By Sarjo Barrow, Esq.
The average Gambian who interacts with the country’s legal system quickly learns one unspoken rule: unless you are lucky or unusually persistent, no written agreement will describe what your lawyer has actually agreed to do for you. If you ask for one, you are either being difficult or you do not understand how things work here. I was no exception.
A family member needed legal representation in The Gambia. A lawyer was identified. The demand was D150,000. Before agreeing, I did what any prudent person would do. I asked for a written retainer agreement. I wanted to know the scope of representation: whether it covered trial, interlocutory motions, appeals, and related applications, and what would happen if the matter grew more complex than initially anticipated. The lawyer refused, and not quietly. The lawyer was visibly upset and offended by the request. The position, delivered with some authority, was that written retainer agreements are simply not done in Gambian legal practice. This was a senior lawyer, respected by all measures in the industry, the kind of lawyer who routinely drafts land agreements, contracts, and purchase agreements for clients, yet offended when asked to apply the same standard of accountability to their own engagement. I ultimately devised my own protection, a contemporaneous record of the orally agreed terms sent by email, with non-response treated as confirmation. It was an improvised solution to a problem that the law itself should have prevented.
That encounter stopped me. Not because it was uncomfortable, but because it exposed something structural, a gap at the very foundation of how legal services are delivered and regulated in this country, one that leaves ordinary clients exposed, uninformed, and without meaningful recourse when things go wrong.
The experience is not isolated. Another Gambian recently shared a remarkably similar account. Their lawyer demanded D200,000 for a matter. The client paid a third upfront. The lawyer later informed them that the court had struck out the matter. No paperwork was provided. No court record, no explanation of what steps were taken, what motions were filed, or why the matter ended as it did. The client was left with a significant financial loss, no documentation, and no practical way of knowing whether they received anything approaching the representation they had paid for.
These are not aberrations. They are the predictable and foreseeable consequence of a regulatory framework that, despite its stated ambitions to protect consumers, does not require a lawyer to commit the terms of engagement to writing, does not require a lawyer to give the client copies of work done on their behalf, and provides the client with no documented baseline against which to measure what was actually delivered.
When the Law Looks the Other Way
The Legal Practitioners Act, 2016, and the Legal Practitioners (Amendment) Act, 2024, together form the governing framework for legal practice in The Gambia. The 2024 Amendment was presented as a modernizing reform. Its new section 3A introduces, for the first time, formal regulatory objectives requiring the General Legal Council to protect and promote the interests of consumers of legal services and to improve access to justice. New section 25B requires lawyers providing free services to indigent clients to give honest legal advice and ensure those clients can make informed choices.
These are welcome provisions on paper. But nowhere in either Act is a lawyer required to provide a client with a written retainer agreement before commencing representation. Nowhere is a lawyer required to furnish the client with copies of documents filed, motions made, or correspondence sent on their behalf. Nowhere does the law give the client a documented right to know, in writing, what their money purchased or what the engagement covers.
This is not a minor procedural oversight. It is the central accountability failure of the entire regulatory scheme. Without a written record of the scope, the fee basis, and the work agreed, a client who paid D150,000 and received nothing after their matter was struck out has no document establishing what representation was promised, what was delivered, and whether the two were ever the same thing.
A Standard Worth Borrowing
The contrast with Wisconsin, under Supreme Court Rule 20:1.5(b), is instructive and should be uncomfortable reading for Gambian regulators. In Wisconsin, any representation expected to cost more than $1,000 must be explained to the client in writing, covering the scope of representation, the fee basis, and the purpose of any advance payment. Even below that threshold, while a written agreement is not strictly required, experienced Wisconsin lawyers document every engagement without exception. The reason is straightforward: when a dispute arises, and there is no written record, the lawyer who failed to document bears the professional and financial consequences of that absence. Documentation protects both parties equally. The client knows what was agreed. The lawyer has evidence of what was authorized. Accountability is built into the relationship from the beginning, not improvised after the damage is done.
More significantly, Wisconsin goes further than the written agreement alone. Under SCR 20:1.5(h)(1), before a lawyer may withdraw any earned fees from a client trust account, the lawyer must give the client at least five business days’ written notice containing an itemized bill showing the services rendered, the amount to be withdrawn, the anticipated date of withdrawal, and the balance that will remain in the trust account after the withdrawal. Under SCR 20:1.5(h)(3), if the client raises a particularized and reasonable objection, the disputed portion must remain frozen in trust until the dispute is resolved. If the client objects within 30 days of funds already being withdrawn, the disputed amount must be returned to the trust.
Take a minute for that to sink in. The Wisconsin client can effectively freeze their own money simply by raising a reasonable objection before withdrawal. The burden falls on the lawyer to justify the fee before the money moves, not on the client to recover it afterward. Compare this to the Gambian client who paid upfront, received no paperwork, and was later told the matter was struck out. That client had no right to an itemized account, no right to object before fees were taken, and no documented record of what their engagement was supposed to include. The money was gone before a single question could be raised about it. The American Bar Association’s Model Rule 1.5 similarly requires a lawyer to communicate the scope of representation and the basis of the fee to the client, preferably in writing. Gambian legislation does not even reach this aspirational floor.
A Floor for Lawyers, a Ceiling for Everyone Else
The accountability gap is compounded by section 40(1)(l) of the 2024 Amendment, which makes it a professional misconduct for any lawyer to charge below the minimum fee prescribed by the General Legal Council. The stated justification is the maintenance of professional standards. The actual effect is to convert the profession’s disciplinary machinery into a protective wall around lawyer income, built at clients’ direct expense.
A minimum fee is not a quality standard. It is a revenue guarantee. It protects lawyer income regardless of the work actually performed. A lawyer who accepts D150,000, files a single motion, and watches a matter get struck out has charged within the permitted range and faces no misconduct inquiry under this provision. The client who paid for comprehensive representation and received something far less has no remedy for lack of proportionality under the Act.
The absurdity of this becomes clearest in the short-work scenario. A client brings a discrete, specific question. The lawyer answers it in five minutes. The Council’s minimum fee for the category of work applies in full, the same fee as an hour of complex legal analysis. The client considers this disproportionate to what they received. They cannot negotiate a lower fee. The Disciplinary Committee’s powers under section 33 of the 2016 Act are directed at lawyer conduct, not fee proportionality. There is no fee-arbitration mechanism, only civil litigation to recover the excess costs beyond the overcharge itself. The client has no voice and no exit. The lawyer is protected on every side.
This is precisely what the United States Supreme Court identified and struck down in Goldfarb v. Virginia State Bar in 1975, when the Court unanimously held that minimum fee schedules enforced through the threat of professional discipline constituted illegal price-fixing under the Sherman Antitrust Act. The Court found that whatever language was used to justify such schedules, their practical effect was to insulate the profession from price competition at the consumer’s expense. The Gambian minimum fee is set by statute, whereas Virginia’s bar association sought to achieve it by recommendation. The consumer protection problem is identical.
Punishing the Good Lawyers
There is a dimension of this problem that has received almost no public attention, and it concerns the lawyers themselves. Section 40(1)(l) does not only trap clients. It penalizes the most conscientious members of the profession.
A lawyer who wishes to represent a client of modest means at a reduced fee, not free but below the Council’s prescribed minimum, commits professional misconduct under the current rules by doing so. A lawyer who wants to take a matter at no charge for a client who does not formally meet the Act’s definition of an indigent person, defined in the 2024 Amendment simply as “a poor person,” risks disciplinary exposure depending on how the Council interprets the narrow free services exception under new Part IVA. Outside that specific carve-out, the minimum fee rule operates as a tax on professional conscience. A lawyer who genuinely believes that the person in front of them deserves representation they cannot quite afford at the prescribed rate is legally prevented from acting on that belief. The profession’s most public-spirited impulses are made subject to sanction.
This matters beyond the individual lawyer. Section 25 of the 1997 Constitution protects freedom of conscience. A regulatory rule that compels a lawyer to charge a minimum fee against their own professional judgment about what a client’s circumstances warrant is not simply a pricing regulation. It coerces professional conduct without satisfying the standard required by section 17(2) of the Constitution, which demands that any restriction on constitutional rights be demonstrably justifiable in a democratic society. It is difficult to see how compelling a conscientious lawyer to refuse a client they want to help, or face misconduct proceedings, meets that standard.
What the Constitution Demands
The 1997 Constitution of The Gambia is direct. Section 4 establishes it as the supreme law and renders void, to the extent of any inconsistency, any statute that contradicts it. Section 24 guarantees every person the right to a fair hearing and meaningful access to courts and legal processes. Section 17(2) provides that any restriction on fundamental rights must be demonstrably justifiable in a democratic society.
The minimum fee regime also engages a right that is less often discussed but equally fundamental: the right to freely contract. The lawyer-client relationship is, at its core, contractual, and both parties have an interest in determining its terms for themselves, including the price. Where the state fixes a mandatory price floor backed by the threat of professional discipline, it intervenes in that private relationship and requires constitutional justification. Under Gambian common law principles preserved by section 7(d) of the Constitution, the freedom to contract remains a foundational legal value. A compelled minimum price, enforced by disciplinary sanction and imposed without any proportionality mechanism or consumer protection counterbalance, goes beyond legitimate regulation and into unconstitutional interference with private ordering. Where the minimum fee simultaneously prevents a client from accessing affordable representation and prevents a lawyer from offering it, that interference does not serve the public interest. It undermines it.
A minimum fee rule that prices out the person who is not poor enough to qualify for free services under the Act but not wealthy enough to absorb the prescribed minimum without real hardship engages section 24 directly. The constitutional right to access justice is not honored by a system that offers representation to everyone in principle while pricing the majority out of it in fact. This concern is not novel, nor is it confined to this jurisdiction. In Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), the United States Supreme Court confronted this dynamic precisely. A couple seeking to purchase a home in Fairfax County, Virginia, could not find a single lawyer willing to perform a required title examination at the minimum fee mandated by the County Bar Association, set at 1% of the property’s value. The Court, in a unanimous decision, held that minimum fee schedules of this kind constitute price-fixing that restrains commerce and that legal services, notwithstanding their professional character, remain subject to laws prohibiting anticompetitive conduct. The significance of Goldfarb for present purposes lies not in its antitrust framing, which reflects the particular constitutional architecture of the United States, but in its underlying recognition: that when a bar association fixes a mandatory price floor, it does not protect the public. It excludes it. A minimum fee regime that forecloses access to legal services for those of modest means cannot be dressed in the language of professional standards. It is, as Goldfarb made plain, a restraint. And a restraint that operates against the very persons the legal system exists to serve cannot withstand scrutiny under a constitution that guarantees both the right to contract freely and the right to access justice.
The 2024 Amendment’s own regulatory objectives in new section 3A sharpen the contradiction. The Council is required to protect consumers of legal services and improve access to justice. A minimum-fee provision that silences a client’s objection to disproportionate charges, inhibits lawyers who wish to serve clients at reduced cost, and operates without any written retainer is not consistent with those stated objectives. There is a serious argument that section 40(1)(l), as currently written and applied, actually contradicts the very purpose the National Assembly set out when it passed the same legislation.
Three Changes That Would Make a Difference
The fixes are neither complicated nor radical. They require political will and regulatory honesty, not a dismantling of the framework.
The Legal Practitioners Act should be amended to require that for any engagement above a threshold set in dalasis by the Council, the lawyer must provide the client with a written retainer specifying the scope of representation, the fee basis, what is and is not covered, and the consequences of the matter extending beyond its original scope. The client must receive a signed copy. This is not a bureaucratic imposition. It is the baseline accountability that any person paying a significant sum of money is entitled to expect.
The Act should also expressly require lawyers to provide clients with copies of all material work done on their behalf, including court filings, correspondence, and orders received, on demand and no later than thirty days after request, subject to reasonable copying costs. A client whose matter is struck out, settled, or otherwise concluded without explanation deserves to know what was done in their name and with their money.
Finally, section 40(1)(l) should be replaced with a reasonableness standard modeled on ABA Model Rule 1.5, one that prohibits both unreasonably high and disproportionate fees and includes a proportionality check to ensure the fee bears a rational relationship to the work actually performed. This single reform would protect clients from overcharging, free conscientious lawyers to serve clients of modest means, and align the disciplinary regime with its stated purpose of protecting the public rather than the profession.
The family member who asked for a retainer agreement and was refused, or a client who paid a portion of D100,000 and received no paperwork, were not asking for anything extraordinary. They were asking for the basic documentation that any person paying a professional for a significant service has every right to receive. The 2024 Amendment, in its own words, promises them that much. It is time the law delivered on that promise.
