Conflict of Interests in Litigation (Part II)

In the last publication of this Conflict of Interests in Litigation series, I examined the ethical obligations of every legal practitioner in Nigeria and reviewed the case of Agamore Energy Ltd v Essar Exploration & Production Ltd, where multiple parties have conflicting or divergent interests. This edition is centred on the disqualification of Counsels from representing a party in a suit on the grounds of conflict of interests.

See Previous episode here

SAMTECH (NIG) LTD & ANOR v. SANNI & ANOR (2018) LPELR-45336(CA).

A lawyer is expected to represent his client totally and to the best of his ability. The lawyer would not be able to discharge this duty where the representation conflicts with his personal or a pre-existing interest. Where there is a perceived conflict of interest in respect of a prospective brief, the lawyer must reject the brief and turn down the representation. This is a statutory duty imposed on all lawyers by Rule 17 of the Rules of Professional Conduct for Lawyers.

Although the courts lack the power to prevent litigants from employing the services of counsel of their own choice, a person must not be allowed to employ the services of counsel where it is clear that the services to be rendered flows out of or are closely related with the previous services he had rendered to the opposing side. The counsel on his own part has a corresponding duty not to accept a brief that flows or is closely related to his previous brief.[1]

In the case under review (Samtech (Nig) Ltd & Anor v. Sanni & Anor), a Senior Counsel was briefed to represent one of the parties at the trial Court and obtained a consent judgment at the trial Court. However, the same Senior Counsel filed an application on behalf of a third party to appeal against this consent judgment as an interested party, against the parties who obtained the consent judgment at the trial Court (including his former clients). His representation of the Interested Party was challenged at the Court of Appeal for being unethical. The Court of Appeal held that his representation at the Court of Appeal on behalf of a different party, against his former client at the trial Court, was a breach of his professional duty to his former Client. The Court further restrained the Senior Counsel and every other lawyer working in the law firm of the Senior Counsel from representing any of the parties in this suit. 

Thus, where the Principal Partner of a law firm is disqualified from representing a party in a suit on the grounds of conflict of interests, the disqualification extends to other lawyers in his law firm who act under his instructions.[2]

Similarly, where a (junior) lawyer switches law firms, that (junior) lawyer is equally disqualified from working on any matter that he handled on behalf of adverse parties in his previous law firm. Such lawyer is not even competent to silently sit in any strategy meeting with the clients or fellow lawyers in chambers. However, this does not make the (junior) lawyer’s law firm incompetent to handle such matter, as the disqualification does not extend to other lawyers in the firm.

In our next post, we shall examine the ethical duty of a legal practitioner where he is briefed to represent a party whom he had previously worked for, in a non-legal capacity, e.g. as an employee of a company.

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[1] Asuquo v. Ekpo & Anor (2019) LPELR-48168(CA) Per Muhammed Lawal Shuaibu, JCA (Pp 14 – 16 Paras F – F).

[2] Please see Ikpana v. Regs. Trustees Presbyterian Church of Nigeria (2006) ALL FWLR (Pt. 310) 1703 at 1722 (CA).