How did a lawyer sue with the law firm? It turned out that the two parties were fighting a labor dispute lawsuit. After Li resigned, the firm did not help her with the transfer procedures for the lawyer's practice certificate, so Li fought a labor dispute lawsuit for himself.
Li signed a "Lawyer Commission Lawyer Employment Contract" with the law firm on June 8, 2017, with a term of three years, and the labor relationship between the two parties was terminated on September 3, 2018. Afterwards, Li filed arbitration for the resignation procedures, but the arbitration was not accepted.
Li was dissatisfied and filed an appeal
petition: The law firm issued a certificate of three clearance (personnel files, financial and business settlement certificate) to Li to assist Li in handling the transfer procedures for lawyer certificates.
First instance court
This court believes that the employer shall issue a certificate of termination or termination of the labor contract when terminated or terminated the labor contract, and handle the transfer procedures for the employee's files and social security relationships within fifteen days.
Both parties acknowledged the termination of the labor relationship on September 3, 2018, and the court confirmed it; law firm agreed to assist Li in handling the transfer procedures for lawyer's practice certificate, but the court did not object. law firm should handle the file transfer procedures for Li.
Judgment: Within 15 days from the date of the judgment taking effect, the law firm will handle the file transfer procedures for Li and assist Li in the transfer procedures for lawyer's practice certificate.
company dissatisfied and filed an appeal
petition: The law firm does not need to assist Li in the transfer of lawyer's practice certificate within 15 days from the date of the judgment taking effect.
Facts and reasons: If Li wants to go through the transfer procedures for lawyer's practice certificate, he must issue the three-clear certificate (personnel file, financial and business settlement certificate).
Currently, in terms of finance, Li has a 15,000 yuan entry fee for Beijing, a 6,000 yuan lawyer management fee and a 50,000 yuan penalty for practicing in our institute for less than three years.
In terms of business, Li still has a batch of case files that have not been handed over yet.
In addition, the procedures for transferring lawyer's practice certificates require cooperation from both parties, so our firm cannot assist them in completing the procedures for transferring lawyer's practice certificates within 15 days.
I agree to transfer Li’s personnel file, and it has been completed.
Li argued that the 15,000 yuan entry fee claimed by the law firm of
lacks relevant evidence. According to the employment contract between the two parties, I do not need to pay a management fee of 6,000 yuan.
I agree that some case files are not archived, but the filing work can be completed before the transfer of the practice certificate, so the court asked to reject the law firm's appeal request.
Second instance court
This court additionally found that Article 4 of the "Remuneration" of the Law Firm Commission Lawyer Employment Contract signed by both parties is as follows: "The employer and the hired lawyer agree to settle the remuneration in the first and second way.
4.1 The hired lawyer must pay Lu Qianyuan's lawyer management fee to the firm in one lump sum. After deducting the taxes to be paid for in the contract of the lawyers in the hired lawyers, the rest of the income shall be given to the lawyers in the contract, and the firm does not provide a work station.
4.2 The business income of the hired lawyers in the cases of their own, after deducting the taxes to be paid for in the contract of the lawyers in the contract, the remaining income shall be given to the lawyers in the contract.
4.2 The business income of the hired lawyers in the cases of their own, and after deducting the taxes to be paid for in the contract of the lawyers in the contract, the remaining 80% shall be given to the hired lawyers. There is no need to pay lawyer management fees when using a lawyer. The firm does not provide a work station. "
The two parties also signed the " Supplementary Agreement ", which stipulates: "1. After Party B obtains a lawyer's practice certificate after the internship, he should practice with Party A for at least three years and pay the management fee collected by law firm every year.
2. If Party B violates the above provisions of Article 1 and is transferred from the law firm for less than three years after practicing in Party A, Party B voluntarily bears a liquidated damages of 50,000 yuan and lawyer management fees."
Article 20 of the " Lawyer Practice Management Measures " issued by the Ministry of Justice Regulations: When a lawyer changes his or her practice institution, he or she shall apply to the district (county) judicial administrative authority of the district (county) of the municipal or municipality where the practicing institution is located, and submit the following materials:... (2) Certificate of termination of employment or partnership with the original practicing institution and completing business, archives, finance and other handover procedures...
law firm believes that Li still owes his agency the filing fee, lawyer management fee and liquidated damages, so he cannot issue a financial settlement certificate for Li.
Li denied the existence of the above fees, pointing out that the agreements on management fees in Articles 4.1 and 4.2 of the employment contract between the two parties conflict with each other, and their application is 4.2, so there is no need to pay management fees to the .
Li believes that the "Supplementary Agreement" is a standard version of the law firm, targeting intern lawyers. He was already a practicing lawyer when he joined the law firm, so it is not applicable; Article 20 of the "Lawyer Practice Management Measures" stipulated in the proof of completing financial handover procedures refers to financial matters related to the lawyer's practice and handling of cases, and non-business financial disputes do not fall within the scope of the above provisions.
law firm has not submitted evidence for the payment of the entry fee for Li to Beijing.
This court believes that according to Article 20 of the "Regulations on Lawyers' Practice Management", etc., the transfer procedures for obtaining a lawyer's practice certificate is a necessary procedure for normal practice after the lawyer's transfer. The original practicing institution is obliged to assist resigned lawyers in the requirements of the judicial administrative authority to handle the transfer procedures for the practice certificate.
law, so Li refused to handle the transfer procedures for Li's lawyer's practice certificate for the grounds that he should pay the entry fee, lawyer management fee, and liquidated damages. However, the "Lawyer Practice Management Measures" is to regulate and manage the practice of lawyers and ensure that lawyers practice in accordance with the law. The financial handover procedures mentioned in this method should be related to the financial handover procedures related to the practice of lawyers.
Other claims and debts between an individual lawyer and a law firm do not fall within the management scope of the Lawyer Practice Management Measures. The law firm understands the interests disputes arising from the labor relationship between the two parties as the financial handover procedures required by the lawyer when transferring the firm, which is obviously inappropriate.
The above-mentioned interests dispute can be resolved separately and cannot be a legitimate reason for the law firm to refuse to handle the transfer procedures for Li's lawyer's certificate. Based on this, the first instance court ruled that the law firm assisted Li with the transfer procedures for lawyer's practice certificate, and there was no improper use.
To sum up, the appeal was rejected.
case comments
This case involves the management of personnel files and the seizure of some qualification certificates. Since ID cards are not allowed, this phenomenon is relatively rare. However, such as forklift certificates, electrician certificates, etc., especially if the company arranges the first training or re-training during the work period, the company may often be unwilling to return it when it leaves.
But in fact, it can be seen from this case that such documents are not allowed to be detained, and those who require the company's assistance in processing such as lawyer's practice certificates should assist in processing.
According to Article 50 of the Labor Contract Law, an employer shall issue a certificate of termination or termination of the labor contract when terminating or termination of the labor contract, and handle the transfer procedures for the employee's file and social insurance relationship within 15 days.
It can be seen that when an employee leaves, the unit must promptly apply for a resignation and issue a resignation certificate. In this case, Li did not claim compensation. If the unit is unable to work in the new unit because it has not handled the transfer of personnel files, the original unit should bear the losses.
According to Article 9 of the Labor Contract Law, employers shall not seize the worker's resident ID card and other documents, and shall not require the worker to provide guarantees or collect property from the worker in other names. Therefore, the fee for entering Beijing in this case is probably suspended, and the company has not provided any evidence. Perhaps the two parties have some agreements that the company has indicators for entering Beijing. If this is true, Li seems to be insecure enough.
Regarding liquidated damages and law firm management fees, first of all, the law firm’s own terms are somewhat loopholes. Secondly, according to the Labor Contract Law, there are only two situations: , and the unit can agree on liquidated damages, the unit contributes training, the service period, the employee’s illegal service period agreement, and the employee violates the restrictions on competition. Obviously, the liquidated damages agreed in the law do not comply with the legal provisions and are invalid.
Of course, the judge suggested that if you are dissatisfied with liquidated damages or other cases, you can handle it in another case, but it will not affect the trial of this case.
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