Sailing against the wind of Legal Malpractice-Tochukwu Chukwumerije

Our Society is based upon certain rules we have to obey and live by daily.  One of these rules is that, in going about things we do, we must take care not to injure other people and their property.  Thus the law imposes as duty upon us to act reasonable in certain defined situations.  The failure to fulfil those duties to others is called “negligence”. This write-up is to help lawyers practise more successfully within the rules of professional conduct for Legal Practitioners 2007 (‘’RPC’’).

The number of malpractice cases against lawyers for negligence and breach of the Rules is on the rise.  In the 2017 Annual General Meeting of Nigerian Bar Association (‘’NBA’’) Lagos Branch the then Secretary Mr Stephen Obajaja, in his report raised alarm on the rising number of disciplinary cases filed against lawyers in the year. Lawyers sometimes forget to keep focus on how to avoid being sued by a client and what must be done when sued.

Malpractice refers to negligence or misconduct by a professional, such as a doctor, a dentist, a lawyer, an accountant etc.  The failure to meet a standard of care or standard of conduct that is recognized by a profession reaches the level of malpractice when a client or patient is injured or damage incurred. Negligence is conduct that falls below the legally established standard for the protection of others against unreasonable risk of harm. In professional negligence case a person must violate a reasonable standard of care. This means the customary or usual practice of members of a profession has been violated.  There is medical malpractice, legal malpractice, clergy malpractice etc.  The concern of this write-up will be legal malpractice.  A lawyer’s negligence can be by commission or omission.  Wikipedia defined legal malpractice as the term for negligence, breach of fiduciary duty, or breach of contract by a legal practitioner that causes loss or harm to his or her client.  Rule 16(1) (d) RPC, called it personal malpractice or professional misconduct.

In a malpractice suit the law uses a content known as “the standard of practice” to determine where there was a breach of duty.  The RPC has created certain rules, and if the lawyer’s conduct does not fall behind those rules of standard practice, it is deemed to have not been negligent.  If the lawyer’s conduct falls behind the rules of standard practice, the lawyer is deemed to have been negligent. By Rule 14(1) RPC, it provides that, ’’it is the duty of a lawyer to devote his attention, energy and expertise to the service of his client and subject to any rule of law, to act in a manner consistent with the best interest of the client’’.  Rule 14(5) RPC provides that, ’’ negligence in handling of a client’s affairs may be such a nature as to amount to professional misconduct’’.  This shows that legal malpractice can amount to professional misconduct. This is the simple reason why a legal malpractice case gives a lawyer the scare.  No lawyer, regardless of skill, rank or reputation, is immune from malpractice suit or disciplinary action if a client thinks he was negligent in handling a case or behaved in a way that will bring dispute to the profession i.e, the Legal Practitioners’ Privileges Committee (herein referred to as ’’LPPC’’) on the 11^th day of January 2018 announced the withdrawal of the rank of senior advocate from a member of the inner Bar. The LPPC at its 129^th Plenary meeting upheld the recommendation of the sub-committee: That the petition was meritorious, having found that the learned silk misconduct consisted of the institution of multiplicity of proceedings before different judges of the Federal High Court on the same subject matter with the deliberate aim of abusing the process of court and derailing the course of justice. This rule 14 (5) urges that lawyers should take their place with other defendants in a civil matter or disciplinary action, as every other professional class of people would.

A lawyer should act with honesty, fairness, integrity and fidelity in all dealings and relations with a client.  Once a relationship ends with a client, a lawyer is not allowed to acquire an interest adverse to the client. A lawyer cannot use information that he obtained from a client as a result of their relationship – See Rule 19(1) (2) RPC.  A lawyer should not act under any influence when representing a client.  As a lawyer you have the duty to provide your client with full disclosure in all matters, as well as detailed and accurate account of all money and property handled for the client – See Rule 23(2) RPC. A lawyer can be liable for fraud or forgery and a lawyer is also liable for acts of his partners, associates, etc.  It is pertinent to note that a lawyer who made a mistake that could have been avoided by a competent legal practitioner who exercises a reasonable standard of care will be liable.  So also is the lawyer who gave improper advice, improperly prepare documents, fail to observe a clause in a contract, conflict of interest, failure to follow client’s instruction, failure to ascertain deadlines, failure to obtain client’s consent or instruction, improper withdrawal from representation, procrastination or lack of follow up and violation of fundamental human rights can have civil claims and/or disciplinary action bought against them.  Legal malpractice cases are also about the strange operators who work beyond the ethnical limits of the legal profession – the drunken lawyer, the ‘charge and bail’, and the lawyer converting his or her client’s money.

Malpractice can torch any lawyer in the profession.  If you don’t want pieces of the cake clean up your act.  A lawyer is entitled to choose among various alternative strategies or legal jurisprudence, but there is nothing strategic or tactical about ignorance or negligence. The Legal Practitioners’ Disciplinary Committee (herein referred to as ‘LPDC’) recently disbarred a Lagos based lawyer for misappropriating N1,025,000.00 ( One Million and Twenty Five Thousand Naira) of his client’s money and a Benin based lawyer was suspended for 24 ( Twenty Four) months for professional negligence. Some lawyers don’t intend to make a career of suing other lawyers, but they look at legal malpractice suit the way they look at any other potential case.  If the facts justify the suing, and it is a case the law firm would like to handle, they will take another lawyer to court before you could say ‘a cat in a hat’.

Malpractice claim also emanate from professional fees dispute.  A lawyer should always put fees agreed with a client on paper, and always put a clause for variation to meet ever changing cost.  Whenever a lawyer sues a client for professional fees, many clients put up malpractice as a defence.  As a defence it can reduce or totally eliminate the lawyer’s recovery of fees if proved. Beware, there’re claims that do not involve a deficiency in the quality of the lawyer’s service to this client, but an injury caused a third party because of the manner of the lawyer’s representation.  This includes malicious prosecution, defamation, infliction of emotional distress and others based on the manner in which the lawyer represented the client.  Malicious prosecution is the most successful third party claim.

The major difference between a malpractice case and a disciplinary action is that in malpractice case, it is a civil action brought against a lawyer for damages because of his negligence in his course of legal duty. If found liable damages will be awarded. A disciplinary case is when a legal practitioner is petitioned to the Legal Practitioner Disciplinary Committee (’’LPDC’’) of Nigerian Bar Association (’’NBA’’) for breach of the RPC. If found liable the lawyer may be suspended or disbarred from legal practice. One of the major aims of this write-up is basically for lawyers to be aware and act more conscientiously when dealing with a client because a resourceful client today maybe a disappointed client tomorrow.  Rule 18(2) RPC provides that, “the lawyer shalt ensure that important agreements between him and the client are, as far as possible, reduced in writing, but it is dishonourable and a misconduct for the lawyer to avoid performance of a contract fairly made with his client whether reduced in writing or not”.

In Nigeria erring lawyers are not protected at all, but if the issue bothers on professional conduct of the lawyer the NBA insists that it will police itself and that self-discipline corrected any mistakes made within the legal profession. One of the core tenets of the legal profession is that malpractice problems should be resolved administratively by the Legal Practitioner Disciplinary Committee (LPDC) of the Bar, leaving appeal to the High Court.  The LPDC goes after erring lawyers petitioned with intensity and a lawyer doesn’t stand much of a chance in a disciplinary action if the client makes inferences against his competence or integrity. A lawyer is expected to possess knowledge of those elementary principles of law and professional ethics which are commonly known by well-informed lawyers.  If there are gaps in his knowledge, he must discover those additional rules of law which, although not commonly known, may readily be found by standard search techniques.  Even if the law in a specific area is unsettled, the lawyer is obligated to undertake reasonable research in an effort to ascertain relevant legal principles.  Once this is done, the lawyer must make an informed decision as to cause of conduct based upon an intelligent assessment of the problem.

The rule does not equip an individual lawyer to patrol the behaviour of his colleagues, except he is granted membership into the Legal Practitioner’s Disciplinary Committee of the Nigerian Bar Association, or its panels at the national, regional or branch level. The Committees can be repositioned to be more resourceful by been more proactive in preventing and/or reducing negligence claim and disciplinary actions.  Wise men say, “Prevention is better than cure”.  Most of the petitions are brought because of negligence in the professional relationship of the parties for instance, a Lawyer in the habit of advising his client that a case is a must win or one who fails to communicate to his or her client about the difficulties and realities of a claim, risk malpractice suit from dissatisfied client.

However a claim against a lawyer will not succeed if the lawyer committed an error because an issue of law was unsettled or debatable.  A disagreement as to how a lawyer handled a portion of a case does not necessarily constitute malpractice.  A lawyer is still within his purview to make decision of strategy with regard to how a case is prosecuted or defended. ’’It is generally accepted that a legal practitioner acts on the general instruction of his Client; he is therefore a master in the conduct of his client’s case and must not be dictated to. He can do all he considers necessary in accordance with his professional training and the ethics of the profession’’ – see Adewumi v Plastex Ltd (1986) 3 NWLR (Pt 32) 767; Ogbuefi v Gov. of Imo State (1995) 9 NWLR (Pt 417) 53. ’’The lawyer conducting a case is, as a matter of law, the controller absolute, of his case; he knows what witness to call and which not to call. And the business of the court cannot proceed unless credit is given to the statement of counsel that they have authority for what they do or say’’ – see Stranss v Francis (1866) L.R 1 Q.B 379; Abiola v Abacha (1997) 6 NWLR (Pt 509) 413.  A not so good result does not, in itself, constitute malpractice.  It is much like a General who chooses a proper and well informed course to battle but is ultimately unsuccessful or a Doctor who chooses the right course of treatment but still lost the patient.  A legal practitioner who decides on a proper strategy that does not lead to a satisfactory result cannot be held liable for malpractice.  There are too many intervening factors – the courts, witnesses, court staff, new-legislation or decided case etc. that can affect the outcome of a case. A legal practitioner who is not negligent, conforms to the law, and the rules of professional conduct, and keeps the client informed and involved throughout a case would not amount to malpractice just because the court ruling is not in his favour. In a stimulating encounter with Stephen Ubimago of Independent Newspapers, when the immediate past President of Nigerian Bar Association ( ‘NBA’) Mr Augustine Alegeh (SAN) was asked the biggest challenge confronting members of the Bar today. The President stated that, ’’the biggest challenge is discipline. He stated that if we have a disciplined and principled bar, it will lift the standard higher. If I don’t do it and you don’t do it, because the price is not right, you will discover that legal services will not come cheap. We should be discipline in how we conduct our cases; and disciplined in carrying out our obligation to the society’’.   

What a lawyer must have to consider when negligence occurs?

The legal malpractice claim based on negligence must prove four (4) elements:

(1)          The lawyer owed a duty to provide competent and skilful representation.

(2)          The lawyer breached the duty by acting carelessly or by making a mistake.

(3)          The lawyer’s breach caused an injury or harm and

(4)          The harm raised a financial loss.

A lawyer must consider seven (7) things when negligence occurs or when a client threatens negligence suit they are as follow:

1. A lawyer must first consider his ethical duty. Some cases of negligence can be corrected if found early and that ends it because rules of court allows amendment, but some cannot be corrected because it is after the damage has occurred.  When a lawyer realises that he has made a mistake, he has the obligation to communicate to the client and keep the client reasonably informed and must avoid conflict of interest – See Rule 14(2) (13) & (D) RPC; Rule 17(1) RPC.
2. A lawyer should do a self-assessment of the negligent act.  Know exactly how he was negligent.  Where it can be remedy without harm to the client and how serious are the potential consequences of the negligent act affect the client, assuming the mistake cannot be cured. This self-assessment is done when the lawyer has committed negligence and the client has threatened a malpractice claim.  A lawyer should be careful in becoming direct adversaries with his client, because it is evidence that conflict of interest has been established.
3. Alert the lawyers involved.  Get together review the lawsuit and request each legal cooperation as the case moves forward. If the issue is not about court representation, then the lawyer must review from the beginning of the brief to what led to the incident at hand.
4. Then brief an outside firm or lawyer who can defend malpractice case or disciplinary action. A lawyer who knows the rules, procedures, expertise and standard for causation.
5. Internally avoid potentially damaging and embarrassing comments whether on print or verbal, in office or outside office, including email and social media networks because the lawyer – client privilege applies.
6. A lawyer, you should save information related to the case, and preserve all documents and electronic data.
7. Try and solve your problems, by making whole your mistake, procrastinating when to fix your mistake would not make them disappear. Stand up and deal with your unfinished business to avoid more trouble.  If the case need your withdrawal do it at once or get written document from the client that it is beneficial for both if there is continued representation.  Then stay calm, knowing that lawsuit can take an emotional toll while a resolution is being worked out.  Find ways to relax i.e. sports, music or write the chronicles of a lawyer sailing against the wind of legal malpractice.

In conclusion, Winston Churchill once said, “the truth is incontrovertible’’.  Malice may attack it, ignorance may divide it, but in the end there it is, “like the walls of Gibraltar, unshakable”.  Let’s be honest I there have been an occasion where I missed filing pleading on time or improperly withdrew my representation, the way to handle it, to my knowledge is to admit the mistake to the client and the court as the case may be. In Orchard V South Eastern Electricity Board (1987) Q.B 565, it was held that, ’’an advocate is basically a minister in the temple of justice, he must not withhold from the court any point of law or fact even if it is adverse to his client…he must not resort to deceit or to wilful obstruction of the orderly process of court’’.  The way it looks is that any lawyer can make an honest mistake.  The art in which the role of professional conduct frowns at is the lawyer who makes mistake, and hides it, makes no amendment and lies to the client. The NBA must embrace the opportunities that will help lawyers avoid malpractice cases and reduce disciplinary actions. Professional ethics should be a constant topic to discuss in our NBA conferences, seminars, law week, monthly meeting etc to help lawyers practice successfully within the Rules.

Make no mistakes; proving only the first two elements is sufficient in a professional negligence case or misconduct petition.  Finally, legal malpractice is defined under the law as any situation were a lawyer breaches a legal duty owned to a client and where that breach led to or caused quantitative damages.  This means the client will need to prove that the lawyer intentionally or negligently did something no reasonably competent lawyer would have done. One of the leading standard desk book for lawyers in America – AMERICAN JURY TRIALS, pub by Matter Bender Company – The section on professional negligence, authored by Sterling Hutcheson and C.M Monteo (a Former Judge) concluded: “Many mature lawyers refuse to appear, under any circumstances, a plaintiff’s counsel in an action against another lawyer for damages for professional negligence.  They know that such suits may disturb the amicable relations they enjoy with other members of the Bar and this impede the disposition of other claims in which they are involved.  And they are fully aware that a client who is willing to sue a lawyer for the service he is dissatisfied with may have no hesitancy about suing the latter’s successor”.  Stay Solid.