Who owns the clients?

an analysis of the history of the resolution nº 16/98 and its application by the São Paulo bar association’s Court of Ethics and Discipline

Abstract

Contextualization: The client-lawyer relationship raises debates on professional ethics. The discussion about to whom clients belong–whether to professionals or to law firms–is especially relevant contemporarily.

Objective: This article aims to analyze the application of Resolution nº 16/98, which regulated the matter in the State of São Paulo and which, after much controversy, was recently revoked.

Method: The article uses the case analysis method; more specifically, we map, systematize and analyze the cases involving the resolution that were judged in the Court of Ethics and Discipline of the OAB/SP, in order to shed light on issues such as: can the lawyer who leaves a law firm serve clients or former clients of the firm? Who do the clients ultimately belong to? How to regulate professional mobility in law?

Results: Through the systematization of a sample of 36 cases, we propose to revisit the history of the application of the resolution in three stages: the first decade, in which the resolution was uncontestedly applied; the post-2008 period, when it started to be questioned and made more flexible; and, finally, a moment in which the dissent was strong enough to indicate the need for its revision.

Conclusions: Currently, the client's freedom to choose their representative in cases of professional mobility prevails, except for cases in which the withdrawing lawyer acts disloyally. From a political-regulatory point of view, we suggest that it is more appropriate for the parties themselves to regulate the matter contractually, as opposed to a general regulation made by the bar association.