Our Society is based upon certain rules we have to obey and live
by daily. One of these rules is that, in going about things
we do, we must take care not to injure other people and their
property. Thus the law imposes as duty upon us to act
reasonable in certain defined situations.
The failure to fulfil those duties to others is called
“negligence”. This write-up is to help lawyers practise more
successfully within the rules of professional conduct for Legal
Practitioners 2007 (‘’RPC’’). The number of malpractice cases
against lawyers for negligence and breach of the Rules is on the
rise. In the 2017 Annual General Meeting of Nigerian Bar
Association (‘’NBA’’) Lagos Branch the then Secretary Mr Stephen
Obajaja, in his report raised alarm on the rising number of
disciplinary cases filed against lawyers in the year. Lawyers
sometimes forget to keep focus on how to avoid being sued by a
client and what must be done when sued.
Malpractice refers to negligence or misconduct by a
professional, such as a doctor, a dentist, a lawyer, an accountant
etc. The failure to meet a standard of care or standard of
conduct that is recognized by a profession reaches the level of
malpractice when a client or patient is injured or damage incurred.
Negligence is conduct that falls below the legally established
standard for the protection of others against unreasonable risk of
harm. In professional negligence case a person must violate a
reasonable standard of care. This means the customary or usual
practice of members of a profession has been violated. There
is medical malpractice, legal malpractice, clergy malpractice
etc. The concern of this write-up will be legal
malpractice. A lawyer’s negligence can be by commission or
omission. Wikipedia defined legal malpractice as the term for
negligence, breach of fiduciary duty, or breach of contract by a
legal practitioner that causes loss or harm to his or her
client. Rule 16(1) (d) RPC, called it personal malpractice or
professional misconduct.
In a malpractice suit the law uses a content known as “the
standard of practice” to determine where there was a breach of
duty. The RPC has created certain rules, and if the lawyer’s
conduct does not fall behind those rules of standard practice, it
is deemed to have not been negligent. If the lawyer’s conduct
falls behind the rules of standard practice, the lawyer is deemed
to have been negligent. By Rule 14(1) RPC, it provides that,
’’it is the duty of a lawyer to devote his attention, energy
and expertise to the service of his client and subject to any rule
of law, to act in a manner consistent with the best interest of the
client’’. Rule 14(5) RPC provides that, ’’
negligence in handling of a client’s affairs may be such a nature
as to amount to professional misconduct’’. This shows
that legal malpractice can amount to professional misconduct. This
is the simple reason why a legal malpractice case gives a lawyer
the scare. No lawyer, regardless of skill, rank or
reputation, is immune from malpractice suit or disciplinary action
if a client thinks he was negligent in handling a case or behaved
in a way that will bring dispute to the profession i.e, the Legal
Practitioners’ Privileges Committee (herein referred to as
’’LPPC’’) on the 11th day of January 2018 announced the
withdrawal of the rank of senior advocate from a member of the
inner Bar. The LPPC at its 129th Plenary meeting upheld
the recommendation of the sub-committee: That the petition was
meritorious, having found that the learned silk misconduct
consisted of the institution of multiplicity of proceedings before
different judges of the Federal High Court on the same subject
matter with the deliberate aim of abusing the process of court and
derailing the course of justice. This rule 14 (5) urges that
lawyers should take their place with other defendants in a civil
matter or disciplinary action, as every other professional class of
people would.
A lawyer should act with honesty, fairness, integrity and
fidelity in all dealings and relations with a client. Once a
relationship ends with a client, a lawyer is not allowed to acquire
an interest adverse to the client. A lawyer cannot use information
that he obtained from a client as a result of their relationship –
See Rule 19(1) (2) RPC. A lawyer should not act under any
influence when representing a client. As a lawyer you have
the duty to provide your client with full disclosure in all
matters, as well as detailed and accurate account of all money and
property handled for the client – See Rule 23(2) RPC. A lawyer can
be liable for fraud or forgery and a lawyer is also liable for acts
of his partners, associates, etc. It is pertinent to note
that a lawyer who made a mistake that could have been avoided by a
competent legal practitioner who exercises a reasonable standard of
care will be liable. So also is the lawyer who gave improper
advice, improperly prepare documents, fail to observe a clause in a
contract, conflict of interest, failure to follow client’s
instruction, failure to ascertain deadlines, failure to obtain
client’s consent or instruction, improper withdrawal from
representation, procrastination or lack of follow up and violation
of fundamental human rights can have civil claims and/or
disciplinary action bought against them. Legal malpractice
cases are also about the strange operators who work beyond the
ethnical limits of the legal profession – the drunken lawyer, the
‘charge and bail’, and the lawyer converting his or her client’s
money.
Malpractice can torch any lawyer in the profession. If you
don’t want pieces of the cake clean up your act. A lawyer is
entitled to choose among various alternative strategies or legal
jurisprudence, but there is nothing strategic or tactical about
ignorance or negligence. The Legal Practitioners’ Disciplinary
Committee (herein referred to as ‘LPDC’) recently disbarred a Lagos
based lawyer for misappropriating N1,025,000.00 ( One Million and
Twenty Five Thousand Naira) of his client’s money and a Benin based
lawyer was suspended for 24 ( Twenty Four) months for professional
negligence. Some lawyers don’t intend to make a career of suing
other lawyers, but they look at legal malpractice suit the way they
look at any other potential case. If the facts justify the
suing, and it is a case the law firm would like to handle, they
will take another lawyer to court before you could say ‘a cat in a
hat’.
Malpractice claim also emanate from professional fees
dispute. A lawyer should always put fees agreed with a client
on paper, and always put a clause for variation to meet ever
changing cost. Whenever a lawyer sues a client for
professional fees, many clients put up malpractice as a
defence. As a defence it can reduce or totally eliminate the
lawyer’s recovery of fees if proved. Beware, there’re claims that
do not involve a deficiency in the quality of the lawyer’s service
to this client, but an injury caused a third party because of the
manner of the lawyer’s representation. This includes
malicious prosecution, defamation, infliction of emotional distress
and others based on the manner in which the lawyer represented the
client. Malicious prosecution is the most successful third
party claim.
The major difference between a malpractice case and a
disciplinary action is that in malpractice case, it is a civil
action brought against a lawyer for damages because of his
negligence in his course of legal duty. If found liable damages
will be awarded. A disciplinary case is when a legal practitioner
is petitioned to the Legal Practitioner Disciplinary Committee
(’’LPDC’’) of Nigerian Bar Association (’’NBA’’) for breach of the
RPC. If found liable the lawyer may be suspended or disbarred from
legal practice. One of the major aims of this write-up is basically
for lawyers to be aware and act more conscientiously when dealing
with a client because a resourceful client today maybe a
disappointed client tomorrow. Rule 18(2) RPC provides that,
“the lawyer shalt ensure that important agreements between him
and the client are, as far as possible, reduced in writing, but it
is dishonourable and a misconduct for the lawyer to avoid
performance of a contract fairly made with his client whether
reduced in writing or not”.
In Nigeria erring lawyers are not protected at all, but if the
issue bothers on professional conduct of the lawyer the NBA insists
that it will police itself and that self-discipline corrected any
mistakes made within the legal profession. One of the core tenets
of the legal profession is that malpractice problems should be
resolved administratively by the Legal Practitioner Disciplinary
Committee (LPDC) of the Bar, leaving appeal to the High
Court. The LPDC goes after erring lawyers petitioned with
intensity and a lawyer doesn’t stand much of a chance in a
disciplinary action if the client makes inferences against his
competence or integrity. A lawyer is expected to possess knowledge
of those elementary principles of law and professional ethics which
are commonly known by well-informed lawyers. If there are
gaps in his knowledge, he must discover those additional rules of
law which, although not commonly known, may readily be found by
standard search techniques. Even if the law in a specific
area is unsettled, the lawyer is obligated to undertake reasonable
research in an effort to ascertain relevant legal principles.
Once this is done, the lawyer must make an informed decision as to
cause of conduct based upon an intelligent assessment of the
problem.
The rule does not equip an individual lawyer to patrol the
behaviour of his colleagues, except he is granted membership into
the Legal Practitioner’s Disciplinary Committee of the Nigerian Bar
Association, or its panels at the national, regional or branch
level. The Committees can be repositioned to be more resourceful by
been more proactive in preventing and/or reducing negligence claim
and disciplinary actions. Wise men say, “Prevention is better
than cure”. Most of the petitions are brought because of
negligence in the professional relationship of the parties for
instance, a Lawyer in the habit of advising his client that a case
is a must win or one who fails to communicate to his or her client
about the difficulties and realities of a claim, risk malpractice
suit from dissatisfied client.
However a claim against a lawyer will not succeed if the lawyer
committed an error because an issue of law was unsettled or
debatable. A disagreement as to how a lawyer handled a
portion of a case does not necessarily constitute
malpractice. A lawyer is still within his purview to make
decision of strategy with regard to how a case is prosecuted or
defended. ’’It is generally accepted that a legal practitioner
acts on the general instruction of his Client; he is therefore a
master in the conduct of his client’s case and must not be dictated
to. He can do all he considers necessary in accordance with his
professional training and the ethics of the profession’’ – see
Adewumi v Plastex Ltd (1986) 3 NWLR (Pt 32) 767; Ogbuefi v Gov. of
Imo State (1995) 9 NWLR (Pt 417) 53. ’’The lawyer conducting a
case is, as a matter of law, the controller absolute, of his case;
he knows what witness to call and which not to call. And the
business of the court cannot proceed unless credit is given to the
statement of counsel that they have authority for what they do or
say’’ – see Stranss v Francis (1866) L.R 1 Q.B 379; Abiola v
Abacha (1997) 6 NWLR (Pt 509) 413. A not so good result does
not, in itself, constitute malpractice. It is much like a
General who chooses a proper and well informed course to battle but
is ultimately unsuccessful or a Doctor who chooses the right course
of treatment but still lost the patient. A legal practitioner
who decides on a proper strategy that does not lead to a
satisfactory result cannot be held liable for malpractice.
There are too many intervening factors – the courts, witnesses,
court staff, new-legislation or decided case etc. that can affect
the outcome of a case. A legal practitioner who is not negligent,
conforms to the law, and the rules of professional conduct, and
keeps the client informed and involved throughout a case would not
amount to malpractice just because the court ruling is not in his
favour. In a stimulating encounter with Stephen Ubimago of
Independent Newspapers, when the immediate past President of
Nigerian Bar Association ( ‘NBA’) Mr Augustine Alegeh (SAN) was
asked the biggest challenge confronting members of the Bar today.
The President stated that, ’’the biggest challenge is
discipline. He stated that if we have a disciplined and principled
bar, it will lift the standard higher. If I don’t do it and you
don’t do it, because the price is not right, you will discover that
legal services will not come cheap. We should be discipline in how
we conduct our cases; and disciplined in carrying out our
obligation to the society’’.
What a lawyer must have to consider when negligence
occurs?
The legal malpractice claim based on negligence must prove four
(4) elements:
(1) The
lawyer owed a duty to provide competent and skilful
representation.
(2) The
lawyer breached the duty by acting carelessly or by making a
mistake.
(3) The
lawyer’s breach caused an injury or harm and
(4) The
harm raised a financial loss.
A lawyer must consider seven (7) things when negligence occurs
or when a client threatens negligence suit they are as follow:
- A lawyer must first consider his ethical duty. Some cases of
negligence can be corrected if found early and that ends it because
rules of court allows amendment, but some cannot be corrected
because it is after the damage has occurred. When a lawyer
realises that he has made a mistake, he has the obligation to
communicate to the client and keep the client reasonably informed
and must avoid conflict of interest – See Rule 14(2) (13) & (D)
RPC; Rule 17(1) RPC.
- A lawyer should do a self-assessment of the negligent
act. Know exactly how he was negligent. Where it can be
remedy without harm to the client and how serious are the potential
consequences of the negligent act affect the client, assuming the
mistake cannot be cured. This self-assessment is done when the
lawyer has committed negligence and the client has threatened a
malpractice claim. A lawyer should be careful in becoming
direct adversaries with his client, because it is evidence that
conflict of interest has been established.
- Alert the lawyers involved. Get together review the
lawsuit and request each legal cooperation as the case moves
forward. If the issue is not about court representation, then the
lawyer must review from the beginning of the brief to what led to
the incident at hand.
- Then brief an outside firm or lawyer who can defend malpractice
case or disciplinary action. A lawyer who knows the rules,
procedures, expertise and standard for causation.
- Internally avoid potentially damaging and embarrassing comments
whether on print or verbal, in office or outside office, including
email and social media networks because the lawyer – client
privilege applies.
- A lawyer, you should save information related to the case, and
preserve all documents and electronic data.
- Try and solve your problems, by making whole your mistake,
procrastinating when to fix your mistake would not make them
disappear. Stand up and deal with your unfinished business to avoid
more trouble. If the case need your withdrawal do it at once
or get written document from the client that it is beneficial for
both if there is continued representation. Then stay calm,
knowing that lawsuit can take an emotional toll while a resolution
is being worked out. Find ways to relax i.e. sports, music or
write the chronicles of a lawyer sailing against the wind of legal
malpractice.
In conclusion, Winston Churchill once said, “the truth is
incontrovertible’’. Malice may attack it, ignorance may
divide it, but in the end there it is, “like the walls of
Gibraltar, unshakable”. Let’s be honest I there have been an
occasion where I missed filing pleading on time or improperly
withdrew my representation, the way to handle it, to my knowledge
is to admit the mistake to the client and the court as the case may
be. In Orchard V South Eastern Electricity Board (1987) Q.B
565, it was held that, ’’an advocate is basically a minister in
the temple of justice, he must not withhold from the court any
point of law or fact even if it is adverse to his client…he must
not resort to deceit or to wilful obstruction of the orderly
process of court’’. The way it looks is that any lawyer
can make an honest mistake. The art in which the role of
professional conduct frowns at is the lawyer who makes mistake, and
hides it, makes no amendment and lies to the client. The NBA must
embrace the opportunities that will help lawyers avoid malpractice
cases and reduce disciplinary actions. Professional ethics should
be a constant topic to discuss in our NBA conferences, seminars,
law week, monthly meeting etc to help lawyers practice successfully
within the Rules.
Make no mistakes; proving only the first two elements is
sufficient in a professional negligence case or misconduct
petition. Finally, legal malpractice is defined under the law
as any situation were a lawyer breaches a legal duty owned to a
client and where that breach led to or caused quantitative
damages. This means the client will need to prove that the
lawyer intentionally or negligently did something no reasonably
competent lawyer would have done. One of the leading standard desk
book for lawyers in America – AMERICAN JURY TRIALS, pub by Matter
Bender Company – The section on professional negligence, authored
by Sterling Hutcheson and C.M Monteo (a Former Judge) concluded:
“Many mature lawyers refuse to appear, under any circumstances,
a plaintiff’s counsel in an action against another lawyer for
damages for professional negligence. They know that such
suits may disturb the amicable relations they enjoy with other
members of the Bar and this impede the disposition of other claims
in which they are involved. And they are fully aware that a
client who is willing to sue a lawyer for the service he is
dissatisfied with may have no hesitancy about suing the latter’s
successor”. Stay Solid.
Our Society is based upon certain rules we have to obey and live
by daily. One of these rules is that, in going about things
we do, we must take care not to injure other people and their
property. Thus the law imposes as duty upon us to act
reasonable in certain defined situations.
The failure to fulfil those duties to others is called
“negligence”. This write-up is to help lawyers practise more
successfully within the rules of professional conduct for Legal
Practitioners 2007 (‘’RPC’’). The number of malpractice cases
against lawyers for negligence and breach of the Rules is on the
rise. In the 2017 Annual General Meeting of Nigerian Bar
Association (‘’NBA’’) Lagos Branch the then Secretary Mr Stephen
Obajaja, in his report raised alarm on the rising number of
disciplinary cases filed against lawyers in the year. Lawyers
sometimes forget to keep focus on how to avoid being sued by a
client and what must be done when sued.
Malpractice refers to negligence or misconduct by a
professional, such as a doctor, a dentist, a lawyer, an accountant
etc. The failure to meet a standard of care or standard of
conduct that is recognized by a profession reaches the level of
malpractice when a client or patient is injured or damage incurred.
Negligence is conduct that falls below the legally established
standard for the protection of others against unreasonable risk of
harm. In professional negligence case a person must violate a
reasonable standard of care. This means the customary or usual
practice of members of a profession has been violated. There
is medical malpractice, legal malpractice, clergy malpractice
etc. The concern of this write-up will be legal
malpractice. A lawyer’s negligence can be by commission or
omission. Wikipedia defined legal malpractice as the term for
negligence, breach of fiduciary duty, or breach of contract by a
legal practitioner that causes loss or harm to his or her
client. Rule 16(1) (d) RPC, called it personal malpractice or
professional misconduct.
In a malpractice suit the law uses a content known as “the
standard of practice” to determine where there was a breach of
duty. The RPC has created certain rules, and if the lawyer’s
conduct does not fall behind those rules of standard practice, it
is deemed to have not been negligent. If the lawyer’s conduct
falls behind the rules of standard practice, the lawyer is deemed
to have been negligent. By Rule 14(1) RPC, it provides that,
’’it is the duty of a lawyer to devote his attention, energy
and expertise to the service of his client and subject to any rule
of law, to act in a manner consistent with the best interest of the
client’’. Rule 14(5) RPC provides that, ’’
negligence in handling of a client’s affairs may be such a nature
as to amount to professional misconduct’’. This shows
that legal malpractice can amount to professional misconduct. This
is the simple reason why a legal malpractice case gives a lawyer
the scare. No lawyer, regardless of skill, rank or
reputation, is immune from malpractice suit or disciplinary action
if a client thinks he was negligent in handling a case or behaved
in a way that will bring dispute to the profession i.e, the Legal
Practitioners’ Privileges Committee (herein referred to as
’’LPPC’’) on the 11th day of January 2018 announced the
withdrawal of the rank of senior advocate from a member of the
inner Bar. The LPPC at its 129th Plenary meeting upheld
the recommendation of the sub-committee: That the petition was
meritorious, having found that the learned silk misconduct
consisted of the institution of multiplicity of proceedings before
different judges of the Federal High Court on the same subject
matter with the deliberate aim of abusing the process of court and
derailing the course of justice. This rule 14 (5) urges that
lawyers should take their place with other defendants in a civil
matter or disciplinary action, as every other professional class of
people would.
A lawyer should act with honesty, fairness, integrity and
fidelity in all dealings and relations with a client. Once a
relationship ends with a client, a lawyer is not allowed to acquire
an interest adverse to the client. A lawyer cannot use information
that he obtained from a client as a result of their relationship –
See Rule 19(1) (2) RPC. A lawyer should not act under any
influence when representing a client. As a lawyer you have
the duty to provide your client with full disclosure in all
matters, as well as detailed and accurate account of all money and
property handled for the client – See Rule 23(2) RPC. A lawyer can
be liable for fraud or forgery and a lawyer is also liable for acts
of his partners, associates, etc. It is pertinent to note
that a lawyer who made a mistake that could have been avoided by a
competent legal practitioner who exercises a reasonable standard of
care will be liable. So also is the lawyer who gave improper
advice, improperly prepare documents, fail to observe a clause in a
contract, conflict of interest, failure to follow client’s
instruction, failure to ascertain deadlines, failure to obtain
client’s consent or instruction, improper withdrawal from
representation, procrastination or lack of follow up and violation
of fundamental human rights can have civil claims and/or
disciplinary action bought against them. Legal malpractice
cases are also about the strange operators who work beyond the
ethnical limits of the legal profession – the drunken lawyer, the
‘charge and bail’, and the lawyer converting his or her client’s
money.
Malpractice can torch any lawyer in the profession. If you
don’t want pieces of the cake clean up your act. A lawyer is
entitled to choose among various alternative strategies or legal
jurisprudence, but there is nothing strategic or tactical about
ignorance or negligence. The Legal Practitioners’ Disciplinary
Committee (herein referred to as ‘LPDC’) recently disbarred a Lagos
based lawyer for misappropriating N1,025,000.00 ( One Million and
Twenty Five Thousand Naira) of his client’s money and a Benin based
lawyer was suspended for 24 ( Twenty Four) months for professional
negligence. Some lawyers don’t intend to make a career of suing
other lawyers, but they look at legal malpractice suit the way they
look at any other potential case. If the facts justify the
suing, and it is a case the law firm would like to handle, they
will take another lawyer to court before you could say ‘a cat in a
hat’.
Malpractice claim also emanate from professional fees
dispute. A lawyer should always put fees agreed with a client
on paper, and always put a clause for variation to meet ever
changing cost. Whenever a lawyer sues a client for
professional fees, many clients put up malpractice as a
defence. As a defence it can reduce or totally eliminate the
lawyer’s recovery of fees if proved. Beware, there’re claims that
do not involve a deficiency in the quality of the lawyer’s service
to this client, but an injury caused a third party because of the
manner of the lawyer’s representation. This includes
malicious prosecution, defamation, infliction of emotional distress
and others based on the manner in which the lawyer represented the
client. Malicious prosecution is the most successful third
party claim.
The major difference between a malpractice case and a
disciplinary action is that in malpractice case, it is a civil
action brought against a lawyer for damages because of his
negligence in his course of legal duty. If found liable damages
will be awarded. A disciplinary case is when a legal practitioner
is petitioned to the Legal Practitioner Disciplinary Committee
(’’LPDC’’) of Nigerian Bar Association (’’NBA’’) for breach of the
RPC. If found liable the lawyer may be suspended or disbarred from
legal practice. One of the major aims of this write-up is basically
for lawyers to be aware and act more conscientiously when dealing
with a client because a resourceful client today maybe a
disappointed client tomorrow. Rule 18(2) RPC provides that,
“the lawyer shalt ensure that important agreements between him
and the client are, as far as possible, reduced in writing, but it
is dishonourable and a misconduct for the lawyer to avoid
performance of a contract fairly made with his client whether
reduced in writing or not”.
In Nigeria erring lawyers are not protected at all, but if the
issue bothers on professional conduct of the lawyer the NBA insists
that it will police itself and that self-discipline corrected any
mistakes made within the legal profession. One of the core tenets
of the legal profession is that malpractice problems should be
resolved administratively by the Legal Practitioner Disciplinary
Committee (LPDC) of the Bar, leaving appeal to the High
Court. The LPDC goes after erring lawyers petitioned with
intensity and a lawyer doesn’t stand much of a chance in a
disciplinary action if the client makes inferences against his
competence or integrity. A lawyer is expected to possess knowledge
of those elementary principles of law and professional ethics which
are commonly known by well-informed lawyers. If there are
gaps in his knowledge, he must discover those additional rules of
law which, although not commonly known, may readily be found by
standard search techniques. Even if the law in a specific
area is unsettled, the lawyer is obligated to undertake reasonable
research in an effort to ascertain relevant legal principles.
Once this is done, the lawyer must make an informed decision as to
cause of conduct based upon an intelligent assessment of the
problem.
The rule does not equip an individual lawyer to patrol the
behaviour of his colleagues, except he is granted membership into
the Legal Practitioner’s Disciplinary Committee of the Nigerian Bar
Association, or its panels at the national, regional or branch
level. The Committees can be repositioned to be more resourceful by
been more proactive in preventing and/or reducing negligence claim
and disciplinary actions. Wise men say, “Prevention is better
than cure”. Most of the petitions are brought because of
negligence in the professional relationship of the parties for
instance, a Lawyer in the habit of advising his client that a case
is a must win or one who fails to communicate to his or her client
about the difficulties and realities of a claim, risk malpractice
suit from dissatisfied client.
However a claim against a lawyer will not succeed if the lawyer
committed an error because an issue of law was unsettled or
debatable. A disagreement as to how a lawyer handled a
portion of a case does not necessarily constitute
malpractice. A lawyer is still within his purview to make
decision of strategy with regard to how a case is prosecuted or
defended. ’’It is generally accepted that a legal practitioner
acts on the general instruction of his Client; he is therefore a
master in the conduct of his client’s case and must not be dictated
to. He can do all he considers necessary in accordance with his
professional training and the ethics of the profession’’ – see
Adewumi v Plastex Ltd (1986) 3 NWLR (Pt 32) 767; Ogbuefi v Gov. of
Imo State (1995) 9 NWLR (Pt 417) 53. ’’The lawyer conducting a
case is, as a matter of law, the controller absolute, of his case;
he knows what witness to call and which not to call. And the
business of the court cannot proceed unless credit is given to the
statement of counsel that they have authority for what they do or
say’’ – see Stranss v Francis (1866) L.R 1 Q.B 379; Abiola v
Abacha (1997) 6 NWLR (Pt 509) 413. A not so good result does
not, in itself, constitute malpractice. It is much like a
General who chooses a proper and well informed course to battle but
is ultimately unsuccessful or a Doctor who chooses the right course
of treatment but still lost the patient. A legal practitioner
who decides on a proper strategy that does not lead to a
satisfactory result cannot be held liable for malpractice.
There are too many intervening factors – the courts, witnesses,
court staff, new-legislation or decided case etc. that can affect
the outcome of a case. A legal practitioner who is not negligent,
conforms to the law, and the rules of professional conduct, and
keeps the client informed and involved throughout a case would not
amount to malpractice just because the court ruling is not in his
favour. In a stimulating encounter with Stephen Ubimago of
Independent Newspapers, when the immediate past President of
Nigerian Bar Association ( ‘NBA’) Mr Augustine Alegeh (SAN) was
asked the biggest challenge confronting members of the Bar today.
The President stated that, ’’the biggest challenge is
discipline. He stated that if we have a disciplined and principled
bar, it will lift the standard higher. If I don’t do it and you
don’t do it, because the price is not right, you will discover that
legal services will not come cheap. We should be discipline in how
we conduct our cases; and disciplined in carrying out our
obligation to the society’’.
What a lawyer must have to consider when negligence
occurs?
The legal malpractice claim based on negligence must prove four
(4) elements:
(1) The
lawyer owed a duty to provide competent and skilful
representation.
(2) The
lawyer breached the duty by acting carelessly or by making a
mistake.
(3) The
lawyer’s breach caused an injury or harm and
(4) The
harm raised a financial loss.
A lawyer must consider seven (7) things when negligence occurs
or when a client threatens negligence suit they are as follow:
- A lawyer must first consider his ethical duty. Some cases of
negligence can be corrected if found early and that ends it because
rules of court allows amendment, but some cannot be corrected
because it is after the damage has occurred. When a lawyer
realises that he has made a mistake, he has the obligation to
communicate to the client and keep the client reasonably informed
and must avoid conflict of interest – See Rule 14(2) (13) & (D)
RPC; Rule 17(1) RPC.
- A lawyer should do a self-assessment of the negligent
act. Know exactly how he was negligent. Where it can be
remedy without harm to the client and how serious are the potential
consequences of the negligent act affect the client, assuming the
mistake cannot be cured. This self-assessment is done when the
lawyer has committed negligence and the client has threatened a
malpractice claim. A lawyer should be careful in becoming
direct adversaries with his client, because it is evidence that
conflict of interest has been established.
- Alert the lawyers involved. Get together review the
lawsuit and request each legal cooperation as the case moves
forward. If the issue is not about court representation, then the
lawyer must review from the beginning of the brief to what led to
the incident at hand.
- Then brief an outside firm or lawyer who can defend malpractice
case or disciplinary action. A lawyer who knows the rules,
procedures, expertise and standard for causation.
- Internally avoid potentially damaging and embarrassing comments
whether on print or verbal, in office or outside office, including
email and social media networks because the lawyer – client
privilege applies.
- A lawyer, you should save information related to the case, and
preserve all documents and electronic data.
- Try and solve your problems, by making whole your mistake,
procrastinating when to fix your mistake would not make them
disappear. Stand up and deal with your unfinished business to avoid
more trouble. If the case need your withdrawal do it at once
or get written document from the client that it is beneficial for
both if there is continued representation. Then stay calm,
knowing that lawsuit can take an emotional toll while a resolution
is being worked out. Find ways to relax i.e. sports, music or
write the chronicles of a lawyer sailing against the wind of legal
malpractice.
In conclusion, Winston Churchill once said, “the truth is
incontrovertible’’. Malice may attack it, ignorance may
divide it, but in the end there it is, “like the walls of
Gibraltar, unshakable”. Let’s be honest I there have been an
occasion where I missed filing pleading on time or improperly
withdrew my representation, the way to handle it, to my knowledge
is to admit the mistake to the client and the court as the case may
be. In Orchard V South Eastern Electricity Board (1987) Q.B
565, it was held that, ’’an advocate is basically a minister in
the temple of justice, he must not withhold from the court any
point of law or fact even if it is adverse to his client…he must
not resort to deceit or to wilful obstruction of the orderly
process of court’’. The way it looks is that any lawyer
can make an honest mistake. The art in which the role of
professional conduct frowns at is the lawyer who makes mistake, and
hides it, makes no amendment and lies to the client. The NBA must
embrace the opportunities that will help lawyers avoid malpractice
cases and reduce disciplinary actions. Professional ethics should
be a constant topic to discuss in our NBA conferences, seminars,
law week, monthly meeting etc to help lawyers practice successfully
within the Rules.
Make no mistakes; proving only the first two elements is
sufficient in a professional negligence case or misconduct
petition. Finally, legal malpractice is defined under the law
as any situation were a lawyer breaches a legal duty owned to a
client and where that breach led to or caused quantitative
damages. This means the client will need to prove that the
lawyer intentionally or negligently did something no reasonably
competent lawyer would have done. One of the leading standard desk
book for lawyers in America – AMERICAN JURY TRIALS, pub by Matter
Bender Company – The section on professional negligence, authored
by Sterling Hutcheson and C.M Monteo (a Former Judge) concluded:
“Many mature lawyers refuse to appear, under any circumstances,
a plaintiff’s counsel in an action against another lawyer for
damages for professional negligence. They know that such
suits may disturb the amicable relations they enjoy with other
members of the Bar and this impede the disposition of other claims
in which they are involved. And they are fully aware that a
client who is willing to sue a lawyer for the service he is
dissatisfied with may have no hesitancy about suing the latter’s
successor”. Stay Solid.
Read more https://nairalaw.com/sailing-against-the-wind-of-legal-malpractice-by-tochukwu-chukwumerije-esq/