Counsel Sanneh's Client Account

Issues. (i) Mixing. Client money must be held in a designated client account, kept separate from office money, and used only for the client's purposes. Paying D400,000 into the office account is a breach of that rule. (ii) Misappropriation. Applying client money to rent and salaries is not merely mixing but conversion of trust funds. (iii) Lending client money. Advancing D300,000 to another client is an unauthorised use, even if it is repaid; the lawyer cannot be both trustee and lender of trust money. (iv) Failure to account. Four months without remittance, on a false explanation about the banks, breaches the duty to account promptly and to give a written statement of account on request. (v) Fee and disbursements. A fee must be justified by a written agreement or a delivered bill, and the stamp duty is client money payable to the revenue authority; it must be accounted for, not absorbed.

What she must do now.

1. Restore the full balance from her own funds immediately - the shortfall is at least D1,500,000 on the figures.
2. Prepare a full reconciliation of the client account from 10 February to date, and deliver a written account to Touray with the balance.
3. Pay the stamp duty and obtain the receipt, or return that sum to Touray.
4. Self-report to the Bar Association before the disciplinary process runs its course; early restitution, cooperation and candour are the principal mitigating factors.
5. Advise Touray in writing to take independent advice about the shortfall and about making a report to the police.

Exposure. Disciplinary sanctions range from a reprimand to suspension or striking off. The conduct may also amount to stealing or criminal breach of trust, since she was entrusted with the money and dealt with it dishonestly or recklessly. Concealment, or continuing to act while the shortfall is unremedied, will aggravate the position considerably.

The duty. A lawyer owes a former client a continuing duty of loyalty and confidentiality which survives the end of the retainer. She may not act against a former client in a matter that is the same as, or substantially related to, the matter in which she acted, unless the former client gives informed consent.

Application. The subject of the new instructions is the very transaction she handled: the sale of the Bijilo land, the size of the plot, and what was said about it during the sale. That is as substantially related as it is possible to be. She holds confidential information about Touray's affairs - his instructions, his knowledge of the plot's dimensions, his financial position, his reasons for selling - which could be used against him or could shape the strategy of the new claim.

The 'sale is finished' argument fails. The retainer has ended, but the duty has not. The test is whether a fair-minded, reasonably informed observer would think there is a real risk that the lawyer's loyalty is impaired or that confidential information will be used. Here the risk is obvious.

Her own interest. She is also compromised personally: Touray is now her creditor, and a claim that he misrepresented the plot may be met by him saying that she handled the completion and advised on it. She is likely to be a witness on a contested issue, and a lawyer should not act where she will be a necessary witness. Her own exposure to a complaint gives her an interest in the outcome.

Correct course. Decline the instructions in writing, return the papers, explain that she cannot act without Touray's informed consent (which she should not seek, given her position), and preserve Touray's confidences. If she has already filed or taken a step, she must apply to come off the record without disclosing privileged material. She must not use anything learned in the sale to Touray's disadvantage, and she must not pass information to the purchaser.

Nature of an undertaking. An undertaking is a personal, professional promise given by the lawyer, not by the client. The recipient is entitled to rely on it, and the court is entitled to hold the lawyer to it. The lawyer must therefore never give an undertaking whose performance depends on someone else's cooperation unless she controls the risk. Promising to produce documents held by a client is exactly that risk.

Failure to honour it. Non-performance is professional misconduct in itself, whatever the explanation, and may also found contempt or an order for compensation. The correct course where performance becomes impossible is to apply to the court or the recipient before the deadline, on notice, for release or an extension, explaining the position. Silence until the deadline passes, and after it, converts a mishap into misconduct.

Sanctions realistically in play.

1. The undertaking. A reference to the disciplinary committee; the court's power to deal with its own officer, including an order for costs or committal; personal liability for any loss caused by reliance on the undertaking.
2. The client money. The most serious matter. If the shortfall is not restored, striking off is the likely outcome; if it is restored before the hearing, suspension is still probable. Restitution, cooperation and a clean prior record are the mitigating factors; the false explanation about the banks, the loan to another client, and the attempt to act against Touray are aggravating.
3. The conflict. A separate charge of acting in a position of conflict.

Practical advice. She should instruct another lawyer to represent her, notify her professional indemnity insurer if she has one, notify the Bar Association in writing of the undertakings and the shortfall, and cease taking new instructions. She must not simply abandon existing clients: she must give them notice, hand over files and render accounts so that they can instruct someone else without prejudice. Any attempt to cover the shortfall by taking money from another client would convert a disciplinary matter into a criminal one.