LEGAL PRACTITIONERS REMUNERATION

BILL OF CHARGES

The service of a proper bill of charges on a client is a condition for recovery of fees from client except where there is a valid agreement between the parties in respect of payment of the fees.

This can be made through the following –

FEES BY AGREEMENT

A legal practitioner is entitled to make a written agreement with his client in respect of any professional business done or to be done by him for a sum – SBN Plc. v. Opanubi (2004) 15 NWLR 437. Such agreement should appear fair and ought to be such that was not made under circumstances of suspicion of an improper attempt by the solicitor to benefit himself at the client’s expense.

Such an agreement is usually jealously regarded by the court and the tendency is to lean in favour of the client and put the burden of justifying its propriety on the legal practitioner. However, settlem,ent of a bill of costs between a solicitor and a cl;ient upon a special agreement precludes an order being made, upon application, for taxation. The agreement must first be set aside by action before the matter of taxation can be re-opened. There will also be situations where although no real contract can be founded on by the legal practitioner, there might be quasi-contract or other circumstances giving rise to fees claimed on a quantum meruit basis – Scarth v. Rutland (1888) L.R.I.C.P 642; Claire v. Joseph (1902) 2 KB 369 at 376.

FEES THROUGH BILL OF CHARGES

The recovery of a legal practitioner’s charges where it is necessary to rely on a bill of charges is subject to sections 16 to 19 of the Legal Practitioners Act. By the provisions of section 16(1) of the Act, a legal practitioner shall be entitled to begin an action in court of competent juriosdiction. However, section 16(2) provides that a legal practitioner shall not be entitled to begin an action to recover his charges – Re Whitcombe (1844) 14 L.J Ch. 19.

Although the general rule is that the legal practitioner is not entitled to begin an action to recover his charges as provided in section 16(2)(b), however, section 16(3) provides that in any case in which a legal practitioner satisfies the court on an application made either ex parte or, if the court so directs, after giving the prescribed notice.

APPLICATION BY CLIENT FOR BILL OF CHARGES

Section 16(4) of the Legal Practitioners Act enables the client to apply for delivery of bills to him. It provides that the court may, if it thinks fit, on the application of the client –

(a)    Order a legal practitioner to deliver his bill of charges to the client;

(b)   Make an order for the delivery up of, or otherwise in relation to any documents in  the control of the legal practitioner which belong to or were received by him from or on behalf of the client;

And the court may punish for contempt any legal practitioner who refuses or fails to comply with such an order.

RETAINERSHIP

Rule 43 of the Rules of Professional Conduct has to do with retainer. It is a payment made to the legal practitioner by a client, and could be general or special.

1.      GENERAL RETAINER – This exists where a legal practitioner is instructed to handle all problems in an area of law or on every area of law during an agreed period of time.  Under the general retainer, the legal practitioner is precluded from accepting to advice in or appear in any proceedings detrimental to the interest of the client paying the retainer during that period.

2.      SPECIAL RETAINER – This exists where the legal practitioner is instructed to handle a single matter, for example, where a legal practitioner is instructed to represent a client in a lease transaction to draft the lease agreement and obtain Governor’s consent.

CHARGING FEES

A legal practitioner cannot charge arbitrary fees, but only fees that are in the provisions of the law. The fees a legal practitioner can charge are regulated by the Legal Practitioners Act, 1975 and the Rules of Professional Conduct.

The Legal Practitioners Remuneration Committee is empowered by Section 15 of the Legal Practitioners Act, 1975 to make orders regulating fees of legal practitioners.  In furtherance of the power, the Committee passed the Legal Practitioners (Remuneration for Legal Documentation and Other Land Matters) Order 1991.  The Order contains remuneration of legal practitioners in land matters and other legal documentation matters.

BILL OF CHARGES

The solicitor must prepare a bill for the charges containing particulars of the principal items included in the bill and signed by the solicitor (if it is a firm, by one of the partners or in the name of the firm) – section 16(2)(a) of the Legal Practitioners Act.

There is no specification on how the prepared bill of charges should look like, but it should most likely be in the form of an invoice or statement containing the charges, and must be signed by the solicitor preparing the bill.

The rule on preparing detailed particulars of charges may be summarised as follows –

1.      A solicitor should endeavour to prepare a detailed bill of charges with all the particulars of work done, cost, expenses and disbursements.

2.      Where the bill of charges does not contain the particulars, it should be objected to by the client otherwise he will be deemed to have waived his right.

3.      Where the bill does not contain detailed particulars and it is objected to, the court will hold that the bill does not comply with the requirement of the Legal Practitioners Act, and cannot sustain an action for recovery of professional charges.

The following should constitute the particulars of the principal items of the bill of charges –

1.      The bill of charges should be headed to reflect the subject matter. If it is in respect of litigation; the court, the cause and the parties should be stated.

2.      The bill of charges should contain all the charges, fees and professional disbursements for which the legal practitioner is making a claim. Professional disbursements include payments which are necessarily made by the legal practitioner in pursuance of his professional duty such as court fees, witness fees, etc, if paid by him.

3.      Charges and fees should be particularized, for example –

a)      Perusing documents and giving professional advice;

b)      Conducting necessary (specified) inquiries or using a legal agent in another jurisdiction for a particular purpose;

c)      Drawing up the writ of summons and statement of claim or defence;

d)     Number of attendances in court and the dates;

e)      Summarised statement of the work done in court, indicating some peculiar difficult nature of the case (if any), so as to give an insight to the client as to what he is being asked to pay for; and

f)       The standing of the solicitor at the bar in terms of years of experience and/or rank with which he is invested in the profession – Savannah Bank of Nig. Plc. v. Opanubi (2004) All          FWLR (Pt. 222) 1587 at 1610.

4.      It is required to give sufficient information in the bill to enable the client to obtain advice as to its taxation and for the taxing officer to tax it. It is therefore necessary to indicate against each of the particulars given in the bill of charges a specific amount, taking into account the status and experience of the legal practitioner and the time and efforts involved.

SERVICE OF BILL ON CLIENT

The bill of charges must have been served on the client personally or left for the client at his last known address or sent by post addressed to the client at his last known address – section 16(2)(a) of the Legal Practitioners Act.

The reason is to give the client an opportunity to settle the bill of charges, if the charges are unobjectionable.

There are three (3) ways by which the service may be effected –

1.      By personal service. This means that the bill of charges may be physically and personally handed to the client.

2.      By leaving it at the client’s last known address. This address may be the last business or residential address known by the client rather than being assumed.

3.      By post to the client’s last known address.

A PERIOD OF ONE MONTH MUST EXPIRE AFTER DELIVERY

After delivery of the bill to the client by whatever means mentioned above, the period of one month beginning with the date of the delivery of the bill must expire before an action is instituted to recover the charges.

One month in this context does not mean thirty days or thirty-one days, rather it means a calendar month. Section 18 of the Interpretation Act states that ‘month’ means calendar month reckoned to the Gregorian calendar. A calendar month is a complete month in the calendar and in computing it; one must look at the present calendar rather than counting days. A calendar month ends upon the same day in the next ensuing month having the same number as that on which the computation began, that is, the corresponding day in the next month. But if the next ensuing month has not the same number as that on which the computation began, then the calendar month ends on the last day of the next ensuing month, for example March 31 to April 30.

There are, however, circumstances which may make the court reduce or lessen the period of one month within which a solicitor is expected to wait after service of the bill, before the commencement of the action against the client – section 16(3) of the Legal Practitioners Act. These are –

1.      That the solicitor delivered a bill of charges to the client;

2.      That on the face of it, the charges appear to be proper in the circumstances; and

3.      That there are circumstances indicating that the client is about to do some act which would probably prevent or delay the payment to the legal practitioner of the charges.

The place of institution of action is the State High Court. But it must be the High Court where the legal practitioner in question usually carries on his practice or usually resides or in which the client in question usually resides or has his principal place of business or, in the case of a legal practitioner authorized to practice by warrant, the High Court of the State in which the proceedings specified in the application for the warrant were begun – section 19(1) of the Legal Practitioners Act.

A summary of the above procedure is as follows –

1^st step – The legal practitioner prepares a bill of charges.

2^nd step – The bill of charges is signed by the legal practitioner (if it is a firm, by a one of the partners or in the name of the firm).

3^rd step – The bill of charges must be served on the client personally or by post to his last known address.

4^th step – The legal practitioner must wait for one month before proceeding to court.

5^th step – Where the client defaults in paying the fees, the legal practitioner takes writ against the client at the High Court where the firm operates.

WHEN FEES MAY BE TAXED

Section 17 of the Legal Practitioners Act provides for the application for the taxation of bills of charges delivered by the legal practitioner to the client.

Section 17 provides that as a general rule, where an application for the taxation of a bill of charges is made to the court by a client within one month from the date on which the bill of charges was delivered to him, the court shall order the bill to be taxed and that no action to recover the charges shall begun until the taxation is completed.

However, where a direction for providing for security is given under section 16(3) and security is not given in accordance with the direction, an order for taxation shall not be made.

Section 17(2) also provides that the court may, if it thinks fit on an application made after one month of the delivery of the bill of charges by the legal practitioner or the client (except where he had failed to give security as directed), order that the bill be taxed and also order that until the taxation is completed, no action to recover the charges mentioned in the bill shall be begun and any such action already begun shall be stayed.

However, section 17(3) of the Legal Practitioners Act provides that no such order shall be made –

(a)    in any case, after the period of twelve months from the date on which the bill in question was paid;

(b)   except in a case where the court determines that there are special reason for making such an order, if twelve months have expired since the date of the delivery of the bill or if judgment has been given in an action to recover the charges in question.

PROCEDURE FOR TAXATION

Section 18 of the Legal Practitioners Act provides for the procedure for taxation.

Section 18(1) provides thus –

“The taxation of a bill of charges shall be in accordance with the provisions of any order in force under section 15 of this Act; and where no such order is in force or any item falling to be taxed is not dealt with by the order, the charges to be allowed on taxation of the item shall not exceed such as are reasonable having regard to the skill, labour and responsibility involved and to all circumstances of the case”.

The procedure for taxation is governed by the rules of court and the taxation takes place before a taxing officer who may be the Chief Registrar of the Court, or any other suitable person appointed by the Court for the purpose.

The taxing officer may, where he deems it appropriate, refer the taxation to the court, he shall so refer it, and the court may –

a)      Proceed itself to tax the bill and notify to the taxing officer the amount declared and stated in his certificate; or

b)      Refer the taxation back to the taxing officer with its discretion in the matter.

On completion of the taxation of a bill, the taxing officer shall forthwith declare the amount due in respect of the bill and shall file in the records of the court a certificate signed by him stating that amount; and any party to the taxation shall be entitled, on demand, to have issued him free of charge an office copy of the certificate – section 18(4) of the Legal Practitioners Act.

If any party to the taxation is dissatisfied with the determination other than the amount notified by the court, he may within 21 days from the date of determination or filing, appeal to the court – section 18(5) of the Legal Practitioners Act.

If the amount determined by the court as charges is less than the amount of the bill by one-sixth of the bill or more, then the legal practitioner is liable to pay the cost of the taxation; otherwise, it is the client that will pay the cost – section 18(7) of the Legal Practitioners Act.

SAMPLE OF A BILL OF CHARGES

FROM:           (Name and Address of Firm)

TO:                 (Client)

Re:                  (that is, whether it is Subject Matter; or Court; or Parties; or Nature of Brief)

Date:               (Insert recent date)

Date	Particulars	Disbursements	Expenses	Fees / Charge
	1.      Correspondences drafted. 2.      Pleadings drafted. 3.      Court briefs drawn up. 4.      No. of Court appearance: days, nature of activity on appearance date, etc. 5.      Meetings attended. 6.      Errands made, e.g. visits to land registries, CAC etc. 7.      Perusing documents (types). 8.      Peculiar difficulties of case. 9.      Others.

TOTAL N ________________________________

___________________

Signature of Solicitor.

NOTE: Detail of each activity and work done by the Solicitor should be listed.

Follow @wingrassnews

NEGOTIATION

NEGOTIATION

An indispensable step in any Alternative Dispute Resolution (ADR) process is negotiation. It is a fundamental key to all consensual Alternative Dispute Resolution (ADR) activities and, in fact, the most satisfactory method of settling disputes.

The ability to negotiate is inherent, that is, it is an art which is learnt from the earliest stage. Usually, negotiation consists of a quid pro quo of a sort, that is, giving up something in order to get something in return.

It involves discussions or dealings about a matter, with a view to reconciling differences and establishing areas of agreement, settlement or compromise that would be mutually beneficial to the parties or that would satisfy the aspiration of each party to the negotiation. Compromise here implies flexibility on both sides and flexibility derives from a genuine desire on the part of the parties to reach an agreement.

Each adult person would at one time or the other have consciously negotiated one agreement or the other, personal and financial and we might all have developed our own individual approach in trying to persuade others to give what we want, which is what negotiation is all about.

NEGOTIATION APPROACHES

There are various approaches to negotiation, its procedure and technique vary with each negotiation, depending on the nature of the issues being negotiated, the parties to the negotiation together with their skill, knowledge and experience.

The nature and personality of the negotiator is at once also relevant. A negotiator may be a tough and aggressive hard bargainer who may by nature is always reluctant to concede; he may be a person who would always want to heckle or threaten his opponent, that is, negotiating by browbeating; or he may be the opposite, that is, one who would implicitly adopt a pleading manner or cajole his opponent to submission.

There are no formal institutions as such where negotiation skills are learnt other than in continuing education forums like seminars. However, negotiating capacity and ability is enhanced by a thorough knowledge of its theories and intricacies.

PROCEDURE FOR NEGOTIATION

There are three (3) distinct steps in every negotiation. These are –

Step 1 – This involves the definition of the problem, the clarification of objectives, finding out exactly what the other side wants, that is, trying to assess the underlying needs or preferences of the other party to enable you develop a strategy to meet.

Step 2 – It is necessary at this step to have a brief but working knowledge of the habits, antecedents and inclinations of the other party to the negotiation. This information will help you tailor your strategy to meet his need.

Step 3 –This is the agreement stage. It is where compromises are made and a mutually satisfactory conclusion is reached. Surprisingly, in civil law systems, unlike in common law jurisdictions, there is an overriding principle of good faith in contract negotiation and performance.

IMPORTANCE OF NEGOTIATION

Negotiation requires participants to identify issues about which they differ, educate each other about their needs and interests, generate possible settlement options and bargain over the terms of the final agreement. Successful negotiations generally result in some kind of exchange or promise being made by the negotiators to each other. The exchange may be tangible (such as money, a commitment of time or a particular behavior) or intangible (such as an agreement to change an attitude or expectation, or make an apology).

TYPES OF NEGOTIATIONS

Negotiation may involve settlement of disputes, or domestic transactions such as banking, commercial or property transaction. It may also involve international transaction such as crude oil and agricultural exports, imports of industrial goods and technologies.

Whatever the type of negotiation, a legal practitioner must prepare for negotiation. Negotiation must not be seen as an easy option to litigation. The practitioner must prepare for negotiation in the same way he or she must prepare for litigation. To prepare for negotiation the facts of the matter must be ascertained and the objective which the client intends to achieve must be ascertained. The law applicable to the matter must also be a negotiated agreement.

The Best Alternative to Negotiated Agreement (BATNA) and Worst Alternative to Negotiated Agreement (WATNA) on the matter must be considered before deciding whether the matter is best resolved by negotiation or other means.

NEGOTIATING STRATEGIES STYLES AND TACTICS

Negotiating strategies are the methods which a negotiator uses to achieve his or her real objective in order to reach an agreement on the matter under negotiation. There are two types of negotiating strategies:-

  (a)   Competitive or Positional (otherwise known as win/lose)

  (b)   Co-operative or Problem-solving (otherwise known as win/win)

Negotiators also have distinctive negotiating styles. Each negotiator's style is influenced by his individual personality, the strategy he intends to adopt and his objective. Negotiating styles have been classified into three: Soft, Hard and Firm.

Negotiators also use tactics, to achieve their objective. Many tactics are used by negotiators and there are as many tactics as there are negotiators. The commonly used tactics includes – control of agenda; contextual manipulation; overwhelming numerical strength; puffs; threats; take it or leave it; piecemeal; package; nibble; limited authority; lack of authority; behavioral; and psychological tactics.

STAGES OF NEGOTIATION

Negotiation is a process that goes through several stages. Writers have identified different stages through which a negotiation must pass. The stages of negotiation identified varies from three to eight. The number of stages through which a negotiation is processed is divided, . though important, is a matter of individual classification preference. More important is what takes place during the negotiation process.

As negotiation is a process, it passes from one stage to another, and may or may not lead to an agreement. In analyzing the negotiation process, four stages are identified:

  (a)    Opening;

  (b)    Bargaining;

  (c)    Closing; and

  (d)    Execution.

PREPARING AND PLANNING FOR NEGOTIATION

The following should be put into consideration when planning and preparing for negotiation –

1.      It is advisable to first and foremost, understand the facts and issues involved.

2.      Then you are to decide what is least and the most you can expect during negotiation.

3.      You should know what is not negotiable in order to avoid irrelevant matters.

4.      Know what the other side cares about.

5.      Finally, know what is in both interest so that both parties will be satisfied (or almost satisfied) at the end.

CONDUCTING NEGOTIATION

This has to do with the following –

1.      Try to build a good relationship with the other party.

2.      Be friendly and cordial throughout.

3.      Always speak about what you would like (e.g I think, I feel, I suggest, etc).

4.      Find out what the other party will like.

5.      Brainstorm on solutions or options to solve the problem.

6.      Do not make unfair or unrealistic demands.

7.      Do not become abusive, over emotional or threatening.

8.      Try and offer to give something away in exchange for something else from the other party.

Follow @wingrassnews

TRIAL ADVOCACY

INTRODUCTION TO TRIAL ADVOCACY
Advocacy is a Latin word gotten from “advocare” which means “to speak out”.
From the above, one could infer that advocacy means to speak out.
Trial advocacy is limited to hearing of a case in a court of first instance.
However, it should be noted that there is s Advocacy skills deals which deals with general rules relating to the art of advocacy. They are related both are not the same.
An advocate is a person who pleads for a cause or propounds an idea; or a lawyer who pleads or handles cases in court. This extends to appeals where necessary.
The advocate must understand how to tender exhibits, raise objections, address the court and where necessary make a speech by way of an allocutus.
The following are essentials of good advocacy –
1. Mastery of the facts;
2. Mastery of the law;
3. Adequate preparation;
4. Ability to speak eloquently in court;
5. Ability to efficiently conduct oral examination in court; and
6. Mastery of the proper approach to present final or closing address, including the ability to effectively canvass an allocutus or plea in mitigation.
Trial advocacy skills do not exist independently for they have to be mastered simultaneously.
An advocate should avoid the following –
1. Rude language.
2. Hiding under the cover of immunity to ridicule the character of opponents.
3. Being dishonest.
4. Being Hot-tempered.
5. Being timid.
6. Being over sensitive.
The main function of trial advocacy is to resolve factual disputes. The starting point of a trial must always be your case theory which you must present persuasively, and must consist of admissible evidence.
It should be noted that a persuasive (convincing) story can prove an affirmative case if it has the following characteristics –
1. It is told about people who have reasons for the way they act;
2. It accounts for or explains all of the known or undeniable facts;
3. It is told by credible witness;
4. It is supported by details;
5. It accords with common sense and contains no implausible elements; and
6. It is organized in a way that makes each succeeding fact increasingly more likely.
In preparing a persuasive story, the lawyer is under a duty to be bound by the truth under the rules of ethics and the Rules of Professional Conduct.
To prepare a persuasive story, it conceives of the following stages –
1. Prepare a story that has a theory and theme;
2. Plan your final argument;
3. Plan your case in chief considering your potential witnesses and exhibits; evaluating each witness individually in terms of factual weaknesses, evidentiary problems and credibility problems; decide which witness to call;
4. Plan your cross-examination; and
5. Outline your opening statement.
The main effect trial advocacy is for communication, that is, to communicate clearly and persuasively. By this, one could infer three (3) things, which are –
1. Ability to speak with clear voice;
2. Listen carefully and adequately noting the language indicators (that is, speech, intonation, speed, hesitation, attitude, body posture, facial expression, etc); and
3. Ability to question effectively.

Follow @wingrassnews

LETTER WRITING FOR LEGAL PRACTITIONERS

LETTER WRITING FOR LEGAL PRACTITIONERS

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.

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.

Follow @wingrassnews