Law & Human Rights

May 10, 2018

Balancing lawyers’ duties, roles to clients in justice administration — Quakers, SAN

Balancing lawyers’ duties, roles to clients in justice administration — Quakers, SAN

Norrison Quakers, SAN

By Norrison Quakers

ADMITTEDLY, lawyers as operators of the administration of justice system owe a duty to the society at large to ensure that they conduct their activities in a manner that edifies and brings honour, respect and belief to the judicial system. However, overtime, in the discharge of the duties of a legal practitioner, a notable conflicting interest arising is striking a balance between the interest of the client who virtually pays the legal practitioner’s bills and the legal practitioner’s special duties being a Minister in the temple of justice.

Norrison Quakers, SAN

The special role of legal practitioners is recognised by Section 349(1) of Administration of Criminal Justice Act, 2015 which provides that ‘Where a defendant charged before the court is not represented by a legal practitioner, the court shall: (a) inform him of his rights to a legal practitioner of his choice; and

(b) enquire from him, whether he wishes to engage his own legal practitioner, or a legal practitioner engaged for him by way of legal aid.’

Duties and responsibilities

Of note, the duties and responsibilities of a lawyer to his client, was aptly captured by the iconoclast-Lord Denning (Master of the Rolls), C. A. England 195 viz:

“The duty of counsel to his client in a civil case or in defending an accused person is to make every honest endeavour to succeed. He must not knowingly mislead the court either on the facts or on the law, but short of that, he may put such matters in evidence or omit such others as in his discretion he thinks will be most to the advantage of his client.

So also, when it comes to his speech, he must put every fair argument which appears to him to help his client towards winning his case. The reason is because he is not the judge of credibility of witnesses or of validity of arguments. He is only the advocate employed by the client to speak for him and present his case, and he must do it to the best of his ability, without making himself the judge of its honesty. Cicero makes the distinction that it is the duty of the judge to pursue the truth, but it is permitted of an advocate to urge what has only the semblance of it.”

Remarkably, in prosecuting the anti-corruption agenda of the Buhari led-administration, a cause for concern in recent times is the manner in which persecution is gradually being clothed with legal cloak. Regrettably, the hallowed constitutional presumption of innocence is being flouted with cat-walking impudence by law enforcement agencies. Succinctly, an upright legal practitioner confronted by a client who is a victim of such constitutional infractions will naturally have difficulty in being dispassionate. This is where caution must be exercised by such legal practitioner since the machinery of the law is the only legally acceptable means of combating injustice.

Although there are equally despicable instances of lawyers going overboard in a desperate move to remove the blindfold of the revered Lady Justice, an allegorical personification of the moral force in judicial systems, at all cost by subverting the course of justice!

This clearly is in contravention of RULES 30 & 34 of the RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS 2007.

In balancing the aforesaid conflicting interests, legal practitioners in the discharge of their responsibilities also have to consider the Cab Bank Rule. In addition, there is amongst others a ‘duty of confidentiality’ as contained in RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS 2007, with Rule 19(3) outlining limited instances, legal practitioners can deviate from its obligatory observance, viz-

“a lawyer may reveal- (a) confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them. (b) confidences or secrets when permitted under these rules or required law or a Court order; (c) the intention of his client to commit a crime and the information necessary to prevent the crime; (d) confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.”

Energy and expertise

Succinctly, though lawyers are duty bound to devote their attention, energy and expertise to the service of their client and, to act in a manner consistent with the best interest of the client (see Rule 16 RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS 2007), nevertheless, this must be done within the bounds of the law as Rule 15(2) RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS 2007 provides-

“In his representation of his client, a lawyer shall- (a) keep strictly within the law notwithstanding any contrary instruction by his client, and if the client insists on a breach of the law, the lawyer shall withdraw his service; (b) use his best endeavours to restrain and prevent his client from committing misconduct or breach of the law with particular reference to judicial officers, witnesses and litigants and if the client persists in his action or conduct, the lawyer shall terminate their relations.”

In the words of NGWUTA, J.S.C. in DARIYE v. FRN (2015) LPELR-24398(SC) (P. 37, paras. B-D). “Lawyers are engaged to espouse the case of their clients. It is a monopoly and they should bear in mind that like all monopolies, their conducts are subject to strict rules of accountability for adherence to set ethical standards. They can fight the cause of their clients but as lawyers, they must act within the rules regarding ethical conduct. They owe a duty to their client but they owe a higher duty to a higher cause-the cause of justice.”

In a similar vein, Wesley Mc  Williams writing in an American Bar Association Journal in January 1955 (41 ABA 18) wrote in an article he titled: The Law as a Dynamic Profession thus: “We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbours whom we have served.”

Gratitude and respect

Hence, lawyers must be conscientious in the performance of their duties. Depending on the facts and circumstances of each case, a lawyer may be liable to punishment as provided under Rule 55(1) and (2) of the Rules of Professional Conduct for Legal Practitioners Rules, 2007. The provisions are couched as follows:

“55 (1) lf a lawyer acts in contravention of any of the rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in Legal Practitioners Act, 1975. (2) It is the duty of every lawyer to report any breach of any of these rules that comes to his knowledge to the appropriate authorities for necessary disciplinary action.”

The germane question that arises is- ‘whether in the discharge of a legal practitioner’s duties, any client is deserving of any conduct involving subversion of justice that can lead to a legal practitioner’s loss of dignity or in a worst case scenario, being derobed?