Professional ethics - Article appeared in Junior Bar Association Journal
PROFESSIONAL DUTIES, ETHICS, AND ETIQUETTES OF LAWYERS
A.W.A.Salam - President, Court of Appeal.
It
is a universal truth that ordinary citizens are incapable of navigating safely
through the complexities of the law and the system of justice. Hence, laymen
need to have the advice of persons skilled in the science of law to decide on the
course of action to meet the challenges in the field of law. In the absence of
rules touching upon ethical values and well-established etiquette, the legal
assistance extended may not have the desired effects. As such, the professional
bodies, mainly the legal fraternity had been increasingly at work in the recent
past developing, revising, and refining professional codes of ethics as it is
proved to be more important than ever before. The standards for professional
conduct day by day keep drifting higher. Frankly, it is a sign of maturity, and
of professional pride, when the noble profession operates under a code of
ethics thus following the age old traditions and etiquettes.
The
relationship between a lawyer and a client is often established without any
formalities. For example, an express retainer or remuneration is not required
between a lawyer and his client. Such a relationship is fiduciary in nature and
no conflict between the lawyer's own interest and the lawyer's duty to the
client can arise. The Code of Conduct applicable to the members of the legal
profession, needs to be revised and laws passed to meet the challenges aiming
at a better discipline among the members of the legal profession, who are the representatives
of their clients, officers of the legal system and public citizens having
special responsibility for the quality of justice. The position of a lawyer
being such, whether he engages in practice of law or not and whether there is a
Code of Conduct or otherwise is bound to conduct himself with propriety.
The
maxim “courtesy begets courtesy” has been conveniently forgotten by many a lawyers
and judges. The axiom had guided the mankind through all the stages of
civilisation and to follow the same costs nothing, but it pays a huge dividend.
“A man without a sense of courtesy,” says Francis Bacon, “is an animal with
human form.” Rupali Desai, a moral teacher said that “Things we carry from home
shows where we hail from, i.e courtesy, respect, and gratitude”.
Saint
Basil said that “a tree is known by its fruit; a man by his deeds”. A good deed
is never lost; he who sows courtesy reaps friendship, and he who plants
kindness gathers love. Being respected is one thing, but commanding the respect
is another. Some people just seem to command respect from the very second they
meet another. Respect shown for the concern exclusively directed toward the
welfare of others is a sterling quality. This quality which is presently believed to be
a rare commodity should be reflective in a better way on the legal fraternity without
the exclusion of the bench. If the bench and the bar are collectively able to
command the respect of the public, the bodyguards and policemen to ensure the protection
of the judges would automatically be replaced by the “general public” who will
take care of it.
Attorneys-at-Law
are admitted and enrolled by the Supreme Court according to law and every
person admitted and enrolled as such is liable to be removed from office by any
three Judges of the Supreme Court sitting together if found guilty of any
deceit, malpractice, crime or offence[1].
Every
attorney-at-law shall be entitled to assist and advise clients and to appear,
plead or act in every court or other institution established by law for the
administration of justice and every person who is a party to or has or claims
to have the right to be heard in any proceeding in any such court or other such
institution shall be entitled to be represented by an attorney-at-law. Further,
Every person who is a party to any proceeding before any person or tribunal
exercising quasi-judicial powers and every person who has or claims to have the
right to be heard before any such person or tribunal shall unless otherwise
expressly provided by law be entitled to be represented by an attorney-at-law[2].
Although
the legal practitioners are considered to be independent, they are dependent on
their clients to some extent for their financial gain. In actual truth the
clients are the masters of lawyers in as much as patients are to medical
practitioners. Unlike many other professionals including judges, most lawyers
are paid in advance, well before the fulfilment of the task undertaken.
Attorneys-at-Law
are guardians of the law and they contribute in a substantial way towards the
preservation of the rule of law. The accomplishment of this task entrusted
requires of him, not merely to have an understanding of his function of the
legal system but a sound knowledge of his relationship with his clients and
more importantly his duties and obligations to Court.
A
free and a democratic society depends upon the recognition of the concept that
justice is based upon the rule of law which means the restriction of the arbitrary
exercise of power by subordinating it to well-defined and established laws. Without
the implementation of the rule of law, individual rights become subject to an
unrestrained power and respect for law is then observed in the breach. In any
civilized society, the legal profession is indispensable and the existence of
it is greatly felt particularly at times when the existence of the rule of law
is threatened and emphasis is laid on the requirement for preservation of the
rule so as to prevent its extinction.
The
struggle of the bar to preserve the rule of law is not a solitary attempt but a
concerted action emerging from both the bench and the bar. It is the lawyers who
are chosen as judges and ultimately it is their skilfulness that reflect the
quality of judgments whether it originates from a Primary Court or ends up in
the Supreme Court. Administration of justice is a joint venture in which the lawyers
and Judges play equal role. It is for this reason that not merely Judges but lawyers
are also called "officers of court". In order to appreciate the true
role the bar plays in this respect, it is necessary to have a proper perception
of the quality of men who are part and parcel of it. If the bar lacks men of
integrity who do not appreciate the real value and the jealously guarded moral Code
of Conduct of the legal profession, then the existence of an independent
judiciary would be far from reality, as it is the members of the legal
profession who ultimately adorn the bench.
The
importance of displaying the highest degree of unity among the members of the
legal fraternity, on matters of common importance has been emphasised in many
fora. So long as the bench is assisted by men of highest principles of professional
ethics and etiquettes, the law will continue to be a noble profession. The conscience
of a lawyer and that of a Judge must provide the touchstone against which to
test the extent to which their actions should rise above the minimum standards.
The failure to adhere to the required standard of discipline either by the
Bench or the Bar will result in the possible loss of that respect and
confidence. Whether the respect and confidence commanded in the past by both
wings of the system of administration of justice, remain the same or gained
more strength or in the process of erosion is a matter for the public to decide.
Unity
among the members of the bar subject to the majority decision being given
effect to on any controversial issue is a significant feature of a healthy bar
that could meaningfully serve the purposes of its existence. The very purpose
of serving its own members too would be lost, if members deviate from the
common goal aimed at achieving through a united bar.
Lamentably,
for some reason or other the bar has failed to achieve unity or consensus
amongst the membership on significant issues in the recent past and if this
state of affairs continues, as far as the noble profession is concerned, it would
only add public insult to injury. The
bar both junior and senior needs to resolve within themselves to restore the
unity among all its members irrespective of political and other consideration
and realize the inevitable consequences of a possible disintegration, which
will distract the lawyers of their duty to work jointly towards the implementation
of the rule of Law. The expression “united we stand divided we fall” should
re-echo in the back of their minds. It is important to remember that that
disunity may indirectly demonstrate lack of professionalism among them.
In
fulfilling professional responsibilities, a lawyer necessarily assumes various
roles that require the performance of many difficult tasks. He is always
obliged to maintain the highest standards of ethical conduct. Not every
situation which a lawyer may encounter can be foreseen, but fundamental ethical
principles are always present for guidance. Within the framework of these
principles, a lawyer must act with courage and foresight and be able and ready
to shape the body of the law to keep pace with the ever-changing society. The
purpose of this article is to discuss some of such situations and the writer
does not claim it as being exhaustive on the subject.
A
true, honest and a forthright human is said to be a person of good repute. The
expression “reputable lawyer” refers to a legal practitioner who has achieved
the status of being held in high esteem and honour both by the public and the
bench. Dishonourable or questionable conduct on the part of a lawyer either in
his private life or professional capacity will reflect adversely upon the
integrity of the profession and the administration of justice. A lawyer is considered
to possess competent knowledge if he has the relevant skills, attributes, and
values in a manner appropriate to each matter undertaken on behalf of a client
regard being had to the general legal principles, procedures and the
substantive law for the areas applicable.
As
lawyer is held out as knowledgeable, skilled, and capable in the practice of
law. Accordingly, a client is entitled to assume that the lawyer has the
ability and capacity to deal adequately with any legal matters to be undertaken
on the client’s behalf. A lawyer who is incompetent brings discredit to the
profession, and may bring the administration of justice into disrepute. In
addition he damages his own reputation.
A
lawyer should not undertake a matter without honestly feeling competent to
handle it or sincerely hopeful of becoming competent without undue delay. This
is an ethical consideration and is to be distinguished from the standard of care
that a court would invoke for purposes of determining the negligence of a
lawyer.
A
lawyer needs to have a fair knowledge of his own lack of competence, if any, before
he decides to undertake an assignment. The disservice that would be done to the
client by undertaking a task in a field of law in which the lawyer is
incompetent, would be so enormous that not only the lawyer is bound to lose his
reputation but his client too will be deprived of the opportunity to properly
espouse his cause in a court of law. If consulted in such circumstances, the
lawyer should either decline to act or in the alternative obtain the client’s
instructions to consult a lawyer who is competent in the relevant field.
When
advising clients, a lawyer shall be honest and candid. The lawyer’s duty to the
client who seeks legal advice is to give the client a competent opinion based
on sufficient knowledge of the relevant facts, an adequate consideration of the
applicable law, and the lawyer’s own experience and expertise.
The
advice must be open and undisguised and must clearly disclose what the lawyer
honestly thinks about the merits and probable results. It is always advisable
not to give extremely high hopes of a possibility of the client emerging
victorious, except to explain the probable consequences of a case. This would
undoubtedly save the lawyer at the termination of the case of the embarrassment
of having to face an allegation that he had failed to assess outcome of
the case in the proper manner.
A
lawyer is expected to hold in strict confidence all information acquired in the
course of the professional relationship and shall not divulge any such
information unless required by law or authorized by the client. The rule has
received immunity in favour of a lawyer as he cannot otherwise render effective
professional service to the client unless there is full and unreserved
communication between them. At the same time, the client must feel completely
secure and entitled to proceed on the basis that, without any express request
or stipulation on the client's part, matters disclosed to or discussed with the
lawyer will be held in strict confidence. The rationale behind this principle
is embodied in the Evidence Ordinance.
In
terms of Section 126 of the Evidence Ordinance no lawyer is permitted, unless
with his client's express consent, to disclose any communication made to him or
contents of documents the lawyer became so acquainted with, or to disclose any
advice given by him to his client in the course of and for the purpose of such
employment.
A
lawyer owes the duty of confidentiality to every client without exception and
whether or not the client is a continuing or casual client. The duty survives
the professional relationship and continues indefinitely after the lawyer has ceased
to act for the client, whether or not differences have arisen between them. A
lawyer should take care to avoid disclosure to one client of confidential
information concerning or received from another client and should decline
employment that might require such disclosure.
A
lawyer should avoid indiscreet conversations, even with the lawyer's spouse or
family, about a client's affairs and should shun any gossip about such things
even though the client is not named or otherwise identified. Although the rule
may not apply to facts that are public knowledge, nevertheless, the lawyer
should guard against participating in or commenting on speculation concerning
the client's affairs or business.
The
rule prohibits disclosure of confidential information because confidentiality
and loyalty are fundamental to the relationship between a lawyer and client and
legal advice cannot be given and justice cannot be done unless clients have a
large measure of freedom to discuss their affairs with their lawyers. The explanations
appended to Section 126 of the Evidence Ordinance under (a), (b) and (c) are
not without importance.
As
Lord Brougham put it in Greenough v Gaskell[3]
that a solicitor cannot be compelled, at the instance of a third party, to
disclose matters which have come to his knowledge in the conduct of
professional business for a client, even though such business had no reference
to legal proceedings, either existing or in contemplation. If the privilege did
not exist at all, everyone would be thrown upon his own legal resources,
deprived of professional assistance and a man would not venture to consult any
skilful person, or would only dare tell his counsellor half his case.
According
to the International Code of Ethics, lawyer's fee should, in the absence of
non-applicability of official scales, be fixed on a consideration of the amount
involved in the controversy and the interest of it to the client, the time and
labour involved and all other personal and factual circumstances of the case.
Although
an Attorney-at-Law is entitled to charge fees of his choice for the services
rendered to the clients, the lawyer should be mindful that a reasonable scheme
of fee chargeable would bring in more clients and give him added opportunity to
assist the court to resolve more disputes than he would otherwise be invited. Many
persons who desire to employ lawyers may have had little or no experience with the
basis on which clients are charged and for this reason lawyers should explain
fully to such persons the reasons for the specific fee arrangement proposed.
After
being retained for a particular purpose a lawyer should use proper care to
safeguard the interests of the client by promptly attending to all his matters
without undue delay. If a lawyer has accepted employment in a matter beyond the
lawyer's competence but in which the lawyer is expected to become competent,
the lawyer should diligently undertake the work and study further qualifying
himself. The obligation to act competently calls for higher motivation than that
arises from fear of civil liability or disciplinary penalty.
A
lawyer is able to contribute towards the elimination of laws delay and to
assist his client to obtain redress expeditiously. If unnecessary applications
for extension of time to file pleadings, written submissions, adjournment of the
trial and extension of time for other steps are avoided, the delay complained
of will be minimised to a great extent. He should be always conscious of the
maxim that handing down the successful party a delayed judgement may turn out
to be a denial of justice.
Lawyers
should not accept work in more than one court on a particular day which will
result in the postponement of a case due to his being not available. In such an
instance he must make appropriate arrangement with the consent of the client to
ensure that those cases are not postponed due to his absence.
It is important to remember that no representation
should be undertaken on behalf more than one client involving a conflict of
interest.
In CA Appeal No 36-40/2007 - HC COLOMBO: 11/2000 (P. Anuruddha
Samarasingha and others Vs Hon. Attorney General C/A minute dated 25.03.201,
the question of representation amidst a conflict of interest was considered at
length. This
was a murder case where six accused were charged with murder and conspiracy to
murder the deceased. The deceased was the wife of the brother of the 1st
accused. The 1st accused denied the truth of the accusation complaining that he too was a victim of the
crimes, almost to the same extent and degree as in the case of his brother,
sister-in-law, uncle etc.
A
President’s Counsel appeared for 1st to 6th accused in
the Magistrates Court and the High Court, although it was obvious that there
was a serious conflict of interest between the 1st accused and
others. The line of defence taken up in the non-summary proceedings jointly by
all 6 accused is diametrically opposed to the complaint of the 1st accused
who ought to have determined to bring the culprits to the book.
The
Court of Appeal therefore held that there is a grave incriminating circumstance
against 1st accused by reason of all 6 accused had employed the same
Counsel despite the serious conflict of interest. This clearly shows the extent
to which it can adversely affect the position of a person when the counsel does
not focus on the conflicting claims. This restriction with regard to conflict
of interest would apply with equal strength in civil cases and all types of
other cases.
The International Bar Association (IBA),
founded in 1947, is a voluntary bar association of international legal
practitioners, bar associations and law societies. Sri Lankan Bar Association is a member of IBA and Desmond
Fernando PC held the prestigious position of being the president of IBA in 1997-1998.
The IBA has
issued practice rules and guidelines in the form of Standards, Principles and
Ethics on various subjects ranging from Social Media Conduct for the Legal
Profession (2014), International Principles on Conduct for the Legal Profession
(2011).
As no exhaustive Code of Ethics is
available in any given profession, the International Code of Ethics (1954 - version 1988) is believed to shed some light on the complexities
of the legal ethics. It deals with international Principles on Conduct of lawyers,
independence of a lawyer, honesty, integrity and fairness, Conflicts of Interest,
Confidentiality/Professional Secrecy, Clients’ Interest, Lawyers’ Undertaking, Clients’
Freedom, Competence and Fees.
However, the Bar Association of Sri Lanka
had drafted certain rules which are given effect to as the rules of the Supreme
Court (Code of etiquette for attorneys at law rules 1988) published in the
Gazette Extraordinary of the Democratic Socialist Republic of Sri Lanka dated
7.12.1988. The said rules are reproduced in the appendix to this article for
ready reference. It basically deals with the following topics.
1.
RULE 1 to 4 – Citation,
right to practice law and status of a registered attorney-at-law.
2.
RULE 5 to 14 – Acceptance of
instructions.
3.
RULE 15 to 18 – After retainer
4.
RULE 19 to 26 – Ceasing to act as an attorney-at-law
5.
RULE 27 to 30 – Fees and disbursement
6.
RULE 31 to 38 – Confidential information
7.
RULE 39 to – 49 – Touting and advertising
8.
RULE 50 to 55 – Relationship with Court
9.
RULE 56 to 61 – Relationship with the
other members of the profession.
In
terms of rule 51 of “The conduct and etiquette for attorneys-at-law”, a lawyer shall
not mislead or deceive or permit his client to mislead or deceive in any way
the Court or Tribunal before which he appears and where he acts is in breach of
his duty to assist in the proper administration of justice and not to mislead
or deceive the Court he may depending on the facts and the circumstances of the
particular case, be dealt with for professional misconduct or punished for
contempt of Court.
In
Re a First Grade Pleader AIR 1931 Madras 520 (Full Bench) a lawyer applied for
an adjournment of a trial on grounds which he knew were untrue or had reason to
believe to be untrue and was suspended from practice for 3 months for
professional misconduct.
In
the matter of proceedings against an attorney-at-law for contempt of court
1993- Volume 1 SLR 243, on the day fixed for supporting an application for
leave the Attorney-at-Law stated that it has been so fixed by an error.
However, it was found that the application had in fact been listed for that day
on the motion of the Attorney-at-Law himself and that there was no error in
listing it. It was held that the Attorney-at-Law intentionally made a false
statement to Court presumably for the purpose of obtaining a postponement of
the case. The bench emphasized that a pleader has a duty to assist in the
proper administration of justice and not to mislead or deceive the Court.
Whether the breach of such duty may be dealt with for professional misconduct
or contempt of Court will depend on the facts and circumstances of each case.
In
re Arthenayake, attorney-at-law 1987 1 SLR 314 , on the complaint of Mr Alles,
a former Supreme Court Judge delay of over two months to obtain an order to
issue summons was due to lack of prudence and diligence, neglect to appear in
court, unduly delaying the steps for revocation of his proxy and reckless allegation
of dishonesty made against the client on a demonstrably baseless basis were
held to be conduct and negligence of the
lawyer amounting to professional misconduct and malpractice within the meaning
of Section 42 of the Judicature Act. One of the important decisions reached in
the case of Arthanayaka was that apart from the statutory powers, the Supreme
Court has inherent power to deal with delinquent attorneys-at-law.
Thus
in Re Mahes Moonasinghe (1992) 2 SLR 303 an Attorney-at-Law was disbarred on
the ground of deceit and criminal breach of trust in the course of a finance
business which he was conducting.
Misconduct
of an Attorney-at-Law may, even include conduct prior to his admission to the
Bar in which event he may (in the exercise of the inherent powers of Court) be
suitably dealt with if he is found unworthy of holding his office by reason of
such conduct. Thus in Re Shelton Perera SC Rule 2/90 SCM 05.06.1979 the
Attorney-at-Law was suspended from practice for 3 years on the ground of a
false statement as to his employment, made in his application for admission to
the Law College.
In
Re Dematagoage Harry Wilbert (1989) 1 SLR
18, the Attorney-at-Law was struck off from the Roll on the ground of deceit
and the use of a forged document as genuine in gaining admission to the Law
College. However, it is not always easy to establish a charge of misconduct
against a lawyer. Firstly, in most cases they misconduct themselves in such a
manner as to leave no evidence of such conduct. Secondly, by their very
training as lawyers, they are capable of giving the most ingenious explanation
for any act of alleged misconduct.
The
decisions cited and rules discussed above demonstrate the need for the group of
standards relating to the activities of attorneys at law and the wide powers of
the Supreme Court to deal with those who stray from the right course and
conduct themselves in such a manner rendering themselves unworthy of holding
the fiduciary relationship with his clients. Let me conclude optimistically
with the observation that strict observance of the Code of Conduct and holding
on to the deep rooted etiquettes of the noble profession would indeed bring
about the desired result in the form of relief to everyone concerned.
“There is a higher court than courts of justice and that is the court
of conscience. It supersedes all other courts” - Mahatma Gandhi
END
APPENDIX
THE
SUPREME COURT (CONDUCT OF AND ETIQUETTE FOR ATTORNEYS-AT-LAW) RULES.
1.
These
rules may be cited as the Supreme Court (Conduct of and Etiquette for
attorney-at-law) rules 1988.
2.
These
rules shall apply to every attorney-at-law admitted and enrolled by the Supreme
Court of the Democratic Socialist Republic of Sri Lanka.
3.
An
attorney-at-law who holds any office or appointment in his or professional
capacity shall be entitled to practice the profession only in so far as is
necessary for the due performance of his duties in such employment.
4.
Where
in any legal matter or proceeding the appearance of an attorney-at-law has been
registered no other attorney-at-law may appear in the said matter or proceeding
unless he is so instructed by the said registered attorney-at-law. Provided
however any attorney-at-law may be assigned to or appointed by court to appear
in such legal matters or proceedings.
ACCEPTANCE
OF INSTRUCTIONS
5.
An
attorney-at-law may not refuse to act on behalf of a party or person in any
matter or proceeding before any court, tribunal or other institution
established for the administration of Justice or in any professional matter at
his or her professional fee.
Provided,
however an attorney-at-law may refused to act on behalf of a client in special
circumstances which in his opinion would render it difficult for him maintain
his professional independence or would otherwise make acceptance of such
professional matter incompatible with the best interest of the administration
of Justice.
6.
An
attorney-at-law shall not act for any party or person in professional matters
in which the said attorney-at-law has a personal interest unless after making a
full disclosure of the said interest to the client and after obtaining a
declaration in writing that the client has no objection to the attorney-at-law
acting for him.
7.
An attorney-at-law shall not appear or advise
in any professional matter which in his opinion would be in conflict with the
interest of any other client in such or connected professional matter.
8.
Where
a conflict arises between the interest two or more clients for whom the
attorney at law is acting, the attorney-at-law shall cease to act for all of
his said clients unless he decides that he can without any professional
impropriety or embarrassment to himself appear for any one or more of such
clients provided other such client or clients agree that he might so appear.
9.
An Attorney-at-law shall not accept any
professional matter which may, in his opinion, embarrass him by reason of his
holding any office or appointment.
10. An Attorney-at-law
shall not accept any professional matter unless he can attend to it with due
diligence.
11. An attorney-at-law shall not accept any
professional matter which would involve him in the commission or in the
furtherance of the commission of an offence.
12. An attorney-at-law shall not accept any
professional matter in respect of which he knows or has reason to believe that
he would be required as a witness. The same principle would apply where an
attorney-at-law after accepting any professional matter finds that he would be
required as a witness in the same manner.
Provided, however, an attorney-at-law may accept any
professional matter in which he may be required only as a witness in respect of
any formal or non-contentious matter.
13. An
attorney-at-law from the same Law Firm shall not appear for separate
parties in any case matter or proceeding where there is or likely to be a
conflict of interest between the paid parties.
Provided that this rule shall not apply to
negotiations with a view to or conciliations for settlement between the parties
of the dispute.
14. An attorney-at-law whose name appears in the
Legal Aid Scheme approved by the Bar Association of Sri Lanka, shall offer his
professional service to a client whose eligibility has been accepted by the
said Scheme without extra charges to the client unless he decides in his
discretion that he would be justified in refusing to advise or accept such instructions
for any of the reasons hereinbefore stated.
Similarly an Assigned Counsel shall not be entitled
to charge any fee from the accused whose defence he has undertaken, other than
what he is paid by the State.
AFTER
RETAINER
15. On accepting any professional matter from a
client or on behalf of any client, it shall be the duty of an Attorney-at-law
to exercise his skill with due diligence to the best of his ability and care in
the best interests of his client in such matter as he may decide and he should
do so without regard to any unpleasant consequences either to himself or to any
other person. Furthermore he should at all times so act with due regard to his
duty to Court, Tribunal or any institution established for the Administration
of Justice before which he appears.
16. Where the services of an Attorney-at-law have
been retained in any proceedings in any Court, Tribunal or other Institution
established for the Administration of Justice, it shall be the duty of such
Attorney-at-law to appear at such proceeding, unless prevented by circumstances
beyond his control.
17. An Attorney-at-law
shall not take champertous advantage of his client in any professional matter
in which he had been retained.
18. An Attorney-at-law
shall act with complete frankness and honesty in advice to and in all dealings
with his client.
CEASING TO ACT AS AN
ATTORNEY-AT-LAW
19. An Attorney-at-law on accepting instructions
from a client, is under a duty not to withdraw his services in respect thereof
except for good cause.
20. Where a client refuses
to accept and act upon the advice of his Attorney-at-law and such
Attorney-at-law decides that thereby it would be improper or embarrassing for
him to continue to act for his client or where there is a loss of confidence
between an Attorney-at-law and his client, he may cease to act.
21. An Attorney-at-law may
cease to act for his client if the client being requested to do so declines or
neglects to give further instructions in circumstances where the
Attorney-at-law would be left with no authority to take further action on
behalf of his client in any Professional matter of proceeding.
22. An Attorney-at-Law may
withdraw from any Professional matter on the failure of the client to pay his
fees or provide disbursements in respect of such Professional matter.
23. An attorney-at-law in the event of his ceasing
to practice his profession is under a duty to give his client reasonable notice
of such cessation.
24. Where an
Attorney-at-law practises the profession in partnership and it is sought to
dissolve the said partnership firm or to amalgamate with another firm, it is
the duty of the partnership firm ceasing to practise to give notice to its
clients of such cessation or amalgamation.
25. An Attorney-at-law
shall cease to act on behalf of his client if so requested by the client.
26. An Attorney-at-law
shall preserve and safeguard all property of the client entrusted to him.
FEES AND
DISBURSEMENTS
27. An Attorney-at-law may
in the best traditions of the profession, reduce or waive a fee on account of
the poverty of, or the hardship to, the client or prospective client or where
otherwise the client or prospective client would be effectively deprived of
legal advice or representation.
28. An Attorney-at-law
shall not be appropriate any funds of his client held by him in trust for a
specific purpose except with the permission of his client.
29. ‘A Retainer’ is an
engagement of an Attorney-at-law by a client to appear for him in any
litigation in which he may at that time
be involved subject to the payment of his fees and subject to such
conditions as the Attorney-at-law may lay down.
‘A Special Retainer’ is an engagement of an
Attorney-at-Law by a client to appear or act for him subject to the payment of
his fees in some particular suit or action in prospect.
‘A General Retainer’ is an engagement by a client of
an Attorney-at-law to appear for him in all matters of litigation in which he
may at any time be involved, subject to the payment of his fees and to such
terms as the Attorney-at-law may prescribe.
30. (a) Where after a
General Retainer, a client does not instruct the said Attorney-at-law in any
manner to which such retainer is applicable even after a reasonable time has
elapsed after the Attorney-at-law has inquired from the said client or legal
representative as to whether he is to receive instructions, the Attorney-at-law
may treat the said retainer as being determined in respect of that matter.
(b) The same principles, where applicable, would
apply in respect a Special Retainer.
CONFIDENTIAL
INFORMATION
31. An Attorney-at-law shall keep in strict confidence
all information whether oral or documentary acquired by him from or on behalf
of his client in any matter in respect of and concerning the business and
affairs of his client.
32. An Attorney-at-law
however may disclose such information if it is expressly or impliedly
authorised by his client in writing or in the event of the death of his client
by the legal representative of the client. Even then he should be careful to
disclose only such information as is necessary in the circumstances and no
more.
33. This duty on the part
of an Attorney-at-law to refrain from disclosing a such confidential
information lies not only during the existence of his professional relationship
with the client but indefinitely thereafter even after the said Attorney-at-law
has ceased to act for the said client and after the death of the clients as
well.
34. This duty extends to
any partner or associate of the Attorney-at-law in the profession and to any
employee of the Attorney-at-law. In fact, in the normal course if he becomes
aware of such information it would be the duty of the said Attorney-at-law in
such circumstances to take all reasonable steps to prevent the disclosure of
any such information by such person even after the termination of his
relationship with such persons.
35. It would be contrary
to Professional etiquette for an Attorney-at-law possessing such confidential
information concerning his client to undertake any Professional work for the
opposite party in the same matter or in some other matter where there is or is
a likelihood of a conflict between his client and another party to such matter.
Further, if such information could be used to the prejudice of his former
client in any other Professional matter, the said Attorney-at-law shall not
undertake such work.
36. There would, however, be no objection to an
Attorney-at-law accepting Professional work on behalf of the opposite party
where, having been retained by the former client in respect of the same
Professional work, the Attorney-at-law has not received any such confidential
information.
37. The above provisions
shall apply when one Law Firm amalgamates with another Law Firm or when a new
Law Firm is formed.
38. Other than in the
instances referred to in Rule 32 and subject to any written law, an
Attorney-at-law may disclose such confidential information:-
(1) In order to defend
himself, his associates or employees against any allegation of misconduct or
malpractice made by his client;
(2) To prevent the
commission of a crime, fraud or illegal act;
(3) In the case of joint
retainer or where the client has a joint interest with others, the said
information to such members of the joint retainer or others having a joint
interest with the client, as the case may be.
TOUTING
AND ADVERTISING
39. An Attorney-at-law shall not under any
circumstances by himself or through another directly or indirectly resort to
the practice of Touting.
The expression Touting shall include the following
acts or conduct:-
(1) Engaging in any manner
for any commission, payment or consideration the services of any person to solicit
clientele;
(2) Advertising in any
manner, for the purpose of unfairly attracting clientele for himself.
40. An Attorney-at-law may display his
professional name plate at his office and/or residence.
(a) Such name plate may
contain only the following information:-
1.
The
name of the Attorney-at-law and/or the Law Firm:-
2.
The
professional qualifications of the Attorney-at-law or members or partners of
the Law Firm such as the descriptions ‘Attorney-at-law, Notary Public’,
‘Solicitors’, ‘Commissioner of Oaths’ ‘J.P.U.M’.
3.
Academic
qualifications such as’.s University degrees;
4.
Offices
hours.
(b) Illuminated name
plates or boards showing the directions to the office of an Attorney-at-law
shall not be used.
(c)
The
Professional or the Law Firm name plate shall be of a reasonable size
sufficient only to enable clients to finds the office or the residence of the
Attorney-at-Law.
41. In the event of any Attorney-at-law changing
the premises where he practices, he may leave a notice at his former premises
for a reasonable length of time giving the address of his new premises.
42. An Attorney-at-Law may
have Professional stationery and the Professional stationery shall contain only
the following information:
(1) Name of
Attorney-at-law and/or Law Firm, address and residential address, telephone and
telex number , post office box number, cable address of Law firm, hours of
office;
(2) Names of Partners or
members of Law Firm;
(3) Professional
qualifications, academic qualifications of Attorney-at-law including those who
may be partners or members of Law Firm;
(4) In the case of Law
firm it may be descried as ‘Attorneys-at-law and Notaries Public’ or as
‘Attorneys-at-Law and Solicitors’, as the case may be.
43. An Attorney-at-law or a Law Firm may have his
or its name, address and description on cheques, envelopes and documents
44. An Attorney-at-law may
use a Card which may contain his name and/or Professional or residential
addresses, such telephone numbers, his Professional and academic qualifications
and the name of the legal firm of which he may be a member.
45. An Attorney-at-law or
a Law Firm may have his or its name, address and description in any law list or
legal Directory or such other directories including Telephone Directory as
provided in Clause 40.
46. An Attorney-at-law may
broadcast on radio or appear on television or deliver a lecture or give a talk
or interview the press or write an article or letter for publication on any
legal or professional matter.
47. Where an
Attorney-at-law knows or has reason to believe that his name would be
advertised in any particular instance, he should take all reasonable steps to
see that such advertisement would not offend the Rules or etiquette in regard
to advertising.
48. An Attorney-at-Law
should not give any interview or broadcast or permit the publication of any
matter relating to a client’s business or former client’s business without that
client’s consent.
49. An Attorney-at-law
should not cause or permit to be published any particulars of –
(1) His practice;
(2) Any matter in which he
has been instructed, unless he can do so without disclosing confidential
information pertaining to such matter and without giving publicity to his own
appearance in the matter or part played in it.
RELATIONSHIP WITH COURT
50. An
Attorney-at-Law owes a duty to Court, Tribunal or other institution created for
the administration of justice before which he appears to assist in the proper
administration of justice without interfering with the independence of the Bar.
51. An
Attorney-at-Law shall not mislead or deceive or permit his client to mislead or
deceive in any way the Court or Tribunal before which he appears.
52. It
shall be the duty of an Attorney-at-law appearing for the prosecution to bring
to the notice of the Court any matter which if withheld may lead to a
miscarriage of justice.
53.
(i) An Attorney-at-law shall not question or
make any statements merely to insult, or degrade the opposite party or a
witness or any other person.
(ii) An
Attorney-at-law shall not make statements or question a witness imputing or
suggesting bad character, fraud, commission of a criminal offence or lack of
credibility, if the Attorney-at-law has reason to believe that such allegation
is unfounded or untrue.
54. An
Attorney-at-law shall not permit his personal feelings and/or interest to
influence his conduct before Court, Tribunal or other Institution established
for the Administration of Justice before which he appears.
55. An
Attorney-at-Law shall not discuss the merits of a case with the Judge or other
presiding officer before whom he appears in the absence of the opposite party.
RELATIONSHIP WITH OTHER MEMBERS
OF THE PROFESSION
56. An
Attorney-at-Law shall act with all courtesy, respect and fairness towards his
fellow members of the profession in all professional matters.
57. It
shall be improper for an Attorney-at-law to deal with the opposite party except
in the presence and with the consent if the Attorney-at-Law representing such
party.
58. An
Attorney-at-law should not permit his personal feelings and/or personal
interest to influence his conduct of his Professional matter.
59. The
above principles would apply when an Attorney-at-law is opposed to a person who
is not an Attorney-at-law in any Professional matter.
60. An Attorney-at-Law must not conduct himself
in any manner which should be reasonably regarded as disgraceful or
dishonourable by Attorneys-at-Law of good repute and competency or which would
render him unfit to remain an Attorney-at-Law or which is inexcusable and such
as to be regarded as deplorable by his fellows in profession.
61. An
Attorney-at-Law shall not conduct himself in any manner unworthy of an
Attorney-at-Law.
62. The
above Rules are not exhaustive.
- End of the rules
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