ETHICS - ANSWER AND QUESTIONS.
November 2016
Question 1
What are the five functions of the Council for Legal Education? (10).
See S34 & 35(2) Legal Professional Act, Cap 27:07
-it is a statutory body created by parliamentary to regulate legal education and training in
Zimbabwe.
-it is responsible for setting Bar Conversions Examinations
- it is responsible for imparting legal knowledge and skills to those in the legal profession.
-it also responsible for supporting and encouraging the intellectual and personal growth by
educating future and current members of the legal profession to be skilled advocates and
sensitive counselors of law.
Question 2
Please define the following terms: -
2.1 undercutting (5).
This is whereby a lawyer offering legal services at a significantly lower fee than their
competitors usually to attract clients. They do that by quoting low fees than those prescribed by
the Law Society of Zimbabwe. They also do that by offering discounts to clients.
2.2 Touting (5).
Refers to soliciting for legal business in an aggressive or unprofessional manner or in a way that
is prohibited by the Law Society of Zimbabwe. LP's usually do that by approaching clients
especially in vulnerable situations to offer legal services or by contacting individuals or
organizations to offer legal services often without being invited/. Requested or by using
misleading or deceptive advertising to attract clients.
2.3 Overreaching (5)
This is whereby a lawyer exceeds the sounds of legitimate representation there by taking unfair
advantage or engaging in oppressive behaviour. It is done by charging excessive unreasonable
for legal services. It can also be done by abusing fiduciary duty by lawyer thereby breaching the
trust and confidence placed in a lawyer by clients. Lawyers can also do that by exploiting
vulnerable clients for personal gain. It can also be done by disclosing or using confidential
information of the client for personal gain.
Ques 3
What is the purpose in the context of a law firm of: -
3.1 a business account (5)
-it helps to keep business money separate from the client's own funds. This separation protects
client's assets from mixing with the law firm's assets
-it also helps the law firm to track its transactions such as withdrawals, deposits, payments etc.
-it helps the law firm to comply with the regulatory requirements e.g. having three accounts the
interest-bearing account, current account and trust account.
-separating business accounts from trust account helps to reduce the risk of misappropriation of
funds, fraud or other financial losses.
-It also demonstrates transparency and accountability in handling funds
3.2 a trust account (5)
- it is an account designed to keep client's funds separate from the law firm's own funds.
-the other purpose is to help the law firm to comply with regulatory requirements e.g. trust
account rules.
-trust account aid in compliance with anti-money laundering regulations.
-it helps the law firm to track client's transactions including transfers, withdrawal and deposits.
-the other purpose is to help law firms to build and maintain client trust and confidence.
3.3 What particulars and information are required to be contained in LPs books of accounts. (5)
Refer to section 14 LPA
-record of each client's name, address and contact details unique account number assigned to
each other; brief description of the matter or case being handled for each client; record all trust
account transactions including deposits, withdrawal and transfers; reconciliation of each of the
trust account to ensure accuracy and record of the current balance of each client's trust
account.
JUNE 2022
Question 1
Basically, ethics entail the right thing to do when no one is watching. Discuss this assertion in
the context of the legal profession. (10)
Ethics refers to rules that regulate the conduct of members of a profession like in our scenario,
ethics means rules that regulate the conduct of members of the legal profession. Hence, ethics
is the study of standards used to determine whether something is right or wrong, evil or bad.
The assertion is revenant particularly in the context of legal profession to a greater extent.
Legal profession relies heavily on trust and confidence between lawyers and their clients so
ethical behavior helps to maintain this trust.
Furthermore, lawyers play a critical role in upholding the integrity of justice system hence,
unethical behavior can undermine this integrity.
Moreso, a lawyer's reputation is built on their ethical conduct so unethical behavior can damage
this reputation.
Lawyers must not disclose confidential information of the client even if they retire from the
profession or even when they are done with that particular case or in the circumstances that
the client dies, the confidential information of that client must not be disclosed. Therefore, it is
ethics that helps a lawyer to do so even when there is no one watching.
Moreover, when there is conflict of interest when dealing with a client, ethical principles require
lawyers to disclose the conflict and withdraw from the case if necessary.
Additionally, lawyers may be tempted to overcharge or misrepresent fees when no one is
watching, however, ethical principles require them to be transparent and honest in their billing
practices. It is actually a misconduct which may lead to a lawyer being deregistered or go
through a disciplinary action.
In conclusion, the assertion that ethics basically entail doing the right thing when no one is
watching us true to a greater extent.
Question 2
Write brief commentaries on the following: -
a) curator bonis (4)
- a curator bonis is a Latin term that refers to a person appointed by a court to manage the
financial affairs of another person, often due to incapacity. In the context of a lawyer who has
failed to manage trust funds, a curator bonis is a person appointed by the court to take control
of the lawyer's trust account.
-When a lawyer fails to manage trust funds, a curator bonis may be appointed by the court to
take control of the trust account. The curator bonis would take control of the trust account,
freezing the account and preventing any further transactions. He Investigate the trust account.
--The curator bonis would investigate the trust account to determine the extent of any
mismanagement or misconduct. He can restore the trust account to a state of solvency. The
curator bonis would take steps to restore the trust account to a state of solvency, including
reimbursing any shortfall or making good any losses.
-The purpose is to protecting the interests of clients, thus the curator bonis ensures that the
interests of clients are protected and that their trust funds are safeguarded. The other purpose
is to maintain public trust, the appointment of a curator bonis helps to maintain public trust in
the legal profession by demonstrating that the profession takes seriously any instances of
misconduct or mismanagement.
Also providing a remedy for misconduct, the curator bonis provides a remedy for misconduct or
mismanagement by a lawyer, ensuring that those responsible are held accountable.
b) inadvertent disclosure (4)
-this is whereby a LP unintentionally reveals confidential or privileged information of a client.
This occurs through carelessness communication, document sharing or any other means. LPs
must take reasonable steps to prevent inadvertent disclosure such as using secure
communication channels. For example, labelling confidential documents and implement data
protection policies. In the event of inadvertent disclosure LPs should promptly notify the
affected parties and take corrective action.
c) champerty (4)
-is a form of maintenance where a LP provides financial support to a litigant in exchange for a
share of the proceeds e.g. 20%from the sale of a property or an award for damages. Champerty
is generally prohibited as it can create conflict of interest and undermine the integrity of the
justice system. LPs must avoid engaging in champertous arrangements as they can lead to
disciplinary action and damage to their professional reputation.
c) court room decorum (4)
-this refers to rules of behaviour and etiquette that LPs must follow when appearing in court.
This includes dressing professionally, addressing the court with respect and avoiding disruptive
or unprofessional behaviour. LPs must maintain high level of professionalism and respect for the
judges and other parties involved in the proceeding. Failure to observe court decorum can
result in disciplinary action and damage to one's professional reputation and even affects
negatively on client relationships.
e) trust account (4)
-is an account that keeps client's fund separately from the firm's own funds. This separation
prevents mixing client's monies with those of the firm. The trust account helps the law firm to
comply with regulatory requirements i.e. trust accounting rules. It also helps the law firm to
track client's transactions including deposits, withdrawals and transfers. Moreso, maintaining
trust accounts helps the firm to build and maintain client's trust and confidence.
Question 5
a) Outline the advantages and disadvantages of contingency fee arrangements. (10)
Advantages
-contingency fee arrangements allow clients who cannot afford pay hourly fees access legal
services.
-it aligns the interests of the lawyer and client as the LP’s payment is tied to the outcome of the
case.
-it can motivate lawyers to work harder and be more invested in the case as their payment is
dependent on the successful outcome.
-clients do not have to pay upfront fees or hourly thereby rates reducing their financial risk.
- it can simplify billing as clients do not have to worry about hourly rates or unexpected
expenses.
Disadvantages
-lawyer may not receive payment if the case is unsuccessful thereby creating uncertainty and
financial risk for the lawyer.
-contingency fees can be high
-contingency fees can be complex and difficult to understand leading to a lack of transparency
and potential disputes between lawyers and clients.
-it can create a conflict of interest as lawyers maybe motivated to settle cases quickly than
pursing a more favourable outcome.
-contingency fees may be abused by lawyers who may take on frivolous cases or engage in
unethical behaviour to increase their charges of receiving a payment.
b) The law society of Zimbabwe marketing guidelines have outlived their purpose. Discuss. (10)
The Law Society of Zimbabwe marketing guidelines were designed to regulate the advertising
and marketing activities of LPs in Zimbabwe. However, with the advent of technology
advancement, changes in consumer behaviour and increasing importance of online presence,
the marketing guidelines may have outlived their purpose to some extent.
Current guidelines may not adequately address online marketing which has become a crucial
aspect of legal marketing. The guidelines may not provide clear guidelines on how to use social
media, online advertising and website optimisation thereby leaving LPs uncertain about what is
permissible or not.
Furthermore, the guidelines may be too restrictive making innovation and creative in legal
marketing inflexible. For instance, the guidelines may prohibit LPs from using certain types of
advertising or promotional materials there by limiting their ability to effectively market their
services.
Moreover, the guidelines may not take into account changes in consumer behavior such as the
increasing importance of online reviews and ratings. LPs may need to adapt or align their
marketing strategies to respond to these changes but the guidelines may not provide sufficient
flexibility to do s. Additionally, the guidelines may be consistently enforced leading to confusion
and uncertainty among LPs. This inconsistency can also create an uneven playing field where
some LPs are allowed to engage in certain marketing activities while others are not.
Also, the guidelines may not be aligned with international best practices in legal marketing. For
instance, the American Bar Association's Model Rules of Professional Conduct provide more
flexibility and guidance on legal marketing including online marketing.
However, to a lesser extent, the guidelines did not outlive their purpose because they are still
used by LPs to guide their conduct thereby maintaining the integrity of the legal profession.
In summation, to a greater extent, the law Society marketing guidelines of Zimbabwe have
outlived their purpose due to their restrictive nature, inadequate regulation of online marketing
and failure to account for changes in consumer behaviour. Revising the guidelines may help to
ensure that LPs in Zimbabwe can effectively market their services while maintaining the
integrity and professionalism of the legal profession.
Question 6
With reference to relevant case law, discuss the circumstances in the SC can interfere with the
decision of the LP's Disciplinary Tribunal to the effect that a LP is unfit to continue practicing.
(15)
The SC's power to interfere with the decision of the LPs Disciplinary Tribunal is guided by the
principles of judicial review.
The circumstances for interference with the decision of the LPs Disciplinary Tribunal are as
follows:-
- Where there is error in interpretation of law.
The LPDT's decision must be based on a correct interpretation of law. If the DT misinterprets or
misapplies the law the SC can intervene. In the case of Law Society of Zimbabwe v
Mushayavanhu (2015)...
-Irrationality or unreasonableness
The LPDT'S must be reasonable and rational. If the decision is arbitrary or grossly unreasonable,
the SC can intervene. In the case of Chairman, Public Service Commission v Zimbabwe Teacher s
Association (2015)...
-Procedural unfairness
The LPDT'S decision must be made in accordance with the principles of natural justice. If the
tribunal fails to provide a fair hearing the SC can intervene. In case if Mushayavanhu v Law
Society of Zimbabwe (2013)
-Bias or conflict of interest
The LPDT'S decision must be free from bias or conflict of interest to avoid the SC's intervention.
In the case of Law Society of Zimbabwe v Chikwanha (2012)....
-Failure to consider relevant factors
The LPDT'S decision must take into account all relevant factors. So that the SC cannot intervene.
In the case of Zimbabwe Lawyers for Human rights v Attorney General (2014)...
In summary, the SC can interfere with the LPDT'S decision in circumstances where there the
tribunal's decision is unreasonable, irrational or procedurally unfair.
NOVEMBER 2018
Question 1
a) How many oaths does a LP have to take on registration. (5)
According to section 86, LPA Cap 27:07 the oaths are two.
b) What are the names of the oaths. (5)
According to section 86 of the LPA, a person who applies for registration as a LP shall before
being registered take the oaths if loyalty and office. The oaths of office is a promise to uphold
the Constitution and laws of Zimbabwe while the oaths of loyalty entails a promise to uphold
the ethics and integrity of the legal profession as well as serve their clients with loyalty and
dedication.
Question 2
How do you resolve a dispute regarding a fee note or invoice presented to a client by his LP.
What particulars would you require.
...................
Question 3
Please define the following terms: -
a) under cutting/ under charging (5)
This is whereby a lawyer offering legal services at a significantly lower fee than their
competitors often to attract clients. They do that usually by quoting low fees than those
prescribed by the Law Society of Zimbabwe. They may also do that by offering discounts to legal
services and by way of providing unrealistically low fees estimates to client. The law society's
tariff of recommended fees is in fact a tariff of minimum fees. Hence a LP must charge
adequately and properly for his services unless he is acting pro deo or pro amico
b) Touting (5)
Refers to the practice of soliciting for a legal business in an aggressive or unprofessional manner
or in a way that is prohibited by the Law Society of Zimbabwe in terms of section 23 of the LPA
or pester for customers. In Law Society, Cape v Berrange, a LP was held guilty of touting where
he entered into marketing agreements with estate agents whereby, he rewarded them for
referring conveyancing work to his firm. LP's do that by approaching potential clients especially
in vulnerable situations to offer legal services or by contacting individuals or organizations
without being requested or by using misleading advertising to attract clients. Therefore, LPs may
not advertise except as permitted by the Law Society in it's marketing guidelines published in
2000.
Question 4
a) What is the composition of the Law Society Disciplinary Tribunal. (5)
According to section 24 LPA, the Disciplinary Tribunal is comprised of a chairman and a deputy
chairman who are HC/ SC or retired judges of the SC/HC appointment by the Chief Justice. Two
other members selected from time to time as the occasion arises by the Chairman of the
Disciplinary Tribunal from a panel of names of ten registered LPs submitted by the Law Society.
b) What are the obligations of a LP who has convicted of a serious criminal offence and
sentenced to imprisonment without an option for fine. (2)
...........
c) What is the purpose of the Law Society Compensation Fund and who administers it (3)
Section 70 LPA is to fund compensation to clients who would have suffered financial losses due
to the dishonesty or misconduct of a lawyer or a law firm. The fund also helps to protect a
safety net for clients who have been affected by a lawyer or firm's wrong. The compensation
fund is administered by the Board of Trustees sections 64 and 69 LPA.
Question 5
a) What is a protocol and who is obliged to maintain one. (5)
-it is a formal agreement, procedure or set of rules that outlines the expected behavior,
standards or guidelines for LPs. Protocols provide framework for decision making, action and
communication thereby ensuring consistency, quality and accountability. It is maintained by a LP
and the regulatory bodies such as Law Society of Zimbabwe.
b) How frequently and in what circumstances does one have to submit their protocol to the
secretary of the council of the Law Society. (5)
-Upon initial registration as a LP, the lawyer society requires a LP to submit an updated protocol
annually as part of their registration renewal process and changes to protocol that is lawyers
may be required to submit an updated protocol whenever there are significant changes to their
practice e.g. change of business structure or addition of new service.
The circumstances includes when a LP commences practice they usually submit their protocol,
changes to trust account- lawyers maintain trust account and whenever there are changes to
their trust account they may be required to submit an updated protocol and in the event of a
complaint or disciplinary action against a LP the Law Society may request a copy of their
protocol as part of the investigations
