Thursday, 17 January 2019

Professional Ethics and Skills: Duty of counsel to Clients

THE DUTY OF COUNSEL TO CLIENT
                   By C.J. OKOYE

Counsel owe many duties to client and these include:


1. THE DUTY TO ACCEPT BRIEF
Rule 23 of the Rules of Professional Conduct (RPC) provides that counsel is bound to accept any brief in the Court in which he professes to practice at a proper professional fee depending on the length of the case.  However, special circumstances may justify his refusal.  The duty to accept a brief is known as “the Cab rank Rule”. 

In accordance with this rule, even if a notorious armed robber comes to brief a counsel, he must accept the brief.  The essence of the rule is to protect reputation of counsel in the course of performing their duties.  The rule, however, recognises that special circumstances may justify refusal to accept a brief.  For example:

a) Personal interest;
b) Conflicting interest;
c) Religious ground
d)     when a brief is illegal                                NOTE RULE 20 LPA.

Refusal on other grounds may be unprofessional conduct.  See ONEYGOCHA’s case.  In this case, counsel refused to appear for an accused person because a lawyer was murdered.  The Court held that by the provisions of Rule 23 of RPC, counsel was under a duty to accept the brief and defend the accused until the conclusion of the case.

See also Rule 9(a) which enjoins lawyers to undertake the defence of an accused person regardless of his personal opinion as to the guilt of the accused person; otherwise innocent persons who are victims of auspicious circumstances might be denied proper defence.  Counsel must not only accept the brief, he must also show commitment to the case above his personal engagement.  Failure to do this may result in denying such accused his right to fair trial and possibly an order by the appellate Court setting aside the conviction of such accused by the trial judge. See the following cases:

1. UDOFIA V. STATE (1998) 2 NSCC 111.
2. OKOSI V. STATE (1989) 1 NWLR (PT 100) 642.
3. QUEEN V. JOHN UZOCHUKWU (1958) 3 FSC 14.

2. DUTY TO TAKE INSTRUCTIONS IN CHAMBERS OR LAW OFFICE
Rule 22 of the RPC provides that counsel should always be briefed in his Chambers and not in the clients’ house or place of business. 
EXCEPTION
However, in special circumstances, for example, illness or infirmity of client or a client who is in detention or some other reason which may prevent a client from coming to the law office, counsel may go to clients’ home to take instructions or accept brief.  For example, to draft a Will for a dying client.

3. DUTY TO TAKE FULL INSTRUCTIONS
A lawyer must always take full instructions from clients and must also obtain full knowledge of his clients’ cause as well as ascertain all the facts before advising thereon. 
He should also avoid giving bold and confident assurances to the client more so where his employment depends on such assurances.  See Rule 14(2)a of RPC

Note that there are situations where counsel may have to ask his client to put his instructions in writing.  This will enable counsel to be in a better position to ask questions and ascertain the accuracy of the clients’ story. 

Although the mode of taking instructions may be oral, written or both, it is, however, advisable that lawyers should take instructions in writing.  In GRIFFITH V. EVANS (1953) ALL ER 1346, Lord Denning said:

“The duty of a solicitor depends, of course, very much on what he is employed to do.  In this case, the solicitor said that he was employed solely for the purpose of claim under the Workmen’s Compensation Acts, and therefore, he was under no duty to consider the possibility of a Common Law claim, whereas the workman said that he employed the solicitor to conduct his case for compensation without specifying whether it was under the Act or not, leaving it to the solicitor to do the best he could for him, and therefore, the solicitor ought to have considered the possibility of a claim at Common Law.  On this question of retainer, I would observe that where there is a difference between a solicitor and his client, the Court has said for the last one hundred years or more that the words of the client is to be preferred to the words of the solicitor or at any rate, more weight is to be given to it.”

4. DUTY TO APPEAR IN A LITIGATION ON BEHALF OF HIS CLIENT UNTIL THE CONCLUSION OF THE CASE
See Rule 21 of the RPC. 
A lawyer can only withdraw from employment for good cause and after reasonable notice has been given to the client. 
This is provided for in Rule 21 of the RPC.  What is good cause will depend on the facts and circumstances of each case and may include:

1. where the client insists upon an unjust or immoral cause in the conduct of the case.
2. If he persists in presenting a frivolous defence in spite of the lawyer’s remonstrance (i.e. protest or complaint in that regard).
3. He deliberately disregards an agreement or obligation as to fees and expenses and
4. Where there are conflicting interests in conducting the case.  For example, where the defendant is your uncle or aunt or relative.  Upon withdrawal, the lawyer should refund that part of retainer to the client which he has not earned.

Note that the client has the right to terminate a brief if he has no confidence in the lawyer anymore.  In fact, he may change counsel whether or not for good reasons.  The lawyer can, however, sue him to recover his unpaid fees.  See ABUREME V. NPA (1978) 4 SC 111.

A client must also terminate his brief with one counsel before briefing another and the second counsel coming into the matter should give notice to the previous counsel.  A counsel who is debriefed, that is, if the brief has been taken away from him, can make a final appearance in Court for a formal withdrawal).  See OKONEDO EGHAREGBAMI V. JULIUS BERGER (1995) 5 NWLR (PT. 398) 679, particularly at page 699.

Please, note Rule 11(c) which says a counsel should not encroach upon the professional employment of another lawyer and Rule 11(e) which says a second counsel coming into a matter should inform the previous counsel.

5. DUTY TO PRESERVE CONFIDENTIAL COMMUNICATION (PROFESSIONAL SECRECY AND PRIVILEGE)
Rules 19 of the RPC provide that it is the duty of a legal practitioner to preserve his clients’ confidence. 
This duty outlasts his employment and it extends to his employees. 
None of them should accept employment which involves disclosure or use of these confidences either for the private advantage of the lawyer and his employees or to the disadvantage of the client without the clients’ knowledge and consent. This duty subsists even though there are other available sources of such information.

The basis of the rule is the relationship of confidence between the legal practitioner and his client.  See Section 192 of the Evidence Act. 

In HORNE V. RICKARD (1963) NNLR 67, the Court held:

“Every client is entitled to feel safe when making disclosures to his solicitor or counsel and there are cases establishing firmly that counsel cannot be called to give evidence which would infringe the clients’ privilege of secrecy.”

See the following cases:

1. R. V. EGUABOR (1962) 1 ALL NLR 289. –that every client should feel safe giving information to his lawyer.                                                                                                                                                           

2. In HORN V. RICHARD (1963) NNLR 67, Holden, J. stated inter alia:

Note that the duty not to disclose confidential information continues even after the employment has ceased. 




There are, however, five main exceptions:

EXCEPTIONS TO THE RULE
1. If the fact is a notorious one.
2. If the information is one that can be disclosed to a third party.
3. Where the legal practitioner is acting for several clients in a particular matter.
4. If during the employment of the legal practitioner the legal practitioner’s client is about to commit illegalities.

6.   DUTY TO FOLLOW CLIENTS’ LAWFUL INSTRUCTIONS 
Rules 21 
It is the duty of the lawyer to follow clients’ lawful instructions and he will be held responsible for any loss which may occur as a result of disobeying them.  Where a client issues instructions which a lawyer, in the proper exercise of his professional judgement cannot accept, the lawyer must terminate the brief.  See Rule 29 of the RPC.  See ADEWUNMI V. PLASTEK NIGERIA LTD. (1986) 2 NSCC 852.
See Rule 19 which gives right to a lawyer to disclose the privileged communication to the Disciplinary Committee investigating his conduct. 
For example, a communication in furtherance of an illegal purpose or any fact observed by the legal practitioner in the course of his employment which shows that a crime or fraud is about to be committed.  See the following cases:

1. ANNESLEY V. EARL OF ANGLESSEA (1743) LR 5 QB 317.
2. R. V. COX (1884) 14 QB 153.
   NATURE OF RELATIONSHIP BETWEEN CLIENT AND COUNSEL.
The relationship between the client and his counsel is that of an independent contractor.   See ADEWUNMI V. PLASTEK NIGERIA LTD (SUPRA).  In this case, the Court held that the client cannot tell the counsel how to go about his duty.  Once he has given instructions, he should leave the counsel to do his duty.  In this case, the counsel withdrew an appeal and the party was not satisfied and sued his counsel.  The Court held that as a legal practitioner has a discretion to withdraw an appeal.  Under Rule 24, and in the absence of express limitation, an instruction to a lawyer confers upon him the power to do all such things, as he considers necessary within the scope of his instructions to obtain the most favourable result for the client.  Thus, he can compromise a suit or withdraw an appeal without further reference to his client.

Note that the basis of the counsel’s right to control incidents of trial is the presumption of the clients’ confidence in the counsel.  See EDOZIEN V. EDOZIEN (1993) 1 NWLR (PT. 272) 678, particularly at page 693.

In OSUN V. ANWAN (1947) 18 NLR 144, the plaintiff instructed his counsel to suit for libel.  He gave him certain facts to plead but the counsel thought it was not necessary to plead them and he also did not tender certain documents.  The case did not end in favour of the plaintiff and he sued the counsel.  It was discovered, however, that even if counsel had tender the documents, it would not have made any difference to the outcome of the case.

See also ORISHARINU V. MEFUN (1937) 13 NLR 187.

The wide scope of the power conferred on counsel to control incidence of trial is, however, limited to technical matters and not admission of facts.  You cannot, for instance, come to the Court and admit facts when your client did not tell you he wants to admit those facts.  It is left for him whether or not to admit those facts.  See the following cases:

1. MOSESE GENERAL MERCHANTS V. NIGERIA STEEL PRODUCTS LTD (1987) 1 NWLR (PT. 55) 110.
2. ELIKE V. NWAKWOALA (1984) ANLR 505.
3. STRAEWS V. FRANCIS (1866) LR1 QB 379.
NB- R.24 (4-6)- WHITTLED DOWN COUNSELS POWER IN THIS REGARD

7. THE DUTY TO THOROUGHLY INVESTIGATE FACTS WHICH HAVE BEEN COMMUNICATED BY YOUR CLIENTS.
Rule 20 provides that a lawyer should investigate and marshal the facts subject to the rule dealing with communications with the opposite party.  He may interview any witness or prospective witness for the opposing without the consent of the opposing counsel or party.

Note that it is not advisable to meet and interview your witness for the first time in Court.

8. YOU SHOULD ADVISE YOUR CLIENT CANDIDLY AND HONESTLY
A lawyer should endeavour to obtain full knowledge of his clients’ case by advising thereon and he is bound to give a candid opinion of the merits and probable result of pending or contemplated litigation.  If he fails in his duty, he may be penalised.  For example, if he fails to advise against bringing an action which is statute barred or purely speculative and devoid of merit, he may find himself damnified.  See COCOTTOMEOULOS V. PZ AND CO. LTD. (1965) LLR 170.  Lambo J, stressed the need for counsel to warn his counsel against bringing an action which is speculative and devoid of merit.  He 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 fill of all professional fees he might have paid on account of the case.

Please note Order 4 Rule 17 of the Abuja High Court Civil Procedure Rules.

If a case is a bad or poor one, counsel must tell the client so.  Counsel must not prosecute a case which he knows is bound to fail or defend a matter which he knows is indefensible.  See BELLO RAJI’s case (1946) 18 NLR 74.  Counsel may be liable for damages in negligence for dereliction of duty.  He may be ordered to pay costs personally in part or whole.  See AJENIFUJA V. SALAKO (UNREPORTED) FSC 337 1959

9. DUTY TO DISCLOSE CONFLICTING INTEREST
Rule14(2) (b).  A lawyer has a duty at the time of retainer, that is, at the time your client is giving you instructions to disclose to your client any interest in or close connection with any person or the subject of retainer which might influence the client in the selection of counsel. 
Note Rule17 & Rule 49

It is unprofessional conduct to represent conflicting interest except by express consent of all concerned and given after a full disclose of the fact.  However, note that in some cases of conflict, the brief must be refused. 

CONFLICT MAY ARISE IN ANY OF THE FOLLOWING WAYS:

1. Personal interest.
2. Acting against a close relationship.
3. 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.

See ONIGBONGBO COMMUNITY V. MINISTER OF LAGOS AFFAIRS AND 31 ORS. (1972) 2 UILR 235.

If, however, a former client is not prejudiced by the lawyer acting against him, then it is permissible.

10. A lawyer should not accept instructions which involves advising or arguing against the interests of the special retainer client.  If the retainer is general, it is unprofessional conduct for a lawyer to advise or appear in any proceedings detrimental to the interests of the client paying retainer during the period of the retainer.  Rule 41.

11. If the counsel has received and read briefs from both parties, then he cannot accept any of them.  See Halsbury’s Laws of England 4th Edition, Vol. 3, page 1143.

12. Counsel should not accept to act in a case in which he previously adjudicated on, advised on or dealt with while in public office.  Rule 39 and Section 292(1) of the 1999 Constitution.  See the following cases:

1. ADEWUYI V. ISHOLA (1958) WRNLR 110.
2. ARUWAJOYE V. DADA IN RE: ADEREMI (1973) 5 WACA 51.

Please note that on the other hand, a judge should not preside over a case he previously was engaged in as a counsel or advised on unless he fully discloses this to the party.  See OLVE V. ENENWALE (1976) 2 SC 23.

Although parties do appear in person to conduct their personal cases, the Supreme Court has advised against it.  See EGBE V. ADEFARASIN (1987) 1 NWLR (PT. 47).  Oputa, JSC stated:

“…A lawyer who represent himself in Court can hardly be detached or dispassionate.”

13. Rule 19.  Counsel should not act in a case where he may be required to give evidence.  Even though he may be competent to testify under Section 155 of the Evidence Act.

However, as a rule of practice, it is improper that he should both be counsel and witness in the same case.  See HORN V. RICHARD. 

See also OBADARA V. PRESIDENT, IBADAN WEST DISTRICT COUNSEL GRADE B CUSTOMARY COURT (1965) NMLR 39. 

If a counsel gives evidence, he should withdraw from the case.  If he knows ab initio that he will be a necessary witness, neither he nor his firm should conduct the trial except if the evidence he gives is as regards formal matters, that is, things that do not affect the merits of the case.  See Rule 19.

14. FIDUCIARY RELATIONSHIP
Counsel should not buy his clients’ property as well as act as solicitor in the case.  He should disclose his interest to his client, ask him to retain another solicitor for the transaction and ensure that the price paid is fair.  See WILLIAM V. FRANKLIN (1961) ALL NLR 218. 

See also ADUKE V. OYENUBI (1968) NMLR 447.

15. Rule 46.  A legal practitioner should not accept any compensation, commission, rebates or other advantages from a person against whom he has been retained without the knowledge and consent of his client after full disclosure. 

A lawyer must be seen to be honest; he must disclose compensation received for his client and he must disburse only on the instruction of his client.  See JOHN DADA IKABALA AND ORS. V. J. O. OJOSIPE (1972) 4 SC 82.

16. Counsel should not stand as a surety for his client because if he jumps bail, it may be embarrassing.

17. Counsel must not act for two or more clients at the same time whose interest conflicts with one another.  See ROGERS WRIGHT’s case.  See also ADEWUYI V. ISHOLA (SUPRA). 

18. Counsel cannot accept a retainer or brief if he has previously advised or dealt with another person in connection with the same matter.  In ODOGWU V. BADAWI SERVICES AGENCIES LTD per Odesanya, J said that if an advocate places himself in the position where he betrays or must betray his past clients’ interest, the Court should act.  In other words, the Court must stop him.  See also ONIGBONGBO V. MINISTER OF LAGOS AFFAIRS (SUPRA).

Please note that if there is no conflict between the previous matter and the new case, then counsel can act for successive clients.

In some cases of conflicting interest, the brief must be refused.  A lawyer will not be permitted to act again his former client when he has obtained confidential information while acting for him which would be improper and prejudicial to use against him in the service of an adversary.  Otherwise, there is no rule that a lawyer cannot act against his former client. 
19. Duty in fixing fees- RULE50,52,53:contingent fee arrangement, fixing the amount of the fee,                                   
Division of fees respectively.


DUTY IN CRIMINAL CASES
a) Duty of prosecuting Counsel – (Rule 9(d) of the RPC)
The Primary duty of a lawyer engaged in public prosecution is not to convict but to ensure that justice is done.  The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is unethical and savours of unprofessional conduct.  This is provided in Rule 9(d) of the Rules of Professional Conduct.

According to Sir Malcom Hilbery:

“As a prosecutor, it is his duty to see to it that every material point is made which supports the prosecution’s case or destroys the case put forward for the defence.  But as prosecution counsel he should not regard his task as one of winning the case.  He is not to make merely forensic points or debating scores.  There is, perhaps, no occasion when the Barrister is called upon to exhibit a nicer sense of his responsibilities than when prosecuting.”

The Criminal Appeal Court in England in the case of R. V. SUGARMAN, emphasised that:

“The business of the State Counsel is fairly and impartially to exhibit all the facts to the jury.  The Crown has no interest in procuring the conviction but that the right person be convicted.” 

The Court warned that where counsel relies on the real strength of this case and thinks he can strengthen it by things collateral in a manner contrary to the law, he only weakens his case and may prevent a verdict which ought to be obtained.  Where a prosecuting counsel is aware of any decision of the Court favourable to the accused, it is impropriety in him to hide it from the Court.  He can, however, legitimately do any of the following:

i. If the decision is by a lower Court, he may invite the Court to overrule it.
ii. If by a Court of coordinate jurisdiction, he can either distinguish it from the case in hand or invite the Court to depart from the decision by overruling same.  See R. V. ANANI 13 WACA 196.
                    NOTE IN SPECIAL CIRCUMSTANCES, THE DUTY OF COUNSEL TO FELLOW LAWYERS:
                   1) To avoid sharp pratices.

                    2) Equality of lawyers.

                    3)Duty not to covet clients.
                     4)Duty to appointment.

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