Law News
Professional ethics and discipline of lawyers
Mr. Augustine Alegeh

Mr. Augustine Alegeh

The liability of lawyers as professionals is an issue that cannot be overemphasised, considering the level of trust and confidence reposed in them by the society. The legal profession is one that seeks to convince the public that a professional service is delivered not only by properly qualified or technically-sound persons but also by persons whose professional standards merit the high degrees of public trustworthiness, which are typically required of professionals. It is therefore not out of place to look into how the ethics of the profession is being upheld and the way and manner erring lawyers are disciplined.

Supervision of lawyers in Nigeria

Law as a field of study is guided by rules and principles of engagement and professional ethics. The main legislations guiding the supervision of lawyers in Nigeria are the Legal Practitioners Act 1975 (as amended) CAP L10 Laws of the Federation of Nigeria 2004 (hereinafter referred to as the LPA), the Rules of Professional Conduct 2007 (hereinafter referred to as the RPC) and the rules of common law especially on the liability of solicitors for negligent legal work.

Liability of lawyers as officers of the court

A lawyer is regarded first and foremost as an officer in the temple of justice before being an advocate representing his client. This underlies the fact that there are some duties imposed on him under the Rules of Professional Conduct and which will attract liability in the event of a breach.

The Primary duty of a lawyer engaged in public prosecution is not to secure a conviction at all costs but to see 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 misconduct. He shall make timely disclosure to the lawyer for the defendant or to the defendant himself if he has no counsel, of the existence of evidence or authorities, known to the prosecution or other government lawyer, that tends to negate the guilt of the accused, mitigate the degree of the offence or reduce the punishment. A public prosecutor shall not institute a criminal charge, if he knows it is not supported by probable evidence.

Where a lawyer undertakes the defence of a person accused of a crime, he shall exert himself, by all fair and honourable means, to put before the court, all matters that are necessary in the interest of justice, but he shall not stand or offer to stand bail for a person for whom he or a person in his law firm is appearing. A confidential disclosure of guilt alone does not require a withdrawal from the case. However, if the accused who has confessed, insists that he shall give evidence (of innocence) or that such positive evidence to establish, falsely, his innocence shall be called, the lawyer must refuse to represent him. There is, however, no impropriety in fighting to show that the prosecution’s evidence has fallen short of proof; that is entirely different from being party to putting before the court, a positive defence known to be false.

The above stipulated duties are expected to be observed by a counsel as an officer of the court and a minister in the temple of justice, every time he has a case before the court. Failure to observe these duties makes the lawyer liable to be prosecuted before the Legal Practitioners’ Disciplinary Committee set up under the LPA. The prosecution before the LPDC is different from the liability to face the penalties that attach to contempt of court.

Rules governing the fiduciary obligation of lawyers

The Rules of Professional Conduct contains provisions that impose fiduciary obligations on a lawyer with respect to his relationship to his client and the members of the public. A lawyer shall not do any act whereby for his personal benefit or gain, he abuses or takes advantage of the confidence reposed in him by his client. A legal practitioner should not buy his client’s property as well as act as solicitor in the case. A legal practitioner should accept no compensations, commission, rebates or other advantages from a person against whom he has been retained without the knowledge and consent of that person after full disclosure. A solicitor has absolutely no right to convert the client’s property in his possession to his personal use. He can only do whatever is covered by his instructions. A legal practitioner must fully disclose to his client, the compensation he has obtained for or on account of the brief. He must also disburse such money only on the instructions of his client. The rules go further to prescribe the duty on the legal practitioner to maintain clients’ account to ensure that his personal monies don’t get mixed up with that of the clients.

Obligation by law firms to procure liability insurance

At present, though desirable, there is no statute or law imposing an obligation on law firms to take out liability insurance to cover damages that may arise out of court action brought as a result of the negligence of lawyers in a firm. The absence of this obligation is probably why none of the insurance companies in the country is offering insurance covers for the liability incurred by law professionals in the discharge of their duties. This lacuna is now being addressed in a new legislation that is pending before our national legislative houses for passage into law.

The risk of incurring liability on the different areas of practice

As earlier stated above, anyone who has been called to the Nigerian Bar can practice in several areas of law, ranging from representation of litigants in any proceedings and preparation of documents relating to proceedings in court, company formations to conveyance and preparation of documents for probate or letter of administration. All these areas of practice can be divided into contentious and non-contentious, leaving the area of litigation in the contentious category.

It is important to make clear from the start that the vast majority of Nigerian lawyers combine contentious and non-contentious work, although there is a growing tendency for practitioners in the bigger practices to specialise in one or the other.

The issue of liability will readily arise against a lawyer where he acts negligently in carrying out his professional duties. However, the risk of incurring liability seems to be wider in the contentious area of practice i.e. litigation. In the non-contentious areas of practice, the risk of incurring liability would appear narrower but it is one area where a wronged client has the best opportunity to get monetary award in a successful case of negligence against an erring practitioner. Some of the areas of work of a lawyer where this can occur is when he acts as a solicitor by giving wrong legal advice, negligence in the drafting of legal documents, misstatement of law or facts in non-contentious legal matters, refusing to remit money collected on behalf of a client and a few others.

In the area of litigation however, instances of liability is vast and includes giving wrong advice, bringing an action that is statute-barred, delay in instituting proceedings that leads to the action becoming statute-barred, delay in entering an appearance or serving defence that leads to default judgement being obtained against his client, failure to prosecute a case after accepting a brief that has been perfected with due diligence that leads to the case being struck out for want of prosecution, bringing an action against wrong parties, etc.

In fact, in some jurisdictions in Nigeria, like the Federal Capital Territory, it is compulsory to file, as part of the originating processes, a Pre-action Counselling Certificate. This certificate is signed by the legal practitioner instituting the action and in it he states that he has advised his client as to the strengths and weaknesses of his case and agrees to be personally liable to pay costs should the court find the action frivolous, impossible to maintain, tendentious etc.

To further underscore the magnitude of the risk of liability in the litigation area of practice, it is common knowledge among lawyers in Nigeria that the courts have recently adopted the attitude of ordering counsel to personally pay, part or the whole of the costs awarded against his client, incurred as a result of dereliction of his duty to the court.

It must be pointed out that like in many other common law countries, legal practitioners cannot be proceeded against in a claim founded on negligence for the work of barrister, in other words, a legal practitioner cannot be damnified in damages for work done in court as a barrister. This author opines that if there is any remedy for negligent handling of a case before a court, the only remedy is to report same as misconduct and proceed as stated hereafter.

Sanction for breach of professional obligations

By virtue of Section 11 of the Legal Practitioners Act, a breach that amounts to misconduct attracts disciplinary procedure by the Legal Practitioners Disciplinary Committee, which is an organ of the Body of Benchers, and a finding of guilt may lead to any of the following:

  1. Strike out the person’s name off the roll or;
  2. Suspend the practitioner from practice by ordering him not to engage in practice as a legal practitioner for such period as may be specified in the direction; or

iii. Admonish the practitioner, and any such direction may, where appropriate, include a direction requiring the refund of monies paid or the handing over of documents to a client or any other thing as the circumstances of the case may require.

Code of ethics binding lawyers in Nigeria

As earlier stated, the code guiding the professional conduct of lawyers in Nigeria is the Rules of Professional Conduct 2007. These rules were made by the General Council of the Bar to further the aims and objects of the Nigerian Bar Association under the constitution of the Association and to maintain the highest standards of professional conduct, etiquette and discipline in terms of that constitution.

Once a complaint is made by an individual against a lawyer, the complaint is juxtaposed with the rules to see of it amounts to a misconduct, in which case, the lawyer will be brought before the Legal Practitioners’ Disciplinary Committee and if found liable, will be sanctioned by the imposition of any of the three sanctions prescribed by the LPA discussed earlier, depending on the gravity of the misconduct.

Ethics tribunal in Nigeria

The tribunal responsible for the discipline of lawyers in Nigeria is called the Legal Practitioners’ Disciplinary Committee. The Committee, of which this author is a member, is a creature of the Legal Practitioners’ Act 1975 (as amended) and is charged with the duty of considering and determining any case where it is alleged that a person whose name is on the roll has misconducted himself in his capacity as a legal practitioner and should for any reason be the subject of proceedings under the Act.

Within the last year, the Committee, which was reconstituted about March, 2013 has undertaken the trial of many cases of misconduct against many legal practitioners. Out of these matters it found 11 legal practitioners liable for grave misconduct and ordered the removal of their names from the roll of practitioners. In two other matters, the legal practitioners were suspended from the Bar for a period of five years each, while one respondent was admonished. Within the same period, 11 allegations were found unproved and the practitioners were set free. The Tribunal had reason to strike out more than ten matters because the complainant could not proceed, due to lack of witnesses. The high tempo of the Tribunal has been commended by many people because the Tribunal has done more work in one year, more than it did in the previous thirty years or so.

It should be noted that the imposition of sanction by the Tribunal is not a bar to an aggrieved client from pursuing other legal options against an erring legal practitioner.

Ali, a Senior Advocate of Nigeria, delivered this piece in October, 2014 at the Negligence and Damages section of the International Bar Association Conference held in Tokyo, Japan.

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