Whether a Lawyer who has represented a client in a case (in Court or outside the Court) against a particular group of person can subsequently turn around to be a Counsel to the said particular group of person in the same case?

By Ismail O. Odugbefun,Esq.

By Rule 17 (6) of the Rule of Professional Conduct, Counsel should not accept a brief where it is obvious that the services to be rendered flow out of and are closely connected with the previous services he had rendered to the opposite side.

 

The duty of preserving the client’s confidence must out last the employment of Counsel and even extend to those he may later employ as junior as or those who form partnerships with him in the discharge of their professional duties to this later client the disclosure or use of such confidence may ensure.

By Rule 17 (4) of the Rule of Professional Conduct , A Lawyer shall not accept a proffered employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment or if it is likely to involve him in representing differing interest unless it is obvious that the Lawyer can adequately represent the interest of each and each consents to the representation after full disclosure of the possible effect of such representing on the exercise of this independent professional judgment on behalf of each.

 

JUDICIAL AUTHORITIES  

IN SAMTECH NIGERIA LIMITED & ANOR V. MR. TEMITOPE SANNI & ANOR (2018) LPELR-45336 (CA).

A lawyer is expected to represent his client totally and to the best of his ability. The lawyer would not be able to discharge this duty where the representation conflicts with his personal or a pre-existing interest. Where there is a perceived conflict of interest in respect of a prospective brief, the lawyer must reject the brief and turn down the representation. This is a statutory duty imposed on all lawyers by Rule 17 of the Rules of Professional Conduct for Lawyers.

Although the courts lack the power to prevent litigants from employing the services of counsel of their own choice, a person must not be allowed to employ the services of counsel where it is clear that the services to be rendered flows out of or are closely related with the previous services he had rendered to the opposing side. The counsel on his own part has a corresponding duty not to accept a brief that flows or is closely related to his previous brief. 

SEE ALSO Asuquo v. Ekpo & Anor (2019) LPELR-48168(CA) Per Muhammed Lawal Shuaibu, JCA (Pp 14 – 16 Paras F – F).

IKPANA V. REGS. TRUSTEES PRESBYTERIAN CHURCH OF NIGERIA (2006) ALL FWLR (PT. 310) 1703 AT 1722 (CA).

In the case a Senior Counsel was briefed to represent one of the parties at the trial Court and obtained a consent judgment at the trial Court. However, the same Senior Counsel filed an application on behalf of a third party to appeal against this consent judgment as an interested party, against the parties who obtained the consent judgment at the trial Court (including his former clients). His representation of the Interested Party was challenged at the Court of Appeal for being unethical. The Court of Appeal held that his representation at the Court of Appeal on behalf of a different party, against his former client at the trial Court, was a breach of his professional duty to his former Client. The Court further restrained the Senior Counsel and every other lawyer working in the law firm of the Senior Counsel from representing any of the parties in this suit.

Thus, where the Principal Partner of a law firm is disqualified from representing a party in a suit on the grounds of conflict of interests, the disqualification extends to other lawyers in his law firm who act under his instructions.

 

Similarly, where a (junior) lawyer switches law firms, that (junior) lawyer is equally disqualified from working on any matter that he handled on behalf of adverse parties in his previous law firm. Such lawyer is not even competent to silently sit in any strategy meeting with the clients or fellow lawyers in chambers. However, this does not make the (junior) lawyer’s law firm incompetent to handle such matter, as the disqualification does not extend to other lawyers in the firm.

IN AGAMORE ENERGY LTD V. ESSAR EXPLORATION & PRODUCTION LTD & ORS (2021) LPELR-54843(CA).

Lawyers are expected to abstain from taking new cases that conflict with the interest of their existing clients. This is by virtue of the provisions of Rule 17(4) of the RPC which prohibits a lawyer from taking any new employment which is likely to involve the lawyer representing different interests, unless it is obvious that the lawyer can adequately represent the interest of each party, and each party consents to the representation after full disclosure of the effects of his representation of the parties.

 

This does not however mean that a lawyer cannot represent more than one party in a case. The rule only takes effect where the multiple parties have conflicting or divergent interests.

In the case under review (AGAMORE ENERGY LTD V ESSAR EXPLORATION & PRODUCTION LTD), the Appellant entered into an agreement with the 1st Respondent, for the Appellant to use its local expertise and contacts to facilitate the allocation of an oil block to the 1st Respondent, in return for 37% participation interest in the oil block.

The Appellant sued the 1st Respondent to enforce this agreement, and added the Minister of Petroleum and NNPC (the regulators who were meant to have awarded the contract) as fourth and fifth defendants to the action. At the trial Court, Seni Adio SAN of Copley Partners entered appearance for all the defendants. The Appellants challenged his representation vide a motion on notice, on the grounds that the interests of the 1st – 3rd Defendants conflicted with that of the 4th and 5th Defendants.

This challenge was unsuccessful at the trial Court and upon appeal to the Court of Appeal; the appellate Court held that the interests of the 1st -3rd Respondents (the actual parties) did not conflict with that of the 4th and 5th Respondents, who were mere nominal parties, notwithstanding their status as regulators. Hence, they could be represented by the same Counsel. Further, the Court affirmed that where the lawyer informs the clients of the possible conflicting interests and the effect of same, the clients can still consent to the representation. Therefore, the participation of Seni Adio SAN of Copley Partners as counsel to all defendants/respondents was very proper.

 

 

By ISMAIL O. ODUGBEFUN,ESQ.

  MORUFF BALOGUN & C0.

  IJEBU ODE,OGUN STATE.

 

 

 

 


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