Legal and Professional Ethics

Ethics is derived from the Greek word Ethos which means custom, conduct or action and it is an integral part of the subject commonly known as philosophy.  It is often treated as moral philosophy, one may say it is a philosophical enquiry into the moral language and principles about values.  Conduct or action is ethical if it is judges on the basis of being either right or good as opposed to wrong or bad.  Apart from evaluation in terms of good and bad and right and wrong, ethics imposes or gives rise to duties and obligations.  The question of duties and obligations would arise whenever someone has to choose what is good or bad or right or wrong.  Ethics therefore deals with the estimation of actions as to whether they are good or bad or right or wrong.

Legal ethics is a practical aspect of ethics professionals in various fields face many problems in the day to day discharge of their duties and functions and they are often have to make decisions on the basis of good or bad and right or wrong.  They have to decide whether some cause of action they are about to embark on is right or wrong it is essential that they have some background knowledge of ethics of their profession.

Legal ethics is a study of the morality of a lawyer’s action.  It is often assumed that whatever is legal is moral i.e. it is assumed that law is but just a reflection of the morals of a given society of given time and therefore whatever is legal in the estimation of some people is moral this is because law is itself often heavily normative in the sense that it commands, it allows, it condemns, it forgives.  It dictates most of the important choices that people make in life and since most of the choices we make are evaluated in terms of good or bad,  we make decisions made on what we consider good or right for ourselves and for that reasons some commentators would tend to see law as being moral.

Law however does not exhaust the concept of morality, the assumption has not been fully embraced by everyone and whatever is legal is not always moral.  There are three possibilities in the explanation of the connection between law and morality:

1.                  There are those who argue that there is a complete separation between law and morality i.e. questions of law are very different from questions of morality, it is indeed possible to come up with laws that are considered as immoral, laws that we feel are wrong, like laws which encourage oppression and repression of human beings would be considered to be an immoral law and one cannot say that law and morality are one and the same under those circumstances because if we say law and morality are the same, then where would we place capital punishment and for those who feel capital punishment is immoral?

2.                  Law is a part of morality, there are those who argue that law is a part of morality which has been made explicit and which has been reduced into writing to guide human conduct in a specified area and for a specified society.  On the basis of this explanation one can say that since capital punishment is an immoral law it must be done away with and replaced with a law which reflects the morals of society.  It was accepted as a right punishment in those days where our morals did not view capital punishment as being bad but now the law ought to conform with what we regard as moral.

3.                  Law and Morality overlap, they are not necessarily one and the same but they do overlap in respect of certain cases.  In certain issues matters of law are also matters of morality and vice versa.  In other matters issues of law fall outside morality.  Adultery is regarded as immoral but it is of no concern to the law, it falls outside the law and law and morality to do not overlap.  Or in the case of abortion in some countries.  But in countries where abortion is still illegal there is overlap of law and morality.  Where it is regarded as legal there is no overlap.   There is a constant parallel between law and morality and in the study of law we are always in contact with morality. 

In some cases laws made by Parliament are often influenced by the morals of a given society.  Please note that the practice of law is to guide procedure which protects justice.  Advocates upon admission to the bar take an oath of office where they swear to protect the practice of justice at all costs without fear favour or bias.  From a moral point of view, the prevalence of justice is a good thing which is desired by all in society and not just lawyers.  However the procedures of establishing justice in law differ from those in morals.

In criminal procedure for example the process of justice requires that the legal guilt as opposed to moral guilt must be proved beyond reasonable doubt by making use of all permissible and valid evidence.  In law one cannot claim a person’s guilt or innocent simply because one happens to know the circumstances in question, one has to rely on evidence and testimony.  The first option would be for a judge who saw a crime being committed to excuse himself because they do not want to sit in judgment because the criminal process requires that one sits and hears the evidence and not pass moral judgment.  Morally it would right for the judge to decide.  The second option is to proceed with the matter knowing that as a Judge or Magistrate one is bound by the ethics of the profession which require that the judgment of the court be based solely on the evidence adduced and that private knowledge of the fact should not be used to influence judgment.

When an accused person pleads not guilty, the legal position is that his guilt must be proved beyond doubt.  The position of the court will be determined by the strength of the proof of the evidence presented by the prosecution and therefore the accused must be logically be held innocent until he is proven guilty.  It is for this reason that a plea of not guilty is not an act of dishonesty.  It is a stage in the process of demanding the practice or restitution of legal justice.  Indeed in sentencing the fact that the accused pleaded not guilty should not be weighed against him upon conviction. 

The lawyers conception of the nature of guilt differs from that of a moralist.   To the lawyer guilt must be proved although we are saying that a lawyer can be a moralist and a lawyer must act within the prescription of the law and a lawyer must remember at all times that his client is judiciously innocent until proven guilty and that the burden of proof is always on the complainant.  However where the lawyers moral convictions are likely to influence his juridical judgment he should disqualify himself from the matter, this is because his involvement is likely to prejudice the cause of justice.

Distinction is however drawn between pure legal ethics and professional ethics.  Legal Ethics is an ethical evaluation of the law while professional ethics is a code of rules which practitioners use to guide their conduct in the cause of their duties.  These are rules that are only known to the professional so when one talks of professional ethics, they may be unknown to the non-lawyer.  This course deals more with professional ethics than with legal ethics.

The rules of professional ethics exist to reduce the social friction between members of the same profession i.e. rules requiring courtesy, court etiquette etc.  These rules are developed by the members of the profession to curb possible instances of unfairness and other unethical behaviour that may undermine the integrity of the profession.  The dos and don’ts of the profession are intended to safeguard the reputation of the profession.  Ethics deals with conduct and these rules are designed to guide members of the profession in court.

A lawyer is an advocate in the sense of pleading for and on behalf of his client.  As a pleader or spokesman of defender of the interests of another, an advocate becomes a person of a special status.  He occupies a position of trust, a position of responsibility and these rules are necessary for the purpose of ensuring that he discharges his duty to his client.  

In summary professional ethics are basically guidelines on

1.                  How to execute legal duties with probity i.e. honesty, integrity etc propriety and decency;

2.                  On how to relate harmoniously and frictionlessly with fellow colleagues in the profession be they fellow advocates or members of the bench, these rules create a loose morality for lawyers among themselves and in their relationships with their clients.  One may say that morality is naturally created out of the desire to maintain the nobility and integrity of the profession and the desire to maintain the highest standards in the service and dispensation of justice to the public. 

A lawyer is entrusted with the responsibility of speaking for his client and he is expected to do so with empathy, concern and unfeigned commitment.  The advocate is not supposed to get emotionally involved with the client’s cause as they are likely to lose objectivity.

The lawyer is expected to use his profound knowledge and intellectual capability in the defence of his client.  The client’s fate very often depends heavily on the lawyer’s ability to articulate and propound points of law which the client may otherwise be unable to do.  The moment a lawyer accepts the brief, his task or duty to client ceases to be merely social or legal and becomes a moral duty.  The moral obligation not do disclose the confidential communication between a lawyer and his client, moral duty to attend court when the clients matter is coming up, moral duty to prepare thoroughly for the trial etc.

ADVOCACY

Advocacy is the art of convincing the others i.e. the art of persuasion and it is an accomplishment valued in many departments of life.  In the Ministry when one wants to wins souls for Christ, in business a salesperson needs to persuade people to buy his production.

In its legal context advocacy is the art of conducting cases in court and there are two aspects of conducting cases in court

1.                  Argument : making submissions with the objective of persuading the court to decide a matter in a particular way;

2.                  The manner of bringing out evidence – what evidence, which witnesses, which documents, how do you examine witnesses, what sort of questions to you put to witnesses etc.

For members of the bar particularly those who appear in court advocacy is of primary importance.  It is said to rank equal with the knowledge of the law.  One may master the law and get a 1^st class degree but without the art of persuasion one should avoid litigation.

Advocacy is necessary in the cause of everyday practice to convince others, not necessarily the court, it could be where negotiations are taking place and also in asking searching questions.  Advocacy is not a science like law, it is an art and it largely depends on individual attainment.  Since it is an art it has to be developed and cannot be developed without some initial aptitude.  Advocacy cannot be mastered without experience, one has to go out there and conduct their cases.

Please note that advocacy has its own rules of technique and therefore one can talk of techniques of advocacy.  Techniques can be learnt and explained, either from basic texts, watching courtroom dramas.

QUALITIES & CHARACTER OF AN ADVOCATE:

Most of the qualities can be developed by the average educated person if he/she does not already have them.  The first quality is a good voice,

1.         GOOD VOICE:

it does not have to be a loud one but is necessary for the advocate to be able to speak clearly and distinctly so that the court is able to follow ones argument and the witness is able to understand ones questions and respond to them.  In speaking in court one must go fairly slowly otherwise part of the argument may be missed by the court.  Variation of tone is encouraged because a monotonous voice is likely to tire the judge or the Magistrate.

2.         COMMAND OF WORDS OR LANGUAGE:

Secondly, command of words or language:  a sound command of the English language is essential.  All the statutes and the law reports are in English and one needs a master command of the English language. Without the command of English, it is impossible for the advocate to frame questions readily in cross-examinations or to frame non-leading questions in examination in chief or to deliver speeches at short notice, for example where the other side raises a preliminary objection and one has not had time to prepare for it, one is required to reply to it on the spot.  A sound command of the Swahili command is also important.  Very often in the Magistrate’s courts it is advisable to ask the questions in Kiswahili language if the witness is testifying in Swahili. 

An advocate needs to cultivate an accurate and varying style.  The essential of style in court are simplicity and clarity.  Don’t be pompous, by trying to use big ones particularly when asking questions, if possible try to be interesting and occasionally picturesque.

3.         CONFIDENCE:

Confidence:     to convince the court one needs to be confident and appear to be convinced of what they are saying.  We don’t always have it but it can be cultivated.  A contest in court is like any war and one needs confidence to wage a psychological war against the other side even when one has no case.  When one is very confident they are able to argue well.

4.         PERSISTENCE & PERSEVERENCE

Persistence and perseverance enable an advocate to fight a case to the end in spite of unexpected difficulties.  It is a valuable asset during cross-examination, the ability to persist and ability to persevere when asking questions.  If the witness is rude you don’t shy off but insist on the person answering the question,  even when the judge is not writing, find a polite way of asking the court to take note of what you are saying.  This should not be read to mean that an advocate should use repetition of argument in court.  repetition is necessary where the judge appears to be inattentive or where they are dismissive but it should be used cautiously.  Too must repetition is likely to irritate the court.

Persistence and perseverance are useful when the court is trying to cut short an advocate before he has said what he intended to say. The problem of submitting to what the court is saying one might not put across what the client is saying and therefore persistence is necessary.

Advocates are expected to persist by speaking up for their clients.  If they cannot persist by speaking up, silence is an abdication of our profession and therefore one should not shy from engaging in an argument with the court if the court is trying to cut you short before you have finished.  It is not wrong for example to courteously insist on completing ones submission or to develops ones argument in the order in which one considers they should be developed.  If you master the polite language of the court you can get away with anything and for one to be able to persevere, they need to master the language.

The client expects that the advocate is going to handle his matter with diligence, what rules exist to guide the advocates on this issue?

In litigious matters or contentious matters the advocates should always know from the client’s instructions the court or tribunal to which the claim or action should be filed.  Whether High Court, Magistrates Court or tribunal.  They should therefore know the jurisdiction of the relevant courts whether the jurisdiction is pecuniary territorial or substantive.  Where a matter is filed before the wrong court of tribunal it is liable to be thrown out and it is a risk that the advocate faces.  This has got its own consequences.  The court may hold the advocate personally liable to pay the cost of the suit.  There is also the possibility that the case could be time barred by the time it is filed in the proper court, an advocate is likely to waste a lot of time if they file in the wrong court and expose themselves to a suit in professional negligence.

Please note that it is the duty of the advocate to advice clients on the cause of action i.e. does the client have a cause of action and the course that the case should take thereafter.  If there is a cause of action, then what steps ought to be taken in the matter, an advocate should advice the client.

OBLIGATIONS IN CRIMINAL MATTERS

In criminal cases the first thing that an advocate should do upon being instructed is to secure a copy of the charge sheet immediately whether from the prosecution or from the court.  The charge sheet is the basis of the charge against an accused person and one can only get details of the offence ones client is said to have committed only after reading the charge sheet.  Very often the client does not know what the charge is.  Where possible the advocate should obtain copies of statements from the witnesses.  these are ordinarily supplied where an accused is charged with murder but in other cases one has to apply for copies of the statements. Where the case is founded on documentary proof it is wise to ask the prosecution to provide copies which should assist one in determining the sort of defence to adopt and should also assist in preparing for cross-examination of the witnesses.

The advocate has a duty to study the charge sheet and ensure that it meets the requirements of the law in particular the Criminal Procedure Code.  If there are technicalities that render the charge a nullity, an advocate has a duty to raise the issue with the court.   where the offence is bailable the advocate has responsibility of asking for bail on behalf of his client.  Normally the court would admit the accused to bail as a matter of course but where there is opposition to the release of the client on bail, there is a duty to prepare adequately to oppose an objection to bail by the opposition, particularly one needs to prepare objection to bail where the prosecution are opposing on the grounds that investigations are incomplete or where the objection is that the accused is likely to interfere with witnesses.  The prosecution should swear an affidavit detailing how the accused is likely to interfere with witnesses.

When it comes to taking hearing dates there is an obligation that the dates be taken carefully so as to avoid a clash with the hearings of other matters.  The advocate has an obligation to take a clear hearing date when there are no other matters that may cause him to adjourn the matter especially where the accused is in custody or is unable to raise bail.  The court may in certain cases decline to grant an adjournment.

It is important for the advocates to receive in advance full instructions from his client, get the client story from the client, if he is in custody, go to the remand hole and sit with him and record his story or ask him if he is literate to tell his story in writing.  Seek any clarification you need before the matter comes up for hearing.  It is important for the advocate to take statements from the accused persons witnesses if the accused intends to call witnesses.  This would assist the advocate to adequately prepare for the cross examination of the prosecution witnesses otherwise if one does not meet the client in advance one will have no material to use during cross-examination.  It also helps the advocate to determine the accused’s defence that one should put up and also the course of examination or conduct to be adopted.  Generally it will also assist the advocate to properly advise ones client.

An advocate should try as much as possible to ensure that the court records his submissions and the evidence given by the witnesses.  Some Magistrates can be very arrogant and one has to be very clever on how to approach them to make them record, a polite way of putting it to ensure they record.

With respect to mitigation, an advocate should prepare adequately and in advance, prepare for the mitigation as well as prepare the client.  Mitigation is after conviction but one must prepare the client before the verdict is out even where one feels the client will be acquitted.  An advocate must prepare the accused for any eventuality.  One must remember that mitigation will always assist the court in deciding on the proper sentence.

OBLIGATIONS IN CIVIL MATTERS

Same principles will apply in civil matters, the requirement to take adequate instructions to draft proper and exhaustive pleadings that cover all aspects of the client’s case and helps one to strategise when one is fully in the picture.  It is important to take instructions in writing and write down everything that the client says.  In addition an advocate must study the client’s file and master the facts.  It should also help the advocate in putting questions to any witness if one knows their story well. 

The advocate should also be familiar with all the relevant statutory provisions.  If it is land dispute and it is registered under LRA 27, 28, 30, 143 That one is sure they are on safe ground.  A lot of preliminary provisions that are raised are from the provisions and an advocate has to be familiar with them to be able to deal with them.

One must know all the relevant case law which has been decided on the issue one is arguing in court.  one must be familiar with legal principles, read widely, do appropriate research and be familiar with case law.  identify the central issues in every case, the issues raised determined evidence to be adduced and the witnesses to be called.  If the advocate is relying on case law, he should serve copies of a list of the authorities on the other party at least a day before the hearing.  This is a statutory requirement for matters before the High Court and the Court of Appeal and it is not required in lower court although one is requested to make the list available although there is no requirement.  Where the authority is not reported, the practice is that one should make a copy and avail it to the other side, if it is reported the assumption is that the other side will take the trouble to go to the library and make their own copies.

Advocates are advised to try and reconcile the parties before going to court, to try and reach a settlement before going to court.  the work of an advocate is not to foment quarrels but to prevent them.  The court should ideally be a last resort.  Generally the advocate should advice the client adequately on the cause of action, whether the matter can be settled out of court encourage it, a good settlement is better than a bad judgment.

There should be thorough preparation when the matter has to go for hearing both on the law and the facts.   Sit with the client’s witnesses early enough to guide them but one should not coach them.  It is up to the advocate to decide the techniques of examining the witnesses based on the facts that are disclosed to one.

OBLIGATIONS IN APPEALS

With respect to Appeals, Counsel should ensure that appeals are launched in time.  For criminal cases it is 14 days and for civil cases it is 28 days and this should be properly done in accordance with the rules. 

An advocate should not unduly identify with a client’s thoughts i.e. don’t get personally involved with a client, one should always be professional.

The client should always treat you as an advocate, never as a friend or comrade.  In negotiating, its useful for counsel to know his opponent, what sort of persons they are, are they obstinate and difficult to help one prepare.  One should also know the parameters of the client’s case and one must master their brief so that they can address any issue arising from the client’s case.

Generally the advocate should adopt an agreeable personality.  This is very useful in negotiations, emphasis is on honesty and reliability.

SUMMARY OF OBLIGATIONS

The advocate should do the following in summary:

1.                  Take instructions after giving client an appointment, set aside sufficient time to see the client an advocate should not be too restrictive with time, give clients sufficient time;

2.                  Take instructions in writing – this is important for verification purposes and if need be ask the client to endorse or to sign the notes;

3.                  Any attendance to or with client whether in court, office on phone, in the streets should be noted on the file, this is important for case history and for costing and billing purposes.  Some clients never give full instructions but piecemeal and it is important to note down everything whenever they call;

4.                  Get the names of the client’s witnesses, their addresses, take down their testimony and get them to endorse it;

5.                  Where one is required to give a legal opinion, one should do so in writing being as clear as possible in the opinion one gives, it is always advisable to give your opinion to your client before any step is taken and make sure that the opinion is endorsed by the client before one takes action.  This ensures that one is on the safe side;

6.                  Keep the relationship purely professional;

7.                  Carry out instructions to the letter and where in doubt consult the client;

8.                  Keep the client informed of the progress.  This helps in cultivating confidence;

9.                  In drafting documents and pleadings be meticulous and scrupulous and ensure that the documents correspond with client’s instructions and are in conformity with the requirements of the relevant law.  Where amendments are necessary, consult the client;

10.              Be familiar with the relevant law, persons involved i.e. judicial officers, advocates on the other side.  If the advocate on the other side likes to adjourn matters, then you have to be careful with that advocate.  In addition to the people be familiar with the judicial infrastructure i.e. when the file is listed and it is not in court one should know where to go to sort this out, know the culture of a particular court i.e. when they begin their hearings, it is important so that one does not waste time;

11.              Use modern technology in your office, clients are most probably using technology so it does not make sense it you are not and they wont know how to instruct you and use of modern technology saves time and leaves you time to apply yourself to the law and attend to your clients needs;

12.              Attend Court as required or as expected of an officer of the court.  Do not be late and do not absent yourself.  Convention requires that if one is going to be later they should inform the court, call the magistrate and say you will be late; if you cannot attend to the matter at all and you know this in advance, take it out of the cause list and talk to the advocate in the opposition;  where the matter is dismissed because you are not there, you may expose your client to hardship and the client can sue you for professional negligence;

13.              Do not deceive your client, it is professional misconduct to lie to ones client and the reasons why advocates lie is because of failure to act diligently and due to indolence;

14.              The advocate’s members of staff should act as per the rule, cover your staff, the employees should not act in breach of these rules otherwise the advocate will be vicariously liable.

CONFIDENTIALITY:

The employment of an advocate puts him in a confidential position and it imposes a duty not to communicate to any third party the information which has been confided to him as counsel and neither should the advocate use such information in his position as counsel to the client’s detriment.  This is a duty which is common not just to the legal profession but also in Medicine and the Ministry.

This duty continues even after the relationship of advocate/client has ceased.  Please note that the paper in a brief for making up the legal brief are the property of the client and the advocate has no right to lend them to any person without the consent of the client.  This includes the pleadings.  There is an exception to this rule that the documents in there are confidential in that it does not apply where the documents are read in open court, the question of confidence does not arise.

It is noteworthy that the privilege is that of the client and not the advocate and for that reason only the client can waive the privilege.  The disciplinary committee which is established under the Advocates Act has stated as follows regarding privilege and confidentiality:

“with respect to income tax authorities, the guiding principle is that advocates should not disclose the addresses of parties to land transactions if requested to do so by the income tax authorities, there is no obligation to disclose unless authority is produced for the requirement i.e. a court order is produced requiring information to be disclosed or the client’s consents to the disclosure being made to the income tax authorities.  In cases of persons who are not clients, advocates should state that they do not act for them and accordingly one is not in a position to give any information.

Where the advocate is asked for details of transactions as well as parties, the advocate should ask the client whether they are prepared to waive privilege and the information should only be disclosed only if the client consents to the information being given.

With respect to the other matters, the disciplinary Committee emphasizes that the privilege is the privilege of the client and not the advocate and may be waived only by the client but never by the advocate.  The objective or the object of the rule of Privilege and its cardinal principle is to ensure that the client can confide completely and without reservation in the advocate.  The privilege extends to communication made to the advocate’s agents.

In litigious matters the advocate’s privilege is not greater than the client’s rights and therefore there is no privilege in respect of communication made in furtherance of fraud or crime but communication made to an advocate for the purpose of a defence to criminal proceedings is within the rule and is privileged.  If there is any doubt in the advocate’s mind as to whether or not communication is privileged, one should claim that it is.

It is noteworthy that these rules apply equally to preliminaries and non-litigious matters and to actual proceedings before the court.  Where the issue of privilege arises in the course of proceedings or trial it is up to the court to decide in the proceedings before it whether a claim of privilege holds or whether an advocate is bound to disclose.

CONFLICT OF INTEREST:

There is an obligation on the part of the advocate to disclose to his client the existence of any personal interest, whether direct or indirect in any transaction or litigation which concerns his client.  On occasion, an advocate must decline to accept instructions because of a circumstance which makes it difficult for the advocate to maintain professional independence or which would otherwise make it incompatible with the best interests of justice.

For a Member of Parliament who is an advocate, it is contrary to principle for him/her to appear before a committee of the House in his/her professional capacity.

For an advocate/councillor he should not accept any brief in any case where the affairs of the council are likely to arise, he should not accept instructions from the clerk of the council or advise for or against for the council in relation to a civil or criminal matter.

With respect to limited liability companies, an advocate should not accept a brief for a company of which he is a director.  He should also not settle documents professionally for such a company where the advocate holds a managerial position in the company, he may not accept briefs from the company.  If does accept brief from the company, then he should raise a fee note but it is discouraged.

A practising advocate should not advice or act in any way in his capacity as counsel for any company of which he is a secretary.