ing to several cases.
• A law yer m ay be en titled to on ly h is p artne rsh ip
po rtion o f the fees earned on a case , even if he
perfo rm ed m ost o f the work a fte r the d isso lu tion o f
the firm .
• N everthe less , som e courts w ill find that w hen a
law yer leaves a firm and takes a case w ith him , he
m ay be en titled to the quan tum m eru it va lue o f the
work he perfo rm ed .

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Client’s interests 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 client’s interests
not be prejudiced when the attorney/client relationship
is terminated. Have the client or a runner from the
departed lawyer’s 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 of counsel
or at least notification of address change with the
court, to assure that the old firm is still not listed as
counsel of record.
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 Client’s file = paper and
electronic documents

• When a c lie n t asks fo r the ir file , you m ust g ive

them bo th the paper and the e lectron ic docum en ts –
in c lud ing em ails .
• And rem em ber tha t the c lien t file is c lien t
p roperty , so you cannot charge th e c lien t fo r the
co st o f down load ing everyth ing to d isks… .

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 Phones
• It is e th ica lly in app rop ria te to have the
recep tion ist te ll ca llers w ho are look ing fo r a
law yer w ho recen tly le ft the firm “ w e don’t know
where he is. ” Tha t gam e is no t p ro fessiona l and
no t accep tab le .
• Assu re that a ll sta ff are in stru cted to p rovid e the
departed law yer’s phone num ber and m ailin g
add ress.
• A lso , assign a partner to an sw er any c lien t
inqu irie s .
• Mo reover, m a il shou ld be fo rw arded to the departed
law yer.

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Partners and Associates Leaving Must
Abide By Fiduciary Duties to
Firm

• It is w o rth no tin g again tha t law ye rs w ho are

leav ing a firm have certa in fiducia ry du tie s to the
firm to no t in te rfe re w ith the con tracts that the
firm has w ith ex istin g c lien ts , to no t u se firm
resou rces to se t up the ir new firm , and to no t
attem p t to stea l away assoc ia tes and sta ff w h ile
the law yers a re still work ing fo r the firm . - Lynda
C . She ly

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 A lawyer whose spouse is associated
with a firm representing an opposing
party
• [T]he law yer shou ld adv ise the c lien t o f a ll
c ircum stances tha t m igh t cau se one to question the
und iv id ed loya lty o f the law firm and le t th e
c lien t m ake the dec is ion as to its em p loym ent. I f
the c lien t p re fe rs no t to em p loy a law firm
con ta in ing a law yer w hose spouse is asso c ia ted w ith
a firm rep resen ting an opposing party , tha t
decis ion shou ld be respected .

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 WON the firm of “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. - PP v.
Gonzalez, Jr., G.R. No. 139542 June 10, 2003 24
 Duties When Switching Firms

• Duties of Lawyers Interviewing With O ther Firms

• Screening an “ Infected” Lateral Hire
• D eath of a Lawyer

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Thanks for your listening!

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