POSTURE
IN COURT
The
dressing of an advocate should display sobriety. An advocate is expected to maintain a sober
and businesslike posture of dignity and seriousness. An advocate is advised to avoid showing lack
of interest from what is going on, even where the advocate is not a party to
the proceedings, they should always appear interested. An advocate should also avoid showing too
much on his face, avoid making too many expressions, glee when one scores a
point should be avoided or making horrified faces when one loses a point. This is all about body language and it can be
too expressive sometimes and even dangerous.
Dangerous in the sense that it can give you away therefore one should
try as much as possible not to allow the court or ones opponents to read their
face. When one is examining a witness
and one starts looking too happy, the witness will notice that whatever they
are saying is helping the case and will begin changing their story, avoid
showing any expressions, remain expressionless so that you don’t give yourself
away. The same would apply with the
opponent, if you are excited and happy, the opponent is likely to notice that
there is a weakness on their part and may look for an excuse to distract you to
steer from that direction of questioning.
One loses control of a witness if they can read their face. The same applies to the court, if you don’t
appear confident or looking discomfited, the court will know you are not in
control and it is not a good sign for one.
When one addresses the court as an advocate, one is
expected to stand up not address the court while seated and as much as possible
stand straight, leaning on the table is not good manners, avoid putting hands
in your pockets as it is bad manners, one may get away is putting a thumb in
the waist-coat pocket. As a matter of
courtesy the advocate should bow to the court as they come into court and this
is a rule stated in the digest of professional ethics and etiquette. This is restricted to members of the bar and
is a show of courtesy to the professional colleagues on the Bench.
The advocate should sit down whenever a colleague
shoots up to address the court either in objection or interjection, it is not
good professional manners for two advocates to be on their feet at the same
time.
The other rule of etiquette requires that advocates
should never abandon the Judge or Magistrate who is sitting in open court and
particularly a Judge who is sitting robbed.
If one is the last advocate sitting in court, one should not just get up
and go so long as the court has not finished its business. If the Judge is dealing with matters where
parties are not represented by counsel and one is the last counsel they should
wait – this is called dressing the court, to keep the colleague on the bench
company. If one must go, courtesy would
require that one stands up and asks the court for permission to leave, as a matter of practice most of the Judges
and Magistrates who know about the rule will excuse, there is no penalty if one
leaves but proper manners require that one stays.
When an advocate is wearing robes, they should not
carry a briefcase or any other kind of bag.
MODES
OF ADDRESS
Language
of Addressing the Court
My
Lord and My Lady are proper titles for the judges of the High Court and the
Court of Appeal. Your honour is the
proper title for a Magistrate of whatever rank irrespective of gender and for
Court Registrars who are basically magistrates.
How
should one address a person heading a tribunal?
If he is a Magistrate or Judge he should be addressed normally as your
honour or My Lord if the person is not a judicial officer they should be
addressed simply as Mr. Chairman, the Chair, or Chairlady or simply sir or
madam.
Please
note that my lord and my lord is used when one is effectively calling the Judge
his official name. Your
Lordship/Ladyship is a substitute for when the Judge is addressed as you. The rules of etiquette demand that the Judge
should never be addressed as you simply your Lordship/Ladyship. Similarly the rules require that a Judge
should never be referred to as him or her and it has to be her Ladyship or his
Lordship. Where one is supposed to call
the Judge sir/madam you use your Ladyship/Lordship. It is considered disrespectful to refer to a
Judge otherwise.
Your
honour serves for both Lordship/Ladyship but generally to avoid getting
confused by the use of these terms particularly when referring to him or her it
is advisable to refer to the court as court i.e. tell the court instead of tell
your ladyship/lordship.
With
respect to other advocates it is courteous to refer to fellow counsel as
learned friend. Indeed one is expected
to use the term every time they refer to learned friend. The word Learned is also used to refer to
Judges and Magistrates i.e. the Learned Magistrate or Learned Judge
particularly on appeal when one is preparing memorandum of appeal attacking the
decision of a lower court it is advisable to refer to them as Learned Magistrate
or Learned Judge including when arguing the case, refer to them always as
Learned Magistrate erred etc. Be careful
to use this term only when referring to qualified advocates, don’t assume that
every court official or every person involved in the court process should be
referred to as learned, a prosecutor who is not an advocate does not qualify to
be called as such
Courtesy
requires that advocates involved in the same matter should always introduce
each other to the court. Normally it is
the senior advocate who introduces the other advocates in a matter and it is
therefore useful for an advocate to take the trouble to establish who is acting
for the other side and what their names are so that when the matter is called
out, only one advocate rises to answer and introduces the other advocate. Senior advocates take the trouble when they
show up in court to find out who is acting for the other side.
Generally
advocates should avoid asking the court a direct question, just the way they
should not address the Judge as you, they should avoid asking a court a direct
question as it is contrary to court etiquette.
The advocate is expected to be a member of polite society and for that
reason the advocate is supposed to ask indirect questions. One may want the court to adjourn the matter
at some point, but one cannot just stand up and as “can we adjourn now?” one can always stand up and “wonder if it
would be right to adjourn at that moment, or … hate to trouble the court but
can the matter be adjourned?” don’t ask
a direct question, this is geared towards avoiding a conflict with the court,
or simply do not irritate the court!
One
should always seek the permission of the Judge/Magistrate, one should not just
start doing things in court but should ask permission for what they want to do,
if one wants to call a witness, approach a witness or approach the bench, ask
for permission. The Judge or Magistrate
is the ultimate authority in court and it is a matter of courtesy to get his
permission to whatever an advocate is about to do. It is acceptable therefore to use the term,
may it please your lordship/ladyship/your honour whenever one rises to address
the court after their matter is called out ‘if it pleases you my Lord/Lady or
if it pleases the court. Please note
that when standing to address the court for the first time you have to seek
permission and use the terms for the purpose.
An advocate should make a point of thanking the court for just about
everything, therefore one should get to use terms such as ‘much obliged’ most
grateful ‘thank you’ so be it’ ‘very good’.
These terms should be used when the court interrupts one or criticizes
one or makes a ruling or gives directions.
An
advocate should always stick to the formal language or the standard language in
the sense that the Advocate should avoid slang or colloquial language and also
abbreviations it does not reflect seriousness on ones part and it is not
dignified.
PROFESSIONAL CONDUCT:
There
is an article by Bosire J. on professional conduct and in the article he likens
an advocate to a High Priest of the Old Testament. It is noteworthy that a person had to be
morally upright to serve in the Temple and that is what is expected of an
advocate, a person without blemish morally or personally. They are expected to maintain this moral
uprightness throughout in their dealings with their clients. There are rights of the clients which an
advocate must strive to protect. There
are rights of the opposite party which the advocate is expected to respect and
therefore not trample upon. The advocate
is expected to have the appropriate training law degree etc and at the same
time to possess essential qualities and professional techniques of dealing with a wide spectrum of legal
problems that he is asked to handle from time to time. The advocate is neither a businessman nor a
person with merchandise to sell at the market place. His knowledge, practical
skills and techniques are to be used in offering a service to others. The advocate’s position is a peculiar one and
for that reason he is granted the monopoly to provide legal services at a
fee. Because of this Monopoly and the
peculiar position he occupies, clients, colleagues depend on the advocate to
handle their matter to their advantage.
He is therefore expected to do his utmost but within the law and the
rules of procedure to ensure that he fulfils his clients expectations and in so
doing he is obliged to conduct himself in such a way as to justify the special
position he occupies and secondly to justify the confidence that society has
bestowed on the legal profession.
STANDARDS OF CONDUCT
Professional
Ethics is concerned with balancing the official ideology and goals of the legal
profession and the personal ambitions and aspirations of the individual members
of the legal profession. Very often the
interests of the individual members conflict with the ideology of the
profession. Most people get into the
profession to make money so how do they balance this with the ideology of the
profession which may be an obstacle to these aspirations. It is a need to strike a proper balance that
makes it necessary to establish a code of ethics and standards of conduct and
the disciplinary procedures to supervise the conduct of members in order to
avoid a departure from the declared ideology.
Professional
conduct refers to the conduct, character and behaviour befitting a member of
the profession i.e. conduct which reflects the very dignity and integrity of
the profession. Most of the rules of
conduct are based on common sense and elementary principles of honesty and
decency. Conduct which goes against
these rules is either professional misconduct or unprofessional conduct.
Professional
misconduct amounts to a disciplinary offence and is the more serious of the two
and amounts into drastic action being taken against the offending
advocate. Conduct such as embezzling
client’s money or failing to file court papers after being instructed. Offences which are likely to lead to the
advocate being struck from the role, suspended from the role or fined. Professional misconduct includes professional
incompetence which is detrimental to the administration of justice and which
tends to bring the profession into disrepute.
Unprofessional
conduct is of a lesser effect and does not amount to a disciplinary offence yet
it is conduct which is not approved and which is considered reprehensible. Punishment for this if at all is generally
mild and in some cases there is no punishment at all. It covers among other things breach of
etiquette is basically the breach of good manners like failing to inform a
client the progress of this matter falls into this category, being rude to
fellow counsel is a breach of etiquette and is unprofessional conduct. It also covers conduct outside the profession
for example it is reprehensible for advocates to keep the company of
prostitutes for example or to engage in business which are not considered to be
morally acceptable. The argument or
rationale is that the profession must be manned by people whose integrity is
beyond reproach.
For
the purpose of discussing these rules of professional conduct, they are split
into a number of categories
Advocates obligations to clients
Obligations to other advocates
Obligations to court
Obligations to the Client:
Competence:
The
objective of requiring this qualification is so as to ensure the persons
admitted to the bar are academically qualified to deal with the rigours of law
practice, but it does not only cover academic qualifications but goes beyond
this. One may be academically qualified
but be incompetent in other respect like lack of time to devote to a client’s
case resulting in substandard service to the client. There are certain rules which are intended to
avoid such an eventuality. An advocate who
is duly qualified academically and professionally and who holds himself as
ready to practice is entitled to practice so long as he is not employed in
another full-time occupation other than practice. Engagement in other full-time occupations is
destructive and it compromises on the advocate’s competence.
As
a general rule a practising advocate should not carry on any other profession
or business or be an active partner in or as a salaried official or servant in
connection with any other profession or business. One may not work in a financial business
earning a salary or other payments. It
is permissible to be an ordinary director of a company of good standing
carrying on business which is free from anything derogatory. He should however be a Managing or Executive
director of any such business as this is a full time job that robs him of time
to handle clients affairs. He may be
chairman of a public or private company provided his duties are not of an
executive nature.
An
advocate should not act directly or indirectly as any of the following
1.
Professional Accountant;
2.
An Actuary
3.
An Engineer
4.
A Surgeon
5.
Insurance Broker
6.
Architect
7.
Estate Agent
8.
Auctioneer
9.
Scientific consultant
10.
Land Agent
11.
Employee of any person acting in those
capacities
He
should not be
(a)
Practising Doctor
(b)
Officer of Regular Army
(c)
Full-time civil servant
(d)
Legal Adviser to a company at a salary;
or
(e)
Secretary to an incorporated society of
professional persons at a salary.
Advertising
is prohibited, the rationale being that advertising or solicitation is likely
to undermine the standards or likely to mislead the public. The profession would rather let the
competence be the deciding factor in attracting clients, if one is good in a
particular area of the law, word will spread and one gets clients. The assumption is that those who are inclined
to advertise are not always the best as when one is the best they don’t go and
announce themselves to the world. This
rule against advertising requires that an advocate should not practice if he
appears on television or in advertisement for a daily newspaper or has his
photograph published in various periodicals as part of an advertisement for a
commercial product. An advocate should
not appear in any of these.
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