The fact that lawyers are liberal professionals affects their way of organizing themselves as a profession and, above all, the working conditions of each other, which sometimes make it seem that there are first-class and second-class lawyers.
The practice of law can be carried out on your own
As the owner of a law firm, or on behalf of another, as a collaborator in an individual or collective office . In addition, lawyers can provide professional services, in their capacity as lawyers, for companies or for the Administration with apparently administrative contracts.
Both the General Statute of the Legal Profession and Royal Decree 1331/2006 , which regulates the employment relationship of a special nature for lawyers who provide services in individual or collective law firms, indicate the possibility of a special employment relationship between lawyers . In addition, the Workers’ Statute speaks of a “presumption of employment” when paid services are provided on behalf of others, within the “organization and direction” of the employer.
Up to here all clear. The theory is impeccable, but are the limits between one and the other regime (labor/commercial) clearly defined? The reality is that many times they are not, since it is the courts that must decide , in view of the evidence provided, whether or not we are facing an employment relationship or a mere collaboration of a commercial nature .
The trigger for going to court is usually the cessation of the relationship between the lawyer – hired under a commercial regime – and the entity, firm or Administration that decides to dispense with their services. It is then when the lawyer in question goes to court on the grounds that their relationship is actually work-related and so that the existence of unfair dismissal is recognized.
Alienate in the results, dependence and remuneration
are usually the three defining notes that the jurisprudence contemplates to consider that there is an employment relationship. However, each case is different and certain data that some courts consider defining to declare the relationship employment, others have not given it special relevance.
Issues such as where you work (whether or not the work is done in your own or employer’s office), who owns the means with which you work (computer or telephone, for example), hours, fixed remuneration or Having paid vacations are aspects that can be key to considering a relationship that is formally commercial as work.
the Supreme Court, in a judgment handed down on November 19, 2007 , considered that the fact of charging an equal amount that obliges to take all lawsuits does not grant a labor nature to the contract. In this case, it was a lawyer who was hired by a business group for legal defense in disputes in which he was a party. There was no pre-established schedule, although he went to the premises normally on Fridays. The company did not provide him with a secretary or his own office, nor a telephone or computer.
The name of the contract
On the other hand, the name that the parties have given to the contract is not definitive. This was already stated by the Supreme Court in a 2005 ruling , when it estimated that the relationship between a lawyer and a municipal institute was actually of a labor nature. The lawyer went to the institute once a week at a fixed hour, usual for the office, and promised to attend meetings of the board of directors. The most important thing for the room was that the dependence on the institution was beyond any doubt, since the lawyer reported directly to the manager, was subject to hours and enjoyed annual vacations (paid). To all this was added, in addition, that he used the employer’s means (the computer).
In cases of services provided by freelancers, the existence of an employment relationship must be proven by the person suing. This was indicated by the judgment of the Superior Court of Justice of the Valencian Community, of October 22, 2015 , when it considered that the relationship between a lawyer and an entity to which he legally advised was of a commercial and non-labor nature. On this occasion, the activity did not follow any schedule and could reject clients and set fees.
Sometimes, the employment relationship appears covered by a scholarship. The Superior Court of Justice of Asturias, in a judgment of December 7, 2016 , concluded that there was a true employment relationship between a lawyer and the firm for which she worked. She was dismissed from her position due to a mistake made when going to a court hearing. The court considered that there was a note of dependency in submitting to a working day and hours, in the workplace and means used, which does not occur when the profession is presented as liberal. In the questioned period, the income that she obtained was under the concept of “scholarship”, and the lawyer did not issue invoices.
Special employment relationship
The courts have indicated that the activity of a lawyer who provides services for a firm, individually or collectively, has the “forced” consideration of a special employment relationship if the notes of remuneration, alienation and dependency are given.
The Superior Court of Justice of Catalonia, in a judgment of June 7, 2016 , determined that there was an employment relationship in a case in which several lawyers provided services for the owner of an office through a “collaboration” contract. They charged a monthly equal, issuing the corresponding invoices, although all the clients they had were from the owner’s office and also had the computer resources and administrative support. In addition, they followed the instructions of their boss.
Matter of details
As we have seen, relevant details such as timetables and when you enter and leave the company’s premises can be defining. And the Superior Court of Justice of the Valencian Community reminds it once again that, in a judgment of April 5, 2016 , it did not appreciate the existence of an employment relationship in a case that dealt with the case of a lawyer who had signed a commercial contract for carry out a series of jobs (preparation of payroll, social security, etc.), and who also practiced as a self-employed lawyer.
He billed monthly on an equal basis and went to the office with total freedom, without being subject to timetables, using the computer and office supplies both for the company’s work and for his own.