RULE 5 (5) &(10): REPRESENTING CONFLICTING INTEREST AND
CHANGE OF SOLICITOR: acted for the plaintiff in the same subject
matter and later for the defendant.
JONES v BUCKLE AND OTHERS [1977] 2 GLR 145-151HC
OWUSU-ADDO J.
HEADNOTES
Held:
(2) It was most improper for B. to appear for the first defendant in
view of his previous advice to the plaintiff's family on the matter. For,
he was likely to have received some confidential information from them
thus establishing a fiduciary relationship. His subsequent appearance
for the first defendant amounted to representing conflicting interests
and he could not therefore be said to have behaved with the utmost
honesty towards his first client, i.e. the plaintiff's family.
NATURE OF PROCEEDINGS
RULING on preliminary objections raised by counsel for the plaintiff-
respondent against the appearance of the applicant's counsel who had
once acted for the plaintiff in respect of the same subject-matter of the
litigation and also against the motion filed by a solicitor other than the
solicitor representing the applicant without any notice of change of
solicitors being filed. The facts are sufficiently stated in the ruling.
JUDGMENT OF OWUSU-ADDO J.
I have chosen to preface this ruling with a quotation from Cordery on
Solicitors (5th ed.) at p.118, from which I have derived some assistance
in my attempt to resolve the issues raised herein. It reads:
"The relationship existing between a solicitor and his client is
recognised in equity as a fiduciary one imposing on the solicitor special
obligations. In his dealings with his client the solicitor must exercise the
utmost good faith, and in any financial transaction with his client (save
as to costs for work done) there will be a presumption that such
transaction should not be upheld unless the solicitor can establish that
it was effected by the free exercise of the client's will and without any
influence on the part of the solicitor."
What I am called upon to decide as preliminary issues raised herein,
are: (1) whether Messrs. Gaisie, Zwennes and Hughes, a reputable firm
of solicitors, are competent to act as solicitors for the first defendant,
and
(2) whether Mr. Brodie-Mends is competent to appear either as
solicitor or counsel for reasons which I shall relate later. There are in
effect two preliminary objections, the first being against the
appearance of Messrs. Gaisie, Zwennes and Hughes as solicitors and
the second directed against Mr. Brodie-Mends both in his capacity as
solicitor and counsel for the first defendant.
... His main reason was that some time in 1974 he did introduce a
member of the plaintiff's family to Mr. Brodie-Mends with a view to
representing them. He accepted the introduction and acted. It was on
the strength of the introduction that Mr. Brodie-Mends wrote a letter
to the first defendant on a letter head of Messrs. Gaisie, Scheck & Co.,
inviting him for discussion.
Up to date Mr. Tsegah has not withdrawn his representation as
solicitor for the first defendant, and no notice of change of solicitors
or appointment of additional solicitors has been filed. But it happened
that on 8 June 1976, Messrs. Gaisie, Zwennes and Hughes filed a
motion for an order for preservation of the subject-matter of the
litigation and signed as solicitors for the first defendant.
Now I come to the most sensitive matter, namely, whether Mr. Brodie-
Mends ought to be allowed to appear either as counsel for the first
defendant or on behalf of the solicitor for the first defendant.
I think it is opportune at this stage to refer to the Legal Profession
(Professional Conduct and Etiquette) Rules, 1969 (L.I. 613). Rule 5 (3)
reads:
"Where a lawyer withdraws from a case and returns the client's brief, it
is his duty to hand it back to the client from whom he received it. A
lawyer who accepts a brief is in a confidential position, and he shall not
communicate to any other person the information which has been
confided to him as such lawyer; and he shall not use either such
information or his position as a lawyer to his client's detriment. The
duties here stated continue after the relation of lawyer and client has
ceased."
(The emphasis is mine.) Rule 5 (10) enjoins a lawyer to avoid
representing conflicting interests.
Judging from the earlier dealings of Mr. Brodie-Mends with a principal
member of the plaintiff's family, in relation to the same subject-matter
now pending in this court, it would be most improper for him to appear
for the first defendant in the conduct of this case. For, he is likely to
have received some confidential information from his client, thus
establishing a fiduciary relationship. The subsequent collection of the
brief from him was immaterial, for the relationship continued and
carried with it the obligation to act with strict fairness, and to abstain
from doing anything that would be detrimental to the client's interest.
Surely, Mr. Mends's appearance for the first defendant in this suit,
amounts to representing conflicting interests; and he cannot be said to
have behaved with the utmost honesty towards his former client. It is
most unfortunate that he saw fit to appear both as solicitor and counsel
for the first defendant. His representation for the first defendant is
certainly improper and must discontinue. Accordingly, the objection
against his appearance is upheld.
DECISION
Preliminary objection upheld.
