Ethical Considerations of the Sins of Counsel – Part III

by Oluwanonso

In the last publication of the Ethical consideration of the Sins of the Counsel in litigation matters series, I discussed the ethical considerations of any Counsel who is blamed by his former employer for failing to carry out the instruction of filing a notice of appeal within the time prescribed by the law, and also the implication for litigants who are aware of such tardiness on the part of the law firm/counsel handling their briefs. Sequel to the previous edition, another layer of authentication is required by the court before it can exercise its discretion in scenarios where an applicant who places the blame for his inadvertence or failure to act within time squarely on his counsel or former counsel has satisfied the condition to entitle him to the court’s discretion.

See the previous episode here

ETHICAL CONSIDERATIONS OF THE SINS OF COUNSEL – PART III

The Courts now require any Counsel who is named and blamed in an application for an extension of time as the reason for the delay in filing an appeal within time to be given an opportunity to respond to the allegations raised against them, before it can ascribe any serious weight to such reasons. As the Court of Appeal recently stated in ESTATE SURVEYORS & VALUERS REGISTRATION BOARD OF (NIG) v. OKOLI & ORS (2021) LPELR-55640(CA):

“The further point to underscore is that owing to the fact that a plea of negligence or inadvertence of counsel is a slur on counsel’s professional integrity and competence, the current attitude of the Courts is to insist that the plea should be brought to the attention of the counsel involved in order to afford him the opportunity to deny or admit the allegation, as well as avoid situations where litigants find it convenient to heap their own failings on counsel.”[1]

It is therefore not sufficient for an applicant to admit that his Counsel is a sinner in need of judicial ablution.[2] The Counsel or former Counsel who is named and blamed must also respond to the allegation by denying or affirming them. The Court of Appeal further underscored this position in the recent case of UNITY BANK v. LAFCOT (NIG) LTD & ORS (2021) LPELR-55095(CA) where Noble Lord Talba JCA was forced to comment on this unwholesome practice of blaming former counsel in the employment of the applicant’s law firm for the reason for the delay in filing a notice of appeal as follows:

“The fault, mistake inadvertence and negligence of counsel are the most frequent reasons normally advanced in the Courts. This is the sequel to the settled principle of law that the fault of a counsel in the conduct of a case will not be visited on the litigant. Several practitioners deposed to affidavits or allow depositions to be made wherein they are accused of all sorts of slips endeavours, some of which in effect amount to incompetence and professional negligence, simply so as to get the Court’s discretion exercised in favour of the litigants. The Court has now taken the view that such allegation of incompetence and professional negligence should be brought to the attention of the counsel so as to give him the opportunity to defend himself. The rule can now cover only genuine, honest and pardonable errors of counsel.”

In the cases of ESTATE SURVEYORS & VALUERS REGISTRATION BOARD OF (NIG) v. OKOLI & ORS (Supra) and UNITY BANK v. LAFCOT (NIG) LTD & ORS (Supra), the applicants had both blamed their counsel who was briefed to prosecute the appeals on their behalf. The applicants in these cases claimed that the said lawyers left the employment of the counsel to the applicant without preparing and/or filing the notice of appeal. They also claimed that the lawyers did not properly hand over the files to their employer upon their exeat from the law firms. The Court of Appeal was totally unmoved by this reason and charged the applicants – the litigants themselves – to be vigilant and follow up with their lawyers to ensure that a notice of appeal has indeed been filed as instructed. Thus, litigants are expected to keep a close eye on the conduct of their cases.

Where a Counsel who is blamed for such mistakes admits to the mistake in the application, the Court would then consider whether the mistake is indeed honest and unpardonable, or one which can draw no forgiveness.

In ELIAS & ANOR v. ECO BANK (2019) LPELR-46527(SC), the applicant who was aggrieved with the judgment of the Court of Appeal blamed his counsel who had preferred to approach the same Court of Appeal to vary its judgment, rather than appeal to the Supreme Court. By the time the Court of Appeal heard and refused this application, the applicant was out of time to appeal, and his counsel ignorantly filed an application for an extension of time at the Court of Appeal rather than at the Supreme Court. This application was also declined by the Court of Appeal for lack of jurisdiction. The Applicant had therefore wasted significant time by the time it properly approached the Apex Court for an extension of time to appeal against the decision of the Lower Court. Its Counsel also admitted to these numerous mistakes in the application and sought the Court not to visit his mistakes on his client. The Apex Court was however unmoved by such plea and held that these mistakes of counsel amount to an ignorance of the law by the Counsel and would not excuse the Applicant who had ratified the actions taken by its Counsel. The Court refused to extend the time for the applicant herein to appeal.

In the final analysis, every Counsel is under a statutory ethical obligation to devote his attention, energy and expertise to the service of his client.[3] Any lawyer who accepts a brief is presumed to be competent to handle that brief and is also expected to make adequate preparations to enable him to handle the brief competently. In fact, the rules of professional ethics forbid a lawyer from accepting a brief on a subject matter that the lawyer knows that he lacks the competence to handle, except where such a lawyer associates with another lawyer who is competent in that field.[4] The rules also forbids a lawyer from taking on a brief without adequate preparation.[5] It also forbids a lawyer from neglecting to handle a legal matter entrusted to him.[6]

The allegations made against the Counsel who were blamed in the cases of ESTATE SURVEYORS & VALUERS REGISTRATION BOARD OF (NIG) v. OKOLI & ORS (Supra), UNITY BANK v. LAFCOT (NIG) LTD & ORS (Supra), and ELIAS & ANOR v. ECO BANK (Supra) are infractions against the Rules of Professional Conduct for Legal Practitioners. The rules also provide that negligence in the handling of a client’s case may also amount to professional misconduct.[7]

This writer has wearisomely repeated the mantra that the provisions of the Rules of Professional Conduct for Legal Practitioners do not exist for the purpose of passing bar finals examinations at the Nigerian Law School or decorating the offices of legal practitioners or the law libraries. They are meant to be obeyed in order to instil and maintain a high standard of confidence in the legal profession.

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[1] See also the cases of See NNPC v SAMFADEK & SONS LTD [2018] 7 NWLR (PT 1617) 17 and

[2] Please see ELECHI v. STATE (2022) LPELR-56905(CA)

[3] Please see Rule 14(1) of the Rules of Professional Conduct for Lawyers (RPC)

[4] Please see Rule 16(1)(a) of the RPC.

[5] Please see Rule 16(1)(b) of the RPC.

[6] Please see Rule 16(1)(c) of the RPC.

[7] Please see Rule 14(5) of the RPC.