NEGLIGENCE: Can I Sue My Lawyer?

Do you know that you can sue your lawyer for doing such a terrible job while representing you? Not for losing your case, mind you, but for handling your case in a lackadaisical manner, unbefitting of one called to practice law in any jurisdiction particularly in Nigeria. This may be because of his carelessness, negligence, etc.

Abstract

The problem is usually many people do not know that they can sue their lawyers for negligence, or even report them to the appropriate agency for misconduct. Also, many lawyers handle client’s briefs in such a terrible manner because they know many of these clients are not aware of their rights to proper representation by their lawyers even when it is on pro bono.

Over the last decade, there has been a welcome increase in petitions against lawyers by litigants, this has kept legal practitioners on their toes when handling briefs. However, so many of these petitions are by litigants who chose to blame lawyers for losing their cases in court; rather than for any carelessness or negligence on their part.

Read also: NIGERIA, THE GREATEST BLACK NATION

Rules of Professional Conduct 2007

Professional misconduct tends to have a profound effect on the way in which law is practiced in Nigeria. It is in the execution of this responsibility that Chief Bayo Ojo, the then Honourable Attorney General of the Federation and Minister of Justice/ Chairman, General Council of the Bar carried out in the year 2007 a comprehensive review of the Rules of Professional Conduct for Legal practitioners in Nigeria.

What is required of a Professional in Ethics?

Ethics is the manner in which a section of people is required to act. This can be the set out rules which govern a particular people. The legal profession is ideally not open to all manner of persons because in the words of the Supreme Court of Nigeria:

‘Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country’

N.B.A v. Ohioma (2010) 14 N.W.L.R (PT. 1231) 641 at 680:

The Rules Governing Relations with Clients

Under the Rules of Professional Conduct 2007, the relevant rules, which govern the interactions and relations between lawyers and clients, are as contained in Rules 14 – 25 of the RPC 2007. The characteristics of these rules is a duty bestowed on a legal practitioner to devote his attention, energy, and expertise to the service of his client and to act in a manner consistent with the best interest of his client.

To achieve this duty, a legal practitioner must be diligent in the handling of his client’s brief by the use of his independent professional judgment when the need arises and at all times to be present to represent his client throughout the proceedings, as well as advising his client candidly (R. 14 RPC 2007). Should he have any reason not to be present, he must make sure that the client gets adequate representation in proxy or tender in a letter of adjournment pending his availability.

Duty to be diligent in the handling of Client’s Brief

No legal practitioner is entitled to handle any legal matter on behalf of his client without adequate preparations. This is because doing so amounts professional misconduct (R. 16 RPC). The Supreme Court of Nigeria observed that:

‘ …It is not ethical for counsel to assure his client that ‘come rain come sunshine’ he will win the case. Counsel is within his professional limits to assure his client that he has good case and that he counsel will do his best to obtain victory, if that is the position. He should stop there and not assure his client that he will win his case. After all, he is an advocate and judgment is that of the court. By assuring his client that he will win, counsel himself is trying to interfere with the work of the judge…

ABUBAKAR v. YAR’ADUA (2008) 19 NWLR (PT. 1120) 1

Existence of Lawyer/Client Privilege (R. 19 RPC 2007)

Communication between a lawyer and a client are sacred and protected. Therefore, it is professional misconduct to reveal oral or written communications made by a client to his lawyer in the course of his professional employment, or even after the expiration of such employment. However, there are instances where such communication is not protected by the law, they are contained in R. 19 (3) RPC 2007.

These are exceptions to the general rule and they include:

  1. Where the client consent to such disclosure
  2. Pursuant to the provisions of a written and or court order
  3. Where the communication relates to an intention to commit a crime
  4. Communicate necessary to establish the collection of solicitor’s fees or in defense of an accusation of a wrongful act

The Tort of Negligence

You may have at one point or another needed the services of a legal practitioner, maybe while trying to purchase land, lease a property, or even prepare a will et cetera. The services of a legal practitioner are necessary for the execution of any of these transactions. Therefore, if you contracted the services of a legal practitioner to draft the legal instruments necessary for these transaction; and while relying on these instrument your interest was affected. What are the available options open to you for the wrong incurred?

Negligence in Nigeria

The petition against a legal practitioner in Nigeria is a tort of negligence, unlike Malpractice Suits as it is referred to in some jurisdiction. In addition, as it is with other torts; it has three elements, they include:

  • existence of a duty of care owed by the lawyer to hint;
  • breach of that duty owed by the lawyer; and resulting damage.

The three elements, which are necessary for the tort of negligence to be seen to have existed, are seen in the above scenario.

Duty of care

In legal practice; unlike in other practice, lawyers do not owe a duty of care to the whole world. Before a lawyer can be in breach of duty of care, there must be the existence of a prior contract between the lawyer and the litigant. Thus, a lawyer in whose presence a person is being harassed by the police owes no duty of care to the person unless the person engaged his service before, during or after the act.

Breach of duty of care

A legal practitioner is in breach of his duty of care if he fails to provide his services efficiently and effectively to his client. The standard here is that expected of a person who called to the Nigerian Bar. Thus a legal practitioner who fails to protect the interest of his client because of his carelessness or negligence, as a result of which the client suffered damages shall be liable for the tort of negligence.

Resulting damages

A litigant cannot succeed in an action for negligence against his lawyer unless he has suffered damages traceable to the lawyer’s negligence. The onus of establishing this is on the litigant and he discharges it by showing what on a balance of probability the harm was caused. If the plaintiff successfully proved that he suffered some damage because of the lawyer’s negligence, he will receive monetary compensation. The loss or damage so suffered must be quantifiable monetarily. The essence of damages is to compensate the client for the injury suffered. It is therefore calculable by reducing to monetary terms the injury suffered: A plaintiff is not supposed to either have a windfall or make a profit out of the award of damages,

What then are the remedies available to a litigant whose brief a lawyer has handled negligently?

This can simply be referred to as how lawyers are disciplined by the relevant authorities.

Discipline of Lawyers

The body in charge of the discipline of legal practitioners in Nigeria is referred to as the Legal Practitioners Disciplinary Committee, which is governed by the Legal Practitioners Disciplinary Committee Rules 2006. The Breach of any of the rules of professional conduct in the legal profession could be held to constitute infamous conduct in a professional.

Authorities involved in accepting a petition brought against a legal practitioner

When a legal practitioner fails in carrying out his duties effectively and efficiently, or when he is careless or negligent in his handling of a client’s brief, the aggrieved party can write a written complaint against a legal practitioner to any of the following:

  1. The Chief of Judge of Nigeria,
  2. The Attorney General of the Federation,
  3. President, Court of Appeal or presiding Justice of the Court of Appeal,
  4.  The Chief Judge of the High Court of any of the State or that of the Federal Capital Territory,
  5. The Attorney General of a State,
  6. Chairmen, the body of Benchers and;
  7. President of the Nigeria Bar Association, or Chairman of any branch of the Nigeria Bar Association.

However, it must be stated that where the conduct of a legal practitioner is incompatible with his status as a legal practitioner, then his name cannot be struck off the roll. Then, the appropriate punishment is either suspension or admonition.

In conclusion

It can be seen clearly that there are sufficient laws keeping legal practitioners in check and on their toes in Nigeria. However, the problem is that a lot of people are not aware of the existence of these laws. Hence, they encourage the nonchalant attitude on the part of these lawyers without meaning to. 

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