The
rules of professional conduct is made for the maintenance of the highest
standard of professional conduct etiquette and discipline in terms of the
constitution of the Nigerian Bar Association known as The Legal Practitioners Act (LPA), 2004; The Rules of Professional
Conduct for Legal Practitioners (RPC), 2004.
There
are several duties expected of a lawyer to a client. These are:
DEDICATION AND
DEVOTION TO THE CAUSE OF THE CLIENT – Rule 14
The
lawyer owes entire devotion to the interest of the client, warm zeal in the
maintenance and defence of the client’s rights and exertion of his utmost
learning and ability, to the end that nothing be taken or be withheld from him
save by the rules of law legally applied. No fear of judicial disfavor or
public unpopularity should restrain him from the full discharge of his duty.
A
lawyer should take full instructions from the client before advising him.
Advice should be based on merit; a lawyer should always inform the client
concerning the progress of his case and where there is no conflict between the
client and the lawyer in respect of the exact instructions given to the lawyer,
the instruction of the client must prevail. It may be oral or written or both
but it is advisable that it should be in writing.
A lawyer shall inform the client
that his claim or defence is hopeless if he considers it to be so. Where an
action is statute-barred and counsel did not advise his client not to take the
action, he could be damnified in costs – Bello Raji v. X (1946) 18 NLR 74.
REPRESENTING CLIENTS WITHIN THE BOUNDS OF THE LAW – Rule 15
A lawyer may refuse to represent a client where he
believes his conduct to be unlawful even though it can be argued to be legal.
He shall also keep strictly within the law notwithstanding any plea or
instruction from the client, and if the client insists on a breach of law, the
lawyer shall withdraw his service.
REPRESENTING CLIENT COMPETENTLY – Rule 16
A lawyer shall not handle a legal matter which he is
not competent to handle without associating a lawyer with him who is competent
except the client objects or neglect a matter entrusted on him or handle a
legal matter without adequate preparation.
CONFLICT OF INTEREST –
Rule 17
A
lawyer has the duty not to disclose to his client any conflicting interest.
That is, a lawyer that has accepted a brief from his former client cannot use
it against him except where the client, after full disclosure, still wants the
lawyer he can act notwithstanding conflict of interest.
In some cases of conflicting interest; the brief must
be refused. A lawyer will not be permitted to act against 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
– Onigbongbo community v. Minister
of Lagos Affairs & 31 Others. In Re
Chief FR.A. Williams 1972 2 U.I.L.R. 235 (SC).
Conversely, a judge
should not preside over a case in which he had previously served as counsel or
rendered legal advice unless he had fully disclosed this to the parties – Olue v. Enenwali 1976
2 SC 23.
Counsel should not
represent himself in litigation since objectivity and detachment can hardly be
maintained – Egbe v. Adefarasin
1987 1 NWLR (Pt. 47).
AGREEMENT WITH CLIENT – Rule 18
A Client may terminate his brief to counsel at any
time when he no longer has confidence in him. A client can change his lawyer
whether for good cause or not. Where a counsel is debriefed, he owes the court
a duty to make a final appearance before the court for a formal withdrawal of
his representation – Okonedo – Egharegbarni v. Julius Berger Nig. Ltd (1995) 5 N.W.L.R. (pt
398) 679 at 699.
PRIVILEGE AND CONFIDENCE OF A CLIENT- Rule 19
A lawyer must preserve his client’s confidence
in the performance of his duty and must not disclose any information without
his client’s consent – R v. Egbuabor (1962) 1 All NLR 287 – Where
original and translated version of statement of accused to the police was being
produced and read in court, accused denied that it is correct. He said what he
told the police was that he was sick and could not get up. Defence Counsel then
said “I do not object to the statement being tendered. My original instruction
was that accused went to tap palm wine on the day ‘in question”. It was held in
fairness to counsel it should be said that apart from this lapse he seems to
have done his best for the appellant, and we do not suggest that he was guilty
of any conscious dereliction of his duty to his client. That cannot alter the
fact that by his unauthorized disclosure and his abstention from
cross-examination he implied that he himself doubted if the evidence to be
given by his client was to be relied on, and it was a miscarriage of justice,
as understood in this country that he should have continued to represent the
appellant without the appellant’s being aware that the counsel to whom he
looked to present his case had, from his point of view, gone over to the enemy.
In the circumstances we consider
that the conviction must be set aside, but there was a substantial case against
the appellant, and the order we make is that the conviction is quashed and the
appellant is to be retried before another Judge of the Western Region High
Court.
Section 170(1) of the Evidence Act has to do with professional communication. It provides
that “no legal practitioner shall at any time be permitted, unless with his
client’s express consent, to disclose and communication made to him in the
course and for the purpose of his employment as such legal practitioner by or
on behalf of his client, or to state the contents or condition of any document
with which he has become acquainted in the course and for the purpose of his
professional employment, or to disclose any advice given by him to his client
in the course and for the purpose of such employment; provided that nothing in
this section shall protect from disclosure – (a) any such communication made in
furtherance of any illegal purpose. (b) any fact observed by any legal
practitioner in the course of his employment as such, showing that any crime or
fraud has been committed since the commencement of his employment.”
The exceptions to this rule is:
1)
It
does not extend to suppression of a crime or fraud – Annesley v. Earl of Anglesea
(1743) L.R.Q.B 317.
2)
If
the information is not a confidential nature.
3)
If
it is meant to be communicated to a 3rd party.
4)
If
a legal practitioner is accused by his client.
5)
If
the communication is of an illegal purpose.
LAWYER AS A WITNESS FOR A CLIENT –
Rule 20
Under section 173 of Evidence Act, a lawyer is a
competent but no compellable witness for his client – Gachi & Ors v. The State
(1965) NMLR 39. A lawyer is not to act in any litigation where he or a
member of his firm would be or may be called as a witness except where he is to
testify to an uncounted matter or as regards to the nature and value of legal
services rendered.
WITHDRAWAL FROM EMPLOYMENT – Rule 21
A lawyer can only withdraw from
employment, once assumed, for good cause and after reasonable notice to the
client.
“Good Cause’ includes where the
client insists upon an unjust or immoral counsel in the conduct of his case, or
if he persists over the lawyer’s remonstrances in presenting frivolous defence,
or if he deliberately disregards an agreement or obligation as to fees and
expenses”. Upon withdrawal, lawyer should refund such part of the retainer as
has not been clearly earned.
CALLING AT CLIENT’S
HOUSE OR PLACE OF BUSINESS – Rule 22
A
lawyer has the duty to take instructions from a client in chambers and not the
client’s house except for urgent reasons e.g. where the client is ill, where it
has to do with family relations, etc.
DEALING WITH CLIENT’S PROPERTY – Rule 23
A lawyer who collects money for his client, or is in
position to deliver property on behalf of his client, shall promptly report and
account for it and shall not mix such money or property with or use it as, his
own.
RESPONSIBILITY FOR
LITIGATION – Rule 24
A
lawyer has the duty to accept a brief in the court in which the lawyer
practices, subject to payment of proper professional fee otherwise called the cab bank rule – Rondell v. worsley (1967) 3 All ER 993. The rule provides that
special circumstance may justify his refusal, at his discretion to accept a
brief e.g. personal interest, conflicting interest, religious grounds, etc.
Refusal on other grounds may be unprofessional conduct. It is therefore his
duty to undertake defence of a crime regardless of the guilt of the crime
except those of suspicious circumstances e.g. personal interest, non-payment of
fees, etc. – Udo v. The State (1988) (Pt. 82) 316; Udofia v. The State (1988) 2
NEEIII.
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. He can determine what
accommodations to be granted to the opposing lawyer to the exclusion of his
client, provided the merits of the case are unaffected and the client is not
prejudiced.
The basis of the Counsel’s right
(not duty) to control incidents of trial is the presumption of the client’s
confidence in the counsel – Edozien v. Edozien (1993) 1.N.W.L.R. (pt 272) 678 at 693.
INVESTIGATION OF FACTS AND
PRODUCTION OF WITNESS, ETC – Rule 25
A lawyer has a duty to thoroughly
investigate and marshal out facts stated by client including interview of
potential witnesses for his client or for the opposing side. It is inadvisable that counsel
should meet his client’s witnesses for the first time in court.
LAWYERS DUTIES ON ACCOUNTABILITY AND COSTS/CHARGES
DUTY TO OPEN CLIENT ACCOUNT
A Lawyer has
the duty to open a separate Bank account for the keeping of money received on
behalf of a client and should make no withdrawal from it unless permitted by
the Rules. A lawyer who breaches this provision could have his name struck off
the roll even though there has been no criminal trial or conviction. In Re a
Solicitor 121 Sol.J0376. Decided 25th May 1977, A bank cannot have recourse to the
Legal Practitioners client's account to recover any indebtedness of the legal
practitioner to the bank unless the indebtedness arose in connection with the
account – Section 20(1) of Legal
Practitioners Act.
The Legal Practitioners’
Remuneration Committee is empowered under section
15 of the LPA to make orders regulating fees of legal practitioners.
Charges means any charges (whether be way of fees,
disbursements, expenses or otherwise) in respect of anything done by a legal
practitioner in his capacity as a legal practitioner – section 19 of the LPA.
FEES FOR LEGAL SERVICES
It should be
noted that where a lawyer collects money for his client, or is in position to
deliver property on behalf of his client, he shall promptly report and account
for it and shall not mix such money or property with or use it as his own – Rule 23(2) of RPC.
FIXING THE AMOUNT OF THE FEE
A lawyer is
entitled to be paid adequate remuneration for his service to his client – Rule 48(1). But he shall not collect
any illegal or excessive fee – Rule
48(2).
The
professional fee charged by a lawyer for his services shall be reasonable and
commensurate for his services. Accordingly, a lawyer should not charge fees
which are excessively high or too low to amount to understanding except where
the low fee is for a relation or family – Rule
52(1).
DIVISION OF FEES
A lawyer shall not
share the fees of his legal services except with another lawyer based upon the
division of service or responsibility – Rule
53.
LETTER WRITING
Practitioners are required to draft letters of various
kinds, ranging from a covering letter to a letter before a civil action. In
drafting letters, the conventions governing letter writing such as layout,
salutation and complimentary close must be adhered to. Since the practitioner
acts on behalf of a client in a professional capacity, the letter should be
written in plain English. It should never be conversational; thus, can’t,
won’t, they’re, and so on, should not be used. Such an informal style of writing
is inappropriate. In Weston v. Central Criminal court, Courts
Administrator (1977) 1 QB 32 at 39, the Court of Appeal observed that the letter was discourteous
and rude.
Every letter should bear a date. The day should be
written in figures, the month in words and the year in figures. The month and
year should not be abbreviated but be written in full. Dates should not be
punctuated. However, it is permissible to insert a comma after the month. The
month should be written out in words, while the day and year should be written
in figures.
A letter must bear a heading or caption, for example,
if a client is being informed about progress in a suit, then the heading of the
letter will be the suit number and the parties to the suit
Letters written for a firm should be written in either
the first person singular, that is “I” or in the first person plural “We”. Where
it is intended that the letter should be read only by the addressee, the
expression ‘Strictly Private and
Confidential’, should be written on it.
No letter must be dispatched unsigned. A letter must
be signed either by the writer or on his behalf.
There are two
types of letters namely Simple (social
or informal) letters; and Business
(official or formal) letters.
Simple letters are those
written to friends and relatives conveying a personal message while business letters are more formal than
simple letters.
CHECKLISTS OF GUIDELINES FOR STANDARD LAWYER’S LETTER TO
CLIENT
To write a good
letter, one would have to look at the parts of a letter which are:
1)
Letterhead
– This contains the names, address,
references, and qualifications of the writer. It must be simple and sober.
2)
Date
– The applicable mode in Nigeria is: the day, month (written
in words), and year e.g. 4 December 2009.
3)
References
– This is usually inserted. It is helpful
when filing and making cross-references.
4)
Status
of the letter – The word private and confidential (if necessary) should be included.
5)
Name
and address of the recipient – Identify the reader
by name, title or both.
6)
Salutation
– The level of familiarity would consider what to salute with
e.g. Dear Sir, Dear Mr. ABC.
7)
Subject
head – This should give a summary of what the
letter contains. It is recommended to be in sentence style capitalization and
not in capital letters except where absolutely necessary e.g. My Expectation In
Law School.
8)
Body
of the letter – This is the bulk part of the
letter which can be grouped under the following heads:
a)The opening – introduce
or acknowledge the content of the letter.
b)
The
middle – the actual message which may be one or
more paragraphs (numbering is also accepted).
c)The closing –
this is the expected action from the recipient.
9)
Complimentary
closure of the letter – This is the choice or
the mode of salutation. It should be noted that the closure is a determinant
factor of the salutation. For example, Dear Sir closes with Yours faithfully;
Dear Mr. ABC closes with Yours truly, etc.
10)
Name
and signature of the writer – It is advisable to
always sign on top of the name. When signing on behalf of someone, you must
indicate it by adding the word “for”. For
example, For: Mr. ABC. However, the expression “pp” is used in some cases.
11)
Enclosure
– Where you enclose or attach other documents, you should
indicate that fact and you may list or omit the list of the documents. (Encl is
the short form of Enclosure).
12)
Copies
– This is used where there is need to notify other persons
about the message in the letter. It is known as the distribution list. (CC is
the short form of Copies). It is also used to notify the recipient that same
copy has been sent to other persons. But where a blind copy is to be sent to
other persons, nothing should be shown on the letter.
HINTS ON WRITING LETTERS
1.
Be careful about your
choice of words or spelling, and place all punctuations properly.
2.
Be polite, purposeful
and firm. Also avoid over familiarity.
3.
Be brief, and as much
as possible, restrict your letter to one page.
4.
A good letter should
have only one paragraph but where several paragraphs are necessary, each
paragraph should contain only one idea distinct from other paragraphs.
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