Visiting the sins of unlicensed lawyer on client
In recent years, some judgements of our courts appear to have the unintended consequence of visiting the sins of defaulting lawyers on their clients.
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Some clients have had their cases struck out by the courts because their lawyers failed or neglected to secure a valid practising licence as required of them by Section 8(1) of the Legal Profession Act 1960 (Act 32).
In the Supreme Court case of Henry Nuertey Korboe v. Francis Amosa (2016 Unreported), Sophia Akuffo, a former Chief Justice of Ghana, held as follows: “if the Applicant (or any member of the public for that matter), whether out of diffidence or ignorance, fails to exercise his clear right to verify the credentials and legal capacity of his lawyer to perform the services he is engaged to undertake, that cannot give rise to an exceptional circumstance which has resulted in a miscarriage of justice such as would merit the exercise of our review jurisdiction".
Though the principle places the responsibility on clients to ascertain the status of lawyers before procuring their services, the discharge of this duty on a majority of clients in developing countries, such as ours, may be seriously undermined, because of the high illiteracy level.
The ethical questions are: how does an illiterate client differentiate a fake lawyer licence from the genuine one?
How does a client who lacks knowledge of courtroom procedure assess the quality of his or her lawyer’s performance?
And lastly, what is the likelihood that a ‘hungry’ lawyer would disclose his or her lack of capacity to perform legal services?
Analysis
The Bible in 2 Corinthians 5:10 instructs that “for we must all appear before the judgement seat of Christ, so that each one may be repaid according to practices he has practised….”
However, clients whose cases are struck out due to the sins of their lawyers are made to suffer consequences of the misconduct of their lawyers.
Lawyers are officers of the courts (as said by Lord Denning MR) and the consequences of their mistakes should not be borne by unfortunate clients, but should be remedied by the courts themselves.
Notably, clients who suffer the consequences of the mistakes of their lawyers are not given the audience to express their thoughts before such harsh decisions are taken, which are against the rule of natural justice encapsulated in the legal maxims audi alteram partem (no party should be condemned unheard).
The case of Awuni v. West African Examinations Council emphasises that, where a judicial decision breaches the principle of audi alteram partem, the decision reached becomes void.
Therefore, striking out the cases of clients out due to mistakes of their lawyers without giving them audience is unfair and unjust.
This view is shared by Akoto-Bamfo JSC (as she then was) in Henry Korboe v Francis Amosa (Civil Appeal No.J4/56/2014) “it is my considered view that nullifying processes filed on behalf of clients by such errant lawyers, would be manifestly unjust to the said client”.
To promote the rule of law and good governance, Lord Denning, MR again admonished Judges to heed to the advice given in R v Commissioner of Police of the Metropolis. His Lordship said, “We will never use this jurisdiction as a means to uphold our dignity.
That must rest on a surer foundation. Nor will we use to suppress… [Others]”.
Conclusion
All lawyers, except the Attorney-General and officials of his department, are required to obtain a valid annual lawyer's licence to enable them to practise their trade as required by Section 8(1) of the Legal Profession Act, 1960 (Act 32).
However, if these lawyers ignore their annual duty as required by Act 32, innocent clients who are ignorant of the status of their lawyers licence should not be made to suffer the consequences (Nyameneba & Ors v. The State).
The writer is a Legal Researcher.
E-mail: [email protected]
