By A. S. Gidan-Wankey, Esq.[1]
1.0 INTRODUCTION
There is no gainsaying the fact that the starting point of legal representation is at the stage of lawyer-client conversation. More so, in any profession, the most important factor that should be present is conversation. Arguably, when one talks about legal profession, one cannot eliminate the aspect that the profession is hinged on the information and conversation carried out between lawyer and client. In this conversation, lawyer elicits first-hand information by accommodating a potential client into a “zone of privacy” thereby instilling confidence in him that the conversation remains privileged.[2] The burden to understand the facts of the case and the client lies on the lawyer. Thus, communication has always been an important element in the legal domain. A lot of emotions thoughts and views are expressed by medium of communication. More often without even saying something a lot can be expressed by a client. Hence, both verbal (oral) and non-verbal (documents and signs) means of communication stand relevant in the development of lawyer-client relationship.
Practicing lawyers come about much information in the cause of discharging their professional duties. This arises both in civil and criminal matters. An information that is ordinarily known and should be kept with the client alone is being revealed on daily basis to lawyers on trust in the process of seeking legal advice, counseling and legal representation. For instance, a client who is accused of committing murder feels at home to disclose to his lawyer that he actually committed the offence. More so, multinational companies divulge their business decisions, trade secrets and private information to their lawyers because of the trust and faith they have on the lawyers. In any legal case, clients have every right to worry about their sensitive information being leaked or exposed. It is worth noting that whether it is a business-related legal matter or personal, the client is putting his faith in the hands of his lawyer. Thus, by its very nature,[3] the lawyer-client relationship allows an invaluable right to have communication of any kind, be it text message, email, phone conversation or in-person, protected from disclosure to a third party.
A fundamental principle of lawyer-client relationship is that, in the absence of client’s informed consent, the lawyer must not reveal information relating to his client which he is representing[4]. This contributes to the trust which is the hallmark of client-lawyer relationship.[5] The client is thereby encouraged to seek for legal assistance and to communicate fully and frankly with the lawyer even in an embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively, and where necessary, to advice the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is in the complex of laws and regulations, deemed to be legal and correct. Lawyers owe the duty of confidentiality to their clients[6]. Unless a lawyer receives consent, the lawyer may not reveal information relating to his representation of the client. The duty of confidentiality serves to encourage clients to inform their lawyers about everything relating to the case at hand so that the lawyer can provide the best legal services. Note that confidentiality rule applies not only to matters communicated in confidence, but to all information offered by the client, but may be information relating to the representation obtained from any source. The duties not to reveal information include any information that could reasonably lead to the discovery of such information, concerning the identity of a client or the legal matter at the heart of the representation. This duty extends to former client whom the lawyer no longer represents.[7]
2.0 THE LEGAL REGIME
2.1 THE 1999 CONSTITUTION
In truth, lawyer–client confidentiality rule traces its origin from the 1999 Constitution of the Federal Republic of Nigeria[8] (hereinafter called the Constitution), which guarantees the right of every citizen to privacy and family life. As a point of reference, right to privacy is classified as Fundamental Right under chapter IV of the constitution. What human rights law of privacy has done is to identify private information as something worth protecting as an aspect of autonomy and dignity. Section 37 provides thus:
“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected’
Flowing from this constitutional stipulation, it is crystal clear that right to privacy of information, telephone conversations, mails and correspondences are guaranteed and protected. They are rights that can be enforced in the event of any breach whatsoever and howsoever[9]. Thus, it is my firm conviction that breaching these rights will be more offending when such violation arose from the information a client confidently confided in his lawyer. More so, privacy is concerned with personal information of an individual in a state of total or limited exclusion to other members of the society, accordingly there must be a conscious desire to keep the facts private. Thus, privacy is concerned with intrusion and disclosure. It is based on this; a client’s information must be treated with utmost confidentiality as disclosing same to a third party may amount to a flagrant violation of the client’s right to privacy among others.
2.2 THE RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS, 2007.
Inherently, the duty of a lawyer not to disclose to a third party any information he receives from his client is captured in Rule 19 of the Rules of Professional Conduct for Legal Practitioners (hereinafter called RPC). The RPC being a regulatory framework demands for a strict adherence, obedience and observance[10]. While it is not the intent of this paper to reel out all the Rules thereat, the governing consideration however is to examine the provision of Rule 19 which bothers on the topic of discourse.
At umpteenth time, the RPC enjoys the status of subsidiary legislation having the force of law because it derives its validity from section 1of the Legal Practitioners Act, 2004[11]. This position of the law finds adequate anchorage in a plethora of cases one of which is: SENATOR BELLO SARAKIN V SENATOR ATIKU ABUBAKAR BAGUDU & ORS[12]. Where, the Supreme Court speaks through the lips of Hon. Justice Walter Samuel Nkanu Onnoghen(CJN Rtd) thus:
“…I have to emphasize that the status of the Rules of Professional Conduct in the Legal Profession made by the General Council of the Bar pursuant to section 1 of the Legal Practitioners Act, Laws of the Federation of Nigeria, 2004 is that of subsidiary legislation since it is made by the provision of the a statutory enactment. See Fawehinmi V NBA (No. 2) (1989) 2 NWLR (Prt. 105) 558 to 614; (1989) 20 NSCC (prt. 11) 43 at 69 . By virtue of section (1) of the Interpretation Act, a subsidiary legislation has the force of law”
Having said this, it is important at this juncture to rummage through the provision of Rule 19 of the RPC which provides:
(1) Except as provided under sub-rule (3) of this rule, all oral or written communication made by a client to his lawyer in the normal course of professional employment are privileged.
(2) Except as provided in sub-rule (3) of this rule, a lawyer shall not knowingly — (a) reveal a confidence or secret of his client; (b) use a confidence or secret of his client to the disadvantage of the client; or (c) use a confidence or secret of his client to the advantage of himself or of a third person unless the client consents after full disclosure.
(3) A lawyer may reveal —
(a) confidence or secrets with the consent of the client or clients affected, but only after full disclosure to them (b) confidence or secrets necessary when permitted under these rules or required law or a court order; (c) the intention of his client to commit a crime and the information necessary to prevent the crime; (d) confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.
(4) A lawyer shall exercise reasonable care to prevent his employees, associates and others whose services are utilized by him from disclosing or using confidences or secrets of a client, but a lawyer may reveal the information allowed by sub-rule (3) through an employee.
(5) A lawyer shall not in any way communicate upon the subject of controversy or negotiate or compromise the matter with the other party who is represented by a lawyer, and he shall deal only with the lawyer of that other party in respect of the matter
A prudent perusal of the Rule under reference reveals that, all oral and written conversations between lawyer and his clients relative to the client’s case are strictly treated as “privileged” communication and a top secret. Privilege in this context means immunity[13] from disclosure. At its most basic, the privilege ensures that “one who seeks advice or aid from a lawyer should be completely free from any fear that his secret will be uncovered”[14]. Thus, the underlying principle of tagging client’s information as “privilege” under Rule 19 (1) of RPC is to provide for sound legal advice and advocacy[15]. Surely, with security of the privilege, the client may speak frankly and openly to his lawyer, disclosing all relevant information to the lawyer and creating a “zone of privacy”. In other words, shielded by the privilege, the client may be more willing to communicate to lawyer facts that might otherwise be suppressed. This candor and honesty will assist the lawyer in providing more accurate, well-reasoned advice/service, the client can be secured in the knowledge that his statement to his lawyer may not be taken as an adverse admission or use against his interest.[16]
Further, the waters become murkier under Rule 19 (2) of the RPC when it succinctly prohibits a lawyer from revealing the confidence or secret of his client; use a confidence or secret of his client to the disadvantage of the client; or use a confidence or secret of his client to the advantage of himself or of a third person without the prior consent of the client of some after full disclosure[17]. Consent is the focal point here. It is important to state however that the law takes care of exceptional circumstances in which a lawyer may disclose the confidence or secrets of his clients[18] even without prior consent that is, when permitted under these rules or required by law or a court order or for the sake of preventing the client from committing an offence or recovery of professional fees as itemized under Rule 19 (3) of the RPC.
This duty imposes upon a legal practitioner has elicited so many judicial commentaries. Some of them are out lined as follows. In the unreported of case of CENTRAL BANK OF NIGERIA V NIGERIAN BAR ASSOCIATION (CA/A/202/2015,) the Court of Appeal per Abdu Aboki JCA (now JSC) while nullifying section 5 of Money Laundering Act on the ground that the said section violates the duty of confidentiality imposed upon a lawyer by LPA, Evidence Act and RPC inter alia:
“Textually and conceptually, the whole body of section 5 of the Money Laundering Act cannot be said to be intended for legal practitioners who have business reporting client-legal practitioner relationship to a Minister in charge of Federal Ministry of Commerce & Investment”
A brief gist of this case is that section 5 of the Money Laundering Act, 2011 makes it mandatory upon legal practitioners to report to Minister in charge of Federal Ministry of Commerce & Investment transaction conducted with their clients. The court unreservedly in a strong term nullified the section because it touches on client/lawyer relationship.
Similarly, In the case of IKENNE ANAKWE V (2003) NWLR (Prt. 829) p. 548 at 574-575 the court held thus:
“…lawyers cannot be made to divulge the secrecy of their clients whatever may be the circumstance.”
2.3 THE EVIDENCE ACT, 2011
Aside the RPC, section 192 of the evidence Act, 2011also placed a duty on legal practitioner to avoid disclosing any communication they had with their clients. As a matter of paramount importance, lawyer-client relationship is a rule of evidence under our law of evidence. Section 192 is reproduced below:
(1) No legal practitioner shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal practitioner by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure-
(a) any such communication made in furtherance of any illegal purpose; (b) Any fact observed by any legal practitioner in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. (2) It is immaterial whether the attention of such legal practitioner was or was not directed to such fact by or on behalf of his client. (3) The obligation stated in this section continues after the employment has ceased.
As a way of buttressing this point, section 192 of the Evidence Act had received judicial stamp of approval in the cases of ABUBAKAR V CHUKS (2007) 18 NWLR (Prt. 1066) Per Niki Tobi JSC and DAWAKI GENERAL ENTERPRISES LTD N& ANOR. V AMACO ENTERPRISES LTD & ORS.(1999) 3 NWLR (Prt. 594) 224, 227.Notably, lawyer-client relationship is a rule of evidence under our jurisprudence. The privilege was created to prevent the lawyer from testifying on oath, against his client, because such testimony would violate the lawyer’s honour as a gentleman.[19] It bars a lawyer from disclosing or testifying about his client’s statements unless the clients brief suggest commission of an illegal act. Therefore, a harmonious reading section 192 of the Evidence Act and Rule 19 of the RPC bolster the responsibility and duty of a lawyer to treat his client’s information with utmost confidentiality, privilege and secrecy. Section 192 in effect maintains the prohibition even after the relation cease to exist. In the case of CENTRAL BANK OF NIGERIA V NIGERIAN BAR ASSOCIATION the court held thus:
“The prohibition slammed on the legal practitioner by section 192 (1) of Evidence Act covers all time weather in proceeding before a court or other circumstances outside the court proceedings. It says no legal practitioner shall at any time be permitted…”
Notably, the rule of lawyer-client relationship tells a lawyer to operate with his own kind of safety net. Because, breaching the rule gives a troubling insight into the multiplex issue that ails lawyer’s credibility. Thus, the manifold and ponderous effect of breaching confidentially rule by a lawyer whether to his advantage or to the merit of another person, or to the disadvantage of his client except where the law so authorized, amounts to a professional misconduct within the meaning of Rule 55 (1)of RPC which stipulates thus:
If a lawyer acts in contravention of any of the rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in Legal Practitioners Act, 1975.
In addition to professional misconduct, it is clear beyond any doubt that disclosing client’s sensitive information may amount civil action and breach of fundamental human right because, privacy of communication is a constitutionally preserved right under section 37 of the Constitution[20].
3.0 CLOSING SHOT
There is no better way for lawyer to instill confidence in his client than by his outward and genuine reverence to his client’s secrecy. Disclosing client’s information showcases a lawyer’s credibility deficit and lack of trust which is the hallmark of client-lawyer relationship. It is the sentiment of this writer that, communication between lawyer and client must be treated with great secrecy. If a lawyer however breaks this trust or any element of the relationship, he most assuredly be on the hook for a petition against him for the violation of such trust to the Legal Practitioners Disciplinary Committee (LPDC) for investigation and appropriate sanctions where necessary if found guilty.
[1]LL.B (BUK), BL (Lagos), Legal Practitioner (@Peace Attorneys, Kano), Legal & Public Relations Officer: (Autopsies Forensic Consult Ltd.), Part-Time Lecturer: (Kano State Polytechnic), Secretary and Legal Adviser: (Incorporated Trustees of Good-Hearts Support Foundation), Northwest Coordinator: (Incorporated Trustees of Human Rights Defenders of Nigeria); Author, Policy Analyst and Human Rights Activist.
[2] Diganth Raj Sehgal
[3] Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product 2 (4th ed. 2001)
[4] Section 192 of the Evidence Act, 2011
[5] Upjohn Co. V United States, 449 U.S 383, 389 (1981)
[6] Ibid
[7] Section 192 of the Evidence Act
[8] 37 of the 1999 Constitution of the Federal Republic of Nigeria
[9] See section 46 (1) of the 1999 Constitution of the Federal Republic of Nigeria (2011 as amended)
[10] Rule 52 of the Rules of Professional Conduct for Legal Practitioners (2020 as amended)
[11] See Legal Practitioners Act 2004
[12] (2015) 10 SCM 119 AT 132 PARA G-1 to 136 A-E
[13] Definition from Oxford Languages
[14] United States V Grand Jury Investigation, 401 F. Supp. 361, 369 (W.D. Pa. 1975)
[15] See The Scope and Limitations of Attorney-Client Confidentiality: Huntersure LLC
[16] Paul R. Rice, Attorney-Client Privilege: Continuing Confusion About Attorneys Communication, Draft Pre-Exiting Document, and the Source of the Facts Communicate, 48 AM. U. L. REV. 967, 969-70 (1999)
[17] Ibid
[18] Ibid
[19] See Client-Attorney Privilege in Nigeria: In-House Counsel “Beware” Corporation Take Heed by Bernard Ehigiamusor.
[20] Ibid.