High Court Affirms That A Written Retainer Is Not the Only Way to Prove an Advocate-Client Relationship: Courts May Infer It from the Conduct, Communications, and Interactions Between the Parties
- Cleopatra Abikiira
- May 8
- 5 min read
Judgement date; 22nd April 2024
Key areas of Law; Affidavit evidence, Advocate Client Relationship, Conflict of interest in the Advocate Client Relationship
Introduction
This application arose from concerns over a potential conflict of interest and breach of the advocate-client relationship by the 1st Respondent law firm, with the Applicant seeking to bar the firm from representing the 2nd Respondent in HCCS No. 381 of 2023. The key issues for determination were whether an advocate-client relationship existed and whether the 1st Respondent’s lawyers were potential witnesses in the suit.
Background of the case
Following the death of Peter Kamya on 2nd December 2022, his family, including his wife (the 2nd Respondent) and children (including the Applicant), initially engaged the 1st Respondent's law firm for guidance in obtaining letters of administration.
Although the 1st Respondent shared a letter of engagement, it was never signed, and the family eventually chose a different law firm for representation. After a paternity dispute arose between the 2nd Respondent and the children of the deceased, the 1st Respondent advised the 2nd Respondent to file a petition for letters of administration.
The Applicant, acting on behalf of herself and the other children, opposed the petition, leading to a contentious proceeding, HCCS No. 381 of 2023, in which the 2nd Respondent disputed the paternity of the Applicant and sought to be appointed sole administrator of the estate.
The Applicant argued that the 1st Respondent should not have acted against her in that matter, as it involved issues previously discussed during meetings when the firm had been acting for the family.
Issues for determination
1. Whether the 1st Respondent has a conflict of interest and is therefore in violation of the advocate - client relationship.
2. Whether the lawyers of the 1st Respondent are potential witnesses in HCCS No. 381 of 2023 and should be barred from representing the 2nd Respondent in the suit.
Highlight of the case
The Court reemphasised that an advocate-client relationship is formed through either an express or implied agreement. Key indicators of such a relationship include a formal engagement or retainer agreement, as well as the parties' conduct, correspondence, and actions indicating mutual agreement for legal representation.
Resolution of Issues
The preliminary objection regarding the Affidavit of the Applicant was overruled;
Court reemphasised the Rules governing Affidavit evidence; The most important fact is that the Applicant is competent to swear the facts in the Affidavit and is conversant with the facts in the Affidavit.
Issue one:
The peculiar circumstances of each case should be put into consideration when determining whether an advocate client relationship exists
The trial judge listed two instances to determine the existence of an advocate-client relationship. She cited the case of Matovu & Matovu Advocates V Damani & OrsMiscellaneous Application No. 29 of 2021 in explaining the two instances; 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 may be established by mutual agreement manifested in express words or conduct.
Courts can and do use other evidence to establish the existence of the advocate-client relationship, including the parties’ behaviour, correspondence between the advocate and the client, invoices for services rendered, proof of payment made to the advocate, and other relevant facts or information. There has to be some form of agreement: whether oral or in writing, or inferred by the conduct of the parties.’’
The second instance where circumstantial inferences are used to determine theexistence of an advocate-client relationship. An advocate-client relationship isformed when an advocate agrees to provide legal assistance to someone seekingthe advocate’s services. Even if there’s no express retainer between a client andhis advocate the court may find that one could be implied if the parties acted as ifsuch a relationship existed.
The Court held that no advocate-client relationship existed between the Applicant and the 1st Respondent since no formal engagement letter had been signed. Therefore, in the absence of an advocate-client relationship, the 1st Respondent was not in violation of the advocate-client relationship, and thus, there was no conflict of interest.
Issue 2;
The learned trial judge cited Regulation 9 of the Advocates (Professional Conduct) Regulations, which prohibits an advocate from appearing in a matter where they may be required to give evidence. If it becomes apparent during proceedings that the advocate must testify, they must withdraw from representing the client. The only exception is where the evidence concerns a formal or non-contentious matter.
She further relied on the case of King Woolen Mills Ltd v Kaplan & Stratton Advocates, where the Court held that an advocate should not act against a former client in a related matter, as using confidential information from a prior fiduciary relationship creates an apparent conflict of interest and potential prejudice.
The Court found that no substantial advocate-client relationship existed between the Applicant and the 1st Respondent. As such, there was no basis to conclude that any confidential or prejudicial information had been shared.
Key Takeaways
Affidavit Evidence
The Court clarified that technical objections to affidavits should not override substance. What matters is the deponent's competence and knowledge of the facts, not strict formality.
Advocate-Client Relationship – Can Be Implied but Must Be Clear
A written retainer is not the only way to prove an advocate-client relationship. Courts may infer such a relationship from the conduct, communications, and interactions between the parties.
However, absent a clear retainer or conduct signifying mutual agreement, no such relationship can be presumed.
No Conflict of Interest Without an Advocate-Client Relationship
Where no advocate-client relationship exists, a law firm is not barred from representing a party, even if it previously interacted with the opposing party in a general advisory context.
Duty of an Advocate as a Potential Witness
Under Regulation 9 of the Advocates (Professional Conduct) Regulations, an advocate must not appear in proceedings where they are likely to be a witness, except in formal or non-contentious matters.
Nonetheless, where the advocate’s testimony is neither essential nor anticipated, there is no bar to their continued representation.
No Misuse of Confidential Information
The Court emphasized that the mere prior interaction between a law firm and a party does not, in itself, prove the transfer of confidential information sufficient to warrant disqualification.
Significance of the Case
Clarifies Standards for Determining Advocate-Client Relationships.
This case reinforces that such relationships can be inferred but require demonstrable mutual intent, not mere casual interaction.
Affirms the Professional Boundaries of Legal Practice
By declining to disqualify the law firm, the Court draws a line between ethical obligations and tactical litigation manoeuvres seeking to remove opposing counsel.
Conclusion
The Court found no advocate-client relationship or conflict of interest and no basis for disqualifying the 1st Respondent's lawyers.
The application was dismissed with costs to the Applicant.
By Cleopatra
.jpg)
Comments