Mike Ozekhome: Eating from Both Ends of the Cake

At the end of the 2019 presidential election, popular lawyer and activist, Chief Mike Ozekhome, was the PDP’s lead counsel in the court case against the election of President Muhammadu Buhari. For many years, he has played the role of counsel to the PDP, alonside been an active supporter of the party’s causes, candidates and colours. In 2019, he was also counsel to Senator Kabiru Marafa’s faction of the APC which won its case at the Court of Appeal and Supreme Court, the result being the enthronement of Bello Matawalle as Governor of Zamfara State in that year. Now in 2021 and following the defection of Governor Matawalle from the PDP to the APC, Chief Ozekhome is back in court not to defend the victory that he won in 2019, but to quash it. He is now lead counsel to Governor Bello Matawalle, defending the Governor against “his” party, the PDP, in the case against the Governor’s defection from PDP to APC on June 29, 2021.
Chief Ozekhome has commenced leading a crack team of Senior Advocates that include Ahmed Raji, Y.C. Maikyau, Emeka Okpoko, and others, to challenge the PDP’s contention that Governor Matawalle has lost his seat by his act of defecting from the PDP to the APC.
This move has continued to generate debate among Nigerians calling to question the moral sense of Ozekhome. Reason being that the basic distinction between the legal and moral is easy enough to identify. Most people agree that what is legal is not necessarily moral and what is immoral should not necessarily be illegal.
Unforeseeable developments such as changes in corporate and other organisational affiliations or the addition or realignment of parties in litigation, might create conflicts in the midst of a representation. There are conflicts of interests when a lawyer, in the service of and representing one client, sues a company, and is bought by the company being sued to represent it in a different matter against his first client. This seems to be the case of Chief Mike Ozekhome.

Depending on the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict. The lawyer must seek court approval where necessary and take steps to minimize harm to the clients. The lawyer must continue to protect the confidences of the client from whose representation the lawyer has withdrawn.

Also, loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed consent. Thus, except with consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.

The client to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is undertaken may reasonably fear that the lawyer will pursue that client’s case less effectively out of deference to the other client. That is, the representation may be materially limited by the lawyer’s interest in retaining the current client.

Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, especially when the testimony will be damaging to the client who is being represented in the lawsuit.

On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.

Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another unrelated matter, the lawyer could not undertake the representation without the informed consent of each client.

A conflict may exist by reason of substantial discrepancy in the parties’ testimonies, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil.

The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements are met.

Ordinarily, a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.

A conflict of interest exists, however, if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case. An example is when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.

Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved, and the clients’ reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then the lawyer must refuse one of the representations or withdraw from one or both matters.

When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer. Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.

Speaking on this issue, a constitutional lawyer, Austin Ogebe stated that “pofessionalism requires lawyers to rely exclusively on legal rules rather than morality (understood as personal or social norms) when, as lawyers, they make ethical decisions.” Ogebe also believes that the legal profession should be guided by “non-professional advocacy.” Lawyers should function solely on the basis of their individual convictions in determining what ethical choices to make.

He stated that, “the non-professional advocate should be directed exclusively by personal ethics, and the legal relationship requires that “advocate and client must each justify himself to the other. This justification need not embrace the person’s entire life, but merely those aspects of it which bear on the dispute.”
He thus rejects the use of decisions of a professional collectivity, memorialised in the Model Code of Professional Responsibility and the Model Rules of Professional Conduct, in framing appropriate standards for an individual to use in making professional ethical judgments.

In sum, critics see moral non-accountability as the central harm of “the ideology of advocacy.” The moral implications of a clients’ goals are supposed to be irrelevant when lawyers are not held morally accountable for the ends sought and achieved through their legal representation.

Lawyers perform moral and even immoral acts for clients that they would not perform otherwise. By doing so, legal practitioners may thus be “good” or “bad” lawyers, according to role of morality and within the parameters of “the ideology of advocacy,” but they forfeit their integrity which requires acting on the dictates of common morality. Therefore, these critics claim that lawyers cannot be good persons.

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