- July 6, 2022
- |Law Everyday
IN-HOUSE LAWYERS VIS-A-VIS THEIR COUNTERPARTS IN PRIVATE PRACTICE
A career in law is usually cemented by the admission of one as a Legal Practitioner in terms of the Legal Practitioners Act of 1995. An admitted Legal Practitioner employed by a company, private or state-owned, may carry the title of Legal Advisor, Legal Officer, Legal Analyst, and/or Company Secretary. An admitted Legal Practitioner who practices in private, on their own account, or under a fellow Legal Practitioner, may loosely be referred to as a ‘Lawyer’ or private Lawyer, Advocate, or defence Lawyer. The former is what I refer to as in-house lawyers and the latter is referred to as private lawyers.
The current position is that in-house lawyers do not have the right of audience to appear and represent their employers in court. This is done through the private lawyers who hold such rights and fidelity fund certificates to practice on their own account. Despite this distinction, all legal practitioners are bound by the professional rules and standards set aside for admitted legal practitioners and regulated by the Law Society. They also possess the same minimum qualifications.
In-house lawyers provide legal services exclusively to their employers on legal matters relevant to the organization. Private lawyers provide legal services exclusively to various clients who seek their services on a wide range of legal matters. In this sense, organizations, where in-house lawyers are employed, can use the services of private lawyers. When this happens, the person responsible is the in-house lawyer, among other things, to instruct, liaise, manage relations, and ensure that legal services are rendered and paid for, by and to the private lawyer. This is the relationship I want to highlight today, but only to the extent that the context and space allow.
In a recent case of Standard Bank Namibia Limited v Nekwaya (SA 95-2020) [2022] NASC (1 December 2022) this relationship came under the spotlight. The Supreme Court had to deal with an application for condonation and reinstatement of an appeal that was lodged 15 months late. In explaining the delay as required in order to succeed with such an application, the in-house lawyer (deponent) for the appellant (Standard Bank) made
averments that the Bank would suffer serious prejudice if it was not allowed to proceed with the appeal because of a number of instances of over-charging allegedly perpetrated by the external private lawyer(s) for the respondent and that the late filing was due to erroneous legal advice given to it by the private lawyer instructed to represent the Bank in a matter before the courts. The in-house lawyer was of the view that a bill of costs presented by a private lawyer for the respondent was glaringly excessive, entirely unrealistic, and completely unacceptable in circumstances where the alleged costs of an astonishing N$880 100.00 were in respect of a simple case which was finished on the first day of the trial.
In respect of the late filing of the appeal, the private lawyer for the Bank provided an explanation, among other things that a junior legal practitioner represented the Bank during the trial proceedings in the High Court; that there was a misunderstanding between the junior legal practitioner and the Advocate as to whether the absolution from the instance granted by the High Court was appealable or not; that another Advocate was approached and he advised that the order was final and appealable; that the junior legal practitioner and the principal private lawyer harboured under the mistaken belief that the order granting absolution from the instance was not final.
It was against this background that the in-house lawyer submitted that the Bank would suffer prejudice if it was not allowed to proceed with the appeal and the Supreme Court stated the following: The explanation provided for the non-compliance with the rules of court by the private lawyer was weak and unpalatable because as a seasoned legal practitioner, the private lawyer could have easily established the true legal position by way of simple research. Instead, the private lawyer persistently and blindly (figuratively speaking) plodded on with litigation in the High Court for more than a year, and unnecessarily so. A legal practitioner who acts on behalf of a client is expected to do so with due diligence, but that was not done. In the court’s view, it was not even necessary in the circumstances for a referral to an advocate for a legal opinion.
The Supreme Court found it necessary to consider the issue of prejudice raised by the appellant. In short, those allegations amounted to an allegation of gross overreaching, euphemistically put, by the legal practitioner who acted on behalf of the respondent. The court agreed with the appellant that it would suffer serious prejudice if it were not allowed to proceed with the appeal. To disagree would, in effect, reward overreaching and in the court’s view, this was a matter which ought to be brought to the attention of the Law Society of Namibia. As a result, the registrar was requested to bring the matter to the attention of the Director of the Law Society of Namibia.
Now, there are two things that stand out from Standard Bank matter, which the in-house lawyer must, among other things, guard against in the best interests of the organization. Firstly, incurring excessive and unreasonable costs and, secondly, being given erroneous or wrong legal advice. While maintaining professional relations, in-house lawyers must be actively involved in the matters of the employer, through effective monitoring, evaluation, and communication with the private lawyers. The legal services rendered by the private
lawyers and costs thereof must be certified as true and justifiable by the in-house lawyer. This requires continuous professional development to keep up with the law and the latest trends in practice, as opposed to being a ‘desk’ lawyer reduced to administrative work. Private lawyers on the other hand must carry out instructions diligently. After all, the same law is applied internally and externally by all legal practitioners.
Fedden Mainga Mukwata – Legal Pundit