Balancing a duty to the Court and to the client: A dilemma of legal practice in Tanzania

Open University Law Journal, 2013, Vol. 4, No. 2:147-166 Balancing a duty to the Court and to the client: A dilemma of legal practice in Tanzania Vicent Mtavangu* Abstract This article glances at a lawyer’s duty to the court and to the client. In performing these duties simultaneously and effectively in adversarial legal system, there is likelihood for the lawyer to breach ethics governing legal profession. Thus, the underlying objective of the article is to explore the ethical dilemma faced by practicing lawyers in trying to balance appropriately the two conflicting duties. The article begins by defining some key terms as well as giving an overview on the genesis of the two duties. Moreover, it critically examines the two duties of the lawyer in practice and ethical dilemma associated with each duty. Additionally, the article summarises the main potential sources of conflict between the two duties in the adversarial legal system. Albeit briefly, the article accentuates also the ethical dilemma faced by defence counsel in criminal trials with regards to the two conflicting duties and the status of the lawyer vis-à-vis the client. Besides, the article underscores also the two duties as stipulated by the Tanzanian legal framework. Though it is not easy to tell precisely which duty prevails over the other, however, it has been observed in this article that in practice majority of lawyers consider the duty to the client as supreme than the duty to the court. All in all, each duty complements the other as a composite of the general duty to the public and the primacy of either duty depends on the circumstances or context of each case. Key words of this article are lawyer, legal ethics and adversarial system. . Key words: Legal practice, duty to court, duty to client Introduction The legal profession is all about ethics. Therein, lawyers as among the key players in the administration of justice in any jurisdiction have to comply with both formal and informal rules governing it. Lawyers owe several duties; they include a duty to the court, duty to the client, to the colleagues, to the profession, to himself and a duty to 147 V.Mtavangu the public at large.1 Amongst those duties, the first two duties viz., duty to the court and to the client often conflict each other to the extent that they may place the lawyer in limbo especially in determining which duty prevails or be regarded as primary or foundation of the other. It is beyond doubt that lawyer’s simultaneous duty to court and to the client is particularly critical to effective functioning of the law in court proceedings. In trying to balance these conflicting duties, lawyers are sometimes not clearly understood and they are becoming formidable in the eyes of the public. The difficulties existing in balancing these conflicting duties may help to explain the cynicism with which lawyers are regarded by the public.2 Generally, the lawyer is defined as one who is licensed to practice law. 3 The main tasks of the lawyer is to draft legal documents, advise people about law and represent them in courts, quasi-judicial bodies or tribunals. In practicing law, lawyers have to abide by the legal ethics which are ‘the minimum standards of appropriate conduct within the legal profession, involving the duties that its members owe one another, their clients, and the courts.’4 The simultaneous duties of the lawyer both to the court and to the client have a long history. They are old as the legal profession itself and they may be traced back from the medieval era. Professional lawyers in England and other parts of the Western Europe are believed to have been widely recognized and routinely permitted in courts by the earlier 13th Century.5 Medieval courts viz., the ecclesiastical courts are said to be the first one to set a code of professional conduct or standards for legal advocates through oaths. These practitioners had to swear to God to the effect that they will comply with all ethics governing the profession. * Assistant Lecturer in law, Department of Administrative Studies (DAS) at Mzumbe UniversityMbeya Campus College; Advocate of the High Court of Tanzania and Subordinate Courts thereto save for Primary Courts. E-mail [email protected]. 1 Andrews, C. A, Standards of Conduct for Lawyers: An 800-Year Evolution, SMU Law Review, 2005, Vol.57, pp.1385-1458. The author points out that there are only six core values or duties of profession viz., fairness in litigation, competence, loyalty, confidentiality, reasonable fees, and public service. Nonetheless, those duties seem to be the extension of the duty to the court and duty to the client. 2 Twaib, F, The Legal Profession in Tanzania, Law Africa Publishing (T) Ltd, Dar es Salaam, 2010, p. 94. 3 Garner, B.A, (Ed), The Black’s Law Dictionary, 8 th Edition, Thomson West, London, 2004, p.2595. 4 Ibid, p.2617. 5 ‘Andrews (n 1) p. 1391’. 148 A dilemma of legal practice in Tanzania The legal advocates took oaths inter alia to reject unjust causes, to not take stake in the litigation, to not seek unjust delays and to serve clients diligently and faithfully.6 In addition to the code of professional conducts set by the ecclesiastical courts, in 1275 the Parliament in England enacted the legislation called the ‘Statute of Westminster I.’ This statute dealt with the lawyers’ conduct in general whereby candour to the court and duties to the client were encompassed therein as fundamental duties.7 The rationale of duty to the court among others was to uphold the administration of justice and community confidence in the profession.8 This means the lawyer as a professional had to serve not only clients but also to uphold the public interest. Furthermore, essence of duty to the court was to prevent the integrity of court processes from being abused or undermined by lawyers. On the other hand, the justification behind the lawyer’s duty to the client was due to the fact that the lawyer enters into contract with the client and by that contract assumes enforceable obligation to take reasonable care not to expose the client to avoidable risks of harm or damage.9 In that contract the client as often the vulnerable party depends on the lawyer’s skills, knowledge, expertise, experience and honesty in upholding his/her interests.10 Most of the Common law countries follow the adversarial system.11 Amongst the requirements of this system is that whoever alleges is bound to prove the allegations. In trying to discharge this onus while representing the client, the lawyer may find himself breaching the duty to the court. Thus, the next part examines the duty of the lawyer to the court. Is the Lawyer’s Duty to the Court Paramount? 6 Ibid, p.1393. Ibid, pp. 1394-1395. Another ancient statute which governed lawyers’ ethics and conduct in England was the 1280 London Ordinance which also recognized the dual duties of lawyers viz., duty to the court and to the client. 8 Bell, R and Abela, C, “A Lawyer’s Duty to the Court,” p.3, accessed from http://www.weirfoulds.com/files/11024_10167_CEA%20 9 Hawkins v. Clayton (1988) 164 CLR 539 at p. 574. 10 Tip Top Dry Cleaners Pty Ltd v. Mackintosh [1998] 98 ATC 4346. 11 ‘The Black’s Law Dictionary (n 3) p. 165’ defines adversary system as a procedural system, such as the Anglo-American legal system, involving active and unhin-dered parties contesting with each other to put forth a case before an independent decision-maker. 7 149 V.Mtavangu It is not disputable that the lawyer, especially an advocate is an officer of the court.12 Thus, has to pay allegiance to the court to which he was admitted or which created him. As an officer of the court, may also be disciplined by the court for misconduct particularly those committed within the court’s premises.13 Besides, may also be called by the court to perform duties which no court could order citizens generally to do.14 Moreover, the lawyer is enjoined to save the court’s time during proceedings.15 Ultimately, the lawyer is bound to assist the court in any way to ensure that it reaches a righteous, judicious and just decision and to make sure that justice is done on time to clients or to the public generally. Upon admission, it is said that the lawyer’s overriding and primary duty is to the court which requires the lawyer to exercise proper administration of justice.16 According to the current Chief Justice of Tanzania, honourable Othman Chande the overriding or primary duty to the court for the lawyer comes to life on the very day in which such lawyer signs the Roll of Advocates.17 Components of the lawyer’s duty to the court include, firstly, a duty not to mislead the court, secondly, a duty of disclosure to the court, thirdly, a duty not to abuse court processes, fourthly, a duty not to corrupt the administration of justice and fifthly a duty to conduct cases efficiently and expeditiously. The duty to the court may be summarised to include candour, honesty and fairness. In that trend, it is quite unprofessional and unethical for the lawyer to mislead the court by deliberate falsehood.18 Likewise, the lawyer is also enjoined to uphold justice and to protect the court’s integrity. 12 Browe K, P, A Critique of the Civility Movement: Why Rambo Will Not Go Away? Marquette Law Review, Summer 1994, Vol. 77, Issue No. 4, Article 4, pp. 751-784. The article may be accessed from http://scholarship.law.marquette.edu/mulr/vol77/iss4/4 as on 13/06/ 2013. See also section 66 of the Advocates Act, CAP 341 R.E 2002. 13 See section 22 of the Advocates Act (n 12) which gives powers to the Chief Justice or any Judge of the High Court to deal with misconduct or offences by advocates. 14 Swarup J, Making of a Good Lawyer, 2 nd Edition, Universal Law Publishing Co, New Delhi, 2008, p. 62. In exercising a duty to the court which is also regarded as a duty to the public, an advocate in Tanzania is also obligated by the court to accept dock briefs assigned to him or her, failure to comply with that obligation amounts to professional misconduct. 15 The Judge for instance, may require the lawyer to reduce number of questions or refrain from asking fishing questions to the witness during cross-examination simply because the lawyer is an officer of the court thus is duty bound to save the precious and valuable time of the court. In refraining asking those questions would the lawyer be furthering the client’s interest? 16 See page 8 of the speech delivered by honourable Othman Chande the current Chief Justice of Tanzania during the admission ceremony of the new advocates held on 17th day of December, 2012. 17 Ibid. 18 A classic example is the case of John Lessa v. Zamcargo Ltd and Jonas Mmari [2000] TLR 450. In this case advocate for the defendant deliberately misled the court that the Written Statement of Defence was filed within the prescribed time the fact which was not true. Kisanga, J.A (as he then was) pointed out that such misconduct was calculated to deceive and mislead the court and 150 A dilemma of legal practice in Tanzania On this duty Lord Denning once ruled that:He (lawyer) owes allegiance to a higher cause….He must not consciously mis-state the facts. He must not knowingly conceal the truth…He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client if they conflict with his duty. 19 (Emphasis added) To put clear this point the hypothetical case as quoted by Swarup20 is relevant at this juncture:Suppose that in the course of your research you have discovered a ruling or judgment against you on the point you are arguing, but that neither the opposing counsel nor the judge is aware of its existence. Must you draw the attention of the court to this adverse precedent, although to do so may prove fatal to your client’s case which you are in a fair way to win, or should you say to yourself that it is for the opposing counsel to find the case, and if he fails to do so that is his affair? Again, Swarup argued that after discovering the leading case which counter the argument and which has not been cited by the opponent, such counsel has the duty of bringing into court’s attention about that case and the counsel’s duty at that point will be to distinguish it from the instant case.21 Thus, by so doing such lawyer will be performing dual functions, that is arguing for his case and at the same time destroying his own case; this will be very fatal especially if the lawyer will fail to properly distinguish the instant case from the case he has discovered. It is vital to ask ourselves whether there is any lawyer who has ever done that or often has been practicing in that manner especially in Tanzania. In actual fact under adversarial system, such situation is almost impracticable; it is like a nightmare or may just be applicable in an ideal world. This is because in adversarial system generally it is a trite law that whoever alleges must prove the allegations. If that is the principle, one may question why produce supporting documents to your adversary or opposing party who has made allegations against hence pervert the course of justice. In another Australian case of Queensland Law Society Inc v. Wright [2001] QCA 58, the legal practitioner in an attempt to further the interests of the clients misled a Judge by knowingly relying on a false affidavit. 19 Rondel v. Worsley [1966] 3 WLR 950. This proposition was also supported by Nsekela, J in his paper entitled “Advocates as Officers of the Court: Ethical and Business Consideration, the Tanzanian Experience,” p.5. A Paper was presented at the workshop on ‘Effective Performance: Commercial Court and the Members of the Bar’ organised by the High Court Commercial Division in Corroboration with DANIDA, Dar es Salaam from 14-15 November, 2000 (unpublished). 20 ‘Swarup (n 14) pp. 63- 64’. 21 Ibid, p. 65. 151 V.Mtavangu your client and considering the fact that those authorities were supposed to be explored by him? Practically, it is hardly to see the lawyer bringing authorities, such as decided or undecided cases and even a provision of law in that matter which are not favourable to him or are supportive to the opponent’s case rather than his own case. In doing so the lawyer will be like arguing his opponent’s case and the practice generally would be like operating in adversarial system without the adversaries. Another issue to be pondered here centres on the limitation of the duty to the court. This also invites a question on whether the act by the lawyer of disclosing authorities which undermine, detract or do not support the client’s case or are against his arguments or not in his favour can be regarded as his duty towards the court? Nonetheless, this duty may be considered as a duty of the lawyer towards his colleague. One may ask also whether failure to work out that duty shall it be considered as unethical or unlawful. It is an axiomatic fact that breach of it cannot be regarded as unethical issue; this is because breach of the lawyer’s duty to the court may not necessarily be unethical; as unethical conduct may not necessarily be unlawful.22 This can be termed as the moral duty rather than ethical one; thus breach of it may only be punished by God and not the court of law or a Bar association. No any decided case in which the lawyer was disciplined for none disclosure of the document favourable to the opponent’s case. The duty to the court is sometimes considered to be paramount to the lawyer especially when the client gives instructions to the contrary.23 In trying to perform this duty, it is obvious that in some of the circumstances the lawyer will act disadvantageously to the client. Though this is considered as a paramount duty, but it is argued that in practice the duty is rarely enforced; this means that the duty to the client is emphasized even by the judiciary or court itself (even in Tanzania) and most strictly penalized.24 However, the duty to the court often conflicts with client’s duty and may temper the zeal with which the lawyer is permitted to act on behalf of the client. The next part underscores the duty to the client and how it may conflict with the duty to the court. Is the Lawyer’s Duty to the Client Supreme than His Duty to the Court? 22 Martin, K, Between the Devil and the Deep Blue Sea: Conflict between the Duty to the Client and Duty to the Court, Australian Bar Review, 2012, Vol. 35, Issue No.3, pp. 252-265. 23 Giannerelli v. Wraith (1988) 165 CLR 543 at p.556. 24 A good example is the case of C.U.S Mwailunga v. Advocates Committee [1982] TLR 283 whereby the advocate failed to keep a client’s account and also handled the client’s case negligently. The Court of Appeal of Tanzania dismissed his appeal and removed his name from the Roll of Advocates. See Chapter II of the draft of the Advocates (Professional Conduct and Etiquette) Rules, 2012. 152 A dilemma of legal practice in Tanzania Clients are central plank of legal professional activities who must assume a special seat.25 The nature of this duty is that of undivided loyalty and that of utmost good faith i.e uberrimae fidei.26 The professionalism of the lawyer heavily depends on this duty, viz., the relationship between the lawyer and the client. Duty to the client is also considered as “the standard conception.”27 Therein, the lawyer is enjoined to promote client’s interests with all legitimate means and to defend client’s interests zealously. That is why often the client is considered as the employer of the lawyer as he/she is the one who remunerates the lawyer for the service rendered. In this trend occasionally the client may determine what the lawyer can do. This might be in compliance with the proverb that “he who pays the piper calls the tune.” Is this a true and realistic picture of what a lawyer normally does in his day to day life? The answer is subjective depending on the conscious of an individual lawyer.28 Nonetheless, the duty to the client is considered to be both legally and professionally binding. This is because the lawyer owes a duty of zealous partisanship towards the client. On this aspect, it is commonly argued that:He (lawyer) has to save the client by all expedient means, to protect that client at all hazards and costs, to all others, and among others to himself, is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other.29 (Emphasis added) In fulfilling this duty, there are some scholars who are of the view that the lawyer’s duty towards the client is so strong to the extent that must treat outsiders as if they are barbarians and enemies.30 Therein, regardless of other interests which carry less weight, the client’s interest is given more weight on the scales.31 Failure for the lawyer to comply with duty to the client may sometimes subject such the lawyer to ‘Othman Chande’s speech, (n 16) p. 8’. The principle of uberrimae fidei is mostly applicable in insurance contracts and it requires extensive exchange of all material facts to the contract or information between the insured and the insurer prior to the entrance into the insurance contract. It is because in the insurance contract there is transfer of risks from the insured to the insurer. Nonetheless, the principle does not squarely apply to the lawyer-client relationship as in insurance contracts simply because there is no transfer of risks from the client to the lawyer. 27 Freeland, D,M, H, “What is a Lawyer? A Reconstruction of the Lawyer as an Officer of the Court”, University of San Francisco School of Law Research Paper No. 2012-12. The paper can be accessed from http://ssrn.com/abstract=2047974 28 Legally, a lawyer is not required to comply with every instruction given by the client, however, in practice some lawyers do abide by all clients’ interests or in other words putting into client’s shoes; this may lead to the breach of professional and legal ethics. 29 Hutchinson, A.C, Legal Ethics and Professional Responsibility, Irwin Law, Toronto, 1999, p. 19. 30 Ibid. 31 Ibid, p.5. 25 26 153 V.Mtavangu civil liability for professional negligence viz., for breaching duty of care and fiduciary relationship.32 Fiduciary relationship may arise if one of the four situations occurs:- (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client.33 It is a common knowledge that a relationship of the lawyer and the client is based on fiduciary relationship. This is a kind of relationship which is based on confidence and trust. There are four elements of the fiduciary duty; they include, firstly, duty of loyalty, secondly, duty of confidentiality, thirdly, duty to disclose to the client information within the lawyer’s knowledge and fourthly, the duty not to put lawyer’s own or anyone else’s interests before those of the client. In this respect, the lawyer has to keep client’s confidential information.34 The duty to client is considered to be paramount and primary inter alia due to the fact that the client and the lawyer enter into contract and by that contract the latter enters an enforceable obligation which also is imposed as well as recognized by the court by virtue of being an officer of the court.35 Therefore, it is argued by Hutchinson that “in prioritizing the different duties that lawyers owe, the one to the clients is treated as trumping all others in almost all situations.”36 Nevertheless, the pre-eminence of this duty may sometimes attract a “win at all cost” attitude or practice. Though the duties to the court and to the client are not mutually exclusive, nevertheless there are circumstances where they do conflict. The succeeding part examines the sources of the conflict between the two duties. What are the Potential Sources of Conflict between the Duty to the Court and the Duty to the Client? According to the ‘Black’s Law Dictionary (n 3) pp. 1864 &4028’, a fiduciary is defined as a person who owes to another the duties of good faith, trust, confidence, and candor; whereas fiduciary relationship is a relationship in which one person is under a duty to act for the benefit of another on matters within the scope of the relationship. 33 Ibid, p. 4028. 34 Shirvington, V,P, “Ethics and Conflict of Interest and Duties,” April, 2006, accessed from www.lawsociety.com.au as on 20th June, 2013. 35 Pagone. G.T, “Divided Loyalties? The Lawyer’s Simultaneous Duty to the Client and the Courts.” Monash Guest Lecture on Ethics delivered on 20th day of November, 2009, p. 2, accessed from worldlii.austlii.edu.au/au/journals/VicJSchol/2009/19.pdf 36 ‘Hutchinson (n 28 ) p. 5’. 32 154 A dilemma of legal practice in Tanzania Several factors may be attributed as the main cause for such duties to conflict. One of the potential sources of conflict which leads to the dilemma is based on economic factor. This can be explained in terms of pecuniary interest. The players of this factor are the lawyers themselves, clients and market condition. The prime incentive for vast majority of lawyers nowadays is greed of gain and increasing profit. Issues like contingent fees, selecting clients and undercutting have been like legitimate source of income for lawyers and are attributed as potential sources of the conflicting duties. Some of the persons are entering to this profession while driven with either idea of gaining livelihood or acquiring wealth rather than providing legal services to the public. The reason behind may be due to the fact that today law is regarded as both a business as well as a profession contrary to the time immemorial where law was considered as purely service to the public. Therefore, today majority of lawyers believe that a profession is the only means of earning their daily breads, and that is the fact. This truth was as well asserted by Chenge who argued that:“The practice of law is therefore both a calling and a means of livelihood. Regrettably, however, all too often the new generation of lawyers sees the practice of law not as a calling but only as a means of livelihood that they erroneously believe will be easy and lucrative.37(Emphasis added) This is pointed to be among the drivers for some lawyers in practice and lawyers in the making to prefer specializing in disciplines or branches of law which seem to be of highly lucrative.38 Additionally, competitive pressure among lawyers themselves has been said also to be amongst the sources or reasons for this conflict. Competition has resulted to the commercialization of legal practice,39as a result, commercialization has now turned 37 See the speech by honourable Andrew Chenge, the then Attorney General of the Government of the United Republic of Tanzania delivered during the 9th admission ceremony of the new Advocates held on the 15th day of December, 1993. The speech was as quoted by ‘Nsekela (n 19) p. 5’. 38 The author made simple research through interviewing students of law who opted on commercial law subjects such as law of banking, law of negotiable instruments, tax law and insurance law. Most of them replied expressly that they opted for those specializations simply because after graduation they expect to be employed in banks or financial institutions as legal officer and if they become advocates they will be highly paid. 39 Borgus, C,T, The Death of Honorable Profession, Indiana Law Journal, 1996, Vol. 71, Issue 4, Article 5, pp. 911-947. Also see Levine, S, J, Faith in Legal Professionalism: Belivers and Heretics, Maryland Law Review, 2002, Vol. 61, Issue 1, Article 8, pp. 217-242. 155 V.Mtavangu the legal profession to a mere business.40 However, competitiveness and commercialization to a large extent in Tanzania are brought due to the increase in number of lawyers over the past two decades.41 Consequently, the increased competition implies that lawyers must work harder, worry more about financial matters, and suffer loss of collegiality.42 Thus, for these new lawyers, what is significant for them is to win cases by any means so that they could not only survive the competition but also be exposed to the market; and this attitude often conflicts with the duty to the court. Although there is a limitation of advertising for lawyers in Tanzania43 which reduces competition to a great extent, nonetheless, competition among practitioners are inevitable. Chief Justice Spigelman44 suggested the solution to the tension between pursuit of commercial advantage and the ethic of service to the client and public. According to him that tension can be mediated and drawn away in a healthy profession by (a) recognition and adherence to professional ethics and (b) recognition and adherence to the requirement of fiduciary fidelity. The nature of adversarial system is also argued as another potential source of conflict between the duty of the lawyer to the court as well as to the client. This means that the legal system itself to which Tanzania belongs acts as the source of ethical dilemma for the lawyers in practice. The following part accentuates on how adversarial system is a source of dilemma to lawyers. To What Extent Adversarial System is a Source of Dilemma to the Practicing Lawyers? It is an axiomatic fact that in adversarial system the winner takes a lion’s share if not all. This explains why adversarial system is sometimes described as a “game” in which parties deliberately obscure the truth for tactical forensic advantage.45 Thus, 40 For most of the people and public generally legal profession is regarded as business like any other. This might be intensified sometimes by high fees charged by lawyers while dispensing legal services. 41 Currently, the Roll of Advocates in Tanzania indicates that there are about 3450 advocates. Most of new advocates recently are produced from the Law School of Tanzania, almost 400 advocates annually. 42 ‘Borgus (n 37) p. 929’. 43 See Mtavangu, V, The Rule Against Advertising for Advocates in Tanzania: A Prompt Need to Relax, The Tanzania Lawyer, 2012, Vol. 1, No. 3, pp. 52-83. 44 Quoted by Allsop J in his paper “Professionalism and Commercialism- Conflict or Harmony in Modern Legal Practice?” Australian Academy of Law 2009 Symposium Series, p.11, accessed from www.aila.com.au/.../ethics-in-settlement-negotiations-final. as on 16 April, 2013. 45 Nagorcka, F, Santon M and Wilson M, Stranded between Partisanship and the Truth? A Comparative Analysis of the Legal Ethics in Adversarial and Inquisitorial Systems of Justice, Melbourne University Law Review, 2005, Vol. 29, pp. 449-477. 156 A dilemma of legal practice in Tanzania the function of the lawyer in an adversarial proceeding is openly and necessarily partisan. According to Rhode the system’s underlying premise is that accurate results will emerge from partisan advocacy before a disinterested decision maker.46 The nature of the system sometimes forces lawyers to use some tactics. The rationale of using these tactics was addressed by Mac Kenzie.47 He pointed out that:Lawyers adopt adversarial tactics…because to refrain from doing so would put their clients at a competitive disadvantage relative to the clients of lawyers who show no such restraint… Nevertheless, in comparison with inquisitorial legal system, adversarial system is said to be less dedicated to discovering the truth. The reason behind is that the inquisitorial system places the search for truth in the hands of an impartial investigator, whose duty is to objectively discover facts while the adversarial system trusts the parties to properly and honestly present their side of the argument, and expects that the truth will emerge from robust presentation of each side’s case.48 The notion in adversarial system is that courts of law focus on proof and not on truth. This notion in one way or another affects the legal practitioner’s understanding of honesty as a fundamental principle of adversarial legal ethics.49 However, save as required by the law, the lawyer is not obliged to assist an adversary or advance matters derogatory to the client’s case.50 On the aspect of lawyers assisting each other Kichaven51 put clear that it is like an impossible task. To borrow his words:No matter how we put it, we are obsessed with "winning," both for our clients and for ourselves. Whether in court or the negotiation room, we go to great cost, risk and hassle to avoid the reality, the perception, and the stigma of loss. This implies that a party to the case in adversarial system has to strive by any means to ensure that he convinces the court of law to enter judgment on his favour and thus to defeat the opponent. The assumption in this system is that everyone knows the law including the Judge himself. Another pillar of adversarial System is that whoever alleges must make his own case. Therefore, as it was pointed out earlier, the likelihood of lawyers to hide some documents or cases which might be in the favour 46 Rhode D, L, Legal Ethics in an Adversary System: The Persistent Question, Hofstra Law Review, 2006, Vol. 34:641, pp. 651-669. 47 Quoted by ‘Bell and Abela (n 8) p.4’. 48 ‘Nagorcka et al (n 43) p. 462’. 49 Ibid. 50 Chapter IX Rule 15 of the Canadian Bar Association Code of Professional Conduct, accessed from www.cba.org/cba/activities/code/ as on 7th June, 2013. 51 Kichaven J, G, “Zealously Advocacy, Mediation and the Tangled Pursuit of the Win,” accessed from www.jeffkichaven.com/cm/Articles/Articles5.html as on 5th May, 2013. 157 V.Mtavangu of the opposing party is very high. According to Hutchinson in adversarial system although deception is prohibited, there is a thin line between a commitment to deceive the other side and unwillingness to help it make its own case.52 Nonetheless, it is also argued that in adversarial litigation occasionally it is acceptable for a party to take advantage of an opponent’s mistake, and sometimes there may even be a duty on the lawyer to do so.53 Black, J once ruled that:Whilst in some circumstances it may be in order to take advantage of a mistake, in other circumstances the attention of the practitioner should be drawn to a mistake or oversight. But, in any event, where there is a mistake that may involve the other practitioner’s client in unnecessary expense or delay the practitioner should not do or say anything to induce or foster that mistake. To induce or foster such a mistake would be detrimental to a relationship characterised by courtesy and fairness that ought to exist between members of the legal profession.54 On the same point, Bell argued that while a lawyer does not need to assist an adversary in both contested and uncontested cases, is permitted to be silent on certain matters; he is not permitted to actively mislead the court.55 Nevertheless, it is very difficult if not next to impossible to draw a line on what are permissible and impermissible mistakes which may be taken advantageously by the lawyer when committed by his opponent. The general understanding in adversarial system is that lawyers do promote their clients’ interests with the ‘maximum zeal’ permitted by law, and are morally responsible neither for the ends pursued by their clients nor the means of pursuing those ends, provided both are lawful.56 Strict adherence to adversarial system by the lawyer may often place him in a midpoint especially when he is acting as a defence counsel in criminal proceedings. This situation is discussed in the subsequent part of this article. What is the Ethical Dilemma for a Defence Counsel in Criminal Trial with Regards to the Conflicting Duties? Defending an accused person may at times bring both the ethical dilemma and conflict. This is because in most cases a criminal defence counsel considers as a ‘Hutchinson (n 28) p.6’. ‘Pagone ( n 33 ) p. 12’. 54 Chamberlain v. The Law Society of the Australian Capital Territory (1992) 43 FCR 148. 55 ‘Bell R and Abela (n 8) p.7’. See also Chapter II of the draft of the Advocates (Professional Conduct and Etiquette) Rules, 2012. The draft Rules in Rule 99 expressly states that “in adversary proceedings, an Advocate is not obliged, save as required by law or by these rules, to assist an adversary or advance matters derogatory to the Client's case.” 56 ‘Nagorcka at el (n 43) p. 452’. 52 53 158 A dilemma of legal practice in Tanzania shield of the accused person against the powers of the prosecution side viz., the Republic or State. Not only that but also there is a general perception of the society or the lay people that an accused person engages the lawyer so as to avoid the arm of the law.57 However, it is the duty of the defence counsel to protect the accused client as far as possible from being convicted except by a court of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence charged.58 In defending the accused person especially one who is charged with serious or grave offence and which attracts heavy penalty under the penal laws, the likelihood of the lawyer being a “hired gun” or a “hired hand” is very high. The concept of the lawyer as a hired gun implies that the lawyer may try to use any gimmick to ensure that his client wins a case at all cost. Such lawyer may also be called as a “lawyer technician” who regards himself as a seller of his expertise like any other seller of the services. 59 In so doing, he gives to his client the benefit of his learning, his talents and his judgment.60 Since the paramount duty to this lawyer lies on the client, it signifies that he has to fearlessly uphold his client’s interests without regard to unpleasant consequences either to himself or any other person. As mentioned earlier, one of the causes for this situation is due to the special set of talents and techniques possessed by lawyers.61 Thus, they regard themselves as special persons to be hired so as to deploy such talents. With this trend in mind, the lawyer usually tends to take an advantage of slips, irregularities or mistakes made by his opponent so as to win the case. The controversial aspect occurs when the lawyer represents an accused person who has confessed before him that he committed the offence. Though this fact might be covered under the umbrella of privileged information, however, as an officer of the court, such lawyer is duty bound to disclose the said information before the court; thereafter may be required to pray to the court for the mitigation of his client’s sentence. But questions which are still contentious are like, why mitigating for the criminal who has confessed to the most hideous crimes?62 Is it correct morally and ethically? Why not let the law or court take its course by providing a reasonable sentence or punishment to such a confessor? However, it is argued that, to a large extent the rules of ethics and professionalism are not well equipped to resolve the dilemma or conflict towards the criminal defence attorney.63 The next part discusses the status of the lawyer vis-a- vis the client. ‘Twaib (n 2) p. 57’. ‘The Canadian Bar Association Code of Professional Conduct Chapter IX (n 48)’. 59 ‘Bogus (n 37), p.922’. 60 Queen v. O’Connell (1844) 7 Irish Law Report (313), quoted by ‘Swarup (n 14) p.61’. 61 ‘Hutchinson (n 28), p.2’. 62 ‘Twaib (n 2), p.58’. 63 Ettiene, M, “The Ethics of Cause Lawyering: An Empirical Examination of Criminal Defense Lawyer as Cause Lawyers”, Illinois Public Law and Legal Theory Research Papers Series, 57 58 159 V.Mtavangu Is the Lawyer an Agent of the Client? Another concept relating to the duties of lawyers and which is also debatable as far as the conflicting duties are concerned is whether the lawyer is an agent of the client. Some people do consider the lawyer as the client’s agent in transactional settings as well as in litigation. This presupposes that the lawyer is like a mere messenger, client’s mouthpiece or a representative of his client. Although the lawyer is considered as a client’s representative nevertheless, he is not a delegate.64 In this case whichever altered by him in court will be taken as if spoken by the client himself. On this aspect Gordon65 argued that lawyers perform dual roles viz., they are agents of clients as well as agents of the common framework of institutions or public agents.66 Nonetheless, it is statutorily known that an agent is a person employed to do any act for another or to represent another in dealings with third persons.67 Strictly speaking, as an agent he is bound to comply with what his principal prescribes; in that respect, the lawyer has to abide by all instructions given by the client. If that is the case does it mean that the lawyer has to forego other duties such as duties to the court as well as duty to the profession in favour of his client? Truly, that is not the case. Thus, it is argued at this juncture that the lawyer especially an advocate or attorney is not the agent of the client. Explaining on this fact, Lord Denning rightly accentuated that ‘it is a mistake to suppose that he (a lawyer) is the mouthpiece of his client to say what he wants.’68 Moreover, it is emphasized also that the lawyer cannot be the mere mouthpiece of the client as he is required to exercise independent judgment as an intermediary between the client and the decision maker viz., the court and since also he is personally responsible for the conduct and presentation of a case in court.69 Nonetheless, in England, a solicitor is considered as an agent of the client and Research Paper No. 05-06, March 21, 2005, p.2, accessed from papers.ssrn.com/sol3/papers.cfm?abstract_id=690721 64 See the case of Queen v. O’Connell (1844) 7 Irish Law Report (313), quoted by ‘Swarup (n 14) p. 61’. 65 Gordon, R. W, “Why Lawyers Can’t Just Be Hired Guns,” p. 795, accessed from thecorporatescandalreader.com/forms/04g%20gordon.pdf 66 Ibid. 67 See section 134 of the Law of Contract Act, Cap 345 RE 2002. 68 Arthur Hall v. Simons [2002]1 A.C 615. The same statement was also reiterated by Mwalusanya, J as he then was in the case of Khassim Manywele v. R High Court of Tanzania at Mwanza (PC) Civil Appeal No. 70 of 1989. 69 ‘Pagone (n 33) p. 13.’ See also the case of New South Wales Bar Association v. Punch [2008] NSWADT 78. 160 A dilemma of legal practice in Tanzania therefore is bound to adhere to the client’s instructions.70 The coming part appraises the duties of the lawyer to the court and to the client as stipulated by the legal framework in Tanzania. How the Tanzanian Legal Framework Reflects the Two Conflicting Duties? (i) The Rules of Professional Conducts and Etiquette of the Tanganyika Law Society (TLS Rules) According to these Rules, every Advocate is obliged to discharge his duties to his client, the court, members of the public and his fellow members of the profession with honesty, candour and honour.71 Rule 37(2) also provides inter alia that:…subject only to his overriding obligation to act at all times in an honest, upright our honourable way, an Advocate’s paramount duty is to his client to serve his interests with his best skill and care: to preserve his confidences: and to be diligent and punctilious over his financial dealings with him. (Emphasis added). This rule recognizes that the lawyer has the paramount duty to his client. Although the Rule expressly provides that the lawyer’s duty to his client is paramount, it is argued by Twaib72 that the Rule does not appear to echo the superiority of the duty the advocate owes to the court as pronounced by Lord Reid in the case of Rondel v. Worsley.73 Rule 37(3)(a) provides among others that the lawyer has a duty fearlessly to defend his client’s interests. In so doing nevertheless, he should hardly allow his personal feelings or those of his client to affect his duty as a lawyer to treat the court, the lawyer on the other side and the witnesses with courtesy and respect. According to this Rule the only overriding obligation to the lawyer’s duty to the client is acting in an honest, upright and honourable way. It is not doubted that these Rules are binding to the members of the Tanganyika Law Society (TLS) as they guide conduct and etiquette of the lawyers. Nevertheless, the Rules were declared by Kalegeya, J to be having no force of law on the ground that 70 Brereton, P. L.G, “Acting for the Incapable- A Delicate Balance,” an address to the law society of NWS and Carers NWSW CLE Breakfast, Thursday, 30th June 2011 accessed from http://www.supremecourt.lawlink.nsw.gov.au/agdbasev7wr/supremecourt/documents/pdf/brereton3 00611.pdf as on 15th May, 2013. 71 See Rule 37(1) of the TLS Rules. 72 ‘Twaib (n 2) p. 59’. 73 [1966] 3WLR 950. 161 V.Mtavangu the TLS is the creature of the statute and is not empowered to make subsidiary legislation.74 (ii) The Law of Evidence Act75 The relevant provision so far as duties of the lawyer are concerned is section 134. The section stipulates that:No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as an advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client the course and for the purpose of such employment.76 Although this general rule has an exception that it cannot protect the lawyer in situations where he may act in furtherance of the criminal offence or fraud, nonetheless the section seems to protect all confidential information an advocate receives from the client. The reason for prohibition on disclosure is not far fetching than to encourage litigants to communicate fully and frankly with their lawyers without any fear that the information given by them can be passed on to the opponent or to the court.77 Not only that but the rule of privilege and its cardinal principle, are there to ensure that the client confides completely and without reservation in his lawyer. The right of a client to maintain confidential communications with the lawyer is considered as a fundamental as it benefits the community as a whole by encouraging the clients to be open and frank when seeking legal assistance. Therein, it can be argued at this point that the duty of the lawyer to the client may override that of the court on the issue governing confidential communication between him and the client; 74 See the case of Mkono and Co. Advocates v. J.W Ladwa (1977) Ltd 2002]1 EA 145 at p. 158. The same position was stated by ‘Nsekela, J (n 19) p. 7.’ The reason advanced by him was due to the fact that the said Rules were not made under the Advocates Ordinance. Nonetheless, there is ongoing process by the TLS to review the Advocates Act as well the TLS Rules. 75 CAP 6 of the R.E 2002. 76 See section 134(1) of the Law of Evidence Act. Besides, section 137 of the same Act states that “no person shall be compelled to disclose to a court any confidential communication which has taken place between him and his advocate or professional legal adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communication as may appear to the court necessary to be known in order to explain any evidence which he has given, but no other communication.” 77 Singh A., Principles of the Law of Evidence, 15th Edition, Central Law Publications 107Darbhanga Colony Allahabad, 2005, p. 487. See also the case of D. Veerasekaran v. State of T.N 1992 Cr. L.J 2168 (Mad). 162 A dilemma of legal practice in Tanzania as the law categorically states that if he desires to reveal any client’s confidential information he must seek an express consent from him. Nonetheless, even if the law or court of competent jurisdiction requires the lawyer to divulge confidential information, the lawyer has to divulge only required information which means not more information than is required. This is referred to as the principle of legal professional privilege.78 In supporting this proposition, on one hand Lord Taylor C.J in the case of R. v. Derby Magistrates’ Court, ex p B79 ruled that no exception should be allowed to the absolute nature of legal professional privilege once established. On other hand McHugh80 supported this view in these words:The so called exceptions to the doctrine are in truth no exceptions at all. This may be no more than a matter of semantics, since it is quite clear that the ambit of communication with a legal adviser which may be disclosed, notwithstanding the privilege, cannot be foretold, in advance of any such consultation, with any accuracy or certainty. The privilege includes among others the issue of confession of guiltiness of the client. Had the confession of guiltiness be subject to public disclosure, thus no person would feel free to consult the lawyer.81 Nevertheless, according to the TLS Rules that is the privilege of the client, not of the lawyer and it may accordingly be waived by the client, but not by the lawyer.82 In order to avoid conflicting duties where necessary, the lawyer has to keep away from being called as witness before the court of law. Section 136(1) of the Evidence Act provides that:If any party to a suit or proceedings calls the advocate as a witness he shall be deemed to have consented to the disclosure only if he questions the advocate on matters which, but for such questioning, he would not be at liberty to disclose. 78 The Privy Council while hearing an appeal from New Zealand in the case of B and Others v. Auckland District Law Society and Another [2003] UKPC 38 re-affirmed the importance of the right to legal privilege as a part of the public interest. It held that this principle cannot be overridden on the pretext of maintaining integrity of the legal profession as among of the public interests. Legal professional privilege as per Lord Taylor C.J in the case of R v. Derby Magistrates’ Court, ex p B [1995] 4 All ER 526 at p. 540, 541 is considered as a fundamental condition on which the administration of justice as a whole rests. 79 [1995] 4 All ER 526. 80 In the case Carter v. Managing Partner of Northmore Hale Davy& Leake (1995) 183 CLR 121 at p.163. 81 ‘Singh (n 75) p. 64’. 82 TLS Rules, Rule 22(b)(i). 163 V.Mtavangu It is also provided in the TLS Rules83 that the lawyer should not act on behalf of a client in any proceedings in which he knows that he is likely to be called as a witness. Furthermore, the lawyer is prevented to appear before any court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit.84 As a matter of prudence and impartiality, when it happens that the lawyer becomes a necessary witness in the proceeding by necessary implication he has to withdraw appearing as an advocate in those proceedings. Additionally, he should testify and entrust the conduct of the case to someone else.85 (iii) The Advocates Act86 Section 66 of the Advocates Act provides categorically that “any person duly admitted as an advocate shall be an officer of the High Court and shall be subject to the jurisdiction thereof.” Although this provision indicates that an advocate is the officer of the High Court,87 by implication is also an officer of the subordinate courts to which is practicing. As an officer of the court has to abide by the rules governing officers of the Court; nevertheless, he is not bound with all the rules governing judicial personnel such as Magistrates and Judges. Nsekela, J (as he then was) once pointed out that an advocate as an officer of the High Court “has naturally certain obligations towards the court, one of which is to assist the court in reaching a just decision based on the court's evaluation of the evidence and the law.”88 As an officer of the court also he has to uphold the dignity and decorum of the court in which is appearing. Thus the lawyer is enjoined not to influence the decision of the court by any improper or illegal means. In other words, 83 Ibid, Rule 37(3)(b). Ibid, Rule 36(e). 85 ‘The Canadian Bar Association Code of Professional Conduct Chapter IX (n 48)’. 86 CAP 341 R.E 2002. 87 The High Court is defined in section 4 of the Interpretation of the Laws Act, CAP 1 RE 2002 as the High Court of the United Republic of Tanzania. This definition obviously does not cover the subordinate courts. The draft of the Advocates Act, 2007 also defines the word Court to mean High Court of Tanzania. Section 35 of this draft states among others that every advocate and every person otherwise entitled to act as an advocate shall be an officer of the Court and shall be subject to the jurisdiction of the court. Moreover section 37 of the draft gives power to the Court to discipline the advocate who has committed misconduct during the courts’ proceeding. In verbatim the section stipulates that “nothing in this Act shall supersede, reduce or interfere with the jurisdiction of any court, inherent or otherwise to deal with the misconduct or offences by an advocate, or any person entitled to act as such, committed during or in the course of, or relating to proceedings before the court.” 88 ‘Nsekela (n 19) p. 6’. 84 164 A dilemma of legal practice in Tanzania the advocate should not be a hindrance for the court from delivering fair decision to the disputants.89 Conclusion Although it is a common ground that the duty of the lawyer to the client is not absolute or unqualified, in reality and in practice, for most of lawyers in Tanzania the duty to the clients seems to override that of the court. This is vindicated whereby majority of lawyers take an advantage on the slip of pen, mistakes or irregularities made by their opponents to win their cases.90 Nevertheless, the primacy of either duty may depend on the circumstances or context of each case. This is because each duty complements the other as a composite of the general duty to the community or to the public. This explains why Mac Kenzie argued that lawyers’ duty to the client and duty to the court are given equal prominence.91 The lawyer as an intermediary between the client and the court is obliged to balance the two duties. Besides, the lawyer has to exercise the duty to the client scrupulously and independently as among of the means of striking a balance between the conflicting duties. Nevertheless, there is no doubt that it is the most complex work in balancing or reconciling the roles of lawyers as agents for clients and the general welfare of the legal system and the public sphere.92 In trying to balance those two duties, it is important also to distinguish between ethical and legal rules; this is because they are mutually exclusive and somehow legal rules are of great importance than ethical rules.93 Thus, it is significant also for lawyers in Tanzania to represent their clients zealously and practice within the bounds of the law since ethical rules are not legally binding as they are like morals; breach of them may not subject someone to any civil wrong or criminal offence. However, the great challenge of legal ethics in adversary system which remains unresolved is the lack of accountability; It is beyond doubt that the legal profession in Tanzania is not exempt towards the pursuit of economic gain and the accumulation of wealth. As it has been noted earlier, seek of profit for a lawyer is playing a great role to this dilemma. Thus, it has to be borne in the mind of every lawyer that excessive and inappropriate emphasis on 89 Mandopi K, The Role of Advocates in the Dispensation of Justice. The Tanzania Lawyer Journal, 2013, Vol. 1, No. 1, pp. 22-44. 90 This is usually done through raising Preliminary Objections (POs). Some of the POs raised by lawyers are completely not based on points of law thereby contributing to the delay of cases in courts of law. 91 Quoted by ‘Bell and Abela (n 8) p. 13’. 92 ‘Gordon (n 63) p. 802’. 93 ‘Nagorcka et al (n 43) p. 450’. 165 V.Mtavangu profit which led to commercialization without regard to professionalism is incompatible with the role of the lawyer, especially an advocate as an officer of the court; thus it has to be avoided and discouraged by heart. This situation often results to the overtaking professional ethics. In order to avoid some of the ethical dilemma for the practicing lawyers in an adversarial system, it is necessary to include some elements from inquisitorial systems. This is because there is a disjuncture between the adversary system in principle and in practice for the lawyers. Since the main duty of any legal practitioner is to abide by both formal and informal rules; nevertheless, compliance with rules by itself though is necessary but it is never a sufficient, part of being an ethical lawyer. Practicing law ethically extends also to other social matters and other responsibilities outside the profession viz., to God, to the family, friends and community. This means an ethical lawyer is mostly governed by moral intuitions rather than professional rules. All in all, in treating the courts and their clients, lawyers have to observe the rules governing their profession inter alia not to mislead the court or striving to win a case by whichever means as a way of trying to balance these conflicting duties. 166