Lawyers
have a manner of speaking. They are counsel. They are learned friends. And they
are in a noble profession. On 27 May, 2017, the Malawi Law Society published in
the media the disciplinary matters that came before its Disciplinary Committee
and the recommendations the Committee has made in those matters.
For
the longest time, one had to go back to1994 to find a case where a lawyer had
been disbarred for professional misconduct. [Of course, there has been a disbarment
in 2016.] In the intervening years since 1994, the general public formed the
view that lawyers in Malawi ‘protect’ each other even in the face of alleged
misconduct by a lawyer.
The
Malawi Law Society (and its membership) is regulated by an Act of Parliament.
The Society also has a Code of Ethics – nineteen chapters of it – on the dos
and donts of lawyers. The Code has benefitted from codes of ethics from other
jurisdictions; including the International Bar Association’s International
Principles on the Conduct of the Legal Profession. There are some ten
principles or so that buttress the principles for the regulation of the legal
profession. First, the Society’s Code states – in the very first chapter – that
a lawyer must not act in a manner that weakens the public respect for law or
the justice system or interfere with its fair administration. This is a central
obligation to the conduct of lawyers. The other principles state that a lawyer
must exercise independent and unbiased professional judgement. The task has
never been about what the lawyer or the client thinks; it has always been about
what is the law. Second, a lawyer must demonstrate the highest standards of
honesty, integrity and fairness with clients, the courts, colleagues and all
those the lawyer is in professional contact. Third, at all times, a lawyer must
avoid conflict of interest. Fourth, a lawyer must practice confidentiality or
professional secrecy. Information a lawyer receives from a client is acquired
on trust. Such information cannot suddenly be open folder at a bar or hair
salon. Fifth, a lawyer must account, promptly and faithfully, the property of a
client and third parties. A client’s property is the client’s property. Mere
possession of such property does not entitle a lawyer to use the property for
his personal benefit. That would be kuba.
Sixth,
a lawyer must also honour the undertakings he makes to clients. Another
principle is that a lawyer must respect a client’s freedom to be represented by
a lawyer of their choice. A lawyer cannot force themselves on a client. If a
client forms the view that they must be represented by a different lawyer, the
lawyer must take it on the chin and move on.
More
critically, a lawyer must exercise utmost competence. He must carry out his
work competently and in a timely manner. There’s no one hundred per cent in the
legal profession. There’s one thousand per cent. It is great to look dapper in
a designer suit, shirt, tie and shoes. But at the end of the day, the client
does not pay the lawyer’s fees for merely looking sharp. Finally, and talking
of fees, a lawyer must earn reasonable fees. A lawyer shall not charge
unreasonable fees. Clients are not an auto teller machine in order to support a
flamboyant lifestyle. No. In fact, it is good practice that a lawyer and a
client discuss and agree on the billable hourly rate at their very first
meeting to ensure that everybody is on the same page.
The
principles that I have shared here underpin the regulation of the legal
profession in a bigger galaxy of the rule of law and good governance. The
Society’s Disciplinary Committee’s public announcement of the cases it has
handled and the possible way forward is a welcome development. For what it’s worth, the announcement
dissuades the fears of the general public that lawyers in Malawi somehow
operate in chipwi’kiti world; that
they are untouchable and above the law. The last thing a country would want is
a situation where the general public does not have the trust for the whole or
part of its justice system. The disciplinary process must, however, go the
whole hog. The Disciplinary Committee must, ideally, continue to work hand in
hand with the Honourable the Attorney General to ensure that those that have
been adjudged with cases to answer have their day before the Honourable the
Chief Justice. Anything less shall mean a very unfortunate scenario of naming
and shaming.
Besides
the disciplinary process that the Law Society oversees, there are instances
where the conduct of a lawyer forms a reasonable basis that a crime has been
committed. Surely, those cases have to be acted upon by the relevant law
enforcement agencies in the usual manner they would act if the person involved
were a non-lawyer.
It
aint all doom and gloom. The legal profession – just like any family – has its
share of naughty kids. The father figure – like the Law Society’s Disciplinary
Committee – does pull out the whip. And there are also well behaved kids in the
legal profession. In fact, plenty of them. Yours truly, I dare say, is one of
those good mannered kids!
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