Change of representation: The law and its implication

Source: Noah Ephraem Tetteh Adamtey

Introduction

The attorney-client relationship is governed by codified rules of court and parliamentary legislation. This relationship is composed of many elements and has complex values and legal theoretical bases underpinning it. As a relation of agency, its general contours are governed by the same rules. It is, nevertheless, distinguished from other types of agency by its highly fiduciary quality and by the limit of its scope. However, in general principle, the relationship between lawyer and client is contractual.

With an overriding contractual nature, the attorney-client relationship rises and falls on consent. Both parties must agree to the arrangement and the arrangement ends when one party withdraws its consent. In a civil trial, the law allows a party to either represent himself/herself or to be represented by a lawyer. A party who consents to be represented by a lawyer may change his lawyer and appoint another lawyer or represent himself. Where a party appoints a lawyer, the court records that lawyer as appearing for the party. For a party to change a lawyer on record, the party is required to comply with some legal processes to effect this change.

The law outlines, clearly, the process for changing representation. But what happens if a party fails to comply? In recent times two issues have plagued the courts in situations where a party decides to change its representation. The first issue is the effect of processes filed by a new lawyer when there is non-compliance with the process to change representation. The second issue is whether there is a need to comply with the legal process to change representation where the new lawyer is from the same firm as the old lawyer. This article addresses these issues by exploring the recent decisions of the courts on these issues.

The law on change of solicitors

Under Order 4 rule 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47), a party ‘may begin and carry on proceedings in person or by a lawyer.’ Where a party decides to begin and/or act by a lawyer, the party is also afforded the liberty to change the lawyer at any time during the subsistence of the case. Section 26 of Act 32 the Legal Profession Act, 1960 (Act 32), and Order 75 of CI 47 provide how a party acting by a lawyer may change its representation. Section 26 of the Legal Profession Act, 1960 (Act 32) titled “Change of Lawyers During Hearing of a Case” provides as follows:

“(1) A party appearing by a lawyer in any case shall be at liberty to change his lawyer without an order for that purpose upon notice of the change being filed in the office of the Registrar of the Court.

(2) Until notice is so filed and a copy thereof served upon him, the former lawyer shall be considered as appearing for the party until final judgment, unless allowed by the Court for any special reason to cease from acting therein; but he shall not be bound except under express agreement or unless re-engaged, to take any proceedings in relation to any appeal from the judgment”.

Order 75 Rules 1 to 3 of the High Court Civil Procedure Rules, 2004 (C.I. 47) also states as follows:

Change and appointment of lawyer

1. (1) A party represented by a lawyer may, subject to rule 2, change the lawyer at any time.
(2) A party represented by a lawyer may be subject to rule 2, discharge the lawyer at any time and proceed to act in person.
(3) A party who acts in person may at any time appoint a lawyer to act in the cause or matter on the party's behalf

Status of former lawyer

2. Unless and until a change or a discharge of a lawyer under rule 1 (1) or (2) is notified in accordance with rule 3, the former lawyer shall subject to rules 5 and 6, be considered the lawyer of the party until the conclusion of the cause or matter in the Court

Notice of change of representation

3. (1) Where a party changes the party's representation under rule 1(1), (2), or (3), the party or the lawyer, if any,
(a) shall file a notice of the change at the registry of the appropriate Court; which notice shall indicate the number and the date of the current practicing license of the lawyer; and
(b) send a copy of the notice, indorsed with a statement that the notice has been duly filed in the registry, to the former lawyer, if any, and to every other party who is not in default as to the filing of appearance.
(2) A notice of intention to act in person shall contain an address for service of the party giving the notice.

From a combined reading of Section 26 of Act 32 and Order 75 of C.I. 47, although the law accords the right to change legal representation, a party seeking to change its lawyer must file a notice for change of solicitors at the registry of the court and proceed to serve the notice on the previous lawyer and all other parties to the case. Upon compliance with this procedure, the previous lawyer ceases to act for the party, and the new lawyer is recognized as acting for the party.

The essence of the requirement of both Section 26 (2) of Act 32 and Order 75 Rule 3(1) (a) and (b) of C.I. 47 is essentially to notify the court and other parties who have entered appearance, as well as the previous counsel, of a change of representation. It also clothes the new lawyer with the requisite capacity to appear for the party before the court. This is because, where a party commences an action by a lawyer or enters appearance by a lawyer, the writ of summons or the notice of appearance filed by the lawyer informs the court and other parties that the said party has appointed the named lawyer to act on its behalf. A failure to inform the court of the change of representation will imply that the old lawyer is still authorized to represent and act for the party.

In the case of Nii Amanor v. Dr. Kwabena Duffuor & 16 Others Suit No. CM/RPC/0624/18, HC Judgement delivered on 11th December, 2018, the Court stated that:

“a lawyer who intends to defend a suit on behalf of a party is required to file a Notice of Appearance where a party represented by a lawyer changes his representation, the party or the lawyer is to file a Notice of Change of Lawyer. Simply put, the C.I 47 has provided how a party or his duly appointed lawyer can be heard in a matter brought before the court. That duly appointed lawyer must file a Notice of Appearance in the suit.”

The effect of failure to comply with the law on change of representation

Generally, breaches of civil procedure rules do not warrant an automatic nullification of the process or action. This principle is codified in Order 81 Rule 1(1) of C.I. 47. Order 81 Rule 1(1) in the High Court Rules, provides that: where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall not be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it.

The self-cleansing provision of Order 81 Rule 1 (1) has been reemphasized in cases such as Republic v High Court, Koforidua, Ex parte Eastern Regional Development Corporation [2003 -2004] SCGLR 21, 47 and Re Coles and Ravenshear [1907] 1 KB1.

However, in what is perhaps the locus classicus on the philosophy underpinning the interpretation and application of rules of civil procedure in Ghana, Dr. Date- Bah JSC (as he then was) in the case of Republic v High Court Accra; Ex parte Allgate Co. Ltd (Amalgamated Bank Ltd Interested Party) [2007-2008] SCGLR 1041 summarized the position of the law in Ghana. He stated that where there has been non-compliance with any of the rules contained in the High Court (Civil Procedure) Rules, 2004 (CI 47), such non-compliance is to be regarded as an irregularity that does not result in nullity, unless the non-compliance is also a breach of the Constitution, or of a statute other than the rules of court or the rules of natural justice or otherwise goes to the jurisdiction

As discussed above, the law on change of representation is governed by both Order 75 of the C.I. 47 and Section 26 of Act 32. This means that the law on change of solicitors is also statutory. As a statutory provision and per the Allgate decision, non-compliance with the law on change of solicitors is not curable by Order 81 of the C.I. 47. In the case of Alhassan Musah Timbers Ltd v. Franko Timbers Ltd [High Court, Kumasi] Suit No. Rpc 89/2012, HC Judgement delivered on 16th May, 2019, the Court was faced with the issue of failure to notify the court of a change of solicitor. The court stated that:

Failure on the part of this Court to give effect to the statutory provision in section 26(1) of Act 32 as well as Order 75 rules (1), (2), and (3) of CI 47will amount to undermining an Act of Parliament. These are substantive requirements of civil procedure and practice in Ghanaian courts. The requirement of filing a notice of change of representation/lawyer has therefore attained the enviable status of mandatory rule of substantive procedure.

The mandatory requirement of the law to file a Notice of Change of Representation and the effect of failure to comply with the law was reechoed in The Republic v. Dr. Nii Kotei Dzani and Others Ex Parte: Prof Collins Fosu (2019) JELR 65040 (HC). The Court stated that where a lawyer on record as representing a party has not withdrawn his representation of the party, no lawyer can file a process relating to the pending case on behalf of the same party. Similarly, in the case of Nii Amanor v. Dr. Kwabena Duffuor & 16 Others, (2019) JELR 63759 (HC) High Court, the Court stated that unless the other lawyer is holding the brief of the one on record, he does not have any capacity to act as the lawyer of the party.

Consequently, where there is non-compliance with the mandatory requirement, any process filed by the new lawyer is void and the same must be struck out. This is because, the breach is not just a breach of the civil procedure rules but also a breach of parliamentary legislation, the Legal Profession Act, 1960 (Act 32). Such breaches are not curable because they affect the jurisdiction of the court to entertain or grant audience to the lawyer and a process filed by that lawyer. In the case of Boyefio v NTHC Properties Ltd [1997-98] 1 GLR 768 – 786, the court has stated that: “The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed.” Therefore, since the procedure for changing representation is governed by Act 32 and not just C.I. 47, a party seeking to change its representation must comply strictly with the statute. Failure by a party or a lawyer to file a Notice of Change of Solicitor cannot be overlooked by the Courts.

Change of representation to a lawyer from the same firm as the previous lawyer

Again, under Order 4 rule 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47) a party may begin and carry on proceedings in person or by a lawyer.’ The question is whether the use of “lawyer” here is in reference to an individual enrolled as a practitioner or includes law firms.

The term “lawyer” is defined in section 2 of the Legal Profession Act, 1960 (ACT 32). Section 2 of the Legal Profession Act, 1960 (ACT 32) defines a lawyer as follows:

A person whose name is entered on the Roll kept under section 6 (a) is entitled, subject to section 8, [ i.e., obtaining a practicing license] to practice as a lawyer, whether as a barrister or solicitor or both and to sue for and recover the fees, charges, and disbursements for services rendered as a lawyer.

Section 56 of the Legal Profession Act, 1960 (ACT 32) further throws more light on who a lawyer is as follows:

“For the purposes of the recovery of fees, includes a person enrolled at the time the relevant business was done; and, for the purposes of the preparation of legal documents, does not include a lawyer for the time being suspended from practice.”

In the case of Lithur Brew & Co v. Ghana Cocoa Board Unreported Suit No.: CM/ RPC/0518/17, HC Judgement delivered on 15th December, 2017, the court held at page 6 as follows:

“In the opinion of the court the word “person” as used in section 2 of the Legal Profession Act means a natural person and it does not include artificial persons like the Plaintiff (the law firm) in this suit. According to the Act, it is such natural persons whose names are entered on the roll of lawyers who may, subject to being licensed, practice law, ... It follows therefore that a non-natural person cannot, in the first place render legal services.”

The meaning of a lawyer, as provided by statute, rules, and interpreted by the Courts, admits of no ambiguity. Where reference is made to a lawyer, the law intends a natural person, qualified to practice law, enrolled, and issued a valid license – and not a firm.

A person may commence or defend an action personally or by a lawyer. However, when a person decides to be represented by a lawyer, processes are issued and filed by that lawyer on record. Although the lawyer on record may belong to a firm, it is only the lawyer on record and not the firm or any other lawyer of the firm that represents the party. Therefore, when there is a change of solicitors, it is immaterial that the new lawyer is from the same firm as the old lawyer. There is the need to comply with the mandatory rules for change of solicitors before the new lawyer can effectively represent the party. The argument that the lawyers are from the same firm and therefore need not file a notice of change of representation is incapable of satisfying the mandatory legal requirement.

Conclusion

Ghanaian law accords parties to a trial the right to represent themselves or be represented by a lawyer. A party that commences an action by a lawyer informs the court of its legal representation through the first process filed on behalf of that party. This may be the writ of summons, petition, or originating motion on notice or the notice of appearance. A party that acts by a lawyer may change its representation during the trial. However, this can only be done by strict compliance with certain mandatory requirements outlined in both the C.I. 47 and Act 32. The law requires a party seeking to change its representation to file a notice for change of representation. This notice must be filed at the court’s registry and served on all other parties in the case. Where a party or its lawyer fails to file a notice for change of representation, any process filed, or step taken by the new lawyer is void even if the new lawyer is from the same firm as the old lawyer.