Every experienced lawyer will eventually encounter a client who says:
“I don’t care what you think. Sue.”
Or:
“I know we lost, but appeal anyway.”
The client may be angry. The client may feel humiliated. The client may want vindication. And the client may be perfectly willing to pay the legal fees. But does that mean the lawyer must carry out the instruction? The Supreme Court of Zambia’s decision in Rosemary Bwalya v Zulu and Another [2010] ZMSC 4 provides an important lesson about the professional independence of advocates. The principle is fundamental: The client gives instructions. The lawyer must still exercise professional judgment.
The Problem
The case involved an appeal which the Supreme Court considered misconceived and frivolous. An important issue consequently arose concerning costs and the role played by counsel in the pursuit of the appeal. The lawyer’s position was that she had actually advised the client against pursuing the matter, but the client insisted.
That raises a question going to the heart of legal practice:
What should a lawyer do when the client’s instructions conflict with the lawyer’s professional assessment of the case?
A Lawyer Is Not Merely a Messenger
Clients are entitled to determine their objectives. A client may say:
“I want my property back.”
“I want to recover this debt.”
“I want to challenge this judgment.”
But the lawyer must determine whether there is a proper legal route for achieving that objective. That requires professional judgment.
The advocate should ask:
- Is there a cause of action?
- Is there admissible evidence?
- Is the proposed proceeding competent?
- Are there reasonable grounds for appeal?
- Is the claim within time?
- Would the proceeding amount to an abuse of process?
The answer cannot simply be: “The client is paying, so I will file whatever the client wants.”
The Client Is Not Always Right
The phrase: “The customer is always right” has no proper place as a rule of professional legal practice. A client may:
- misunderstand the law;
- exaggerate the evidence;
- want revenge rather than a legal remedy;
- insist upon allegations that cannot be proved;
- demand an appeal because accepting defeat is emotionally difficult;
The lawyer’s responsibility is precisely to provide the independent judgment the client may lack at that moment. Sometimes the best legal advice is: “You should not proceed.”
Fearless Advocacy Is Not Reckless Advocacy
Lawyers should be prepared to advance difficult cases. The law develops because advocates challenge existing interpretations. A case should not be abandoned simply because it is novel or difficult.
But there is a difference between:
a difficult case
and
a hopeless case.
There is also a difference between:
fearless advocacy
and
reckless litigation.
Can a Lawyer Personally Be Ordered to Pay Costs?
In exceptional circumstances, the answer can be yes. The Bwalya case involved a personal costs order against counsel arising from the pursuit of the appeal. The Supreme Court ultimately varied its earlier order and apportioned the taxed costs between the lawyer and the client. That is a serious consequence. Normally, lawyers advise and represent parties while the parties themselves bear the litigation consequences. A personal costs order is different.
It places responsibility directly upon the practitioner. The possibility reminds us that a lawyer’s conduct in litigation is itself subject to professional and judicial scrutiny.
Your Signature Means Something
When an advocate signs or files a court document, the signature is not merely administrative. It carries professional responsibility.
The lawyer is placing: a pleading, an application, an affidavit, or an appeal before a judicial institution. The practitioner should therefore be prepared to defend the professional basis upon which that document was filed.
“BUT MY CLIENT INSTRUCTED ME”
Instructions matter. But they are not an automatic defence to every professional decision.
Suppose a client says: “Allege fraud.”
The lawyer asks: “What evidence do we have?”
The client responds: “None. But put it in anyway.”
The lawyer should not simply obey.
Or suppose a client says: “Appeal on every possible ground.”
The lawyer considers the judgment and concludes there is no reasonable ground for challenging several findings. Professional independence requires the lawyer to advise accordingly. The advocate is not a hired weapon.
Record Important Advice
There is another practical lesson from the case. If you advise a client:
“In our considered opinion, this appeal has no reasonable prospects of success,”
record that advice appropriately. Why?
Because memories change when litigation goes badly. Two years later, the client may say:
“My lawyer told me we had an excellent case.”
Therefore, a short written advice can protect both parties. It also forces the lawyer to articulate clearly why the proposed litigation is problematic.
Knowing When to Withdraw
Sometimes disagreement between lawyer and client becomes irreconcilable. The client insists upon a course the lawyer cannot professionally pursue. In appropriate circumstances, withdrawal may need to be considered, subject always to applicable professional and procedural requirements and the obligation not to improperly prejudice the client. Withdrawal should not be used casually. But neither should a lawyer remain in a matter merely because the client refuses to accept professional advice. Professional independence must mean something.
A Lesson for Clients
The case also contains an important message for consumers of legal services. A lawyer who tells you: “No, I don’t recommend that we sue,” is not necessarily weak.
That lawyer may be saving you from:
- substantial legal fees;
- an adverse costs order;
- years of litigation;
- commercial distraction;
- reputational damage.
Your source material makes this point particularly well: sometimes the lawyer who promises to “fight everybody” is not the lawyer giving the client the best advice. A good lawyer does not measure success only by the number of cases filed. Sometimes success means preventing a bad case from ever reaching Court.
Law Firms Need a Culture Where Lawyers Can Say No
There is also an institutional lesson. Law firms should not reward practitioners solely for:
- fees generated,
- files opened, or
- cases commenced.
There should be professional space to say: “We should decline this instruction.”
Particularly risky matters may warrant senior review where:
- allegations of fraud are being made;
- the client is pursuing personal vengeance;
- repeated litigation has already failed;
- an appeal appears hopeless;
- evidence is plainly inadequate.
Commercial pressure should never replace professional judgment.
The Lawyer Has More Than One Duty
A lawyer owes important obligations to the client. But legal practice also involves duties connected to:
- the Court;
- the administration of justice;
- professional ethics;
- the integrity of the profession.
Those duties can sometimes create tension. That is precisely why independence is a professional virtue. The lawyer must be able to tell a paying client something the client does not want to hear.
The DAC View
At Dzekedzeke and Company, we believe Rosemary Bwalya v Zulu and Another contains one of the most important lessons for young advocates.
The lawyer’s role is not simply:
“Tell me what you want filed.”
The lawyer must analyse, advise, exercise judgment and sometimes refuse.
A lawyer is an advocate. A lawyer is an adviser. A lawyer is also an officer of the Court. Those roles must coexist. Clients deserve lawyers who will fight hard when a fight is legally justified. But they also deserve lawyers with enough professional independence to tell them when it is not. Sometimes the most valuable legal advice is not:
“We will sue.”
It is:
“NO. WE SHOULD NOT.”
For legal advice on litigation, appeals and dispute resolution, contact Dzekedzeke and Company.
Based on Rosemary Bwalya v Zulu and Another (Appeal No. 60 of 2008) [2010] ZMSC 4 (12 October 2010).
