In one of the recently decided cases, the question of what an advocate-client relationship is and what amounts to one took centre stage as some of the respondents completely denied ever giving instructions to Counsel (the Applicant) who by way of the application wanted his bill of costs taxed as against the said respondents.
The case in reference is M/S Wakosese Advocates v Arlington Academy of Hope of Uganda and 3 Ors decided on 14th October 2024 by Justice Lubega Farooq before whom the Applicant, a law firm claimed that it had acted for the respondents in a construction and construction supplies contract negotiation but that the 3rd and 4th respondents had refused or failed to pay its professional fees and reimburse its costs allegedly spent in the execution of the instructions.
On their part, the 3rd respondent on top of roundly rejecting the Applicant’s claims, went ahead to accuse the firm’s lawyer handling the matter Maasa Joseph Wasabula for inserting into the contract document a “clause 39” providing him as counsel for the contracting parties without the knowledge of the parties.
“On 11th July 2023 at around 2.00 PM, parties to the agreement met at Silver Springs Bugolobi, the draft agreement was given to the said advocate [Maasa] who upon review informed the 1st, 2nd, and 3rd respondents that he needed to modify the agreement; indeed he made minor modifications which were approved by the parties to the agreement; thereafter the said advocate offered to print copies of the agreement on his printer which he had travelled with…” the 3rd respondent stated, adding that:
“The 3rd respondent has since established that, unknown to it, the 1st, 2nd, and 3rd respondents and without their consent or approval, just before printing the final copies, the said advocate secretly inserted clause 39 in the agreement; The impugned clause 39 provides as follows: “the parties hereby agree to pay the professional fees of the lawyer for drawing and executing this contract in accordance with the Advocates (Remuneration and Taxation of Costs) Regulations SI 267-4 (As amended).”
Now, Justice Farooq Lubega had to determine whether there existed an advocate-client relationship between the Applicant firm and the 3rd and 4th respondents.
It should be noted that the 1st and 2nd respondents entered into a consent agreement with the Applicant firm to settle the Bill at UGX 30,000,000.
Justice Farooq Lubega noted that according to Section 103 of the Evidence Act and the case of Yakobo M.N Senkungu & Others v Cresensio Mukasa Civil Appeal No.17 of 2014, the burden of proving the advocate-client relationship was on the Applicant firm as the party asserting the affirmative.
The learned Judge further noted that when the dispute between supposedly lawyer and client becomes a matter of the lawyer’s word against the client’s word then the Court is inclined to side with the client because the Court believes the Client is ignorant and the lawyer is supposed to be learned.
“It is a rule of thumb that where the evidence consists of the advocate’s word against the client, the Court ordinarily sides with the client. The word of the client is to be preferred to the word of the solicitor because the client is ignorant and the solicitor is or should be learned.” Justice Lubega stated, citing the case of Murray and Another v. Richard Slade and Company Ltd [2021] EWHC B3 for the proposition.
But then what amounts to an Advocate-client relationship?
Basically, the advocate-client relationship can be defined as a relationship between a client and his lawyer or vice versa.
It follows then that one must come into the definition of ones “client” and “ lawyer” for the relationship to exist.
This is because Regulation 2 (1) of the Advocates (Professional Conduct) Regulations which provides that: “No Advocate shall act for any person unless he or she has received instructions from that person or his or her authorized agent.”
According to Justice Lubega, the advocate-client relationship creates a contract which implies that for it to exist there must exist all the elements of a valid contract; capacity to contract, consideration, consent or consensus ad idem, and intention to contract.
“It is trite to note that an advocate-client relationship creates a contract. This therefore means that if such a relationship is to be considered a contract, all the elements of a valid contract like capacity, consideration, consent, and intention must be present. However, contrary to the above position, in the instant case, there was no consensus ad idem between the parties since the 3rd and 4th respondents denied hiring the services of the Applicant.” He said.
It follows that as a contract, an advocate-client relationship is capable of being proven orally and in writing contrary to the 4th respondent’s assertion in this case that: “to be someone’s lawyer, you must have an engagement letter, failure of which amounts to professional misconduct.”
However, the best way to establish an advocate-client relationship, possibly for use in scenarios like in this case, is through writing.
As was stated by Justice Stephen Mubiru in the case of Matovu & Matovu Advocates v Damani Jyotibala and 2 others Miscellaneous Application No.29 of 2021 (cited in this case):
“As a general principle, the relationship of advocate and client is a relationship between two contracting parties. Being contractual, its general contours are governed by the same rules that govern the creation of a contract, and so it must be proved like any other contract. The easiest method of proving an advocate-client relationship is a written retainer agreement or engagement letter describing the existence and scope of the advocate’s representation of the client. However, neither a written contract nor an express appointment and acceptance is essential to the formation of the relationship. The relationship maybe established by mutual agreement manifested in express words or conduct…”
Benjamin Ahikiiriza is a legal writer and publisher of the Legal Reports Digital Media.