Fair Dismissal: A lawyer refuses to bring a claim

The relationship between a businessman and his lawyer is based on trust and requires the lawyer to have professional integrity, which is the honesty, loyalty, trustworthiness and hard work required by his code of ethics. 

The National Court of Andalusia has announced the dismissal of a company lawyer who refused to file a lawsuit because he had not been financially remunerated as an employee of the company. 

The Chamber considered his breach of employee duties, not the damage per se caused by the failure to file a lawsuit. While the dismissal appears a priori to be an isolated act, the Chamber considers that not only is it still a breach of his duties in relation to the employment relationship with the firm, but that the lawyer's job also entails a duty of respect. the proper employment of his duties for the benefit of the employer.

The mere refusal to comply with the demands made by the company violates its duty of diligence and compliance with the obligations arising from the work carried out by the company, and in order to assess the seriousness of the breach, and the subjective circumstances of the perpetrators and their entities must be based on the facts. 

In the measure of determining seriousness, the Court understands that, because of the professional category and position occupied, the breach did reach the degree of seriousness necessary to require (as is insisted) special care in the performance of his duties, which is essential to rely on him. As an employer of the legal defence provided by a lawyer, he is bound to observe strict rules of conduct.

There must be Loyal Conduct

The judges recall that the relationship between the employer and his lawyer is based on trust and requires the lawyer to conduct himself professionally with integrity, honesty, loyalty, truthfulness and diligence, as required by his code of ethics.

The essence of the non-performance is not in causing damage, but in the violation of valueswhether or not any damage is caused to the undertaking.

From a formal point of view, the judgment also confirms that the letter of dismissal complies with the formal requirements by establishing the alleged offences in a concrete and clear manner in accordance with the provisions of article 55.1 of the ET and that the company also complies with the provisions of article 105.1 of the LRJS by proving the veracity of the facts alleged in the letter of dismissal as justification for the dismissal, so that the Court, contrary to the decision of the lower court, declares the dismissal to be justified.

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