Client/Counsel Relationship: Agency or Independent Contractor?

By Olumide Babalola

I have procrastinated on this article for so long but it keeps
staring me in the face at different fora and intervals, hence this
hurriedly-strung piece on the issue.

Superficially, the relationship between a lawyer and his client
ordinarily looks simple, since it is contractual in nature,
however, in certain circumstances, there may be far-reaching
consequences where the lawyer’s authority is put to test. Perhaps,
this explains to the divergent positions of our apex court, as
would be considered below.

In the late eighties, on the nature of Client/Counsel
relationship, the court held in Adewunmi v Plastex (Nig.) Ltd.
(1987) 1 NWLR (Pt. 32) 767; (LPELR) 164 (SC) that:

“Hence the actual legal relationship between counsel and his
client is akin to that of an employer and an independent
contractor. It is not between one of principal and agent. It is
conceded that where the client gives specific instruction to
counsel, such specific instructions must be adhered to. Where there
is conflict with the manner of discharging his duties the client or
counsel may decide to terminate the relationship. Where counsel is
in control of the conduct of a case, his authority extends, when
not expressly limited, to the action and all matters incidental to
it and to the conduct of the trial to its finality, in what in his
opinion is in the best interests of his client.” (Emphasis
mine)

Later in 1993, following the same path, the court again held in
Edozien v Edozien (1993) LPELR – 1020 (SC) that:

“There is the usual dominant and general instruction to Counsel
to conduct the litigation in court to finality. In carrying out
this instruction, counsel functions as an independent contractor
who exercises his skill and judgment and is free to act as he
considers fit within the instruction in the interest of his client,
-See Performing Right Society Ltd. v. Mitchell & Booker Palais de
danse Ltd. (1924) 1 KB.762 Counsel acting within the scope of his
authority express or implied can bind the client . This was the
position in Mathews v. Munster (1888) 20 QB.D.141.” (Emphasis
mine)

While maintaining same stance in the year 2001, the court held
in Afegbai v AG Edo State (2001) LPELR – 193(SC) that:

“The nature of the legal relationship between counsel and his
client, which exists in this case between plaintiff and PW1, his
counsel, is one of an Independent Contractor and not one of
principal and agent – See Performing Right Society Ltd. v. Mitchell
& Booker Palais de Danse Ltd. (1924) 1KB 762 at p. 765 per Mc
Cardie J. It is not that of Master and Servant. Counsel is clearly
not a servant of his client.”

Against the run of its earlier decisions, especially in
Afegbai’s case above where it was expressly held that the
relationship is not that of principal and agent, the court took a
sharp turn in the more recent case of Ogboru v Uduaghan (2013)
LPELR -20805(SC) where Chukwumah-Eneh, JSC (as he then was) did not
mince words when his lordship, while ruling on how a counsel binds
his client, held that:

“It is settled that the relationship that arises from a litigant
instructing a solicitor to act on his behalf in a Court proceeding
(as the instant one) gives rise to a solicitor and client
relationship otherwise founded on agency and in strict
confidence……

It cannot be otherwise as counsel is supposed to operate within
his instructions and thus stave off the unnecessary embarrassment
in Court of counsel constantly having to be seeking further
instructions as issues keep cropping up in Court in the course of
the proceedings.” “It is settled that the relationship that arises
from a litigant instructing a solicitor to act on his behalf in a
Court proceeding (as the instant one) gives rise to a solicitor and
client relationship otherwise founded on agency and in strict
confidence. By this relationship, counsel rightly takes over
completely the control and conduct of his client’s case in Court
and this situation underscores the proposition of the presumption
though rebuttal that once counsel has announced his appearance in
Court as counsel representing acting on behalf of a litigant in any
proceedings before the Court, counsel is presumed not only to be
legally qualified qua counsel to act in that capacity but also in
doing so he is taken as having been fully instructed to act in the
matter in the proceedings.” ….

I must observe that based on decided authorities, it is settled
that counsel as the ostensible agent of his client binds his client
where he makes a compromise or settlement during the course of a
trial; in that case the client is bound even though he has given
his counsel no authority to do so. This view is solidly founded on
the case of Strauss v. Frances (1866) L.R. 1 Q.B. 379.” (Emphasis
mine)

Conclusively, as the writer could not lay his hands on a more
recent decision that Ogboru’s case on this issue, it is safe to
assume that same represents the current position of our laws until
the contrary is established. See Kanu v Asuzu (2015) LPELR – 24376
(CA). Although, as tricky as it may appear, if the Supreme Court’s
decision in Ogboru’s case remains the most recent on the issue,
then a Counsel is an agent of his Client and of course, with
far-flung consequences for both parties in terms of their actions
and inactions.

By Olumide Babalola

I have procrastinated on this article for so long but it keeps
staring me in the face at different fora and intervals, hence this
hurriedly-strung piece on the issue.

Superficially, the relationship between a lawyer and his client
ordinarily looks simple, since it is contractual in nature,
however, in certain circumstances, there may be far-reaching
consequences where the lawyer’s authority is put to test. Perhaps,
this explains to the divergent positions of our apex court, as
would be considered below.

In the late eighties, on the nature of Client/Counsel
relationship, the court held in Adewunmi v Plastex (Nig.) Ltd.
(1987) 1 NWLR (Pt. 32) 767; (LPELR) 164 (SC) that:

“Hence the actual legal relationship between counsel and his
client is akin to that of an employer and an independent
contractor. It is not between one of principal and agent. It is
conceded that where the client gives specific instruction to
counsel, such specific instructions must be adhered to. Where there
is conflict with the manner of discharging his duties the client or
counsel may decide to terminate the relationship. Where counsel is
in control of the conduct of a case, his authority extends, when
not expressly limited, to the action and all matters incidental to
it and to the conduct of the trial to its finality, in what in his
opinion is in the best interests of his client.” (Emphasis
mine)

Later in 1993, following the same path, the court again held in
Edozien v Edozien (1993) LPELR – 1020 (SC) that:

“There is the usual dominant and general instruction to Counsel
to conduct the litigation in court to finality. In carrying out
this instruction, counsel functions as an independent contractor
who exercises his skill and judgment and is free to act as he
considers fit within the instruction in the interest of his client,
-See Performing Right Society Ltd. v. Mitchell & Booker Palais de
danse Ltd. (1924) 1 KB.762 Counsel acting within the scope of his
authority express or implied can bind the client . This was the
position in Mathews v. Munster (1888) 20 QB.D.141.” (Emphasis
mine)

While maintaining same stance in the year 2001, the court held
in Afegbai v AG Edo State (2001) LPELR – 193(SC) that:

“The nature of the legal relationship between counsel and his
client, which exists in this case between plaintiff and PW1, his
counsel, is one of an Independent Contractor and not one of
principal and agent – See Performing Right Society Ltd. v. Mitchell
& Booker Palais de Danse Ltd. (1924) 1KB 762 at p. 765 per Mc
Cardie J. It is not that of Master and Servant. Counsel is clearly
not a servant of his client.”

Against the run of its earlier decisions, especially in
Afegbai’s case above where it was expressly held that the
relationship is not that of principal and agent, the court took a
sharp turn in the more recent case of Ogboru v Uduaghan (2013)
LPELR -20805(SC) where Chukwumah-Eneh, JSC (as he then was) did not
mince words when his lordship, while ruling on how a counsel binds
his client, held that:

“It is settled that the relationship that arises from a litigant
instructing a solicitor to act on his behalf in a Court proceeding
(as the instant one) gives rise to a solicitor and client
relationship otherwise founded on agency and in strict
confidence……

It cannot be otherwise as counsel is supposed to operate within
his instructions and thus stave off the unnecessary embarrassment
in Court of counsel constantly having to be seeking further
instructions as issues keep cropping up in Court in the course of
the proceedings.” “It is settled that the relationship that arises
from a litigant instructing a solicitor to act on his behalf in a
Court proceeding (as the instant one) gives rise to a solicitor and
client relationship otherwise founded on agency and in strict
confidence. By this relationship, counsel rightly takes over
completely the control and conduct of his client’s case in Court
and this situation underscores the proposition of the presumption
though rebuttal that once counsel has announced his appearance in
Court as counsel representing acting on behalf of a litigant in any
proceedings before the Court, counsel is presumed not only to be
legally qualified qua counsel to act in that capacity but also in
doing so he is taken as having been fully instructed to act in the
matter in the proceedings.” ….

I must observe that based on decided authorities, it is settled
that counsel as the ostensible agent of his client binds his client
where he makes a compromise or settlement during the course of a
trial; in that case the client is bound even though he has given
his counsel no authority to do so. This view is solidly founded on
the case of Strauss v. Frances (1866) L.R. 1 Q.B. 379.” (Emphasis
mine)

Conclusively, as the writer could not lay his hands on a more
recent decision that Ogboru’s case on this issue, it is safe to
assume that same represents the current position of our laws until
the contrary is established. See Kanu v Asuzu (2015) LPELR – 24376
(CA). Although, as tricky as it may appear, if the Supreme Court’s
decision in Ogboru’s case remains the most recent on the issue,
then a Counsel is an agent of his Client and of course, with
far-flung consequences for both parties in terms of their actions
and inactions.