An influential family procured the services of a legal practitioner to gain custody of Children in a marriage, and provide full legal advice.
It was held that the adverse party owed a duty of care which was breached by concealing certain information that was of extreme importance.
But for the Caveat Emptor Principle, there is an exception to the general rule as to a duty of care owed to the adverse party in litigation. Therefore, a breach of this unusual circumstance is of gross professional misconduct.
Parts B, C, and D of the RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS, 2007 regulate the relationship with clients, other lawyers, and the court. Rules 19 (6), 27 (1) & (2), and 32 (3) states as follows:
“19. (6) A lawyer shall avoid anything that may tend to mislead an opposing party who is not represented by a lawyer and shall not undertake to advise him as to the law.
27. (1) A lawyer shall observe good faith and fairness in dealing with, another lawyer.
(2) Without prejudice to the generality of sub-rule (1) of this rule, a lawyer –
(a) shall observe strictly all promises or agreements with other opposing lawyers whether oral or in writing and whether in or out of court, and shall adhere in good faith to all agreements implied by the circumstances of the case.
(b) shall, where he gives a personal undertaking and does not expressly or clearly disclaim personal liability thereunder, honour his undertaking promptly; and
(c) shall not take an undue advantage of the predicament or misfortune of the opposing lawyer or client.
32. (2) In appearing in his professional capacity before a court or tribunal, a lawyer shall not –
(h) in argument, assert as a fact that which has not been proved, or in those jurisdictions where a side has the opening and closing argument, to mislead his opponent by concealing or withholding in his opening argument positions upon which his side intends to rely;”.
The above provisions of the rules that encompass the obligations of a legal practitioner to be candid and fair to the adverse party cannot be overemphasized.
LEGALTIPS is anchored by Ms CIA Ofoegbunam, an Abuja-based lawyer who is passionate about legal practice.
LEGALTIPS offers quick hints on substantive law, as well as rules of practice and procedure, and serves as a handy reference guide to lawyers, especially in court.
Published on a weekly basis, the LEGALTIPS Series is CIA’s modest contribution to legal development in Nigeria.