Unburden lawyers from scrutinizng clients's sources of funds: A rejoinder antithesis to Mr. Mayowa Owolabi's Thesis (Part 3)

Wed, Jul 21, 2021
By editor
9 MIN READ

Essay

Mike Ozekhome, SAN

 

INTRODUCTION

IN my last two outings, I had shown thus far how Mr Owolabi mis-construed the decision of the Court of Appeal which he conceded “accords with logic”. Mr owolabi had however rebeged on this position when he postulated that the same judgment will be “discomforting and unduly exposes international transactions emanating from Nigeria to additional scrutiny as it presupposes that there are no applicable internal mechanisms which ensure that Nigeria Lawyers are not unwittingly utilised for money laundering schemes” I had debunked this thesis in my earlier antithesis. Today, I will continue and conclude this discourse.

A LEGAL PRACTITIONER IS ENTITLED TO HIS

PROFESSIONAL FEES (continues)

That a Legal Practitioner is entitled to his professional fee is the correct position of the law as seen from our outing last week.

In GUARANTY TRUST BANK PLC. & ANOR V. UDOKA ANYANWU ESQ. (2011) LPELR-4220(CA):

“A legal Practitioner has a right to be remunerated for his services; he can earlier be paid in advance upon named fee or rely on the terms of any agreement reached for his fees. However, if he has not received his fees and no agreement was reached as to what they would be, he must submit his bill of charges. See Oyo v. Mercantile Bank (Nig.) Ltd. (1989) 3 NWLR (Pt. 108) 213. All the relevant authorities say that reasonable remuneration must be given for the actual work or service rendered by a claimant on quantum meruit, which is Latin for “as much as he deserved”.  See SBN Ltd. v. Opanubi (2004) 15 NWLR (Pt. 896) 437 SC. In effect, when the bill of charges (as they are called) are properly brought by the Legal Practitioner in compliance with the provision of LPA, the Court will normally give judgment for the amount of fees so claimed useless there are other factors preventing it from doing so, such as the absence or non-existence of any agreement for the payment of the fees by the client or an attempt by the legal practitioner to illegally enrich himself at the expense of his client (by way of champ arty) see Oyo  V. Mercantile Bank (Nig.) LTD.(supra) and Akingbehin V. Thompson ( 2008)6 NWLR (pt. 1083) 270,where Adamu, J CA added as follows, In some cases, even where the charges or fees were not agreed upon or fixed by a contract between the parties the Court can award a reasonable fees or remuneration to the legal practitioner for his services actually rendered or admitted to have been rendered by him at the request or instruction of this client on the basis of quantum merit or quasi-contract. See also SBN Ltd. V. Opanubi (supra)

Furthermore, in EGBE & ANOR V.ODU (2014) LPELR – 23805 (CA), it was held that:

“A legal Practitioner is certainly entitled to be paid agreed or appropriate fees for professional services rendered by him. A Legal practitioner is entitled to be paid his fees on the basis of : (a) An agreed sum ( b) Advance payment for his services, and (c) On Quantum merit” Per EKANEM, J.C.A (Pp. 13- 14, paras. F.A) Emphasis supplied.

DUTY OF A LAWYER TO HIS CLIENT UNDER THE RULES OF PROFESSIONAL CONDUCT IN NIGERIA

The duties of a lawyer in relation to his client are firmly listed out under Rule 14 – Rule 25 of the Rules of Professional Conduct. Rules 19, 15, 24 and 48 of the rules provide for a legal practitioner’s relationship with his client.

Rule 15 of the Rules provides that a lawyer should represent his client within the bounds of law. Section 15(3) of the rules further stops a lawyer from engaging in any illegal acts while in the service of his client.

Rule 19 provides for the privileged communication of a lawyer with his client and states that a lawyer should not disclose the business of his client except in the situations provided under Section 19(3) of the rules, which deals with situations of an illegal or fraudulent nature.

Rule 24 provides that a lawyer has the responsibility to accept a client’s brief and should not on any circumstance refuse to give a client advice. See Lord Denning’s immortal words in Rondel v Worsley (citation) and the “Cab Rank Rule”.

The provisions stated above streamline the structure on how lawyers should relate with their client and also puts adequate checks and balances to insure amongst other things that a lawyer does not overcharge the client (Rule 48). To insist (as suggested by Mr Owolabi) that a counsel before or after accepting his brief should investigate where his client’s source of income (from which he will be paid) comes from not only over burdens the lawyer and puts more stringent strange rules on the legal profession, it also stifles the job of a lawyer whose dictate it is to accept all clients’ briefs and show absolute devotion in handling the cases in which he acts. Where a lawyer following the rules of the profession, especially those stated above, gets a client’s brief, the question of investigating the client’s source of income becomes a burdensome and ridiculous exercise; and seeks to cause unnecessary chaos to already set rules.

Such a demand also knocks at the very heart and soul of our criminal justice system. We practice the Anglo-Saxon accusatorial system of law as opposed to an inquisitorial system (French model). In our accusatorial system, a person is presumed innocent until proven guilty. By casting suspicion on a client and his source of income, from which to pay his lawyer, it puts, in my opinion, further harm on the lawyer’s ways, and also clogs in the wheel of justice. The ordinary individual comes to the law in the hope of obtaining justice. If the Lady Justice is a symbol of a blindfolded lady with a scale of justice and a sword, the need to first pull down the blindfold even before advocating for one’s client becomes a two-pronged treachery waiting to happen. That is, being suspicious of one’s own potential client; and also being discriminatory to the very client who desperately needs justice. With lawyers thus being cowed, how does the ordinary man approach the courts for help? It must be emphasized that lawyers’ countless duty does not include being an investigator. The provisions of Rules 25 of the rules of professional conduct which states that a lawyer shall investigate the witnesses he intends to call to the stand to substantiate his case in a courtroom does not call on a lawyer to investigate the money trail of his client’s source of income. Making a lawyer a private investigator of his client’s funds is an unfavorable, tasking and injurious task not provided for by law.

It should also be noted that while counties like the USA and the UK provide that their lawyers under the American Bar association and the CCBE (Council of Bars and Law Societies of Europe) require that legal practitioners report complex or suspicious money transactions to their corruption agencies Task Forces, other countries like Nigeria, Canada and Japan do not make such requirements of their legal practitioners.

The Japan Federation of Bar Associations in the stead of asking lawyers to report their client of suspicious funds has its own regulations that allow the legal profession to maintain a “Never to Whistleblow” approach to countering money laundering.

In fact, it is their position doing such will be an invasion of lawyers’ privacy and will be a direct enemy of the client/lawyer relationship – a sacred relationship provided in almost all countries’ laws. A final argument against this mode of Money Laundering Discovery being surreptitiously imposed on lawyers is that such matters should be left to Anti-Corruption agencies; and not used to put a strain on legal practitioners and the legal profession.

There is a legitimate presumption by a lawyer that his client is paying him with clean funds. If you demand that a lawyer probes into his client’s funds, it becomes inquisitorial. It means the lawyer who ought to believe his client and defend him maximally, is already doubtful about his bona fides, his honesty and his trustworthiness. Do clients also enquire into the source of their lawyer’s knowledge and expertise. Let lawyers defend their clients and earn their living. Do not impose on them the extra burden of prying into their accounts or means of livelihood.

IMPLICATION OF THE COURT OF APPEAL JUDGMENT

Anyone who has an axe to grind with the well-reasoned decision of the Court of Appeal based on extant laws and decisions has two options: appeal the decision to the Supreme Court, or propose a Bill before the National Assembly to amend the existing laws.

CONCLUSION

The hallmark of any presentation is coherence. This postulation is further corroborated by the axiom that you cannot approbate and reprobate. Mayowa Owolabi in his article titled “A Critique of the Court of Appeal Judgment in FRN v Chief Mike Ozekhome (SAN)” noted emphatically that the decision of the Court of Appeal accords with logic. However, in the same article, he postulated that the pronouncement of the Court of Appeal is discomforting, and unduly exposes international transactions emanating from Nigeria to additional scrutiny, as it presupposes that there are no applicable internal mechanisms which ensure that Nigerian lawyers are not unwittingly utilised for money laundering schemes. (The end).

SERIOUS AND TRIVIAL

There are two sides to every coin. Life itself contains not only the good, but also the bad and the ugly. Let us now explore these.

“A couple watching TV after a hard day at work.

Wife: Do you drink beer?

Man: Yes

Wife: How many beer a day?

Man: Usually about three

Wife: How much do you pay per beer?

Man: $5.00 which includes a tip.

Wife: And how long have you been drinking?

Man: About 20years I suppose.

Wife: So a beer costs $5.00 and you drink three a day which makes it $450.00 each month. In one year it will be approximately $5,400.00

Man: Correct!!

Wife: If in 1year you spend $5,400.00. The 20years puts your spending at $108,000.00?

Man: Correct!!

Wife: Do you know that if you didn’t drink too much beer that money could have been put in a savings account. And after counting the interest for the past 20 years you could have bought a plane?

Man: Do you drink beer?

Wife: No

Man: Where is your plane?”

THOUGHT FOR THE WEEK

“Your living is determined not so much by what life brings to you as by the attitude you bring to life; not so much by what happens to you as by the way your mind looks at what happens.” (Khalil Gibran).

July -21, 2021 @ 16:19 GMT |

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