by Orji Uka
Background
The relationship that exists (or ought to exist) between lawyers and their clients is one of the most controversial but surprisingly less talked about relationships that one is bound to encounter. However, it only grabs headlines when a lawyer fails to carry out one or more of his duties to his client. The urge to write this was ignited by my friend, Ronald Nzimora who tweeted a fortnight ago about a certain (unnamed) lawyer who gave his client a wrong advice that cost the client millions of Naira. Unfortunately, this is not an isolated or one in a lifetime occurrence.
Ordinarily, the legal profession prides itself as an assemblage of people of high professional calling and sound moral character, or as we say, “fit and proper” persons. A lawyer is generally bound to provide services for his client in a manner which protects the client’s interests subject to the proper administration of justice. However, as is the case with all fields of human endeavour, there are certainly members of the profession who, by their acts of misconduct, do disservice to their professional calling and make nonsense of their oath (and the ‘secret’ dinner after the call to bar ceremony).
The relationship between lawyers and their clients is a contractual one and carries with it certain legal and ethical obligations on the part of both parties especially the legal practitioner. Unfortunately, majority of people (Nigerians) are not fully aware of the high and sacred duty placed upon lawyers by the ethics of their professional calling and hence usually go home helpless when they are at the receiving end of one or two acts of indiscretion by their lawyers.
In what follows below, this work shall attempt to break down in an easy to understand manner, the relationship between lawyers and their clients with emphasis on the duties that lawyers owe their client. In obeisance to the principle of correlativity of rights and duties, the work shall also expound on the rights of legal practitioners in their dealings with clients and in the final analysis, the procedure for a client to seek redress where s/he is wronged by his/her lawyer shall also be outlined. For the purpose of this work, singular shall include plural and the word ‘he’ shall, except where the context otherwise requires, refer to both male and female and vice versa.
There is in Nigeria, a code of conduct which regulates the relationship between lawyers and the various stakeholders including their clients, the legal profession and the state in general. This code is known as the Rules of Professional Conduct (“RPC”) 2007. Under the provisions of the Rules, counsel owe several duties to their clients and these include:
Dedication and devotion to the cause of the client – Rule 14(1) RPC
By the provisions of Rule 14(1) of the RPC, a lawyer owes his client the duty to devote his entire attention, energy and expertise to the service of his client and to act in a manner consistent with the best interests of the client.
What this rule implies is that a lawyer owes his entire devotion to the interest of the client, and ought to employ warm zeal and exert his utmost learning and ability in the maintenance and defence of his client’s rights, to the end that his client should be entitled to the full compliments of his training in the protection of his interests except those which are legally unavailable. Furthermore, a lawyer should not for fear of judicial disfavor or public unpopularity be restrained from the full discharge of his duty to his client. After all, law is not a beauty/popularity contest. A lawyer who fails in this duty may be liable in professional negligence to the client (more on this later).
What this rule implies is that a lawyer owes his entire devotion to the interest of the client, and ought to employ warm zeal and exert his utmost learning and ability in the maintenance and defence of his client’s rights, to the end that his client should be entitled to the full compliments of his training in the protection of his interests except those which are legally unavailable.
Duty to take full instructions and to advise candidly and honestly – Rule 14(2) RPC
A lawyer must always take full instructions from clients (preferably in writing) and he has an utmost duty to obtain full knowledge of his clients’ cause as well as ascertain all the facts before advising the client. Where he is in doubt, a lawyer should not be ashamed to consult the client, after all, the client is the master of the facts while the lawyer is the master of the law. A lawyer should also avoid giving bold and confident assurances to the client (e.g. assuring the client that he will win his case) especially if it is because of the assurance that the client decided to brief the lawyer.
A lawyer should also only advise his client candidly and honestly, such that where a client’s case is hopeless, it is better to tell him the truth. If he fails in this duty, the lawyer may be penalised. Unfortunately some lawyers fail to do so, so as not to lose the client (and the potential income).
For example, in the English case of Cocottompoulos vs. PZ and Co. Ltd. (1965) LLR 170, the court stressed the need for lawyers to warn their clients against bringing actions which are speculative and devoid of merit. The court then ordered the counsel to pay the cost personally by refunding the filing fees to the client and also that the client was at liberty to demand from the lawyer the repayment in full of all professional fees he might have paid on account of the case.
There is the story of a United States woman, Tina Seals who filed a lawsuit in US court claiming to be the mother of Beyonce and Jay Z’s daughter, Ivy Blue Carter. It turns out she had also filed twenty seven law suits against different celebrities including Kim Kadarshian over Doe North West, Kate Middleton, Mariah Carey, Micheal Jackson and the United States Government etc. The court dismissed the suit and sent her for psychological evaluation. What I am not certain about is whether the suits were filed on her behalf by a lawyer. God forbid! Just recently the Supreme Court of Nigeria slammed an unprecedented amount of cost on a lawyer for filing a frivolous law suit and for failing to advise his client honestly. The court made it clear that the lawyer and not the client should bear the cost.
Thus in addition to the general punishment for breaching the RPC which may include losing his license to practice law, the lawyer may equally be held liable for failing to advise his client appropriately.
Representing clients within the bounds of the law – Rule 15
Although as a general rule, a lawyer is bound to accept briefs that come his way, he is however entitled to refuse to represent a client where he believes the client’s conduct to be unlawful. Where a lawyer decides to represent a client, he shall also keep strictly within the bounds of the law notwithstanding any plea or instruction from the client. A lawyer should also not aid or participate in a conduct which he believes to be unlawful and should use his best endeavours to restrain or prevent the client from committing a breach of the law. Where a client however insists on an unlawful course or a breach of the law, the lawyer must then withdraw his service.
Representing client competently – Rule 16
Another key duty of a lawyer is to represent his client competently. A lawyer should also not neglect a matter entrusted on him or handle a legal matter without adequate preparation. Again, it is contrary to the rules of professional conduct for a lawyer to handle a matter which he is not competent to handle.
The makers of the rule appreciate that it is not easy to turn down an instruction since the bills have to be paid, and hence have devised a middle way out. The lawyer should associate another lawyer with him who is competent in that area and share the fees with such person except the client objects. But for reasons not excluding greed, some lawyers will insist on handling the instructions on their own and bungle the client’s instructions with attendant loss of resources and sometimes life and liberty.
The liability for the above includes actions in liability for negligence. Over the years, especially in England, from where our law borrows heavily, the cases that have been adjudged as rendering a lawyer liable in negligence have included: giving wrong advice: Otter vs. Church Adam Atham & Co. (1953) Ch 280, bringing action which is statute barred: Bello Raji v: X. A legal practitioner (1946) 18 NLR 74; delay in instituting proceedings so that the action became statute-barred unless client neglected to give the lawyer instructions or to put lawyer into funds: Clayton vs. Kearsey (1935) 79 SJI 180; delay in entering an appearance or serving defence so that default judgement is obtained by the Plaintiff or failure to prosecute case with due diligence so that case is struck out for want· of prosecution: Fitzpatrick vs. Batget & Co Ltd 1967 Q WLR 706; failure to make searches in sale of land transactions e.g. where the Solicitor acting for the purchaser failed to discover that the property was mortgaged Allen vs. Clark (1863) 7 LT7 81; bringing an action against wrong parties; Salf Alli vs. Sydney Mitchel & Co. (1980) AC 1980 etc.
There is the never ending argument whether a lawyer in Nigeria can be held liable in negligence. Once again, this shall be fully addressed in later instalments of this work.
Duty to disclose conflicting interest – Rule 17 RPC
Another sacred duty that a lawyer owes his client is to disclose to the client any interest in or close connection with any person or the subject matter of the instruction which might influence or affect the client in the selection of counsel. For instance where a client seeks to enter into a relationship with or to sue a man who turns out to be the Pastor of the lawyer who the client has instructed, upon becoming aware of that fact, the lawyer has a sacred duty to inform the client of this development and should only act for the client if the client is not uncomfortable with the idea and the lawyer himself is certain that the relationship will not affect his professional judgment.
This is known as the duty to disclose conflict of interests provided for under Rule 17(1) of the RPC 2007. The ways in which a conflict of interest may arise include but are not limited to the following ways: financial, business, property or personal interest, acting against a close relationship, acting against a former client where the counsel has obtained confidential information while acting for him which will be improper and prejudicial to use against him in acting for his adversaries etc.
Importantly too, where a lawyer is conducting a case for a client which involves a property say land, the lawyer is prohibited from buying that land from the client whether directly or indirectly. This is in accordance with the fiduciary duty which the lawyer owes the client such that the law presumes that the client has entrusted confidential information to the lawyer and the latter should not take undue advantage of same to his own benefit (those familiar with the stock exchange market and the rule against insider trading should understand this more).
A lawyer should also not accept to represent different people with differing interests unless it is obvious that the lawyer can adequately represent the interest of each and each consents to the representation after full disclosure. This again is breached in the main as a result of greed and the quest for survival.
to be continued…
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Orji Uka is a legal practitioner with one of the biggest law firms in Africa and has been in dispute resolution practice since his call to bar in 2012. Orji attended Abia State University, Uturu Nigeria where he obtained aLL.B (Hons) degree in 2010. He tweets from @Orjiuka
Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.
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