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.

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

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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. 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. This roll is basically a list of legal practitioners kept in accordance with
the provisions of the LPA.

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.

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

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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

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

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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.

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

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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 of 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 of 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,
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 of 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…”

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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;

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 duty to
look after the interest of the client to the best of his ability. He/ she must act honestly in the
way he handles the client’s affairs and must also 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.

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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
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 understand.

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 accepted 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.

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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.

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.

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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.

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.

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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.

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.

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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 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 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

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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 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 advise 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

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.

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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 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

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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 purposely
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/ her authority to appear on
behalf of the client. However, if during the course of instructions, the court 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.

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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 price
litigant pays from filing documents in prosecuting and defending a civil suit. The fees are prescribed
by 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 the 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.

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

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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.

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 Maeshal 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;

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• 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

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. 1

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

1
Section 58 of the LPA

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whole amount must be deposited into the client’s account and the practitioner can subsequently get
his portion therefrom.

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.

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 spade 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 barristers 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:

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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 order 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 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

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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.

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.

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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

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.

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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 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.

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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.

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;

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

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;2

Regarding advertising outside Zambia, rules provide that a practitioner may advertise outside but
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 pf 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.

2
Rule 5 (1) (a) and (b) of the Legal Practitioners (Publicity) Rules, 2017

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DISCIPLINARY HEARINGS FOR LEGAL PRACTITIONERS

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. 3

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.4 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. 5

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 III 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.6
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.7

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.8

3
Section 13 (4) of the LAZ Act
4
Section 13 (5) of the LAZ Act
5
Section 22A of the LPA
6
Section 4 (2) of the LPA
7
Section 4 (3) of the LPA
8
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.9 Any question before the DC is decided by the majority number
of votes by the members present.10

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 DC 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 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.

9
Section 4 (5) of the LPA
10
Section 4 (6) of the LPA

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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.11

2. Contingency Fees

Means any sum whether fixed or calculated as a percentage of the proceeds or otherwise howsoever
payable only in the event of success.12 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.13

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

11
Rule 7 (1) and (3) of the Legal Practitioners Practice Rules
12
Rule 2 of the Legal Practitioners Practice Rules
13
Rule 8 of the Legal Practitioners Practice Rules

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its bigger than it actually is. Advocates are supposed to clear the name of the firm with the Legal
Practitioners Committee before registering it at PACRA.14

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.15

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. 16

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;

c. 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.17

7. Continuous Professional Development

14
Rule 10 of the Legal Practitioners Practice Rules
15
Rule 11 of the LPPR
16
Rule 12 of the LPPR
17
Rule 13 of the LPPR

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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

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

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TOPIC: JUDICIAL COURT 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.

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;18

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, mar-
ital 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 aforesaid. 19

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 20

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 spouse, child, relation or other
person is in a position to influence the judicial officer in any manner 21

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 interest whether directly
or indirectly.22

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:

18
Section 3 of the Judicial (code of Conduct) Act
19
Section 4 of the Judicial (code of Conduct) Act
20
Section 5 (2) of the Judicial (code of Conduct) Act
21
Section 5 (3) of the Judicial (code of Conduct) Act
22
Section 6 (1) of the Judicial (code of Conduct) Act

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a) The officer has a personal bias or prejudice concerning a party or parties legal prac-
titioner 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 proceedings.

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

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 proceed-

ings.23

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.

23
Section 6 (f) of the Judicial (Code of Conduct) Act

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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 officers 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 duties 24

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. 25

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:

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

24
Section 11 (1) of the Judicial (Code of Conduct) Act
25
Section 14 of the Judicial (Code of Conduct) Act

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

e) Ordinary social hospitality e.g. family friends wedding

f) A gif from a relative or friend for a special occasion where the gift is commensurate 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 lending 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 appli-
cants.

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 perceived as a bribe or corrupt
practise or an intention to influence the officer in the performance of judicial duties. 26

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.

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 organ-
isation or candidate

26
Section 15 of the Judicial (Code of Conduct) Act

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MR. KAMFWA

f) Partake in any function held or organized b a political party

g) Engage in any political activity27

*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

Donoghue v Stevenson28

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

27
Section 18 of the Judicial (Code of Conduct) Act
28
It establishes the underlying principle

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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.

5. Acting on verbal instructions: It is risky to act on verbal instructions. Your instructing client may
latter deny that he ever gave you the instructions you acted upon. Therefore, always insists on
written instructions were this is practically possible. 29

6. 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.30

7. 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.31

8. Failure to conduct preliminary searches in property transactions which could have revealed
encumbrances or lack of title on the part of the person claiming to be the beneficial owner;

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

10. Inadequate supervision of junior counsel or paralegals who handle delegated duties on behalf
of the legal practitioners;

29
There are two ways in which a client can give instructions either by them writing or by your writing to them and asking them
to confirm.
30
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
31
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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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;

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.

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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 BAR32

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.

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

32
This will NEVER come during the exam

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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
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 the 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:33

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;

33
Ensure to read this as this may come at the EXAM

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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;

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:

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

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

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 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 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:

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

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

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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.

6. Ego

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

TIME TO QUIT

When 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 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.

The reasons for the lawyers 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;

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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 client 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 if the foregoing is that lawyers tend to treat their clients as broken objects
which need fixing.

A WORD OF CAUTION: - Note 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 tends 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. 34

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 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

34
Cautioned to take word for word

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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 morals 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.

11 July 2018

A LAWYER AS A HEALER AND A PEACEMAKER35

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;

35
NOT RELEVANT

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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 comprise 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 waste 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)

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 lawyers 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

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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 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

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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

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.

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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 and363738

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).39 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

36
Discuss the advantages of a lawyer being a hired gun.
37
Ethics and professional conduct are just about human decency in law practice.
38
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 regulate their business.
39
Ensure to read potential areas of conflict of interest for inhouse counsel.

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