Incompetent Representation: Comparing The Legal Profession’s Response In Canada And Nigeria By Johnson Babalola, Esq.

Competence is a fundamental expectation when clients retain lawyers to represent them in legal matters. Whether a case involves life-altering issues, such as asylum claims, serious criminal cases, divorces, or high-stakes business deals, lawyers are entrusted with the duty to provide diligent, informed, and competent representation. However, incompetent representation has become a significant concern in the legal profession globally. In developed countries like Canada, there are established processes for addressing concerns regarding the competence of previous counsel, while in Nigeria, raising such issues is rare, even though incompetence can have equally severe consequences.

This article examines the disparity between how Canada and other Western nations address incompetent representation compared to Nigeria, drawing on case law, regulations, and professional obligations in both contexts. We will also highlight the impact of incompetent legal representation on clients, the legal profession, the judiciary, and the broader society, and advise lawyers on the need for competence and accountability.

Competent Representation: The Standard in Canada

In Canada, legal competence is not just an expectation, but a professional duty enshrined in law and professional regulations. Lawyers are required to maintain a high standard of competence, as outlined in the Model Code of Professional Conduct, developed by the Federation of Law Societies of Canada (FLSC). Rule 3.1-2 of the FLSC’s Model Code states that “a lawyer must perform any legal services undertaken on a client’s behalf to the standard of a competent lawyer.” If a lawyer fails to meet this standard, it can result in significant consequences for both the client and the lawyer.

One key feature of the Canadian legal system is that when new counsel takes over a file from a previous lawyer, they are obligated to assess whether the client received competent representation. If the previous counsel’s competence is in question, the new counsel has several professional duties. First, they must notify the previous counsel of the competence issues identified and give them an opportunity to address the concerns. If the previous counsel’s response is unsatisfactory, the new counsel must bring these concerns before an appellate court or tribunal, seeking either a reopening of the case or an appeal on the grounds of ineffective assistance of counsel. As illustrated in R. v. G.D.B., [2000] 1 S.C.R. 520, the Canadian Supreme Court held that ineffective assistance of counsel can be grounds for reopening a concluded case if it is shown that the representation likely affected the outcome.

Additionally, depending on the gravity of the incompetence, the new counsel may also encourage the client to report the previous lawyer to the appropriate regulatory body, such as the Law Society of Ontario. Lawyers in Canada are bound by their duty to report professional misconduct, including incompetence, as required by Rule 7.1-3 of the FLSC’s Model Code, which states that a lawyer must report to the regulatory authority any conduct that raises substantial questions about the competence or integrity of a lawyer.

The Situation in Nigeria: A Need for Reform

In Nigeria, while the Rules of Professional Conduct for Legal Practitioners (RPC) under the Legal Practitioners Act emphasize competence in client representation, the issue of raising concerns about the competence of previous counsel is seldom addressed. Rule 14 of the RPC mandates that a lawyer must represent a client with “competence, diligence, and utmost dedication.” However, in practice, the Nigerian legal system lacks a structured process for new counsel to assess or challenge the competency of previous counsel, especially in cases where the previous lawyer’s actions may have impacted the outcome of the case.

The failure to report or address incompetent representation has grave implications for clients, as incompetent counsel can lead to wrongful convictions, loss of business opportunities, and the denial of justice. As Justice Kayode Eso, one of Nigeria’s most respected jurists, famously said, “a legal system that fails to protect the client from incompetence is itself incompetent.” Yet, in many instances, lawyers are reluctant to challenge the competence of their colleagues, leading to a perpetuation of the problem.

One example of the impact of incompetent representation can be found in the Nigerian Supreme Court case of Nweze v. The State (2017) 7 NWLR (Pt.1563) 331, where it was argued that ineffective counsel had severely affected the defendant’s right to a fair trial. The Supreme Court reiterated the importance of competent legal representation and how the failure to provide it can undermine the entire judicial process. However, despite such rulings, the system still lacks the mechanisms that are readily available in countries like Canada to hold lawyers accountable.

Legal and Professional Regulations: Competence and Accountability

Both Canada and Nigeria have formal laws and regulations addressing lawyer competence, but the enforcement of these standards varies. In Canada, as noted earlier, legal practitioners are held to strict rules of accountability by the law societies in each province. Failure to provide competent representation can lead to professional disciplinary actions, including fines, suspension, and disbarment. In addition, Canadian courts have recognized the importance of competent counsel in preserving the integrity of the justice system, as seen in R. v. B. (G.D.), [2000] 1 S.C.R. 520, where the court emphasized the significance of competence in ensuring fair trials.

In Nigeria, the Legal Practitioners Disciplinary Committee (LPDC) is responsible for investigating and sanctioning lawyers who breach professional standards, including incompetence. However, the frequency with which incompetence is reported or addressed is far lower than in Canada. This disparity can be attributed to several factors, including the reluctance of lawyers to report colleagues, lack of public awareness, and inadequate enforcement mechanisms. As a result, incompetent representation continues to be a major issue, affecting the credibility of the Nigerian legal system.

In addition to professional regulations, Nigerian courts have also dealt with cases of ineffective representation. For example, in Ogunyemi v. The State (1999) 8 NWLR (Pt. 615) 315, the Supreme Court of Nigeria set aside the conviction of the appellant on the grounds that his lawyer had failed to properly represent him, thus affecting the fairness of the trial. This case demonstrates the judiciary’s acknowledgment of the harm caused by incompetence, and its duty to correct such harms, but more robust mechanisms are needed to address such issues proactively.

The Impact of Incompetence on Clients, the Legal Profession, and Society

Incompetent legal representation has wide-ranging effects. For clients, it can mean the loss of fundamental rights, wrongful convictions, failed businesses, and irreparable harm. In cases involving life and death, such as asylum applications or criminal defense, incompetence can lead to tragic consequences. For example, in R. v. Peavoy (1997), 34 O.R. (3d) 620, the Ontario Court of Appeal found that the incompetence of defense counsel had likely impacted the fairness of the trial, leading to the overturning of the conviction.

In Nigeria, where access to justice is already challenging for many, incompetence exacerbates the problem by creating further barriers to justice. As Afe Babalola SAN, a leading Nigerian legal practitioner, noted, “A lawyer who lacks competence and still proceeds with representation not only harms the client but also brings the profession into disrepute.” The legal profession in Nigeria suffers from public distrust, and the judiciary’s role as a guardian of justice is weakened when incompetent representation is not addressed.

Lawyers’ Duty to Ensure Competence and Report Incompetence

Lawyers have a professional obligation to assess their competence before taking on a case. As outlined in the RPC of Nigeria and the FLSC’s Model Code in Canada, lawyers must not undertake legal work they are not competent to handle. Where necessary, they should collaborate with or refer clients to specialists in the relevant field. This is especially important in complex areas such as immigration law, corporate law, or criminal defense, where the stakes are high.

Moreover, when a new lawyer takes over a case, they have an equal duty not to perpetuate any injustice caused by incompetent representation. If they discover that the previous counsel failed to provide adequate representation, they must address the issue by notifying the appropriate authorities and, where necessary, requesting that the judicial process be reopened.

Conclusion: The Need for Reform and Vigilance

In both Canada and Nigeria, incompetent legal representation can have devastating consequences for clients and the broader justice system. However, Canada’s legal profession has established a robust framework for identifying, reporting, and addressing incompetent counsel, while Nigeria still lags in this regard. Legal regulatory bodies in Nigeria, such as the NBA and LPDC, must take the issue of incompetence seriously, and lawyers must be willing to report colleagues whose incompetence affects their clients. Until such reforms are implemented, the credibility of Nigeria’s legal system will continue to suffer, impacting the profession, the judiciary, and the nation.

In sum, lawyers are the gatekeepers of justice, and their competence is not just a professional expectation but a societal necessity. A failure to uphold this duty undermines public confidence in the legal system and, ultimately, in the rule of law.

Johnson Babalola, a Canada based lawyer, leadership consultant and corporate emcee, is a public affairs analyst. Follow him for discussions on real life issues that affect us all: https://substack.com/@johnsonbabalola https://medium.com/@jblawyer2021 https jbdlaw Website: www.johnsonbabalola://www.facebook.com/jbandthings
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