DUTIES OF COUNSEL TO CLIENT

Rule 14 RPC

See (1) – (5)

• Must show dedication and devotion to the cause of his client

 

• Duty to accept brief: this is the cab-rank rule. However there are exceptions to this rule and they include: 1) conflict of interest – there are 3 instances of conflict of interest: religious, personal or conflict of interest on the part of the lawyer. In theses instance a LP can decline (rule 24). 2) If the LP doesn’t practice in that area, so its not within the practice area of the counsel; and 3) where the client hasn’t paid the professional fees.

 

• Duty to take instructions: rule 22 – a lawyer should take instructions at the office and shouldn’t go to a client’s house to take instructions. Exceptions include old age, ill health and special circumstances. Always note the rule and exceptions.

 

• A lawyer has duty to take full instructions – Counsel must ensure that he is clear on the instructions given to him so that he can act appropriately.

What is the most appropriate mode of taking such instructions?

• How do you as the lawyer ensure that you have all the instructions as requested by your client?

A lawyer ought to note down instructions from clients to avoid missing out any instruction by a client.

 

Alawyer is not expected to follow instructions slavishlyi.e. so it’s not everything the client says that the lawyer must do. Rule 15(1) RPC; Myers v Elman (1940) AC 282

Ability to control the incidence of trial.Adewunmiv plastex (Nig) Ltd. (1986) 2 NSCC 852.cf R 24(4) & (5)

In Adewunmi v plastex the court decided that it is possible for the lawyer to control totally the incidence of the client’s litigation and the lawyer had full control, however today the position has changed.  The present position is reflected in R 24(4) & (5) and it is that the lawyer has a duty to do things that are incidental around the case, things that touch in the matter of the case unless the client has otherwise given him instructions to do so

 

• Representing clients competently and within the bounds of the law
• The lawyer has accepted brief and must therefore do everything possible to achieve the best for his client – true or false? Discuss R 15(3)(b); (3) (i) and (j); 15(2) RPC
• What shall a lawyer do where he finds that the duty to his client clashes with his duty to the court? Who does he owe the first duty to? Rondel v Worsley (1966) 3 WLR 950

 

• Where a fraud has been committed by the client, it is the duty of the lawyer to ensure that such fraud is rectified by the client. Rule 15 (4)

 

• A lawyer is precluded from vouching for the character of his client or his witnesses or stating his confidence – Rule 15 (5)

 

• Conflict of interest - rule 17, see (2) & (4)

 

• Duty of disclosure

 

Can a lawyer having elected for a client in a particular matter elect to represent another party in the same matter? Rule 49(3), he cannot represent

What about appearing in a matter for a client that is suing you his former client? See Onigbongbo community and minister

 

Professional negligence by lawyers

Professional negligence is where a lawyer fails to exert skill, care and diligence and cause harm or damage to the client.

It is also where a lawyer breached his duty of care, whether as an act or omission in the course of carrying out the job of his client, causing the latter to suffer damages. It is conduct carried out carelessly or recklessly.

- Negligence by counsel may

 

Nature

• What is the relevance of this phrase in the scheme of legal practice?
• A lawyer is bound to exhibit professional competence in the occurrence of handling matters for clients. However as humans, errors are bound to happen. The degree of care to be shown by the lawyer would depend on the brief and other circumstances
• However, the extent of the negligence must be one that is gross rather than ordinary Bello v Raji.

 

Exclusion for liability?

• What is the condition for a lawyer to be excluded?s 9 LPA , under (1) and (2) he would still be liable, however under (3) he would not liable.
• Note the distinction between before the courts and outside the courts. Lawson v Matti (1932) 11 NLR 113 on justification for holding the lawyer negligent.

 

Areas of practice where negligence may occur:

• Legal advice
• Areas of solicitor’s work
• Handling of writs
• Handling of cases in court

A solicitor has less reasons to be negligent as he has everything at hand whereas a barrister before the court works under pressure.

 

Legal advice:

As this is the foundational step of any action the client

 

Solicitors work:

It is more probable for a suit of negligence to arise in the course of doing solicitors work than in instances where a lawyer is

 

Handling of writs:

• Lawyers must ensure they carefully file writs in court particularly minding the time within which they do so. NBA v Akintokun

 

Handling cases

• On conduct of cases before the court, see s. 9(3) LPA; Rondel v Worsely (1967) 1 QB 443

Before Rondel’s case

• English courts initially held lawyers non-liable as it was thought that lawyers were not paid in the sense of therebeing contract between them and their clients. Fees were paid as a mark of honour.
• Second, lawyers could not sue clients for their fees
• That their first duty was to the court rather than their clients.

After Rondel’s case:

• That reasons why lawyers were not held negligent were on grounds of public policy that:
• To attain justice, lawyers were to be fearless and independent
• To retry actions would prolong litigation. There must be an end to litigation.
• To encourage lawyers to accept briefs of clients and not shy away for fear of a suit in negligence

 

Is there liability for negligence of a lawyer in criminal actions?

Attitude in the UK – that it may amount to questioning the decision of the criminal court by a civil court, thereby asking for a retrial

 

Exceptions to the cab rank rule

 

INTERVIEWING AND COUNSELLING SKILLS

 

The language of the court is English.

 Importance of communication skill

 It is the means or process of sending, receiving or carrying out instructions in the course of an interview.

Communication could be either verbal or written.

 

Written-

This is a way of communicating by placing something legible and capable of communicating a sense of meaning to the other person – person that you’re communicating with. The main rule in written communication is to be legible.

 

Verbal communication.

This is broken into verbal, vocal and visual

1. A) VERBAL – this refers to utterances. The applicable rules are as follows:

• Use proper, positive words;
• Avoid legal jargons or legalese. Use simple/common words
• Avoidance of “but” “well” – unnecessary qualifications etc.
• Use of “open” and “closed” questions, as appropriate. Open questions are questions that require the responder to elaborate; it has a wide ambit of responses. While closed questions are questions that require a “yes” or “no” or restrictive definite answers.

E.g. what is your name? – Closed question; how was your first day of school? – Open question

 

Open questions

• Allows wide ambit/ latitude of answers
• Used in obtaining general / narrative information in an interview
• Useful in leading witness in examination in chief/ re-examination

 

Closed questions

• Answers thereto are restrictive
• Useful in eliciting details of a narration or a general answer
• Used mostly in the form of leading questions in cross examination

 

1. B) VOCAL – this refers to speed, pitch, volume , resonance etc.

 

1. C) VISUAL – this refers to body language in the process of communication such as:

• Facial expression
• Eye contact
• Gestures
• Touch, etc.

 

INTERVIEWING YOUR CLIENT 

Identify the proper venue of the interview?

 

Why should there be interview? /What are the functions of an interview?

• To obtain relevant information – the lawyer obtains relevant information about the subject matter
• An avenue to fix the legal and professional fees
• Enables the client to identify what remedies or solution he seeks to a legal challenge or problem.
• Allows the opportunity to learn the goals or intention of the client
• Allows the emergence of client/legal practitioner relationship – see implication – s 9 LPA.
• It provides an opportunity for the client to make an informed choice or decision
• An opportunity to ease client’s anxiety/allay clients’ fears/concerns.
• It is a platform for the client to give his instructions in respect of the matter in issue
• Provides an opportunity for counsel to advise the prospective client on various options at resolving the legal challenge or problem.

 

Definition and purpose

An interview is an opportunity / platform for a client to retain the services of a lawyer. The purpose of an interview is to enable the lawyer elicit relevant information from the client in respect of the subject matter.

 

Venue

The proper venue for an interview is the legal practitioners office, Rule 22 RPC.  Exceptions include:

• Inability/ disability of client - Client is disabled or in the hospital. E.g. where an old woman who is immobile wants to make a will.

Urgent reasons

• Where the client is restricted: for example a client who is deprived of liberty who is under detention or is a prisoner
• Where for security reasons or expediency. Example a state governor or president

 

Stages of interviewing

There are different views on the number of stages of an interview

1. THE AVROM SHERR’S 3 – STAGE MODEL
2. THE CHAY AND SMITH’S 7 – STAGE MODEL
3. MIKE WOLFE’S MODEL OF 5 STAGES
4. BRAYNE & GRIMES 11 STAGE MODEL

 

 

THE AVROM SHERR’S 3-STAGE MODEL

This is subdivided into 13 tasks

 

1. Listening stage
2. Questioning stage
3. Advising stage

 

Listening stage – this involves talking mainly done by the client.

1. Welcome, greet, have him/her seated
2. Opening question to elicit the narration of the story

• The lawyer should listen without interrupting the flow of information. He obtains basic background information on the subject matter.

 

Questioning stage

1. Lawyer fills in the gaps, omissions, ambiguous statement, by information obtained from client through questions that are specifically directed (closed questions)
2. The lawyer seizes the opportunity to summarise the impression of the information divulged by the client. The lawyer through this means seeks to have the clients agreement or disagreement with the account of the story as understood by the lawyer
3. The lawyer takes notes of the interview, especially at the questioning and advising stage

 

Advising stage

• The lawyer plays the dominant role as he:
• Proffers advice and plan of action on the facts supplied by the client.
• Discuss the issue of funds needed for the proposed plan of action including professional fees of the lawyer.
• The lawyer repeats the advice and plan of action, and asks for the agreement or disapproval of the client to the plan

1. The lawyer states the follow up actions on the part of the client
2. He also enumerates the follow up actions on his own part
3. The date of the next contact between the lawyer and the client is fixed

• Ask client if there is “any other business”.

 

 

THE CHAY AND SMITH’S 7 – STAGE MODEL

1. Preparing stage

• Identify venue, the lawyer takes with him all relevant materials.

 

2. Starting the interview

• Greetings, know the mode of address
• Get the basic information, name, address, phone and email.
• Open questions, but sometimes-closed questions.

 

3. Agreement on the shared understanding of the clients needs based on the facts:

• Some empathy is needed

 

4. Identifying & evaluating the alternative courses if actions leading to good decision making in the part of the client

 

5. Taking instructions

 

6. Closing and clarification of relationship

 

7. Reflecting

 

 

BRAYNE & GRIMES 11 STAGE MODEL

 

1. Preparation
2. Introduction
3. Legal professional charges
4. Allowing the client to tell, the story
5. Identification of legal issues arising
6. Questioning clients on his narration
7. Analysis of facts
8. Summary of the facts
9. Allowing the client to take his decision
10. Closing
11. Filling in the gap

 

MIKE WOLFE’S MODEL OF 5 STAGES

 

1. Listening
2. Analysis of facts
3. Investigation of the facts
4. Decision making on the appropriate way to go
5. Implementation

 

 

Model interview in summary

• Preparation of the interview
• Starting the interview
• Let the client tell the story
• Develop a chronology/analyse
• Counselling
• Closing the interview

 

Counselling

1. Takes place after the interview, when the lawyer has digested the facts and evaluated same from the point of the applicable laws.
2. Should focus on the client’s best interest.
3. Counselling is the lawyers own legal professional advise based on the facts stated by the client.
4. State the alternative remedies available at resolving the issues at stake e.g. writing a letter, exploration of ADR, if for instance the contract provides for arbitration then advise on the process of getting up such, if need for litigation, state the cost implication and the processes.
5. Recognise the client’s autonomy in the final decision making – but make him aware of the consequences
6. Watch your verbal and non-verbal means of communication
7. Proper communication
8. Simple language

 

Issues arise in counselling

1. Conflict of interest/ declaration of your interest. Rule 17 RPC. Note it is best to obtain the consent of the client explicitly in writing before accepting the brief. Read up the whole section
2. Avoid undue self –aggrandisement – rule 38 (2) (C) (D) RPC
3. Communication between a lawyer/client is privileged as a general rule – rule 19 (1) RPC; but see the exceptions in rule 19(3) RPC
4. Don’t advise on a path of action that will cause a breach of the law or bring disrespect to a judicial officer or corruption of any public officer – RPC 15 (3) (A)
5. Don’t fail to advice on the option of ADR 15 (3)(D)
6. Don’t participate in the creation or preservation of evidence which you know or reasonably ought to know it is false – rule 15 (3) (H) RPC
7. Don’t counsel or assist in conduct that is illegal or fraudulent/contrary to the RPC.  RULE 15 (3)(I) & (J) RPC