ETHICS WEEK 5 LAWYER’S DUTY TO CLIENT
WEEK 5- LAWYER’S DUTY TO CLIENTS AND THE ISSUE OF CORRUPTION 1 RULE 14-25 RPC.
:: GENERAL DUTY OF LAWYER: Observe fiduciary relationship and act with utmost honesty and fairness to his client-Swindle v Harrison.
:: DEDICATION TO CLIENTS MATTER: Rule 14. Rondel v Worsley The lawyer should devote his attention, (presence in court) energy and expertise to the service of his client and have the best interest of the client at heart. Seek permission of the client before taking important decisions, promptly respond to client’s queries and keep client posted on developments in the case or issue.
:: DUTY TO ACCEPT (LITIGATION) BRIEF[1] Rule 24: (Cab Rank Rule) where there are no circumstances demanding the contrary (like conflict of interest, etc) and where right fee is paid. NBA v Koku.
:: CONFLICT OF INTEREST: Lawyer should not allow his personal, proprietary or financial interest conflict with the interest of the client. NBA v Koku. Where such exists, he should disclose. E.g. of conflict of interest; he should not be counsel in a matter where he is also a party 17(5), not buy subject matter of cause of action 17(3), etc.
:: REPRESENTING CLIENT WITHIN THE BOUNDS OF LAW Rule 15: since he is a minister in the temple of justice, he is to uphold the law, represent his client within the bounds of the law rather than subjecting himself to the whims and caprices of the client Rondel v Worsley. In the interest of justice, he should; -reject brief or withdraw when client importunes on an illegality[2] or not to undertake frivolous/unjustifiable briefs (see also Rule 24(3)) or that which seeks to harass or maliciously injure another, -restrain client from committing a wrong or (where wrong has been committed) request client to rectify it failing which he shall disclose to affected person/tribunal (except it is a privileged information 15(4), -prevent client from seeking favour from judicial officers, litigant and witnesses 15(2). – inform his client about the option of ADR before resorting to litigation-Rule 15(3)(d), -Not to concoct or use false evidence or mis-state the law or concoct cases, not to vouch for client or witnesses.
:: REPRESENTING CLIENT COMPETENTLY Rule 16: and adequate preparation. Else may ground liability for negligence.
:: PROFESSIONAL NEGLIGENCE BY LAWYERS:
Negligence would occur where the lawyer’s breach of his duty to take care results in damage to his client. Hall v Simmons, Myers v Elman.
Because his actions can have far reaching effects on the client’s interest, he should be empathic, dedicated and diligent in handling client’s matters like; conducting searches, drafting documents, negotiating agreements, giving advice, instituting proceeding, etc. whether he is getting paid or doing it pro-bonoe[3] He may be exculpated from negligence arising from conducting case before (in face of) the court by virtue of Section 9 LPA, Rondel v Worsley (though overruled by Hall v Simons). But this lee would not extend to other scenarios like; giving wrong/negligent advice. Bello Raji v X, NBA v Akintokun.
:: PRIVILEGE AND CONFIDENCE OF THE CLIENT: Rule 19 RPC. Correspondences between lawyer and client should be kept confidential and lawyer (including his employees and associates) should not use the information to his own advantage or to the disadvantage of the client. Furthermore, the lawyer cannot be compelled to disclose same-Section 192 EA. This duty and privilege subsists even after employment. However, the duty can be dispelled by consent of the client or order of the court or compulsion of the law (e.g. 6 and 7 and 8 Money Laundering (Prohibition) Act 2011) or where disclosure is necessary to forestall future commission of a crime or where the information relates to defending himself (and associates) or recovering his professional fees.
He should not deal with the other party without notice to his lawyer except his colleague has been negligent or incompetent Rule 19
:: LAWYER AS WITNESS FOR A CLIENT: Rule 20 RPC. A lawyer should reject brief or withdraw (where he has already accepted) where it appears he would be called as a witness in the case. Except where he is witnessing to non-contentious matter or testimony relates solely to a matter of formality or to the value of legal services rendered by the lawyer or his firm or where the justice of the case demands it so that client would not be prejudiced. Check (2) of the Section. However, he would leave the bar and would not be robed while testifying-Rule 36 RPC. He should not stand bail for accused he is defending in criminal matter save in exceptional circumstances and relationships-Rule 37
:: RESPONSIBILITY FOR LITIGATION: Rule 24: Competently take decisions on largely procedural matters (like adjournment, etc)…? As opposed to substantive matters. Although acting in the latter may still bind client-Adewunmi v Plastex Nigeria Ltd, Abiola v Abacha. Not undertake case calculated to harass, oppress or injure opposite party or oblige the client’s unethical/illegal/unprofessional requests.
:: WITHDRAWAL FROM EMPLOYMENT / BRIEF IN JUSTIFIED CIRCUMSTANCES R 21: Withdraw only for just cause (like conflict of interest, illegality, witness to case, client insists on illegality etc.) but ensure that adequate (written) notice is given to client to enable him make adjustments in that regard and get another lawyer. This new lawyer should be furnished with the documents and correspondences to enable him competently take over. On the other hand, the withdrawing lawyer should be paid in quantum meruit-Aburime v NPA.
:: DEALING WITH CLIENTS PROPERTY R 23: he should properly keep and account for client’s property and money and prevent it from being mixed with his. A separate clients accounts should be opened-Rule 3 LPAccount Rules 1964.
:: CALLING AT A CLIENTS HOUSE FOR INSTRUCTIONS: A lawyer should take instructions from chambers save in exceptional/urgent situations like client is of extreme old age, infirm, in custody, etc. Rule 22.
:: CHANGE OF COUNSEL BY CLIENT: client may debrief a counsel[4] but new lawyer should intimate debriefed lawyer and both give notice to the court if it is a litigation matter. New lawyer should ensure debriefed lawyer is paid what’s due to him and debriefed lawyer should properly hand over the baton by ensuring new lawyer is furnished with documents and correspondences relating to the matter to put him in a good take over position. Rule 27.
[1] In Hall v Simmons, the court noted that this rule may grant some leeway in Negligence.
[2] May be a Section 7C Criminal Code Offender. See generally the case of Myers v Elman.
[3] Although the fact that it is pro-bono may be taken into account in reducing damages to be awarded-Lawson v Matti, Section 9(2) LPA.
[4] Order 48 HCLCPRLagos 2012 provides that change of counsel cannotbe made later thatn three days before the date fixed for the hearing of the case.
