PROFSSIONAL CONDUCT (ETHICS) OF LAWYERS/ADVOCATES AS A LEGAL SKILL REQUIRED IN TANZANIA
This address is in respect of advocates’ professional conduct, it will briefly discuss their Code of conduct (the Code), and it will concentrate on the following specific themes;
• An Overview of the Rules of professional conduct and etiquette.
• Spending client’s money,
• Disclosure and Privilege.
AN OVERVIEW OF THE RULES OF PROFESSIONAL CONDUCT AND ETIQUETTE.;
Anatomy of the Rules of Professional Conduct and Etiquettes;
As it is for other professional groups, advocates also need Rules of Conduct (ethics) as guidance in performing their profession.
Generally, codes of ethics fro different professionals are designed to prevent unethical behaviour and can hold such officers accountable for their individual actions.
In Tanzania, advocates ethics and conducts are governed by “The Rules of Professional Conduct and Etiquette for advocates” (the Rules). These Rules are therefore, a collection of regulations controlling their conduct and ethics in performing their legal profession.
According to the anatomy of the Rules, they provide guidelines covering mainly for the following areas;
1. Relationship among advocates.
2. Relationship between advocates on one hand and courts on the other.
3. Relationship between advocates on one side and clients on the other.
4. Requirements in the daily routine of advocates and their offices.
5. Prohibitions against advocates.
Why do we need the Rules?
Advocates must observe a certain standard of professional ethics and conducts because they owe a duty to the court and their client. As to the court, they have to assist it to reach into a fair and just decision. They also have a duty to zealously advance the legitimate interests of their clients.
Advocates must thus at all times act with personal courtesy and professional integrity in view of ensuring an effective administration of justice which is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful and efficient manner. They thus owe to all participants in a legal proceeding respect, diligence, punctuality, and protection against injustice and improper criticism or attack, hence the need for the Rules.
There are various prohibitions against advocates. Few examples may be cited, these include the following;
a) An advocate is not entitled to refuse to act in a matter merely because the opposite party is another advocate, and he is not entitled to represent a client when another advocate acts for him unless that other advocate consents, or refused to act for the client or the client withdraws his instruction from that other advocate.(Rules; 2 and 3)
b) An advocate is prohibited from becoming a member of a chamber of commerce unless he does so in another capacity other than as an advocate. (Rule; 12).
c) As a commissioner for oaths, an advocate cannot act in a matter in which he had acted as an advocate or he has interest. [Rule; 15 (b)]
d) An advocate cannot ignore a request for payment of court fees, he must pay the same promptly (Rule; 20).
e) An advocate cannot engage himself in an extraneous activity which is not a honourable one and which detracts from his status as an advocate, or which intends to attract business to the advocate unfairly.
f) Smoking by advocates in court is not permitted.(rule 31)
g) Advocates are not allowed to bold their names appearing in telephones directories, or include the name “advocate” in the address (Rule; 33).
h) Advocates are prohibited from causing witnesses to testify lies or from acting into a case where they can be called as witnesses. (Rule; 36)
Under Rule; 4 of the Rules, advocates are prohibited from permitting the press to publish or advertise their professional carrier, and their photographs in gowns cannot be published, . They cannot apply or seek instructions for professional business and they are not allowed to do anything which may be regarded as attracting business unfairly;
However, an advocate is at liberty to charge fees less than the prescribed, or to share his profit or costs in respect of his business.
Where an advocate broadcasts on radio or television or publishes anything in any way he may be identified by name only, or by the title “advocate” only, unless the same is not for commercial purposes.
SPENDING CLIENT’S MONEY,
Rule 13 governs financial matters in respect of advocates’ duties as between him and his client.
The rule however, underlines the application of the Advocates (accounts) Regulations 1956 (the Regulations), which said Regulations make it mandatory to an advocate to keep books of accounts, and direct that they must deposit money paid for office purposes into a deposit account.
The Regulations also instruct that an advocate shall keep his own account and the clients’ account; they also make conditional restrictions for depositing and withdrawing money from a clients account.
The regulations however, are flexible enough, they allow some agreed transactions between the advocate and his client as far as payment into or withdrawal of the money from the clients’ account is concerned.
The advocates committee has powers to inquire and ensure the smooth compliance of the regulations.
Bowing simply means “bending over”. It has been a trite custom in the legal fraternity that advocates bow before judicial officers either in court rooms or chambers, some extend this tradition even to places other than the mentioned above.
According to Rule 11, this is a privilege on the part of enrolled lawyers only, which said privilege is not extended to their un-admitted assistants or clerks.
This custom is meant to show respect to judicial officers in the legal fraternity, that is why in some occasions, even junior judicial officers bow before senior judicial officers to imply courtesy.
DISCLOSURE AND PRIVILEGE;
The rule in respect of Disclosure and Privilege is provided for under rule 22, it is relate to the relationship between an advocate, his client, Income Tax Authorities and the Police.
The rule of Disclosure is to the effect that, an advocate is restricted to disclose some particulars, transactions and affairs of his client to Income tax authorities unless the client consents to the disclosure.
As to the rule of Privilege, it is to the effect that, a client, and not the advocate enjoys a privilege in which he can confide completely in his advocate without his affairs, being communicated to the police by the advocate.
This privilege is limited to matters in respect of litigations and other affairs but not extended to fraud and crimes.
OTHER MACHINERIES CONTROLING THE CONDUCT OF ADVOCATES;
A conduct by an advocate is not solely governed by THE RULES OF PROFESSIONAL CONDUCT AND ETIQUETTES. There are other machineries which control and instruct on their conduct. These machineries may be categorised as follows;
These are acts or legislative instruments which in a way or other touch the conducts of the advocates’ professions, they must thus observe these pieces of legislation. Those mechanisms include;
a) The Advocates Act, and subsidiary legislations made under it. These subsidiary legislations include;
• The Advocates' Act (Application of Section 3 to the Tanzania Legal Corporation) Order
• The Advocates (Admission and Practising Certificate) Regulations.
• The Advocates (Accounts) Regulations.
• The Advocates (Professional Requirements) Regulations.
• The Advocates (Disciplinary and Other Proceedings) Rules.
• The Advocates' Remuneration and Taxation of Costs Rules
b) The Notaries Public and Commissioners for Oaths Act, this is An Act relating to Notaries Public and Commissioners for Oaths. Indeed, advocates are notaries public.
c) The Legal Aid (Criminal Proceedings) Act, according to its short title, this is an Act to provide for the rendering of free legal aid in criminal proceedings involving indigent persons.
d) The Tanganyika Law Society Act, this is An Act to establish the Tanganyika Law Society and to provide for other related matters.
Lawyers in Tanzania have their contacts and associations internationally, this thus assists them to tape other jurisdictions’ practice so as to enhance their ethics, for example, they are members of the East African Lawyers Society and the Bar Association of Commonwealth.
The practice in other jurisdictions influences the practice in Tanzania. In America for example, there is the famous American Bar Association (ABA), this is a National organization of the legal profession, founded in 1878 and it has a great influence global wide.
Dual Role Of Advocates, As Witness And Advocate;
The law is to the effect that an advocate cannot pose both as a witness and counsel at the same time in a single matter, see JAYANTILAL NARBHERAM GANDESHA v. KILLINGI COFFEE ESTATE LTD in which it was held that, it is irregular for an advocate to act in the dual role, and further that if he is called as a witness, he must step down as an advocate.
This situation was also considered in JAFERALI AND ANOTHER v. BORRISAW AND ANOTHER, in this case the High Court did not establish any stance of the law because the application to restrict such a conduct was held brought prematurely. However, the Court recognised the practical restriction to the effect that it is improper for an advocate to conduct himself in such a manner.
It is apparent therefore that the powers of an advocate are limited to representing his clients only; they can not be extended to testify on behalf of his client. Where an advocate wishes to address the court on behalf of his client, he is only entitled to make submissions and not to testify.
It must be born in mind however, that advocate’s submissions do not have any evidential value, see the observation by the court of appeal in THE ASSISTANCE IMPORTS CONTROLLER (B.O.T) MWANZA VS. MAGNUM AGENCIES CO. L.T.D. It thus remains true that he has no room to give evidence in the case in which he acts as advocate.
Advocate As Party To Proceedings Himself.
As a human being, an advocate is entitled to sue and he may be sued. When he acts in that capacity as a party to court proceedings he is deprived of the powers to act as an advocate from the bar in his own case or in the case of his firm, he will conduct it as a mere litigant and he will not be entitled to advocate’s costs (instruction fees), but to his own disbursements, see; AKENA ADOKO’S CHAMBERS V. MOHAMED MAGANGA.
“Double Dealings” by Advocates.
An advocate, though empowered to represent parties to proceedings, he cannot in law represent two persons of conflicting interests, otherwise he may be subjected to disciplinary proceedings including a suspension. This is an envisaging in the recent order of the High Court in SERVINGS AND FINANCE COMMERCIAL BANK LTD v. HAMAD RASHID MOHAMED.
Blunders Committed By Advocates;
So long as an advocate has full powers to represent his client in the conduct of the suit in court, mistakes by the advocate are taken by the law as no excuse on the party himself. The party cannot own the advocate by one hand and disown his mistakes by the other. In CALICO TEXTILE INDUSTRIES LTD. v PYARALIESMAIL PREMJI for example, the Court of Appeal held that, failure by the advocate to check the law could not result to a decision in favour of his client.
In the same way, it was held that, the conduct of an advocate who walks out of the court when the case is called for hearing will not make the judgement exparte (i. e. it is in the detriment of his client); see BADRUDIN HASHAM LAKHAN AND ANOTHER V. PYARALI HASHAM LAKHAN.
In another instance the Court of Appeal held that, the fact that an advocate was engaged in political matters is not a good reason for the court to grant his client’s application for extension of time for, that conduct amounts to laxity or negligence and inaction, see the decision in THE REGISTERED TRUSTEES OF DAR ES SALAAM NURSERY SCHOOL AND ANOR. V. GEORGIA CELESTINE MTIKILA.
The rationale behind this stance of the law is that, once an advocate is instructed to take the conduct of the case, he is expected to use all diligence and industry in conducting it. Another reason for the stance is to avoid endless litigations, see the remarks of the High Court in MACK LEKEU VS. KAZIMIL MAHENDA.
Advocates Acting Without Authority Of The Party To Proceedings.
As observed above, the advocate acts in accordance to the authority given to him by the party to suit, it follows therefore that, where an advocate acts without authority of the party to suit who ultimately looses the matter, the party’s remedy is to sue the advocate for damages, see FESTO SUDI v. IHOMBE VILLAGE COUNCIL.
The position in England is a bit different, in an English decision of MARSDEN v. MARSDEN it was observed thus;<pre>“In cases, unknown to the other party, where the usual authority of counsel was limited by express instructions and counsel had nonetheless entered into a compromise for which he had no authority, the court had power to interfere and might, in the exercise of its discretion, set aside the compromise and order based on it, if grave injustice would be done by allowing the compromise to stand”
The two positions can however, be reconciled by the application of S. 95 of the Civil Procedure Code which gives inherent powers to the court to make orders for the sake of justice.
Role Or Duty Of Advocates;
As an officer of the court, an advocate has the role or duty to assist the court to reach into just and fair decision, see the decision of the Court of Appeal in HAMADI CHALI v. REPUBLIC. He must thus transact his business with all skills and diligence to both, the court and his client as per the decision in AKENA ADOKO VS. ADVOCATES COMMITTEE.
An advocate is not entitled to abuse the court process and delay cases. In CRDB BANK LTD v. REHEMA DISMAS MGIMWA for example, an advocate filed a civil application under a certificate of urgency, he prayed and obtained an interim order pending the final determination of the filed main application, thereafter he was assigned to appear as defence counsel in a High Court Session and he left the civil application and his client un attended, the High Court decided to the effect that, the advocate ought to have notified the civil court on his engagement in the sessions and to have caused his client’ brief be held by another advocate in the application, otherwise his conduct amounted to a meandering for delaying the main application, hence the conduct was an abuse of court process. The High Court thus raised the interim order. The following cases also underscores this position; EZECKIEL B. CHENGE VS. ADAM KAITA and TARIME DISTRICT OCUNCIL VS. WILSON .E. AWOUR.
Again, an advocate should not tell lies to the court, otherwise this may result to disciplinary actions against him including suspension, see the envisaging in SERVINGS AND FINANCE COMMERCIAL BANK LTD v. HAMAD RASHID MOHAMED.
Advocates should thus be sincere and honest so as to avoid the bad image which the public sometimes impute on them, such negative attitudes as quoted in JOHN KAHAMILA v PASCHAL JONATHAN & HILDA HOSIA include the mislead intention to kill all the lawyers, the allegation that lawyers are deceivers whose heads are full of mischief, the wrong belief that they are skilled in circumvention of the law, etc. Indeed, the High Court in this case ultimately concluded that lawyers play a very useful part in society. This is the image which must therefore, be proved by lawyers themselves in their conduct both in courts and outside court.
There are also other instruments which support the Rules, these include The Clients Service Charter of Judiciary; this is a document launched in Dodoma on the 13th day of November, 2002 giving guidelines to personnel of the judiciary and stipulating standards in delivery of judicial services in the country. Advocates, as representative of their clients are clients of the judiciary and owe a role and duty to the judiciary as stipulated into this document, they must thus abide by the stipulations of the document.
Also circulars of high judicial leaders; do also bind advocates in their profession conducts. For example, circulars instructing that civil and criminal cases to start at 8. 30 and 9.00 am respectively must be obeyed by both judicial personnel and advocates who represent parties in courts.
CASES TO READ;
• RE A FIRM OF SOLICITORS;
• NBC v. NABRO LTD AND MEEDA REUBEN BABURI
J. H. K. UTAMWA (D/REGISRAR) THE HIGH COURT OF TANZANIA AT MBEYA.
MUSHOBOZI, JULIUS LL.B