D.

THE LAWYER AND THE CLIENT

Attorney-Client Relationship (1995,1997,1999,2001,2002 Bar Questions) Q: What is the nature of attorney-client relationship? A: 1. Strictly personal Prohibits the delegation of work without the clients consent. 2. Highly confidential a. Communication made in the course of lawyers professional employment; and b. Communication intended to be confidential. 3. Fiduciary a. Hold in trust all moneys and properties of his client that may come into his possession; b. When a lawyer enforces a charging lien against his client, the relationship is terminated; and c. An attorney cannot represent adverse interest unless the parties consent to the representation after full disclosure of facts. Q: Is a contract necessary in order to have a professional relationship between a lawyer and a client? A: No, the absence of a written contract will not preclude a finding that there is a professional relationship. Documentary formalism is not an essential element in the employment of an attorney; the contract may be express or implied.

It is sufficient, to establish the professional relation, that the advice and assistance of an attorney is sought and received in any matter pertinent to his profession. An acceptance of the relation is implied on the part of the attorney from his acting on behalf of his client in pursuance of a request from the latter.
Note: If a person, in respect to his business affairs or any troubles of any kind, consults with his attorney in his professional capacity with the view to obtaining professional advice or assistance and the attorney voluntarily permits or acquiesce in such consultation, as when he listens to his clients preliminary statement of his case or gives advice thereon, then the professional employment is regarded as established just as effective as when he draws his clients pleading or advocates his clients cause in court. (Dee v. CA, G.R. No. 77439, Aug. 24, 1989)

Q: How is a lawyer-client relationship formed? A: 1. Oral When the counsel is employed without a written agreement, but the conditions and amount of attorneys fees are agreed upon. 2. Express when the terms and conditions including the amount of fees are explicitly stated in a written document, which may be a private or public document. Written contract of attorneys fees is the law between the lawyer and the client. 3. Implied When there is no agreement, whether oral or written, but the client allowed the lawyer to render legal services not intended to be gratuitous without objection and client is benefited by reason thereof.
Note: While a written agreement for professional services is the best evidence to show the relation, formality is not an essential element of the employment of an attorney. The absence of a written contract will not preclude a finding that there is a professional relationship.

Q: What are the advantages of a written contract between the Lawyer and the Client? A: 1. It is conclusive as to the amount of compensation. 2. In case of unjustified dismissal of an attorney, he shall be entitled to recover from the client full compensation stipulated in the contract (RA 636). Q: What are the rules protecting attorney-client relationship? A: 1. Best efforts must be exerted by the attorney to protect his clients interest; 2. The attorney must promptly account for any fund or property entrusted by or received for his client; 3. An attorney cannot purchase his clients property or interest in litigation; 4. The privacy of communications shall at all times upheld; 5. An attorney cannot represent a party whose interest is adverse to that of his client even after the termination of the relation. Q: What are the three principal types of professional activity that a licensed attorney at law generally engages in, in the practice of his profession? A: LAP 1. Legal advice and instructions to clients to inform them of their rights and obligations; 2. Appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law; and 3. Preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary layman. (CPR Annotated, PhilJA) Q: Uy engaged the services of Atty. Gonzales to prepare and file a petition for the issuance of a new certificate of title. Uy confided with him the circumstances surrounding the lost title and discussing the fees and costs. When the petition was about to be filed, Atty. Gonzales went to Uys office and demanded a certain amount from him other than what they had previously agreed upon. Uy found out later that instead of filing the petition for the issuance of a new certificate of title, Atty. Gonzales filed a letter-complaint against him with the Office of the Provincial Prosecutor for falsification of public documents. The letter-complaint contained facts and circumstances pertaining to the transfer certificate of title that was the subject matter of the petition which Atty. Gonzales was supposed to have filed. Should Atty. Gonzales be suspended for violating the lawyer-client relationship when he filed a complaint for falsification of public documents against his client using facts connected with the latters petition? A: No. As a rule, an attorney-client relationship is said to exist when a lawyer voluntarily permits or acquiesces with the consultation of a person, who in respect to a business or trouble of any kind, consults a lawyer with a view of obtaining professional advice or assistance. It is not essential that the client should have employed the attorney on any previous occasion or that any retainer should have been paid, promised or charged for, neither is it material that the attorney consulted did not afterward undertake the case about which the consultation was had, for as long as the advice and assistance of the attorney is sought and received, in matters pertinent to his profession. Evidently, the facts alleged in the complaint for estafa through falsification of public documents filed by Atty. Gonzales against Uy were obtained by Atty. Gonzales due to his personal dealings with Uy. Whatever facts alleged by Atty. Gonzales against Uy were not obtained by Atty. Gonzales in his professional capacity but as a redemptioner of a property originally owned by his deceased son and therefore, when Atty. Gonzales filed the complaint for estafa against Uy, which necessarily involved alleging facts that would constitute estafa, Atty. Gonzales was not, in any way, violating Canon 21. Clearly, there was no attorney-client relationship between Atty. Gonzales and Uy. The preparation and the proposed filing of the petition was only incidental to their personal transaction. (Uy v. Atty. Gonzales, A.C. No. 5280, Mar. 30, 2004)

CANON 22, CPR - A LAWYER SHALL WITHDRAW HIS SERVICES ONLY FOR GOOD CAUSE AND UPON NOTICE APPROPRIATE IN THE CIRCUMSTANCES (1994,1995,1997,2000,2001,2004,2005, 2008 Bar Question)

Q: When is a lawyer allowed to withdraw his services? A: A lawyer shall withdraw his services only for good cause and upon notice appropriate in the circumstances. 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. XPN: The right of a lawyer to retire from the case before its final adjudication, which arises only from: 1. The clients written consent; or 2. By permission of the court after due notice and hearing. Q: Does the written consent of the client require approval of the court to be effective? A: The withdrawal in writing of a lawyer as counsel for a party, with the clients written conformity, does not require the approval of the court to be effective, especially if the withdrawal is accompanied by a formal appearance of a new counsel. Q: What are the instances when a lawyer may withdraw his services without the consent of his client? A: FIC MOVIE 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. (Rule 22.01, CPR) Q: What is the procedure when withdrawal is without clients consent? A: 1. File a petition for withdrawal in court.

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 attorney to compensation for services rendered. 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 clients right to discharge the services of his lawyer? A: 1. When made with justifiable cause, it shall negate the attorneys 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 clients 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, 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 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.

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 attorneys 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 plaintiffs 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 lawyers withdrawal from a court case? Explain briefly. A: No his actuation is not in accord with the procedural requirements for the lawyers 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 for an increase in his fees. It is his right to refuse that is part of his freedom of contract. (2000 Bar Question) Rule 22.02, Canon 22,CPR - 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. 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 lawyers negligence. Q: What are the kinds of damages? A: 1. Nominal where client lost the litigation as a consequence of lawyers gross omission of negligence 2. Actual/ Compensatory

3. Moral 4. Attorneys 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; 4. Libelous words in pleadings; 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 clients funds or property in trust for his client. Q: What are the effects of lawyers failure to return clients 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 clients 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? A: GR: Losing client and not the lawyer is liable for costs of suit in favor of prevailing party, the lawyer not being a party-litigant. XPN: Where the lawyer insisted on clients patently unmeritorious case or interposed an appeal to delay litigation or thwart prompt satisfaction of prevailing partys just and valid claim, the court may adjudge lawyer to pay treble costs of s uit. Q: When will criminal liability exist? A: A lawyer may be held criminally liable if he commits any of the following: 1. Causing prejudice to the client thru malicious breach of professional duty or thru inexcusable negligence or ignorance; 2. Revealing clients secrets learned in lawyers professional capacity thru malicious breach of professional duty or inexcusable negligence or ignorance; 3. A lawyer who has undertaken the defense of a client or has received confidential information from said client in a case may be criminally liable for undertaking defense of opposing party in same cause without consent of first client; (Art. 209, RPC) 4. A lawyer who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with intent to cause such damage, shall use any false document may be held criminally liable therefor; (Art. 172, RPC) and 5. A lawyer who misappropriates his clients funds may be held liable for estafa.

NOTE: Estafa is also committed in unauthorized practice of law.