Lawyers have a manner of speaking. They are counsel. They are learned friends. And they are in a noble profession. On 27 May, 2017, the Malawi Law Society (MLS) published in the media the disciplinary matters that came before its disciplinary committee and the recommendations the committee has made in those matters.
For the longest time, one had to go back to1994 to find a case where a lawyer had been disbarred for professional misconduct. [Of course, there has been a disbarment in 2016.] In the intervening years since 1994, the general public formed the view that lawyers in Malawi ‘protect’ each other even in the face of alleged misconduct by a lawyer.
The MLS—and its membership—is regulated by an Act of Parliament. The society also has a Code of Ethics—nineteen chapters of it—on the dos and donts of lawyers. The Code of Ethics has benefitted from codes of ethics from other jurisdictions; including the International Bar Association’s International Principles on the Conduct of the Legal Profession. There are some 10 principles or so that buttress the principles for the regulation of the legal profession.
First, the society’s code states—in the very first chapter—that a lawyer must not act in a manner that weakens the public respect for law or the justice system or interfere with its fair administration. This is a central obligation to the conduct of lawyers. The other principles state that a lawyer must exercise independent and unbiased professional judgement. The task has never been about what the lawyer or the client thinks; it has always been about what is the law.
Second, a lawyer must demonstrate the highest standards of honesty, integrity and fairness with clients, the courts, colleagues and all those the lawyer is in professional contact. Third, at all times, a lawyer must avoid conflict of interest. Fourth, a lawyer must practice confidentiality or professional secrecy. Information a lawyer receives from a client is acquired on trust. Such information cannot suddenly be open folder at a bar or hair salon. Fifth, a lawyer must account, promptly and faithfully, the property of a client and third parties. A client’s property is the client’s property. Mere possession of such property does not entitle a lawyer to use the property for his personal benefit. That would be kuba.
Sixth, a lawyer must also honour the undertakings he makes to clients. Another principle is that a lawyer must respect a client’s freedom to be represented by a lawyer of their choice. A lawyer cannot force themselves on a client. If a client forms the view that they must be represented by a different lawyer, the lawyer must take it on the chin and move on. More critically, a lawyer must exercise utmost competence. He must carry out his work competently and in a timely manner. There’s no one hundred percent in the legal profession. There’s one thousand percent. It is great to look dapper in a designer suit, shirt, tie and shoes. But at the end of the day, the client does not pay the lawyer’s fees for merely looking sharp.
Finally, and talking of fees, a lawyer must earn reasonable fees. A lawyer shall not charge unreasonable fees. Clients are not an auto teller machine to support a flamboyant lifestyle. No. In fact, it is good practice that a lawyer and a client discuss and agree on the billable hourly rate at their very first meeting to ensure that everybody is on the same page.
The principles that I have shared here underpin the regulation of the legal profession in a bigger galaxy of the rule of law and good governance. The MLS Disciplinary Committee’s public announcement of the cases it has handled and the possible way forward is a welcome development. For what it’s worth, the announcement dissuades the fears of the general public that lawyers in Malawi somehow operate in chimpwilikiti world; that they are untouchable and above the law. The last thing a country would want is a situation where the general public does not have the trust for the whole or part of its justice system. The disciplinary process must, however, go the whole hog. The disciplinary committee must, ideally, continue to work hand in hand with the Honourable the Attorney General to ensure that those that have been adjudged with cases to answer have their day before the Honourable the Chief Justice. Anything less shall mean a very unfortunate scenario of naming and shaming.
Besides the disciplinary process that the Law Society oversees, there are instances where the conduct of a lawyer forms a reasonable basis that a crime has been committed. Surely, those cases have to be acted upon by the relevant law enforcement agencies in the usual manner they would act if the person involved were a non-lawyer.
It ain’t all doom and gloom. The legal profession—just like any family— has its share of naughty kids. The father figure – like the Law Society’s Disciplinary Committee—does pull out the whip. And there are also well behaved kids in the legal profession. In fact, plenty of them. Yours truly, I dare say, is one of those good mannered kids!
*Chikosa Silungwe is a lawyer and consultant at The Mizumali Foundation. He holds a PhD in Law from The University of Warwick in Coventry, England.