PROFESSIONAL ETHICS – 2018

MR. KAMFWA

INTRODUCTION

PROFESSIONS

According to Black’s law dictionary, a profession is defined as a vocation requiring

advanced education and training. In defining what a profession is, the learned authors of
the dictionary quoted from the case of Commonwealth v Brown 1939 which states
that learned professions are characterised by the need of unusual learning, the existence
of confidential relations, the adherence to a standard of ethics higher than that of a
market base, and in profession like that of medicine by intimate and delicate personal
ministrations.

Traditionally, the learned professions were theology, law and medicine but some
professions have climbed and others are still climbing to the profession. There are six
main characteristics of a profession:

1. It must render a specialised service based upon advanced specialised knowledge and
skill and dealing with its problems primarily and on an intellectual plain as opposed to
physical or manual labour plain;

2. It involves a confidential relationship between a practitioner and a client;

3. It is charged with a substantial degree of public obligation by virtue of its profession

of specialised knowledge;

4. It enjoys a common heritage of knowledge, skill and status built from collective
efforts;

5. It performs its services to a substantial degree in the general public interest and
remunerated through payment of fees;

6. It is bound by a distinctive ethical code in its relationship with clients, colleagues

belonging to the same profession and the public.

Arising from the foregoing, a profession must have a clearly defined membership of a
particular group and must have a professional organisation.

THE LEGAL PROFESSION

The legal profession is a vocation that is based on the expertise in the law and its
applications to various situations in society. Distinct legal systems emerged quite early in
the history of mankind, however, legal professions as we know them today are relatively
modern. The earliest known legal specialist was a judge who served as such on part-time
basis.

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A distinct class of legal specialist other than judges first emerged in Greco Roman
civilisation. As the law became more complex, men who were usually prominent in public
life found it necessary to acquire legal knowledge and, in the process, some acquired
reputation as experts in the law. The modern legal professional earning his living by fees,
first became clearly visible in the final year of the Roman empire when juris-consults
started charging fees for the services rendered.

However, the legal profession in Zambia is arranged along the lines of the legal
profession in England which started to take shape after the Roman conquest of 1066.
After that conquest, the English legal professions crystallised into solicitors and barristers
with the former being litigation agents while the later appeared in court with instructions
from solicitors to argue cases.

With the advent of British colonialization, the organisation of the English legal profession
was introduced in the British colonies and protectorates so much so that at
independence, most former British colonies and protectorates inherited a legal profession
which was organised along the lines of solicitors and barristers. This was the case in the
immediate post-colonial Zambia.

INTRODUCTION TO THE LEGAL PROFESSION IN ZAMBIA

According to the Law Association of Zambia Act, Chapter 31 of the Laws of

Zambia, a lawyer includes a student of law.1 So, the term lawyer is broad and covers
both practising and non-practising lawyers. Non-practising lawyers include students and
academicians. However, when we talk of professional conduct and ethics, this applies to
legal practitioners.

Under the Legal Practitioners Act, Chapter 30 of the Laws of Zambia a legal
practitioner is a person who has been admitted to practice as an advocate under the
provisions of the LPA and whose name has been entered on the roll. 2 This roll is basically
a list of legal practitioners kept in accordance with the provisions of the LPA. 3

In Zambia, there is a unitary branch of law practice, unlike in England where the practice
is split between solicitor and barrister. Once a person is admitted to the bar as an
Advocate of the High Court for Zambia (ACHZ), he can do what a barrister can do in
England. Thus, an advocate can appear in court or confine himself to non-contentious
matters such as conveyancing.

1
Section 2 of the Law Association of Zambia Act
2
Section 2 of the LPA
3
Section 2 of the LPA

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COURT DRESS FOR LEGAL PRACTITIONERS

Court dressing for Legal practitioners is prescribed in Practice Direction No. 3 of 1977
as amended by Practice Direction of 2003.

PRACTICE DIRECTION No. 3 of 1977 (PD 19)

Court Dress in the Supreme Court, High Court and Subordinate Court

The Honourable the Acting Chief Justice has directed that Court dress for Advocates in
the Supreme Court, High Court and Subordinate Courts shall be as follows:

(a) The Supreme Court and High Court

(i) Female Advocates

A black gown, white, blue-striped or red-striped long sleeved collarless blouse, a stiff
white wing collar and white bands, black, navy blue or dark grey skirt with a matching
coat when desired

With the exception of State Counsel it shall not be compulsory to wear wigs.

(ii) Male Advocates

A black gown, dark or dark-striped long trousers and jacket, a white, blue-striped or red-
striped collarless shirt, a stiff white wing collar and white bands.

With the exception of State Counsel it shall not be compulsory to wear wigs.

(b) The Subordinate Courts

(i) Female Advocates

Any neat costume of decent and reasonable length.

(ii) Male Advocates

A suit or jacket and long trousers worn with a shirt and tie or a safari suit with cravat.

(c) In either (a) or (b) above the attire should be smart.

(d) Practice Direction No. 1 of 1977 dated 28th March, 1977, is hereby revoked.

By direction of the Acting Chief Justice.

Dated at Lusaka at this 18th day of August, 1977.

J. N. KAKAD

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Acting Registrar of the High Court

NOTE: In the superior courts, male judges are addressed as my Lords and Lordship whilst
female judges are my Lady or your Ladyship. In chambers, it is Judge. When addressing
advocates who have been conferred as State Counsel, address them as such. Senior
lawyers must be addressed as Senior Lawyers while your contemporaries must be
addressed as counsel.

NEED FOR PROFESSIONAL ETHICS FOR LAWYERS

As an organised profession, lawyers need to have a code of conduct or ethics. The code
of conduct for lawyers presupposes that the profession has exclusive control over the
process by which professional competence is attained and verified. It also serves to
maintain the image and profession reputation in the eyes of the public and ensures
professional survival. Members of the profession who fail to live up to the expected code
of conduct are disciplined and in appropriate cases struck of the roll of practitioners.

The need to strictly adhere to the professional code of ethics among lawyers cannot be
over-emphasised. Whereas we refer to ourselves as learned men and women belonging
to a noble profession, the public has its own view of the legal profession. More often than
not, the public view of the legal profession is very negative due to the transgressions
committed by some lawyers.

From the public point of view, the following are some of the grievances they have against
lawyers:

1. Lawyers are greedy;

2. Lawyers are an obstacle to justice and that they manipulate the legal and justice
systems for selfish earns;

3. Lawyers are liars;

4. Lawyers are criminal and are birds of the same feathers;

5. Lawyers and judges have created a web of complex rules of procedures in which even
them sometimes get lost;

6. Lawyers are shacks. A lawyer will win a case for you only to grab from you all that the
court has given you.

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It is worth noting that the above is not an exhaustive list …. and it would be suicidal for
the legal profession to ignore public perception. Ironically, when one looks at the code of
conduct for lawyers, most of the public complaints are frowned upon and constitute
professional misconduct. Therefore, one explanation for the public negative view of
lawyers could be that some members of the profession who commit transgression are
not disciplined, thereby giving the public a wrong view that the profession condones
misconduct. It is against this background that members should collectively and
individually strive to live against the expected standards of lawyers so that the legal
profession can endure.

INTEGRITY FOR LEGAL PRACTITIONERS

Integrity is an important quality for legal practitioners. Whereas it is true there are some
legal practitioners who lack integrity, the truth of the matter is that such legal
practitioners will not last at the bar. Sooner or later, their seemingly success will come to
an end, they will be removed from the profession.

Men and women who aspire to practice law must be of unquestionable integrity. This
requirement is underscored by the fact that magistrates and judges are appointed from
among the ranks of legal practitioners. Therefore, if men and women without integrity
become legal practitioners, there is a possibility of having magistrates and judges who do
not have integrity.

Integrity demands that a legal practitioner should always act honestly and truthfully
both to the client and to the court. Acting with integrity towards the client means that a
practitioner will not accept a matter where he lacks skill or competence to ensure that
his client’s interests are served. It also means that a practitioner should give an honest
assessment of the client’s prospects for success in a contentious matter. A practitioner
should not give false impression to the client that he/ she has a good case when in fact
not.

The interest of both the profession and the client dictate that where it is proved that the
practitioner lacks integrity, he/she must be struck off the roll. In the case of The Law
Association of Zambia v Gideon Katebe Mwewa 2007/ HP/202 – The High Court
dealt with an application brought by LAZ to strike off the practitioner of the roll for having
misappropriated the client’s funds. The court in granting the application had the
following to say “… no mitigation could dilute such a serious offence of misconduct by a
legal practitioner as honest and integrity are at the heart of the legal profession, it is also
our firm belief that courts are a key stakeholders of the legal profession and to this end,

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any serious misconduct on the part of the legal practitioner must be frowned upon by the
courts as it tarnishes the image and integrity of our ‘noble profession’ which we are part.
We would therefore be failing in our duties if we were seen to condone any misconduct
of a legal practitioner.”

When a person who was struck ofF the roll seeks to have his name restored on the roll
again, the overriding consideration is still integrity. This was the position taken by the
acting CJ Ngulube as he then was in the matter of Mbalala B. Munungu and the Legal
Practitioners Act SCZ Judgment No. 6 of 1992. In this case, the practitioner was
convicted of 5 counts of theft by public servant and was sentenced to a term of
imprisonment part of which he served. In the meantime, the disciplinary of LAZ made a
recommendation to the High Court by way of an application that he be struck of the roll
of practitioners and he was struck of. Thereafter, he languished for 13 years without
meaningful employment though he was employed in clerical positions in law firms. Then
he decided to petition the CJ as by law required so that his name can be restored on the
Roll of practitioners.

In dismissing the petition, the acting CJ reaffirmed what was stated in the earlier case of
Mabuye v Council of Legal Education 1985 ZR 10 that “… the overriding criterion
for fitness to practice is integrity and for a disqualification to be maintainable, it should
be made to appear quite clear that the misconduct complained of not only seriously
undermines such integrity but also that amount of contrition or repentance and
subsequent good conduct can be regarded as having repaired and redeemed the
applicants integrity…”

Because of the importance the profession attaches to integrity, it is also a requirement

that is expected even from persons seeking to enrol for Legal Practitioners Qualifying
Examinations at ZIALE as demonstrated in the Mabuye Case above.

INTRODUCTION TO THE LAW PRACTICE

What is Law Practice?

1. Representation of parties before judicial or administrative tribunals;

2. Preparation of pleadings and other papers incidental to actions and special

proceedings;

3. Management of such actions and proceedings;

4. Giving legal advice and counsel;

5. Rendering services that require using legal knowledge and skill;

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6. Preparing legal instruments such as contracts and deeds by which rights are secured.

THE LAWYER-CLIENT RELATIONSHIP

Law practice is not an easy undertaking. This is because, in law practice, a lawyer is
confronted by a real client with a real-life problem seeking a real-life solution to his
problem. The client is not interested in theories of substantive law or statutory
provisions. The client wants the lawyer to solve his/ her problems quickly.

The lawyer-client relationship imposes many obligations on the lawyer. The lawyer has
the following duties:

1. The duty to look after the interest of the client to the best of his ability;

2. The duty to act honestly in the way he handles the client’s affairs; and

3. The duty to exercise the standard of care that is acceptable to the profession.

The lawyer’s duties to the client are both contractual and fiduciary and therefore the
lawyer is expected to put the client’s interest ahead of his own. This means that a lawyer
must be willing to execute the instructions at minimum costs to the client.

THE LAWYER – CLIENT INTERVIEW

An interview is a meeting between a lawyer and a client for the purpose of dealing with
the client’s work, needs or problems. The first interview with the client is usually the
most important interview ever in the lawyer client relationship as it defines what will
follow in the execution of the client’s instructions.

An interview is usually divided into 3 parts or stages, the first stage is the listening
stage. At this stage, the client tells the lawyers what the client feels is necessary to be
done. This stage is characterised by much talking from the client while the lawyer listens
carefully but taking notes as well.

The second stage of the interview is the questioning stage. At this stage, the lawyer
assumes an active role in the interview, questioning the client on details on the story he
has just given, ironing out ambiguous and filling in gaps that have appeared from the
client’s story. The lawyer might even carry out physical examination of some things
mentioned in the client’s story. This stage may be rounded of by the lawyer’s summary
of the major facts and the client’s wishes and also reconfirmation with the client that his
case has been properly understood.

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The third and final stage is the advising stage. At this stage, the lawyer either;

1. Advises the client on the practical and legal effect of the client’s problem and sets out
a solution and their consequences; or

2. Suggests a plan of action which may include carrying out legal research on the
problem if the lawyer is not well vest in that particular area; or finding out more facts
before coming to a decision.

The lawyer then sets the next contact before terminating the interview. In this final
stage, much of the talking comes from the lawyer while the client listens to advice or
counsel. The client is finally excused.

ACCEPTING THE CLIENT

After the first interview, the first decision is whether or not to accept the instructions. As
a lawyer, you are not obliged to accept the instructions unless you want to. Some
considerations which you should take into account before accepting instructions are:

1. Potential conflict of interest;

2. Whether the client’s instructions involve potential fraud, illegality or other

impropriety.

3. Whether you are competent to handle the matter.

If there is a serious doubt on any of these matters, it would be prudent not to accept the
instructions. If you decide to accept the instructions, you should immediately discuss and
agree your fees or the basis of charging your fees.

ADVISE AND DISSENT

A client does not always follow the lawyer’s advice on an important matter. So what?
Two opposite responses are naturally possible from the scenario.

1. The client’s refusal to follow advice is of no concern to the lawyer except as it may
indicate that the advice was wrong and that therefore, the lawyer’s professional
competence has been called in question;

2. The lawyer should terminate his relationship with the client if the matter involves the
right and wrong and the client chooses a wrong cause of action.

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Therefore, for a skilful and diligent lawyer, the question is not what to do if the client
refuses to follow advice on an important matter but how to give the advice so that the
client does not refuse it.

Legal advice takes a form of a suggestion concerning a course of action that might or
should be pursued or avoided with a supporting explanation. The legal advisor’s opinion
can include one or more of the following elements;

(a) A report of the text of the law as it stands;

(b) An estimate of how key provisions of the law should be interpreted or will likely to be
interpreted by the office responsible for its administration;

(c) An estimate of the likelihood that serious effort will be made to invoke the rule in
question;

(d) A projection of the best, worst and intermediate situations that could result as a
consequence of the rule being invoked;

(e) An appraisal of the significant consequence of possible causes of action and whether
or not they will provoke retaliation;

(f) A judgment whether the recommended cause of action is in some sense good or
right for the client;

(g) The most important point to remember is that legal advice should be limited to what
the law provides.

In the affairs of corporations and government and its agencies, the lawyer should give
due regard to policy considerations. The starting point is that the client is not obliged to
follow legal advice or even seek it in the first place. The client is capable of making her
own decisions with or without the advice.

The lawyer if consulted is just a resource person along with many others such as
accountants, economics and engineers. That is, the same theory applies to this advice. It
is information that the client is legally free to ignore in favour of acting to his/ her own
wishes.

In Dora Siliya v The Attorney General (Judicial Review). The issue was whether
advice is mandatory. The court held that legal advice is not binding.

The lawyer whose advice is ignored suffers no detriment, after all, he earns his fee even
if his advice is rejected. Alternatively, if it is envisaged that the lawyer client relationship
will continue after the advice is rejected. It is up to the lawyer to decide whether to
continue with his client or not.

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An inhouse lawyer however is in a peculiar situation when it comes to giving advice to his
organisation. If an inhouse lawyer was a party to the decision-making process, he/she will
be bound by the principle of collective responsibility and therefore it may be difficult to
part company with his client if his advice has not been accepted.

WHAT DO YOU DO WHEN YOU KNOW YOUR CLIENT IS GUILTY

Every lawyer is asked this question in one way or the other. The obvious answer
(whether the proceedings be civil or criminal) is that you must not put forward what you
know to be a false case. But know means Know and not think. Therefore, you can only
know if your client is putting up a false case if he tells you so himself. If you think he is
guilty, that is no reason for not defending him. It is what the court thinks which matters.

The lawyer does not try his/ her client, it is the court which does so. If lawyers were to
refuse to defend a person because they thought he was guilt, very few of those accused
of crime would be defended at all.

If in criminal cases a person persists in proclaiming his innocence, however, strong the
evidence is against him, the lawyer has both the legal right and duty to go on defending
such a client.

In a civil case, the lawyer is at liberty to refuse to act for a client if he is satisfied by
overwhelming evidence that a client is telling lies. If the client asks you a question, do
you want me to tell the truth? You are to encourage him to tell the truth. However, you
are entitled to privately cross examine him in your chambers.

The same applies in criminal cases, if a client insists that he is not guilty but you think
otherwise, you should privately cross examine your client. If he breaks down under your
private cross examination and he confesses that he is guilty. This may work to his
advantage. Instead of putting up a false defence, he will plead guilty and most likely
receive a lesser sentence.

On the other hand, if he does not break down during the private cross examination, this
would have helped to prepare him for trial. If he is in fact guilt but the end of the trial he
is found not guilty and is acquitted, he will just be one of the many who have benefited
from the idea that it is better for one hundred men to be acquitted than one innocent
man to be convicted.

The question: would you persuade your client who has confessed to you that he actually
committed a capital offence to plead guilty and be hanged? Some lawyers have reasoned
that it is better to damage their conscious than encourage the client to plead guilty
which is tantamount to escorting the client to the gallows.

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However, the lawyer can decide to represent the lying client provided the lawyer is not in
any way trying to make the false statement appear to be true.

The rules of the duties of the lawyer to the client are different in criminal and civil. In
criminal cases, it is important to remember that a person should not wrongly be deprived
of life or liberty, that short of actually being told by a client himself that he is guilty. A
lawyer is entitled to do his best in support of the client plea of not guilty if the client
insists in it and denies his guilt to you as a lawyer.

In civil cases, a lawyer is entitled to put forward a bad case on behalf of a client who
insists in its truth, a lawyer who is personally satisfied that a client has a bad case is
entitled to withdraw from representing the client.

In conclusion, but what if a client confines to his lawyer that he is guilty? In such a case,
the lawyer can still advise the client to plead not guilty and leave it to the prosecution to
prove their case against him. However, in such a situation the lawyer should guard
against suggesting that his client is not guilty but only submit that the guilt is not proved.
Under no circumstances should a lawyer disclose that his client had disclosed that he
was guilty to him. In the case of Chisoni Banda v The People SCZ Judgment No. 3 of
1991, the Supreme Court disapproved of the disclosure by the lawyer to the court that
his client had given a voluntary statement to the police confessing that he committed
murder.

1 December 2017

Section 32 (1) and (b) of the Statutory Instrument No. 51 of 2002. Read the
whole of section 32 and 33 of the Legal Practitioners Rules.

Ask for notes from Chisala

23 Feb. 18

Whether or not the relationship of the practitioner and client continues, a practitioner
shall preserve the confidentiality of the client’s affairs and shall not without the prior
consent of the client or as permitted by law reveal the contents of the client’s
instructions or communicate to any third person other than advocates in the firm
information which has been entrusted to the practitioner in his capacity as such.

A practitioner shall not in relation to any current matter in which he has been briefed
offer his personal view to any media institution. A practitioner should not devise facts for

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his client’s case and should not draft any originating process, pleading, affidavit, witness
statement or notice of appeal containing the following:

a. any statement of fact or contention which is not supported by the client in his or
her brief or instructions;

b. any allegation of fraud unless the practitioner has clear instructions to make such
allegation and has before him or her reasonably credible material which as it
stands establishes a prima facie case of fraud;

c. in the case of an affidavit or witness statement, any statement of fact other than
the evidence which in substance according to the practitioner’s instructions, the
practitioner reasonably believes the witness would give if the evidence contained
in the affidavit or witness statement were being given viva voce.

Maintaining Contact with your Client

Regular contact with a client whose case you are handling is very important. Therefore,
at the earliest opportunity you should ask your client to keep in touch with you, to advise
you of any change of such things as email address, employment, or phone numbers. This
will help you contact your client when need arises to obtain urgent instructions.

Progress Reports

You must keep your client of progress in relation to his matter especially in matters
where several months must elapse before the next step can be taken.

You should not resent your client taking the initiative in trying to find out the progress of
her case nor should you consider her enquiries a nuisance. Do not forget that it is your
client who puts money in your pocket, however, if a client is irrational and makes calls
every day or visits your chambers frequently about your progress even when you have
told them that it will be months before the case is heard or next step is taken, tell them
how much it will cost them on each call you take from them or time you spend on them
each time they come to the chambers. A reasonable client will count the costs.

Delays

Too often a lawyer is blamed by the client for the delay when more often than not, the
delay lies elsewhere, therefore, explain to your client the steps to be taken to take the
matter to its conclusion.

Independence from your Client

The importance of counsel being independent from the client cannot be overemphasised.
By remaining independent in everything that you do for your client, you contribute to the

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proper function of the legal system; you enhance your reputation as an honourable and
courageous lawyer and you protect your client as well as yourself.

But what does it mean to be independent from the client? It means that you must
be independent of your client in the sense that the legal services you provide reflect your
professional judgment and are not compromised to suit the interest of your client. While
taking into account, your client’s views and interest, you must not depart from what you
consider to be the legally and ethically correct position in response to self-interest or
pressure from your client or third party. In this regard, please remember the following:

a. any legal advice you give must reflect your professional opinion of the law
irrespective of whether or not it promotes your client’s interest;

b. any court document you prepare must be legally correct and used for proper
purposes rather than an abuse of process;

c. any statement you make orally or in correspondence to court, another practitioner

or a third party on behalf of your client must be legally justifiable and responsible
and must not allow yourself to become your client’s mouthpiece to say what he
wants or his tool to do what he directs;

d. if through a conflict of interest or other reason you feel you are unable to provide
or would be seen by reasonably competent practitioners as being unable to
provide objective or detached advice to your client, you must explain the position
and refer the client to an independent counsel;

If your client asks you to do something illegal or unethical, and after you have advised
your client why you cannot do so your client insists that you do it then you must seize
acting for the client irrespective of what you earn from the client. The ability to walk
away from such a client is one of the hallmarks of professional independence.

TOPIC: PREPARATION FOR TRIAL

Thorough preparation is probably the single most important factor that will determine
whether you will win or lose the case. There are three crucial steps in preparing for trial,
these are:

a. identifying the issues on the pre-trial documentation;

b. preparing a trial plan;

c. the final consultation with client before trial.

a) identifying the issues on the pre-trial documentation

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This requires analysis of pleading in civil cases or charge sheet or indictment in criminal
cases. During this stage, a lawyer should consider each issue and decide what evidence
is available or is required to prove the issue in question. If necessary, the lawyer should
obtain additional evidence in consultation with the client.

b) preparing a trial plan

When preparing a trial plan, the lawyer will decide the strategy and tactics he will
employ, the likely order in which witnesses will be called.

c) Final consultation with client before trial

This is sometimes referred to as pre-trial meetings or briefing with the client and
witnesses. It is advisable to hold this meeting as close as possible to the date of
commencement of trial. Preferably, a day before. The objective of the final consultation is
to ensure that all the witnesses you intend calling are fully prepared for the trial. If
witnesses have already signed witness statements which have already been filed into
court, they should be given their statements to refresh their minds.

On the other hand, if witnesses will be led in chief by counsel, the lawyer will take them
through the questions he intends to ask them. Whether the witness statements have
already been filed or evidence will be led, counsel should explain the relevant portions of
the case to the witness in plain language. The witness must be made to understand for
what purpose he or she is being called in the context of the trial as a whole. Also
remember to explain the layout of the court and the other people he will meet there.

The witness should also be taught how to address the court and be respectful. Warn the
witness that he will face hostile questions in cross examination but he should remain
composed. Counsel may possibly demonstrate how cross examination will be conducted
in order to test the weaknesses in the witness’ version and correct potentially damaging
responses such as arguing with the opposing counsel, volunteering unasked information
and losing temper.

It is important to confront your witness with weak points in their case, this is referred to
as “diffusing landmines”. Avoid the temptation to gloss over the weak point of your
witness evidence in the hope that they will not be uncovered by the opposing counsel. By
glossing over the weak points of the witness evidence, you may end with a technical
knockout of your witness.

During Trial

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It is important to remember that while an advocate has a duty to present his client’s case
to the best of his ability, it is not his duty to win the case at all costs.

And whereas the objective of any advocate is to win the case for his client, the winning
must be within the rules.

Throughout the trial, counsel must bear in mind that he is an officer of the court, he
should conduct his case in a way that will make his client and the witnesses respect the
authority and decorum of the court. Counsel can be aggressive when cross examining
the opponent’s witnesses but should not argue or quarrel with the witnesses. He should
also not argue with the judge; neither should he quarrel with the opposing counsel.
Above all, counsel should remain emotionally detached from the case, this will help him
bear the unpredictable of the case.

13 March, 2018

PRIVILEGES, RIGHTS AND AUTHORITY OF AN ADVOCATE

An advocate has the following privileges and rights:

1. Absolute Privilege for Defamation

No action will lie against counsel in respect of words uttered in the course of any Judicial
proceedings even if it can be demonstrated that they were maliciously uttered and
without justification. The justification for this immunity is to secure the freedom and
independence of counsel and to protect persons who have acted innocently and bona
fide from vexatious or defending unmeritorious actions.

2. Privilege of Communication

Confidential communications passing between counsel and his client for purposes of
requesting or giving legal advice is privileged from disclosure. Therefore, the court will
not at the instance of a third party compel the client or order counsel to give evidence of
such communication. However, this privilege may be waived by the client. The privilege
can also be overruled by the court as was the case in ACCESS FINANCIAL SERVICES
LTD & ACCESS LEASING LTD & THE IMPLEMENTATIONS OF THE LIQUIDATION
SCHEDULE (by Bank of Zambia) Appeal No. 104 of 2013. In this case, the issue
was whether or not the legal issue contained in an internal memo from the assistant
bank secretary to the deputy governors and acting human resource advising against
disciplinary action against an employee who was capable of “spilling the beans” if
dismissed was privileged information. The Supreme Court stated that legal professional

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privilege is an important privilege accorded in public interest to protect communication

between a lawyer and his/her client from being disclosed without the authority of the
client. The privilege is intended from being disclosed without authority of the client. The
privilege is intended to encourage the client to feel free to give full instructions to
counsel without the fear that the information contained in those instructions may
prejudice the client in future. However, the court went on to state that legal professional
communication is not absolute confidential communication between a client and counsel
is not privileged if met for the purpose of committing a fraud or a time when both are
engaged in commission of a wrong act. The court must consider each case on the facts
by way the public policy justifications for the privileged and the gravity of the alleged
fraud or other wrong doing. The court concluded by stating that “it would not be in
public interest to allow the Appellant, a public institution, to purposefully
refrain from disciplining an officer to adduce evidence which would assist the
Respondents in proving their allegation of mismanagement of the liquidation
process”.

3. Right to Remuneration

Counsel is entitled to be remunerated for services rendered unless the services were
rendered on pro bono basis in accordance with the rules of practice.

4. Right to Lien

Counsel is entitled to exercise right to lien on client’s property including funds until his
fees have been agreed upon were there was no prior agreement or until his fees have
been paid were there was prior agreement.

5. Right of Audience

An advocate has the right of audience to appear in any tribunal of court unless restricted
by law.

AUTHORITY OF AN ADVOCATE

Once instructed by the client, counsel has the following authority:

1. Authority to appear in court on behalf of the client: Therefore, once counsel

puts himself on record as having been instructed, the court cannot inquire into his/

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her authority to appear on behalf of the client. However, if during the course of
instructions, the client decides to dispense with services of counsel, the client’s wish
should be respected.

2. Apart from express authority conferred upon counsel through client’s

instructions, Counsel is deemed to have implied authority to have complete control
over the way in which the case is conducted therefore unless and until his
instructions are withdrawn, counsel has with regard to all matters that properly
related to conduct of the case unlimited authority to do whatever he considers best
for the interest of his client. However, the client may decide to expressly limit the
authority of counsel for instance when it comes to agreeing to a compromise of the
case.

LAW PRACTICE AND MONEY

Even though justice should freely be accessed by all, unfortunate fact is that justice
comes at a price. The price of justice may be paid in form of court fees, legal fees or
costs. Court fees refer to the price litigant pays from filing documents in prosecuting and
defending a civil suit. The fees are prescribed by the judiciary from time to time and are
rarely if never waived.

However, when it comes to law practice, lawyers can earn either fees or costs or both for
acting in a particular matter. Even though the term fees and costs are often used in
tandem, they refer to different charges paid to different recipients under different
circumstances. Costs are usually paid by the losing party to the winner. They are
awarded at the discretion of the court though more often than not they follow the event.
This means nearly always court will award costs to successful party which must be paid
by the losing party. Thus, when it comes to question of costs, counsel must nearly always
wait until the court has determined a matter.

In interlocutory matters the courts will usually give costs in the cause which means that
even if the interlocutory application has been determined in favour of a party the
successful party will not claim costs until final determination of the matter but upon court
delivering final judgment most judgment will end thus either

i. Costs to be borne by the plaintiff or the Defendant as case may be;

ii. Costs to follow the event, this means court has condemned the loser to pay the
costs of the winner;

iii. Each party to bear own costs, this means neither party should recover costs from
the other. Each one must foot own costs.

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iv. No order as to costs: This order is synonymous with the order that each party
should bear own costs. When court makes such an order it does not in any way
mean that counsel should not be paid. On the contrary, it means that each
advocate will sit down with his/ her client and agree on the amount to be paid as
fees.

In the case of Kuta Chambers (sued as a firm) v Concillia Sibulo (suing as

administratix of the estate of the late Francis Sibulo) Selected Judgment No. 26
of the Supreme Court

The Supreme Court on the question of costs held as follows:

When the court awards costs to a party to litigation, such a party will only be entitled to
actual costs incurred and no more. Profit costs are for the lawyer to collect and keep. In
this regard, we endorse the advisory opinion given by the High Court in the Legal
Practitioners Act Ex Parte Legal Practitioners Committee of LAZ that matter was
a reference by LAZ to the High Court for the interpretation of the provisions of the Legal
Practitioners Act as they relate to costs. The ruling by Nyangulu J was that a successful
litigant is not entitled to share with his lawyer or indeed receive part of the legal costs
comprised in the profit costs. Out of pocket expenses are however recoverable by the
instructing client from the costs. We agree with the interpretation; we can only add that
the fees paid by the instructing client ought to be treated as recoverable expenses. In
claiming the costs awarded to a successful party therefore the legal practitioner ought to
factor in the fees paid by the instructing party to him.

DEPOSIT TAKING

When an advocate is retained by a client especially in a contentious matter, he/ she must
request for a deposit. There is no fixed charge for the deposit and therefore it is up to the
advocate to determine how much should be asked for as a deposit. However, it is always
important to remember that even though the deposit need not be exorbitant, it must be
sufficient enough to enable counsel to comfortably conduct the case. Out of the deposit,
are paid court fees, travel and accommodations etc.

Remember though that deposit is your client’s money and therefore it should be banked
in the client’s account should the client decide to withdraw instructions from counsel. He/
She should be in a position to render an account of how the deposit was used. If there is
any balance the same should be refunded to the client. If the client from whom you took
deposit is finally successful and is awarded costs you are obliged to refund him/ her an
amount equal to the deposit he paid you because a successful party in litigation should
not incur any costs.

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LEGAL FEES

Legal fees are chargeable by an advocate on a lawyer-client basis. an advocate is

entitled to recover reasonable and justifiable fees from a client for services rendered. In
the case of Indeco Estates Development Ltd v Maeshall Chambers 2002 ZR 16 it
was held that the instructing client is the one primarily liable to pay lawyer’s fees as the
person who retained the lawyer’s services.

Legal fees are not charged from the air. The advocate is limited by the prescribed scale
of fees unless he/ she can show that there was an agreement with the client to charge
over and above the prescribed scale. There are different scales for contentious and non-
contentious matters.

Contentious matters nearly always involve litigation while non-contentious matters

include such matters as debt collections, conveyancing and probate with the prescribed
scale of fees. The following matters have a bearing on how much an advocate can
charge:

 Time and labour;

 The monetary value of the matter for which a service is provided and the result
obtained;

 Urgency of the matter;

 Nature and length of the professional relationship with the client;

 The experience and reputation of the advocate;

 Skill and responsibility required

However, an advocate should always be conscious of the fact that he has a duty to the
client to ensure that whatever instructions he has been given are carried out were
possible at the minimum cost to the client thus in contentious matters an advocate
should give careful consideration to the preliminary matters such as mode of
commencement of an action or other options available to achieving the client’s objective.

If the advocate does not give serious consideration to such matters the client may be put
to unnecessary costs because of certain applications which may have to be dealt without
the attendant court orders.

KEEPING OF ACCOUNTS BY LEGAL PRACTITIONERS

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Under section 57 of the Legal Practitioners Act, Chapter 30 of the laws of

Zambia, every practitioner shall keep such books and account as may be necessary to
show and distinguish in connection with his practice.

a. The monies received from or on account of and the monies paid to or on account of
each of his clients;

b. The monies received and the monies paid on his account.

From the foregoing, it is plainly clear that the practice must maintain at least two distinct
accounts, namely:

i. Client’s account; and

ii. Firm or office account.

All monies received on account or on behalf of a client must without fail be deposited into
client’s account properly and clearly designated as such and maintained with a bank or
building society.4

Where the money received is in form of a cheque and consists of partly a client’s money
and partly a practitioner’s money and it is not possible to separate the payment before
depositing then the whole amount must be deposited into the client’s account and the
practitioner can subsequently get his portion therefrom. 5

According to section 59 of the Legal Practitioners Act, the following monies should be
deposited into the client’s account:

a. Money paid or received on behalf of the client;

b. Such money belonging to the practitioner as may be necessary for the purpose of
opening the client’s account;

c. Money for replacement of any sum which may be by mistake or accident have
been drawn from the client’s account;

d. A cheque received by the practitioner representing in part money belonging to

the client and in part money belonging to the practitioner.

According to section 60 of the Legal Practitioners Act, no money shall be drawn

from the client’s account other than:

a. Money properly acquired for meeting the client’s financial obligation in respect of
which the money was in the first place received.

4
Section 58 of the LPA
5
Section 58 of the LPA

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b. Such money belonging to the practitioner which was paid together with the
client’s money after one cheque transfer

c. Money which by mistake or accident was paid into the account.

DUTIES OF THE LAWYER TO THE COURT

Legal Practitioners are designated as officers of the court under section 85 of the
Legal Practitioners Act. The Legal Practitioner as an officer of the court has overriding
duties to the court. In the case of Saif v Sydney Mitchell and Co. (A Firm) and
Others 1978 3 All ER 1033 it was held that, “the special statistics of the barrister’s
work on which the greatest stress was laid by the Lordships was that he does not owe a
duty to the client he owes a duty to the court, this is an overriding duty which he must
observe even though to do so in particular may appear to be contrary to the interest of
the client.”

And in the case of Rondel v Worsley 1967 3 All ER 998 it was held that “as an officer
of the court concerned in the administration of justice he has an overriding duty to the
court, to the standard of his profession and to the public which may often lead to conflict
with his client’s wishes or with what his client thinks are his personal interest.”

The lawyer owes the following duties to court:

1. Duty to refrain from misleading the court: Counsel may mislead the court by

a. Quoting non-existent authorities;

b. Quoting only portions of the authority which suits his case.

c. Making wrong, frivolous or vexatious applications;

d. Preparing and filing incomplete record of appeal

2. Duty to refrain from doing acts prejudicial to administration of justice

3. Duty to ensure that the proper and efficient administration of justice is

achieved for example duty to ensure compliance with orders for directions.

4. Duty to refrain from insulting the court (Masiye Motels Limited v Rescue
Shoulders and Estates Agents Limited 2010 ZR 337).

5. Duty to refrain from storming out of court (JCN Holdings Limited, Post
Newspaper Limited and Mutembo Nchito v Development Bank of Zambia SCZ
Judgment No. 22 of 2013 / 2013 3 ZR 229) The issue was whether the matter had
rightly moved from one judge to another. The Supreme Court stated that the walking

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out of counsel was contemptuous and inexcusable disregard of the authority of the
court.

6. Duty to arrive in time for court sittings

7. Duty to concentrate on the business of the day

8. Duty to prepare adequately for the business of the day

9. Duty to be courteous to the court

10.Duty to refrain from making allegations of bias even if instructed by the

client ( John Kasanga v Mumba and Others 2006 ZR 7 AND Zulu v The People 1990-
1992 ZR 62)

John Kasanga v Mumba and Others 2006 ZR 7 - The plaintiff made an allegation that
the judge was biased because he seemed to be a personal friend to the other party.

11.Duty to bring to the attention of the court all relevant authorities both case
law and statutes so that the court is properly informed

12.Duty not to give personal opinion to the court

CONSEQUENCES OF BREACHING YOUR DUTY TO THE COURT

Judges usually take a strong stance against practitioners who breach their duty to the
court. They have inherent jurisdiction to maintain proper standards of conduct from their
officers. Depending on the circumstances, a breach of duty to the court may constitute
professional misconduct, a contempt of court or a crime such as an attempt to interfere
with the course of justice. The punishment can vary a reprimand, an order for the
payment of costs personally, a fine, removal from the roll or imprisonment. In
addition, if the breach has prejudiced the client, counsel may be ordered to pay
damages to the client and forfeit his right to be remunerated by the client.

LAWYERS DUTIES TO FELLOW PRACTITIONERS

Apart from your duties to the court and your client, you also owe duties to your fellow
practitioners. This duty involves conducting yourself in an honest, reasonable and
reliable manner towards your colleagues. It is the essence of the legal profession that its
members must be able to rely on each other’s word whether that word is given by way of
an oral promise, a letter or a formal undertaking.

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Always ensure that in all your dealings with fellow counsel, the tradition of cooperation
and courtesy between counsel is maintained while of course not prejudicing your client’s
interests. The cooperation and mutual assistance between counsel not only makes the
practice of law more enjoyable but also strengthens the profession and the
administration of justice generally.

Always treat fellow counsel with utmost courtesy and fairness in relation to court
matters and any other professional business or dealings. You should not use sharp
practice on your colleague. This means that you should never ambush fellow counsel. For
instance, if you intend to raise a preliminary issue on a point of law, give the opposing
counsel adequate notice of your intention to do so. Similarly, if you have an authority
which you think the other counsel is probably not aware of, hence the position he has
taken feel free to bring it to his attention. It may be what is needed to reach a
settlement.

Do not belittle fellow counsel: treat the other counsel as your equal whereas it is true
that seniority counts at the bar, it does not follow that senior members of the bar are
more intelligent than junior members. What senior members have which junior members
do not have is experience but experience is acquired over time and it should be shared
with the junior members of the bar. In short, seniority will be observed at the bar but with
due respect to all other members.

Do not shut your doors on fellow counsel: it is true that legal practitioners must be
organised and orderly. This means that they should maintain their diaries and fulfil their
appointments. However, sometimes situations arise when fellow counsel pops up at your
chambers without an appointment and while you are probably attending to a client. What
should you do in such a situation? Never refuse to see fellow counsel. In such a situation,
you either stand down the interview with the client and attend to fellow counsel or you
can simply acknowledge counsel’s presence and assure him or her that you will see them
shortly afterwards.

Do not communicate with another lawyer’s client without the lawyer’s consent :
it is accepted by the Legal Association of Zambia that it is improper by the practitioner
whether directly or indirectly to contact the client of another practitioner in a particular
matter without the other practitioner’s consent. This general principle is sensible because
if it were open to a practitioner to go behind the back of another practitioner to gain
admissions from the other party, litigation would become even more problematic and
commercial negotiations difficult to undertake.

ADVANTAGES OF HAVING GOOD RELATIONSHIPS WITH FELLOW PRACTITIONERS

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Assisting an inexperienced colleague with a problem in an area in which you are

experienced will in all probability be reciprocated one day when you have a problem in
which the colleague may be an expert.

Helping the colleague may also be to your financial advantage in the form of referral
work to you if the colleague cannot act for any reason such as the existence of conflict of
interest. It is also in the interest of your client that you have a good rapport with the
practitioner acting for another party because this may assist you to achieve a more
successful outcome for your client and in any case, no lawyer likes to deal with a rude
colleague on the other side.

If you disregard the tradition of cooperation and make life difficult for your colleagues,
they are likely to respond in a similar fashion. The result will be not only unpleasantness
within the professional but also a decline in its public standing.

PRECEDENTS AT THE BAR

Section 20 of the LPA provides that practitioners shall take precedent in the following
order:

a. The Attorney General;

b. The Practitioners who had filled the office of Attorney General in the order of
dates of appointment as Attorney General;

c. The Solicitor General of Zambia;

d. The Practitioners who had filled the office of Solicitor General of Zambia in the
order of dates of their appointment as solicitor general of Zambia;

e. All State Counsel for Zambia in the order of the dates on which the dignity for
State Counsel for Zambia was conferred upon them;

f. All other practitioners according to the order of entry of their respective names on
the roll.

LAWYERS DUTY TO THE PROFESSION AND THE PUBLIC

Lawyers are part of the administration of justice and because of this, some unique duties
are imposed upon them quite apart from the duties they owe to their clients and their
fellow lawyers. The ultimate duty of every lawyer is to uphold the administration of
justice and since the public at large is interested in the administration of justice, therein

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lies one of the lawyer’s duties to the community. This duty entails that a lawyer shall
always act in a manner that promotes the ends of justice.

Regarding the lawyer’s duty to the profession, it is a precondition of entry into and
continued membership of the legal profession that you are a fit and proper person to
have your name on the roll of practitioners. Therefore, a legal practitioner has an
overriding duty not only to do anything that renders him or her a person not fit and
proper to have their name remain on the roll.

The legal practitioner is part of the system involving directly and primarily the State. He
or she fulfils a dual function by assisting the client on the one hand and by promoting
justice in society on the other hand. The Constitution of the Republic guarantees
certain fundamental rights to the citizens among them equality and freedom. Therefore,
lawyers have a duty to ensure that proper balance between human rights and the more
general interest of the society and the State is maintained.

Further, the legal profession carries wide social and political obligations to society as a
whole. It is under a duty to fulfil its role in protecting the rights of minorities within
society and this can be done through pro bono work. The public is entitled to a fair
administration of judicial system and to insist that lawyers act responsibly and ethically
in the public interest and that they will not abuse the law for the benefit of their clients.
Lawyers also have a duty not to take unjust advantage either of the opponent or of the
public treasury.

15 March 2018

OFFENCES BY LEGAL PRACTITIONERS

Section 52 of the Legal Practitioners Act provides for offences by legal practitioners.
Under this section, no practitioner shall:

1. Take instructions in any case except from the party on whose behalf he is retained
or some person who is the recognised agent of such party or some servant relation
or friend authorised by the party to give instructions.

2. Mislead or allow any court to be misled so that such court makes an order which
the practitioners knows to be wrong or improper.

3. Tender or give or consent to the retention out of any fee paid or payable to him of
any services of any gravity for procuring or having procured the employment in any
legal business of himself or any other legal practitioner.

Don’t appreciate people who give you business by giving them brown envelopes.

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4. Directly or indirectly procure or attempt to procure the employment of himself or

his partner or assistant as practitioner through or by intervention of any person to
whom remuneration for obtaining such employment has been given by him or
promised to be given.

5. Advertise himself in relation to his profession in a manner inconsistent with the

provisions of the Legal Practitioners Publicity Rules SI No. 23 of 2017. Under
these rules, a practitioner who advertises his/ her practice firm within Zambia:

a. Shall not advertise

i. in a manner that is likely to diminish public confidence in the legal

profession or to bring little the legal profession in disrepute;

ii. in a manner that is ostentatious, in bad taste, misleading, deceptive,

inaccurate, false, sensational, intrusive, offensive, or in any other
way unbefitting the dignity of the legal profession.

b. Shall not in the advertisement

i. Make any claim that the practitioner is a specialist or expert in an

area of practice in which the practitioner is incompetent or
unqualified;

ii. Make any direct or indirect reference to the number or proportion of

cases that have been successfully undertaken by the practitioner or
to the practitioner’s earnings or the earnings or the earnings of any
practitioner practising with the firm.

iii. state that any particular person is or has been the practitioner or
firm’s client;

iv. state anything that would be construed as offering any inducements

to or imposing any duress upon any person as a means of obtaining
professional business for the practitioner of firm;

v. make any statement relating to the rates charged by practitioner or

his firm or to the firm’s methods of charging;

vi. make any laudatory references to the practitioner or the

practitioner’s firm or directly or indirectly extol the quality of the
professional services provided by the practitioner or his firm;

vii. make any comparison with or criticism in relation to the charges for,
or the quality of services provided by any other practitioner of firm;

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viii. incorporate the armorial bearings of LAZ;

ix. refer to the appointment of the practitioner currently or previously

practising in the firm to a judicial office;6

Regarding advertising outside Zambia, rules provide that a practitioner may advertise
outside but the advert shall not:

a. be conducted in a manner contrary to these rules or the laws of that country;

b. be conducted in a manner likely to diminish the confidence of the public in that

country regarding the legal profession in Zambia or put it in disrepute;

c. be published in any newspaper, journal or other publication in circulation in that

country which is widely circulated in Zambia;

d. be published in any edition of any newspaper, journal or other publication

originating from that country were such edition is published specifically for
circulation in Zambia;

6. directly or indirectly hold himself out or permit himself to be held out whether by
name or otherwise as being prepared to undertake professional business for any
fee or consideration which shall be less than the scale of charges (if any) for the
time being prescribed by the remuneration committee of LAZ;

7. Agree with the client, either before or after the conduct of any non-contentious
professional business to undertake such business for any fee or consideration
whatsoever, that shall be less than the scale of charges if any for the time being
prescribed by or approved by the remuneration committee;

8. Commit any breach of any of the provisions of part VIII dealing with the keeping of
accounts by legal practitioners;

9. Deceive or mislead any client in any respect material to such client

10. Commit any contempt of court;

In addition to the foregoing, legal practitioners are not expected to engage in any
criminal activities. A practitioner who has engaged him/herself in any criminal
activity and is convicted of the same, can be struck off the roll of practitioners.

DISCIPLINARY HEARINGS FOR LEGAL PRACTITIONERS

6
Rule 5 (1) (a) and (b) of the Legal Practitioners (Publicity) Rules, 2017

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Disciplining of legal practitioners is in the first instance the responsibility of the Council
of LAZ through its Legal Practitioners Committee (LPC). The LPC is appointed by the
Council of LAZ and consists of not more than 13 members of the association of not less
than 10 years standing at the bar and holding current practising certificates and
practising in Zambia.7 The members of the LPC are appointed to hold office for 3 years
and elect from themselves a convenor and such number of secretaries and other
officers as they may determine.8

The LPC has power on its own volition or on the advice of the Disciplinary Committee
to suspend any practitioner from the practising laws pending the hearing of the case by
the Disciplinary Committee.9

In relation to the Disciplinary Committee of LAZ, the LPC serves as a forum of first
instance to hear and determine complaints against Legal Practitioners. Where the LPC
decides to suspend a LP, the matter is referred to the Disciplinary Committee.

THE DISCIPLINARY COMMITTEE

The Disciplinary Committee is established under Part II of the Legal Practitioners

Act. Section 4 (1) of the LPA provides that there shall be a disciplinary committee
consisting of:

a. the Attorney General and the Solicitor General;

b. 5 practitioners being members of and nominated by the association and

appointed by the Minister of Justice.

Such nominated members hold office for a period of 3 years but are eligible for re-
nomination.10 During absence from Zambia of any nominated member, the Disciplinary
Committee may nominate any practitioner to act in a temporary capacity until the
expiration of his term or whichever occurs first.11

The AG is the chairman of the Disciplinary Committee and presides at all meetings he is
present. In the absence of the AG, the Solicitor General presides. In the absence of both
the AG and the SG, the members present elect one of them to preside. 12

7
Section 13 (4) of the LAZ Act
8
Section 13 (5) of the LAZ Act
9
Section 22A of the LPA
10
Section 4 (2) of the LPA
11
Section 4 (3) of the LPA
12
Section 4 (4) of the LPA

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The three members of the DC form a quorum and the Committee should not seat unless
it is made up of an unequal number of members. 13 Any question before the DC is decided
by the majority number of votes by the members present.14

NOTE: the DC hears complaint from the LPC de novo and treats the LPC as the
complainant.

 The DC also sits as an Appellate Forum. A person not satisfied by the decision of
the LPC, he / she may take the matter to the DC for a fresh hearing.

 The appeal process can go all the way till the Supreme Court. Appeals from the
DC can go to the High Court.

STRIKING A PRACTITIONER OFF THE ROLL

There are two ways a practitioner may be struck off the roll. These are voluntary or
non-voluntary. Under the voluntary means whenever the practitioner feels he should
quit the profession, he can write to the chairman of the Disciplinary Committee giving
reasons why he seeks to be removed from the roll of practitioners. Reasons should be
given because if a practitioner has been in practice for some time he/she most likely has
clients who deserve to know why their advocate is quitting the profession and who are
entitled to their briefs.

Under the non-voluntary way also referred to as the legal means, any person who thinks
that an advocate has committed a misconduct warranting the attention of the LPC or the
DC may file a complaint with the Association. The Committee (LPC/DC) will first
determine whether or not there is a prima facie case against the advocate. If there is, the
advocate will be requested to give his side of the story and thereafter a hearing will be
conducted.

NOTE: Both in the DC or LPC you can hire a lawyer to present your case.

If the LPC establishes misconduct on the part of the advocate, an application will be
made to the DC recommending that the advocate be struck off the roll of practitioners.
The DC will then re-hear the complaint and the coucorued advocate will still be entitled
to give his side of the story. If the DC agrees with the recommendation of the LPC then
an application will be made to the High Court to have the name of the practitioner
removed from the roll. If the High Court agrees with the DC an order will be made to that
effect and the Chief Justice will be advised to remove the name of the practitioner from

13
Section 4 (5) of the LPA
14
Section 4 (6) of the LPA

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the roll. Therefore, ultimately it is the High Court which has power under the non-
voluntary means to struck off the practitioner’s name from the roll.

THE COMPENSATION FUND

In the process of practising law, recipients of legal services may at times suffer loss as a
result of the dishonesty of the legal practitioner. In order to caution client’s in such
situations there is a compensation fund established under section 40 of the LPA for
purposes of mitigating losses sustained by any person as a consequence of dishonesty
on the part of a practitioner or his servants in connection with the practitioner’s practice.
The compensation is made only in cases where the council of LAZ thinks suitable to do
so.

OTHER MATTERS IN LAW PRACTICE (MISCS)

1. Fee Sharing

A practitioner is not supposed to share or agree to share professional fees with any
unqualified person and neither should a practitioner enter into partnership with any
person other than a legal practitioner.15

2. Contingency Fees

Contingency Fee means any sum whether fixed or calculated as a percentage of the
proceeds or otherwise howsoever payable only in the event of success. 16 A practitioner
should not enter into any agreement to receive contingency fees unless he is acting as
correspondent attorney for a practitioner in a foreign jurisdiction where contingency fees
are allowed.17

3. Name of the Firm

a. Name of the firm should not be misleading.

b. Not bring the profession in disrepute

c. Not be unconventional

A firm may not use the words barristers or solicitors in its description except for
identifying a practitioner who is qualified as such. Further, the firm’s name should not
give the impression that its bigger than it actually is. Advocates are supposed to clear

15
Rule 7 (1) and (3) of the Legal Practitioners Practice Rules
16
Rule 2 of the Legal Practitioners Practice Rules
17
Rule 8 of the Legal Practitioners Practice Rules

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the name of the firm with the Legal Practitioners Committee before registering it at
PACRA.18

4. Naming Partners of the Firm

The names and status of practitioners in the firm should be clearly stated in the firm’s
stationery such as letterheads for the firm. However, where a firm employs more than 20
advocates, the firm’s stationary may instead of naming all the practitioners, merely state
where the full list may be obtained.19

5. Professional Stationery

Any stationery used by the practitioner for professional work should contain the firm’s
physical address. It should not contain false or misleading areas of expertise or
qualifications or connections.

The stationery should reflect honour sobriety, decorum and modest character of the legal
profession and maintain logos as long as the logo has been approved by the Legal
Practitioner’s Committee. However, the practitioner’s stationery should not contain
slogans.20

6. Location, Supervision and Management of the Office

A practitioner shall;

a. Ensure that every office where the practitioner is located is decent, easily
accessible and in an environment conducive and suitable for law practice;

b. Not share office accommodation and facilities with non-practitioners;

The Legal Practitioners Committee has power to inspect the suitability of the
practitioner’s office at any time.

Every office of the firm should be properly supervised in accordance with the following
minimum standards;

a. Every office shall be attended on each day that it is open to the public by an
advocate who has practiced under the supervision of a senior advocate of at least
five years standing at the bar;

b. Every such office is managed by a practitioner of not less than three years
standing who shall normally be in attendance at the office during all the hours
when it is open to the public.21
18
Rule 10 of the Legal Practitioners Practice Rules
19
Rule 11 of the LPPR
20
Rule 12 of the LPPR
21
Rule 13 of the LPPR

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7. Continuous Professional Development

Practitioners are required to undergo continuous professional development by doing

any of the following:

a. Participation in a discussion group;

b. Participation in workshops as resource persons;

c. Undertaking a structured course;

d. Attendance at conferences that provide professional development content

either as a speaker or mere participant;

e. Pursuing a relevant post graduate program;

f. Lecturing on either undergraduate or post graduate programs or any

equivalent course at a tertiary institution approved by the CPD Committee;

8. Money Laundering

Under section 2 Financial Intelligence Centre Act No. 46 of 2010, Legal

Practitioners have been listed among the Designated Non-Financial Businesses and
Professions (DNFBPs) who can be used for money laundering and terrorist financing
activities. The risks associated with law practice in money laundering and terrorist
financing lying in the potential misuse of the legal profession and concealing the
identities of the beneficial owners of transactions done through them. The following are
some of the services offered by Legal Practitioners which can be misused for money
laundering and terrorist activities:

1. Incorporation of companies or establishment of other complex legal arrangements

such as trusts which may conceal the link between the proceeds of the crime and
the perpetrators.

2. Conveyancing of real estate as a means of covering the illicit funds transfer;

3. Execution of financial operations on behalf of customers such as cash deposits

and withdraws, foreign currency exchange operations, sell and purchase of
shares, sending and receiving international money transfers.

4. Misuse of client’s account

5. Filing of fictitious law suits to obtain a judgment to legitimise the illicit funds

6. Setting up and management charities for concealed illicit purposes

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Legal Practitioners must refrain from doing any of the above and must assist the
government to fight the scourge of money laundering and terrorism in every way
possible.

26th March 2018

TOPIC: JUDICIAL CODE OF CONDUCT

Judicial code of conduct

The judicial code of conduct applies to all judicial officers as defined in the Judicial
(Code of Conduct) Act no. 13 of 1999. Under this Act judicial officers are identified as
Chief justice, deputy chief justice, judge, registrar, magistrate, justice of a court or other
person having power to hold or exercise the judicial power of a court. 22

Adjudicative Responsibilities of Judicial officers

Under Part II of the Act, a judicial officer shall:

1. Uphold the integrity independence and impartiality of the judicature; 23

2. Perform the duties of that office without bias or prejudice and shall not by word or
conduct manifest bias, discrimination or prejudice based upon race, tribe, sex,
place or origin, marital status, political opinion or creed.

Similarly, a judicial officer shall not allow a legal practitioner or any officer of the
court to manifest by word or conduct bias or discrimination along the lines afore -
said.24

3. Not in the performance of adjudicative duties be influenced by

a) Partisan interest or fear of criticism
b) Family, personal, social, political or other interests
c) Any other circumstances otherwise than that provided by law 25

4. not use or her own office to advance any private interest of his or her own,
spouse, child, relation or other person or make any person believe that the

22
Section 2 of the Judicial Code of Conduct
23
Section 3 of the Judicial (code of Conduct) Act
24
Section 4 of the Judicial (code of Conduct) Act
25
Section 5 (2) of the Judicial (code of Conduct) Act

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spouse, child, relation or other person is in a position to influence the judicial of-
ficer in any manner26

5. Not adjudicate in or take part in any consideration or discussion of any matter in

which the officer or the officer’s spouse has any personal, legal or pecuniary in-
terest whether directly or indirectly.27

6. Not adjudicate or take part in any consideration or discussion of any proceedings

in which the officer’s impartiality might reasonably be questioned on the grounds
that:
a) The officer has a personal bias or prejudice concerning a party or parties
legal practitioner or personal knowledge of the facts concerning the legal
proceedings.
b) The officer served as a legal practitioner in the matter

(Judge or magistrate crosses the floor from the bar to the bench, while a legal
practitioner he handles this matter before matter is concluded, he becomes a magistrate
or judge and the same matter is allocated to him)

c) A legal practitioner with whom the officer previously served is handling the
matter

d) The officer has been a material witness concerning the matter or a party to
the proceedings

e) The officer or his/her family member has pecuniary interest in the subject
matter or has any other interest that could substantially affect the pro-
ceedings.

f) A person related to the officer or the spouse of the officer

I. Is a party to the proceedings or an officer, director or trustee of a

party

II. Is acting as a legal practitioner in the proceedings

26
Section 5 (3) of the Judicial (code of Conduct) Act
27
Section 6 (1) of the Judicial (code of Conduct) Act

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III. Has any interests that could interfere with a fair trial or hearing

IV. Is to the officer’s knowledge likely to be a material witness in the

proceedings.28

Judge can recuse himself if any of the above are present, if he discloses his reasons and
the parties don’t mind, he will continue.

EXTRA JUDICIAL ACTIVITIES

A judicial officer shall not conduct activities outside the office that:

a) Create conflict with judicial responsibilities

b) Create doubt on the officer’s capacity to act impartially as a judicial officer

c) Bring the integrity, independence and impartiality of the judicature into disrepute.

d) Interfere with the proper performance of judicature duties29

Financial Matters

Generally, a judicial officer should not solicit for gifts or money or use business or other
information received in the course of duties for personal gain. He should also not engage
in financial or business dealings that may compromise his or her professional integrity,
independence or competence.30

Gifts

A judicial officer or members of his or her family residing in his household should not
accept gifts, bequests, favour or loan from any person for purposes of a bribe, corrupt
practise so as to influence the officer in the execution of his duties. However, gift,
bequest or favour does not include the following:

28
Section 6 (f) of the Judicial (Code of Conduct) Act
29
Section 11 (1) of the Judicial (Code of Conduct) Act
30
Section 14 of the Judicial (Code of Conduct) Act

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a) A gift incidental to a public testimonial, a book or other resource material sup-

plied by a publisher on complimentary basis

b) An invitation to the judicial officer or family member to attend a function or an

activity related to the improvement of law, the legal system or administration of
justice.

c) A gift or award or benefit incidental to the business profession or other activity of

a spouse or other family member of the judicial officer

d) A gift, award or benefit for use by the spouse, other family member and the judi-
cial officer

e) Ordinary social hospitality e.g. family friend’s wedding

f) A gif from a relative or friend for a special occasion where the gift is commensur-
ate with the occasion and the relationship

g) A loan from a lending institution on the same terms available to persons who are
not officers. A judge should not be condemned from getting a loan from the lend-
ing institution as long as the same terms are extended to others .

h) A gift bequest, favour or loan from a relative or personal friend

i) A scholarship or fellowship awarded on the same terms and criteria applied to

other applicants.

j) Any other gift, bequest, favour or loan from a person who is not a party or is not
a person who is or likely to come or whose interest is or is likely to come before
the officer provided that the gift, award or benefit could not reasonably be per-
ceived as a bribe or corrupt practise or an intention to influence the officer in the
performance of judicial duties.31

31
Section 15 of the Judicial (Code of Conduct) Act

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Practise of Law

A judicial officer is not permitted to practise law though he or she may act in person and
may without remuneration give legal advice to and draft or review documents for a
family member.32

Political Activity

A Judicial officer shall not:

a) Hold office in or below to a political party

b) Endorse of oppose a candidate of political office
c) Make any speech or public statement on behalf of a political organization
d) Attend a political gathering or rally
e) Solicit funds on behalf of or pay an assessment to or make a contribution to a
political organisation or candidate
f) Partake in any function held or organized b a political party
g) Engage in any political activity33

*Read Article 143 and 144 of the constitution- removal of a judgment

Exam tips

Explain: articulate a position

Discussion discuss both sides and then take position

Midterm explain and discuss questions.

Situational questions….

04 May 2018;

PRECAUTIONS AGAINST PROFESSIONAL NEGLIGENCE

32
Section 17 of the Judicial Code of Conduct Act
33
Section 18 of the Judicial (Code of Conduct) Act

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Donoghue v Stevenson34

Negligence and Liability

Always remember to protect yourself in everything you do in your capacity as a legal

practitioner because you can be sued for professional negligence. As a legal practitioner,
you are under obligation to act as a reasonably competent practitioner or to act in a
circumstance and having regard to the standard which are normally adopted by the
profession.

If a legal practitioner is found to be negligent, he or she can also be liable to his or her
client in damages for breach of contract because it is an implied duty or term of a
contract between the practitioner and the client that the practitioner is obliged
personally or through others acting under his supervision and instructions to exercise the
knowledge, skill and diligence to be expected of an average legal practitioner.

The following are some of the common “landmines” of professional negligence for legal
practitioners:

1. Failure to execute instructions before they become statute barred; Always

verify the period as to statute bar that is applicable to a particular matter. Do not just
assume that you have either three or six years in all cases. This is because specific
time limits are prescribed by different statutes. This also entails that a practitioner
should not delay to issue process simply because negotiations for a possible
settlement are going on.

2. Failure to observe the rules of court: Failure to observe the rules of court can be
fatal to a client. For example, by having the client’s action dismissed for irregularity
and consequently having the client to bear the other party’s costs.

3. Matters taken over from another practitioner: When taking over any matter
from another practitioner, it is very important to satisfy yourself that at a particular
stage at which you take over the matter, all matters requiring attention have been
attended to.

4. Avoid offering free legal advice to acquaintances: Be worried of giving free

legal advice to acquaintances on social occasions. This is because they may be
impressed with your advice and may act on it. If your advice turns out to be wrong,
they may not hesitate to sue you. Do not take the risk of being sued for negligent
misstatements.

Hedley Byrne v Heller and Partners – This is where someone who gave an opinion
in his personal capacity was sued by the person who acted on it.
34
It establishes the underlying principle

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5. Avoid Acting on verbal instructions: It is risky to act on verbal instructions. Your

instructing client may later deny that he ever gave you the instructions you acted
upon. Therefore, always insists on written instructions were this is practically
possible.35

6. Avoid Group Actions: When you have been instructed by a group to represent them
as such, take extra care to verify that the group representatives have the necessary
mandate from others to give instructions on their behalf. 36

7. Avoid Executing Consent Judgements or Orders: Do not sign consent judgments

or orders which have not been approved by the client unless in case of the order, it
will have no adverse effects on the client because it is a mere formality. 37

8. Failure to conduct preliminary searches in property transactions which

could have revealed e

9. ncumbrances or lack of title on the part of the person claiming to be the

beneficial owner;

10. Releasing full purchase price to the vendor before completion of the
transaction:

11. Inadequate supervision of junior counsel or paralegals who handle

delegated duties on behalf of the legal practitioners;

WORKING IN THE LAW

Article in the Sunday Times – 14 January, 2018.

Career Options

There are a number of career options for legal practitioners. These include:

1. Working as an associate or partner in a law firm;

2. Working as an inhouse counsel or company secretary;

3. Teaching law;

4. Career at the bench;

35
There are two ways in which a client can give instructions either by them writing or by you writing to them
and asking them to confirm.
36
A lot of lawyers have been messed up by group actions, it is advisable to decline such instructions.
Otherwise, ensure to get consent from all the group members.
37
In practice there are two ways of getting the approval from the client. The first way is having the client
endorse “approved” on the consent and sign in it before executing the final one. The other way is ask the client
to put into writing the terms they would included in the consent.

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5. Working as state advocate or prosecutor;

6. Working for international organisations;

SURVIVAL KIT FOR NEWLY ADMITTED LEGAL PRACTITIONERS

The first year at the bar is usually not the best of all. Whatever confidence the advocate
may have started with its usually lost by the end of the first year at the bar. They start
feeling insecure, ill drained and even unsuited to practice law. If this is how you feel in
your first year at the bar, please do not give up because it is likely to be a passing phase.
The following survival kit will help you survive your early days at the bar:

1. Ensure that you know exactly what you have been instructed to do;

2. Find out how long you have to do it;

3. Know the facts of the file backwards, forwards and sideways;

4. If in doubt about what your principle has asked you what to do, do not guess ask
again or if your principal is absent, seek help from another partner or a senior lawyer;

5. Keep memos of your instructions from your principal;

6. If a mistake is made and you believe you are being unfairly used as a scape goat, say
so. If you go through the file and realise it is a bad case, say so.

7. If your letters are being frequently rewritten and you do not know why, find out;

8. If your principal disagrees with the position you have taken which you believe is a
correct one, stand your ground.

9. Seek out mentors who will help you graduate into a confident legal practitioner;

10. Learn from those around you and enjoy the challenges of learning. Be assured that
practice does get easier with time.

WOMEN AT THE BAR38

The ugly fact is that female advocates encounter a lot pf prejudices at the bar.
Sometimes these prejudices are accounted on a daily basis. Some conservative male
practitioners argue that women are not suited for particular areas of practice because
they lack experience. Sadly, this argument is dependent upon failure by the same male
practitioners to give women the basic work to allow them gain experience.

38
This will NEVER come during the exam

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A further excuse used covertly by some practitioners to deprive women of equal career
opportunities is that women have domestic chores and child raising responsibilities and
are therefore unable to work the same number of hours as men. However, this is in most
cases a myth because the ability to work hard is not dependant on gender but on one’s
personality, career goals and life style of choices.

One of the greatest difficulties confronting women at the bar is the issue of having
children and taking maternity leave to look after the children. Unfortunately, some firms
which employ female advocates view the decisions by the advocate to have a child as a
decision to abandon active practice. Lastly, there is also a problem of married women
advocates having challenges to entertain clients for fear that their husbands may
become suspicious.

11 May 2018

THE ROLE OF COUNSEL IN COURT ANNEXED MEDIATION

Order 31, rule 4 of the HCR provides for court annexed mediation. It has also become
part of the Zambian legal calendar to have a designated mediation settlement week.
Therefore, the role of counsel in promoting mediation and ensuring that it is successful
cannot be overemphasised. Parties may end up at court annexed mediation through any
one of the following ways:

1. The presiding judge refers the matter to mediation on leave or on her own motion;

2. The matter is cause listed for mediation during the mediation settlement week;

3. Parties request the presiding to refer the matter to mediation; -

Assessing the Dispute to Determine whether Mediation Should be requested

Before requesting the court to refer the matter to mediation, counsel with the full
participation of the client, should make an informed decision on whether mediation is an
appropriate process to be used. Focus must be on the needs of the clients. Consideration
must be given to whether or not the client can afford litigation as well as to the strengths

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and weaknesses of the client’s case. If the client cannot afford litigation and has a weak
case, mediation may be the best option.

Once it is determined that mediation is the best option, counsel should sell the idea to
the other party. More often than not, lawyers are reluctant to suggest mediation to their
clients for fear that the client might view the suggestion as an indication of a weak case.
However, in order for counsel to maintain integrity in the eyes of the client, it is
important to be honest with the client about the strengths and weaknesses of their case
and the alternatives available to them.

The following are the circumstances in which to suggest mediation: 39

1. The court cannot provide a relief which the parties need.

2. Parties wish to settle promptly;

3. The parties wish to minimise costs;

4. Voluntary compliance is desirable;

5. The parties wish to avoid a court precedent;

6. The parties have difficulties negotiating on their own;

7. Parties lack negotiating skills;

8. Parties assess the facts differently;

9. Parties want to maintain a continuing relationship;

10. Parties want to maintain confidentiality;

The following are some circumstances in which mediation may not be desirable:

1. The parties cannot represent their own best interest;

2. The client wants a court precedent;

3. One party adamantly denies liability;

4. One party is likely to go insolvent;

5. A favourable court judgement is predictable on one of the parties;

6. Where it is not possible to conduct mediation without the discovery of documents

which one of the parties is not prepared to disclose;

7. Where it is possible for the parties to negotiate on their own;

39
Ensure to read this as this may come in the EXAM

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THE MEDIATION SESSION

The mediation session will be presided over by the mediator. At mediation, the mediator
must inform the parties of his or her functions and he must objectively facilitate a
settlement. He or she must be impartial and must not make any decisions of fact or law
or determine the credibility of any person. The mediator must mediate in an
inquisitorial manner. The mediator must encourage the parties to make full
disclosures but no party must be compelled to do so. Anything said orally or in writing is
confidential and cannot be used in court as evidence unless it is recorded in a
settlement signed by the parties or it is discoverable in terms of the rules of court.
Therefore, counsel cannot cross examine a witness on what was said in mediation if the
process fails and the matter goes back to court.

For the opening of the mediation, counsel should:

1. Prepare a brief opening stating the clear issues at hand, the position of the client
and his or her confidence in the mediation process;

2. Avoid lengthy legal arguments;

3. Decide whether the presentation of the opening statement should be done by the
client or counsel himself;

4. Assist the mediator in developing the discussion and ensure that the conversation
is progressing in a manner that will assist in understanding the issues at play and
reaching a solution;

5. Suggest negotiation technics if not suggested by the mediator;

6. Listen to the indicators from the other party that will help in reaching an
agreement;

7. Carefully use questions to obtain information from the other party without
sounding as if you are conducting cross examination;

YOUR ROLE AS COUNSEL DURING CAUCASES

Counsel should:

1. Restore the client’s confidence in the case;

2. Define the realistic value of the client’s and opponent’s case;

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3. Convince the client of the process;

4. Direct the client to focus on areas identified by the mediator;

5. Assist the mediator by providing him or her with information (confidential or

otherwise) that may help in brokering a settlement.

6. Refresh the needs of the client;

7. Refresh the client of the needs of the opponent;

8. Assist the client to develop solutions that will bring about a win-win situation;

9. Liaise with the other party’s counsel if need be to clarify certain issues;

10. Remind the client that he is in mediation because litigation can be avoided;

If the settlement is reached, counsel’s role is to:

1. Assist in articulating the key terms of the settlement agreement;

2. Assist the mediator to draft the settlement agreement in consultation with the
other party;

3. Assist in ensuring that the settlement agreement deals with all the issues;

4. Commend everyone involved for their efforts to bring about a settlement;

18 May 2018

LEAVING THE LAW

The practice of law will have highs and lows. There will be times when you will really feel
good and enjoy your practice such as when you deservedly win a case for a valued client.
However, there will also be times when the pressures of work and the inevitable
injustices that occur in the justice system will depress you and make you reflect on the
alternative ways of making a living. If you find that the passion and joy you had at first
have disappeared, it may be the time to leave the law practice.

There is a professional disease called “professional paralysis” which ravages legal

practitioners as time goes by. The following are some of its symptoms:

1. File Stagnation:

This is usually manifested by picking up so many different files in quick succession but
doing nothing on any.

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2. Unopened Drawer of the Filing Cabinet

This is manifested by having a drawer in the filing cabinet which you prefer not to open
because it contains files of a pressing nature that you cannot bear the sight of them and
you would rather pretend they do not exist.

3. Fast Lane for the Easy Files

This is manifested by concentrating on doing the easy jobs with easy client satisfaction
and think that you are on top of your practice when in fact not.

4. Excuses

This is manifested when counsel begins to find it easier to explain the inactivity on
certain files to clients.

5. Procrastination and Explanation

You become more involved in periphery matters that do not advance the file at all
without coming into grips with the real problem.

CAUSES OF PROFESSIONAL PARALYSIS

The following are some of the causes of professional paralysis.

1. Genuine overwork;

This is manifested by having difficult files slowly slip to the bottom of filing cabinets
where they remain untouched.

2. Incompetence in some areas

This makes counsel to opt for negotiation or compromise rather than taking the
procedural steps necessary to advance the matter on the merits.

3. Fear of Losing Clients

Whether due to greed or insecurity, counsel finds himself in a situation where he cannot
just say NO to a client.

4. Lack of Assistance

This is manifested by a lawyer remaining a sole practitioner for a very prolonged period.

5. Psychological Breakdown

Due to pressures of law practice, counsel starts to feel overwhelmed. More often than
not, this leads to counsel to find solace in substance abuse.

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6. Ego

Being shy to consult fellow practitioners when you realise that your practice is in troubled
waters.

TIME TO QUIT

Whether it is economic necessity or sheer professional fatigue, there comes a time when
irrespective of the money that you are making, or how good you have become at your
practice, you must ask yourself the question do I want to do this for the rest of my life? If
a small voice inside you answers NO, then it is time to think about quitting and what you
can do instead.

Remember, no amount of money, no prestige and no professional pride can justify

entrapping yourself in a daily environment which has long seized to be satisfying. There
is a time for everything. There is a time to start law practice and there should be a time
to quit law practice.

27 June 2018

LAWYER CLIENT RELATIONSHIP

Notes Missing

Similarly, in a doctor patient relationship, a doctor acts one way and the patient another
way.

The same holds true in a lawyer-client relationship. In general, a lawyer is expected to be

aggressive, tough minded and objective. The lawyer knows the legal system and
therefore knows how to get the system work for his client’s interest. As such, the lawyer
is expected to take charge of the relationship. Clients on the other hand are expected to
be docile and passive. They are to trust their lawyers to act in their best interest. They
are not expected to ask too many questions. They are expected to leave their concerns
to their lawyer’s judgment.

One scholar explained the relationship between the lawyer and the client this way: “the
traditional idea is that both parties are best saved by the professional, that is, the lawyer
assuming broad control on solutions to the problems brought by the client”. Put the other
way therefore, the lawyer client relationship is one of unequals in which the lawyer
usually holds the upper hand.

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The reasons for the lawyer’s dominance over the client are not difficult to imagine, the
following are some of them:

1. Clients usually come to lawyers because of some serious problems they are
facing. They are confused and troubled. This makes them vulnerable and likely to be
dependent on their lawyer;

2. Lawyers are experts in the law, they possess certain skills and knowledge which their
clients lack. They are the guardians of the mysteries of the legal systems while clients
are strangers in the strange land of the law;

3. Lawyers do not talk like ordinary people, they use a special language that clients
cannot understand anymore than a patient can comprehend the doctor’s medical
language;

4. Because of the lawyer’s expertise and the client’s troubled state, the client cannot
adequately evaluate how well the lawyer is doing his job. Only a fellow lawyer can
determine if a lawyer is doing a job. Therefore, clients have little choice but to trust
their counsel;

5. Lawyers are members of the profession and cannot help but think of themselves as
members of an elite group who should be respected by the client’s they serve;

The sad consequence of the foregoing is that lawyers tend to treat their clients as broken
objects which need fixing.

A WORD OF CAUTION: - Not every lawyer-client relationship fits the above description.
Dominance is not always a one-way street. This is because, lawyers depend on their
clients for livelihood. This is especially true of lawyers in private practice. Many wealth
clients may not easily fall prey to the dominance of the lawyer. At time, such clients may
in fact dominate the lawyer. But this is undesirable because when a lawyer is dominated
by the client, such a lawyer turns a blind eye to the professional consequences of his
actions and starts doing whatever the client wants as long as the client is paying. Such a
lawyer becomes a hired gun.40

THE LAWYER AS A HIRED GUN

The lawyer as a hired gun summarises a situation where the lawyer becomes so partisan
that he owes undivided duty and allegiance to his client and does whatever it takes to
achieve his client’s goals. This is a dangerous situation because the lawyer also owes a
duty to the profession, the court, fellow counsel and to the public – Major Lubinda

40
Cautioned to take word for word

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sawekama v Watson Ng’ambi and The Attorney General 2011 ZR 143 - when a
lawyer becomes a hired gun, he knows no loyalty other than to his client and becomes
oblivious to the torments and distractions he causes to other people.

Proponents of hired gun mentality argue that it serves as a sure way of protecting the
weak and vulnerable in society. The weak and the vulnerable will look to the lawyer as a
hired gun to defend them from their oppressors. The lawyer as a hired gun is viewed as a
courageous warrior for his client.

Advantages of a Hired Gun Approach to Client Representation

The great advantage of hired gun mentality is that it instils in lawyers an unflinching
loyalty to their clients. The hired gun approach help ensure that lawyers will not easily
abandon their clients at the first hint of trouble or dilute their loyalty because of fear of
upsetting powerful social economic and governmental interest.

Disadvantages of a Hired Gun Approach to the Client Representation

The hired gun approach to litigation contributes to the delay, the costs, the game play,
the large number of frivolous lawsuits and the procedural abuses that plaque the
legal system. When lawyers see themselves as hired guns, they do anything not only to
win but to harass and even crush the opponent. The hired gun mentality amongst
lawyers has led to the public’s distrust and criticism of lawyers and the perception that
lawyers care only about money and will do anything for the client without regard to the
right and wrong as long as they can smell money.

There is also a high moral cost paid by lawyers who adopt the hired gun
approach. It leads them to an abdication of moral responsibility for their actions. The
morality of everyday life such as do not lie, do not cheat, do not deceive, do not hurt
others are pushed in the background. Lawyers stop applying the golden rule.

Lawyers start justifying anything that can advance the client’s cause without regard to
the morality of the ends.

Lawyers who pursue matters with the hired gun mentality lose sight of their actions
and view other human beings as plaintiff or defendant and not as real persons with
emotions and feelings who can feel hurt by the lawyer’s actions. People lose their homes,
exhaust their bank accounts, sometimes end up in jail or debt because of the work of
lawyers. This is not to deny the benefits derived from the work of the lawyers but merely
to underscore the fact that the work that lawyers do has moral consequences and
therefore carries with it moral responsibilities. All lawyers must therefore count the cost
of practicing as a hired gun.

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11 July 2018

A LAWYER AS A HEALER AND A PEACEMAKER41

There are situations where a lawyer acts as a peace maker:

1. where a lawyer helps the client to set up a company, write a will or helps selling
the property;

2. where a lawyer prepares a contract to assist the client deal with a business deal;

3. where a lawyer advises a client on compliance issues such as tax or

environmental regulations;

4. Boundary disputes;

5. Matrimonial causes – a lawyer is advised to encourage

LAWYERS DUTY TO PROMOTE ALTERNATIVE DISPUTE RESOLUTION MECHANISM

When you are faced with potential instructions, ask yourself the following questions:

1. Did the client suffer a wrong and if so how serious?

2. Does the wrong suffered by the client warrant resort to litigation?

3. How likely is it that the client will prevail at the end of the day?

4. What does the client really want, is it money, pride or just wounded pride?

5. Does the client appreciate the cost of litigation both monetary or otherwise?

Abraham Lincoln expressed the lawyer’s role best when he counselled: “discourage
litigation, persuade your neighbours to compromise whenever you can, point out to them
how the nominal winner is often the real loser in fees, expenses, and waste of time. As a
peace maker, the lawyer has a superior opportunity of being a good man. Never steer up
litigation. A worst man can scarcely be found than one who does this”.

Therefore, the summary of it is that the lawyer should always promote alternative
dispute mechanisms.

DEFENDING THE GUILTY (REVISION)

41
NOT RELEVANT

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Guilty of a person is much more than the mere fact that he did what he was accused of,
there are other factors such as the accused mental state, mitigating or aggravating
circumstances. Mathew 9:9-13

13 June 2018

No one can slave for two masters: for either he will hate the one and love the other or he
will stick to the one and despise the other. You cannot slave for God and for riches -
Mathew 6:24

Conflict of interest or potential of it is one of the critical aspects of the lawyer -client
relationship as it directly involves the duty of loyalty. It has been said that the loyalty
lawyers owe the client should be undivided which means that lawyers must serve their
client’s needs without interference or impairment from any other interests. As a
practitioner, the lawyer must use his or her utmost skill and experience and all relevant
information known to him or her to further the interest of the client. Accordingly, the
lawyer must avoid doing anything which may potentially conflict with this duty. A failure
to avoid a conflict of interest may expose the lawyer to liability for negligence and may
constitute professional misconduct.

Though not exhaustive, the following are circumstances in which a conflict or potential
conflict of interest may arise:

1. acting for both parties to the transaction; - Spector v Ageda 1973 1 ChD
30

2. acting against former clients; - The rationale for this is that whether the
matter is contentious or not, there is the possibility that the information obtained
under the seal of professional confidence may become relevant to the matter at
hand.

3. Personal interest: - a practitioner should not act for a person in a transaction to

which the practitioner is himself a party with an adverse interest. The rationale for
this is that there is a real danger of taking advantage of the client’s inexperience,
ignorance or infirmity.

4. Group actions: - a practitioner should not accept instructions to act for a group
of litigants where there are competing interests with the same group.

5. Clients with whom counsel has other business dealings: - a practitioner

should be cautious to accept instructions from a person with whom he or she has
other business dealings. The rationale for this is that there is a real danger of

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other issues unrelated to legal representations being brought into the equation of
legal work thereby compromising counsel’s independence and objectivity.

6. Sexual relationship with a client: - a sexual relationship with a client almost

always creates a professional conflict of interest to one degree or another. It is
difficult for the practitioner to balance his role as a lawyer and a lover at the same
time. A sexual relationship with a client diminishes the practitioner’s professional
independence and objectivity.

7. Lawyers personal and political agendas: - Where a practitioner is also an

active member of a political party, there is a potential conflict of interest between
his or her professional interest and that of his or her political party. The
practitioner may be championing his or her own agenda in the name of a political
party.

Section 22 (1) (b) of the Legal Practitioners Act.

20 July 2018

QUESTION 1 A of the Mid-Year Examination

DRAFTING A RULING

HEADING

IN THE MATTER OF : THE LEGAL PRACTITIONER’S ACT, CAP 30 OF THE LAWS OF

ZAMBIA

IN THE MATTER OF : THE DISCIPLINARY COMMITTEE OF THE LAW ASSOCIATION

OF ZAMBIA

AND

IN THE MATTER OF : AN APPLICATION UNDER SECTION 22 (1) (b) of the Legal

Practitioners Act

AND

IN THE MATTER OF : COMPLAINANT’S NAME (This may be the Law Association

of Zambia, member of a public of Judicial officer)

AND

THE NAME OF THE RESPONDENT

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BODY

Paragraph 1: Background or preamble

Paragraph 2: the evidence of the Complainant;

Paragraph 3: the evidence of the Practitioner;

Paragraph 4: Evaluation of the evidence by the committee;

Paragraph 5: Application of rules of professional conduct or ethics to the facts

Paragraph 6: conclusion – either guilty and impose appropriate sanctions such as

debar, fine, reprimand or suspend.

NOTE: The key is whether you are likely to identify the misconduct or unethical behaviour
the practitioner has committed. Ensure that your answers are in a bullet point and an
explanation.

How to treat your client where he starts telling lies:

Where your client starts telling lies, you have an overriding duty to the court to ensure
that a truth is told. Counsel should make it easier for the court to discover the truth and
not make it difficult for the court to discover the truth. Always stand on the side on the
truth. Where the matter is already ongoing, ask the court to stand down the matter and
have a briefing with the client.

However, where he persists and tells you that what he is currently saying is the truth, ask
for an adjournment, explain to your client why you cannot proceed and ask your client to
appoint new counsel who will file notice of change of advocate. Unlike Notice to withdraw
which requires reasons for the withdraw, a notice of change of advocates does not
require reasons to be given.

If the question says discuss: give pros and cons. If it says explain: it means pick a side
and424344
42
Discuss the advantages of a lawyer being a hired gun.
43
Ethics and professional conduct are just about human decency in law practice.
44
What 3 areas in law practice justify ethics for lawyers: - 1. Confidentiality because members of the public or
individuals would want to feel free to tell the lawyer whatever it is that they have done without fear that it will
go into the public. Therefore, unless it falls into the exceptions, a lawyer should be prepared to go with that
information to the grave. This requirement remains true even where the client has died. 2. Conflict of Interest –
to ensure that as lawyers do their work, conflict of interest is avoided at all cost. NO ONE CAN SLAVE FOR TWO
MASTERS. 3. Balancing advertising with legal work (Advertising) – without ethics, lawyers would advertise their
services in any manner. Therefore, to ensure preservation, there must be ethics to regulate how lawyers

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Question: What are the peculiar issues that affect inhouse counsel’s observance of rules
of interest.

Answer: You should avoid having other businesses with your client (employer). 45 The
question may be on potential areas of conflict for inhouse counsel or state advocate.
Conflict of interest may be either actual or potential and both must be observed. Actual
conflict is where the issues are already complicated.

Question: A client who has been charged with theft of money comes to you and
confesses that he stole the money and he comes with a bag full of cash and asks how
much your deposit is, would you accept the money? – NO

27 July 2018

Question 1 (b) of the Mid-Year

DUTIES OF A LEGAL PRACTITIONER

Duties to a Client

1. Duty to fearlessly uphold the client’s interest

2. Duty not to breach client’s confidentiality;

3. Duty to avoid conflict of Interest46

4. Duty to ensure that the prosecution discharges its onus in criminal prosecution/
cases;

5. Duty to act in good faith (towards your client) at all times; 47

QUESTION 1 (C)

Duty to the Court

1. Duty to refrain from misleading the court;

2. Duty to refrain from any acts which are prejudicial to the administration of justice;

regulate their business.

45
Ensure to read potential areas of conflict of interest for inhouse counsel.
46
The duty not to breach the client’s confidentiality and the duty to avoid conflict of interest are overriding
duties and the legal practitioner must ensure that he understands the extent and scope of the two duties.
47
This duty when analysed further overlaps with the duty to avoid conflict of interest

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3. Duty to ensure that the proper and efficient administration of justice is achieved;

4. Duty to refrain from insulting the court;

5. Duty to be punctual for court business;

6. Duty to concentrate on the business of the day in court;

7. Duty to prepare adequately for the business of the day;

8. Duty to refrain from storming out of court48

9. Duty to be courteous to the court at all times;

10. Duty to refrain from making unsubstantiated allegation of bias against the judge
or magistrate;49 - Grace Chimachaila v Phillip Chibundi - (read the ruling of
the court on the application to have a judge recuse himself)

11. Duty to bring to the attention of the court all relevant authorities so that the court
is properly informed;

12. Duty not to give personal opinion to the court;

Duty to Fellow Counsel

1. Duty to conduct oneself in an honest, reasonable and reliable manner;

2. Duty to co-operate with fellow counsel;

3. Duty to be courteous to fellow counsel;

4. Duty to avoid sharp practice on fellow counsel;

5. Duty not to communicate directly with fellow counsel’s client;

Duties to the Profession

1. Duty to preserve the good reputation of the legal profession;

2. Duty to refrain from doing acts that are likely to diminish public confidence in the
legal profession;

3. Duty to contribute to the advancement of the legal profession

QUESTION 2

48
JCN Holdings and Fred Mmembe
49
Zulu v The People I Kasanga v Masiye Motels

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1. Rendering specialised service based on advanced specialised knowledge and skill

and dealing with problem primarily on an intellectual plain;

2. It involves a confidential relationship;

3. It is charged with a substantial degree of public obligation;

4. It enjoys a common heritage of knowledge built over a period of time;

5. It performs its services in consideration for professional fees;

6. It is bound by an ethical code in its relationship with its client;

7. It is usually self-regulating;

8. It enjoys higher social status and higher pay;

9. It requires an inter-personal relationship between the professional and the client;

Question 2 (b)

1. Incorporation of companies or establishment of other legal entities such as trusts

which may compel

2. Conveyancing as a means of covering

3. Execution

4. Misuse of client’s account

5. Filing of fictitious accounts

6. ..

QUESTION 3

1. To have a clear picture of a client’s problem;

2. To determine whether or not there is actual or potential;

3. To ascertain whether the client’s instructions involve potential fraud, illegality or

other impropriety;

4. To ascertain whether counsel is competent to handle the matter or execute the

instructions;

5. To discuss the legal fees and or basis for charging the legal fees;

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Show Stages of the Lawyer – Client Interview

a. Lawyer and client greet, sit and introduce;

b. Lawyer elist story from client with an opening questioning;

c. Lawyer explains the issue while client listens carefully

d. Lawyer takes notes from the client clarifying the instructions

Stage 2

a. Lawyer questions client on gaps on his story and clear any ambiguities;

b. After clearing the ambiguities in the client’s story, lawyer seeks reconfirmation
of his understanding of the matter with the client;

c. Lawyer takes notes as may be necessary;

Stage 3

a. You tell your client the intended plan of action;

b. You seek your client’s agreement

c. Tell the client the follow-up work that you will do;

d. Tell your client what you expect from them in order to do what you have
identified must be done;

e. You tell them when you will meet the next;

f. Ask them if they have any other business to discuss with you;

g. Take the necessary notes on that stage on the meeting;

h. Close the meeting and excuse the client.

AFTER THE FIRST INTERVIEW

1. Decide whether or not you really want to accept the instructions

2. You go back to assessing your relationship with the client and other clients and
determine whether there is actual or potential conflict of interest;

3. Ask yourself whether there was any impropriety on the part of the client;

4. Determine whether you are competent to carry out the instructions;

5. Has there been any agreement on fees and is the client able to pay the fees;

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QUESTION 4

Kadobi should suggest to Mapenzi from that of not guilty to guilty. Kadobi may elect to
proceed with the presentation but should not in any way proceed to

NO. Kadobi cannot disclose his answer to the court..

The good reason to continue representing Mapenzi is that he is still presumed innocent
until guilty.

QUESTION 5

1. Counsel must not depart from he or she considers legally and ethically correct for
pressure from the client;

2. By remaining independent counsel contributes to the proper functioning of the legal

system,

Four ways of Independence

Any legal advice must reflect counsel’s opinion of the law

Any court document counsel prepares must be legally correct and used for proper
purposes

Any legal argument must be justifiable and must not be the client’s mouthpiece

Counsel should be ready to withdraw from representation

Maintaining regular contact

1. The client is kept

PRE-TRIAL BRIEFING

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