WEEK 7: ETHICAL ISSUES + LAW IN PRACTICE

N.B: FOR THE PURPOSE OF BAR PART 2, WE MUST STUDY ETHICAL ISSUES FOR EVERY COURSE. AND THE RPC MUST BE YOUR ALPHA AND OMEGA……..

So for this week, we have ethical issues on CIVIL and PROPERTY

                       ETHICAL ISSUES ON CIVIL FOR WEEK SEVEN

Bringing Application under Wrong Order or No Order: The ethical issue involved as to bringing application under wrong order or no order amounts to incompetence and lack of dedication and preparation in Rule (14 & 16) of the RPC which amounts to professional negligence on the part of the counsel but it would not affect the substance of the case.

Abuse of Ex parte Injunction: Rule 30 0f the RPC states that a lawyer is an officer of the court and accordingly, he shall not act or conduct himself in any manner that may obstruct, delay, or adversely affect the administration of justice by bringing frivolous applications. RULE 32 RPC a counsel shall not mislead the court. He shall deal candily and fairly with the court.  Rule 36 (3) RPC Counsel should not perform an act which is an abuse of court process or act which is dishonorable-CHIEF E. N. OKONKWO AND ORS.V. AG LEVENTIS

Swearing of Affidavit by Counsel: It is unethical for a counsel to swear an affidavit on behalf of his client. Rule 20(1) of the RPC, a lawyer shall not accept to act in any contemplated or pending litigation if he knows or ought reasonably to know that he will be called as a witness. However, in circumstances mentioned in Rule 20(2), a counsel can depose to an affidavit.

Suppression of Facts in Ex Parte Applications;  A lawyer shall not act in any manner that may obstruct, delay or adversely affect the course of justice- Rule 30 of the RPC.

Delay in Filing Counter Affidavit This would amount to negligence on the part of the respondent’s counsel as the judge would act on the unchallenged or uncontradicted evidence and deem them to be admitted and treated as such.

            ETHICAL ISSUES ON PROPERTY LAW FOR WEEK SEVEN

1)      Rule 23(2) RPC -A Lawyer should keep a separate account. Should not mix his money and clients’ money.

2)      Rule. 47: A Lawyer should not search the land Registry for Defect with view to employment or litigation

3)      Rule. 10: The duty not to frank a document unless seal and stamp of NBA is affixed.

4)      Rule. 3: The duty not to aid unauthorized practice of law.

5)      Rule. 3(2): The duty not to sign a document prepared by a non-lawyer

6)      A lawyer should not under stamp ie reducing the consideration stated on the face of an instrument in order to reduce stamp duty. This comes under a lawyer’s duty to knowingly engage in illegal conduct Rule. 15(2)(j).

7)      Rule. 16: The duty to represent client competently, know the appropriate documents to prepare.

8)      Rule. 14(1) (2) (5)a: The duty to keep client informed of progress of transactions, give warnings and cautions where necessary.

 PROFESSIONAL ETHICS FOR WEEK SEVEN

EXCLUSIVE RIGHTS OF A LEGAL PRACTITIONER IN NIGERIA AND RESTRICTIONS.  

What makes an individual a Legal Practitioner are the privileges and rights he enjoys at law to the exclusion of others.

S. 2 LPA; (1) Subject to the provisions of this Act, a person shall be entitled to practise as a barrister and solicitor if, and only if, his name is on the roll. (i.e the roll with the Chief-Registrar of the Supreme Court).

NOTE: Not all Legal Practitioner has the same rights. Check further S. 2(a), (b), 3(a),(b) LPA.

                              (1) RIGHTS TO AUDIENCE IN COURT. 

Rule 8(1) LPA, Section 36(6) (C) 1999 CFRN confers on every legal practitioner the right to advocate on behalf of their clients in Nigeria. But an individual also has the choice of opting to represent himself/herself in court. This covers both civil and criminal cases.

Notwithstanding the above provisions, in offences punishable by death, YOU MUST HAVE A LEGAL PRACTITIONER.  Despite the above named provisions, there are some limitations;

1. Senior Advocates of Nigeria are not allowed to appear at inferior courts.
2. A legal practitioner who fails to pay his practicing fees Rule 8(2) RPC. Such payments must be made before 31^st day of March every year. S. 9(1) LPA.
3. Appearing as a counsel in a suit where he is a party. Rule 17(5) RPC.
4. Fails to participate and satisfy the Continuing Development Professional Programme. Rule 11(1) RPC.
5. Fails to have the Annual Practicing Certificate. Rule 12 (3) (a) RPC.
6. A lawyer can’t advocate for a client where he is a party to the proceedings.  Rule 17(5) RPC.
7. Where such lawyer is a party to the proceedings, he can’t be robbed in wig and gown as he is precluded from sitting at the bar. Rule 36(f) RPC.
8. Same rules in (7) above applies where he is also giving evidence.

This right of audience, cannot be taken away by any enactment of a state government.

(2) PREPARATION OF DOCUMENTS RELATING TO PROCEEDINDS.

Lawyers are entitled to prepare on behalf of their clients court processes for the purpose of proceedings, instrument relating to immovable property, or relating to or with a view to the grant of probate or letters of administration, written addresses and others for a fee. An affidavit is exempted from this list because ‘the name and address of the legal practitioner is not written on an affidavit prepared by a lawyer unless he is the deponent’. Private citizens are also entitled to do such but for no expectation of a reward. S. 22 (1) (d) LPA. A lawyer could forfeit such fees due to requisite professional incompetence. Rule 16 RPC and S. 9 LPA

(3) STATUTORY DECLARATION OF COMPLIANCE DURING REGISTRATION OF COMPANIES.   

Pursuant to the provisions of S. 35 (2) (e) of the Companies and Allied Matters Act CAP C20 LFN 2004,  there shall be added to the incorporation documents of a company, a FORM CAC 7: DECLARATION OF COMPLIANCE WITH THE REQUIREMENTS OF CAMA which only a legal practitioner can fill before a company could be duly registered. S. 35 (3) of CAMA. Despite the fulfillment of this requirement and all other requirements, we must be aware that the incorporation of a company is still at the discretion of the Corporate Affairs Commission.

(4) PREPARATION OF DOCUMETS RELATING TO PROBATE OR LETTER OF ADMINISTRATION.

A will is a testamentary instrument that can be prepared by any individual, not necessarily a lawyer. S. 22 (3) (e) LPA. The estate of a deceased will be administered by personal representatives who may either be an executor/executrix [for females] (where a deceased left a will) or an administrator/administratrix [for females] (where a deceased did not leave a will or his/her will was rejected by the courts).

In the advent of a will, you file for ‘Probate’ while in the absence of a will, you file for a ‘letter of administration’. All these filings can only be done by a lawyer on behalf of the personal representatives. S. 22 (1) (d) LPA. Such documents may include the application letter addressed to the probate Registrar, an affidavit giving particulars of the deceased, declaration of personal properties of the deceased and other relevant documents as may be requested by the probate registry.

(5). APPOINTEMENT AS ATTORNEY-GENERAL OF THE FEDERATION OR OF A STATE.

The offices of the Attorney-General of the Federation and Minister of Justice and the Attorney-General of a state and Commissioner for justice shall be occupied by Legal Practitioners only who has been so qualified for a period of not less than 10 years. Once appointed, such legal practitioner becomes the Chief Law Officer of the Federation or of the State as the case may be. S. 150 (1), 195 (1) 1999 CFRN.   

        (6) APPOINTMENT AS A JUDGE OF SUPERIOR COURT OF RECORD  

Judicial officers are the custodians of the Superior Courts of Records (i.e. High court of a State and Federal Capital territory, Federal High Court, National Industrial Court, Sharia Court of Appeal, Customary Court of Appeal, Court of Appeal & Supreme Court) in Nigeria. These Judicial officers are legal practitioners who have practiced in Nigeria for a certain number of years.

Supreme Court = At least 15 years post call, Court of Appeal = At least 12 years post call and for the other courts, at least 10 years post call.

             (7) PREPARATION OF INSTRUMENTS RELATING TO LAND.

Instruments such as deed of lease, assignment, legal mortgage etc are instruments for immovable property. Only a legal practitioner can prepare such instruments for registration as it requires the name and address of the legal practitioner. This is done for a fee. S. 22(1) (d) LPA. However, a person who is a party could prepare such instrument and register it and such registration will be accepted. S. 22(4), (b), (c).

      (8) NOTARY PUBLIC.

A legal practitioner who is adjudged fit and proper and has paid his practicing fee as when due for 7 consecutive years could be made a notary public by the Chief Justice of Nigeria. Note the 7 consecutive year requirement is necessary as if he fails to meet that requirement in a year, he will not be eligible. A notary public shall not exercise powers in any of the matters he has interest. Such powers include notarization of affidavit and other documents and in exercising such providing such services, he should state the place and date in the jurat of attestation.  

 RESTRICTIONS ON THE RIGHTS OF A LEGAL PRACTITIONER TO PRACTISE IN NIGERIA.

Legal Practitioners even though have privileges they enjoy, also have restrictions due to the profession they find themselves. However, the category into which a legal practitioner is grouped will determine the scope of the particular restriction applicable to him.

(1)   Engaging in Business;

This involves two restrictions.

(a)   Combining practice of practice of law with trading on commodities;

S. 24 LPA restricts what a legal practitioner can do. This means somethings are tenable while others are prohibited. A lawyer is prohibited from engaging ‘personally’ in exchange of goods for money. He is free to own such businesses but the day-to-day running of such business has to be handled by someone else. Also he is prohibited from being a commission agent i.e. insurance sales rep and the likes or that such transactions relates to goods or material connected with the legal profession does not make it tenable. However, Rule 7(3) creates exceptions.

Rule 7(2) LPA, also empowers the general council of the bar to declare from time to time any trade or business to be incompatible with the practise of law.

(b)   Simultaneous practice of law with another profession.

Rule 7 (1) LPA prohibits the simultaneous practice of law with another profession. Any of such combination requires the authorization of the General Council of the Bar.

      (2). Former Judicial officers;

(a). Retired Judicial officers; 

In this case, a judicial officer is one as provided for in S. 318 (1) 1999 CFRN. Are all denied right of audience in courts during and after his tenure as a judicial officer. This restrictions includes signing of pleadings in any court or for the purposes of any proceedings. But he can practice as a solicitor either alone or in partnership with other legal practitioners. Rule 6(4) RPC.

A legal practitioner who held a judicial office previously is prohibited from doing any of the things hereunder listed:

1. He should not accept as an advocate any brief the subject matter of which he previously dealt with on the merits while acting in such judicial capacity.
2. He should not after his retirement accept employment in connection with any matter which he had acted on in a judicial capacity or on the merits of which he previously rendered advice on or dealt with while in a public office or employment. Rule 6(1) & (2) RPC.
3. He may however continue to be addressed as or to use the word ‘Justice’ as part of his name. Rule 6(5) RPC.

Such judicial officer can however represent himself in a proceedings. See Hon. Justice Atake v Afejuku, where the court upheld the rule that a retired judicial officer can represent himself in proceedings.

Inferior court judges and Magistrates are only bound by the general restrictions binding on judicial officers.

NOTE: Same rules applies to dismissed judicial officers and those who resigned. S. 292(2) of 1999 CFRN.

      (3). Salaried Employments;

A legal practitioner in a salaried employment of any kind is not allowed to advocate on behalf of his client in court due to conflict of interest that may occur for the legal practitioner. Such Legal Practitioner cannot also prepare, sign or file documents like pleadings, applications, instruments, agreements, letters, deeds, contracts, legal opinions, memorandum or other instruments or processes on behalf of his employer.  Rule 8 (2) LPA. Such legal practitioner can represent the company in any other matter other than litigation and matters connected to it. Such practitioner can only represent the employer as an officer or agent but not a practitioner in his full legal robe.

But there are certain exceptions;

                I.      A legal practitioner in salaried employment may appear in court or judicial tribunals, prepare, sign or file instruments or other legal processes for persons who are not his employers. Rule 8 (1) LPA

             II.      He can also appear and file processes before administrative tribunal on behalf of his employers.

           III.      He can appear and file processes before a court or judicial tribunal on behalf of his employer where he is a legal officer in any government department or agency.

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