MLS cracks whip on 22 lawyers

To freeze elements of fraudulent acts and other unbecoming dealings that are tarnishing its image, the Malawi Law Society (MLS) has from March 2021 to February 2022 punished 22 legal practitioners for various offences.

According to an MLS independent disciplinary committee report, the lawyers were punished for, among others, offences relating to practitioners’ professional negligence, overcharging clients, intimidation and threats, failure to update clients, failure to handover files, failure to remit funds, failure to disclose and failure to refund deposits.

Of the 22 legal practitioners, the committee recommended six for disbarment; one for two years suspension; five for six months suspension; five others to be warned while another five were referred to the office of Director of Public Prosecutions (DPP) for criminal prosecution.

The MLS disciplinary committee was established by the Legal Education and Legal Practitioners Act (LELPA) under Section 90 and has powers to inquire into the conduct of legal practitioners at the request of the High Court and on a complaint made by the citizenry.

According to the report, the committee further ordered restitution in 20 matters shared among 14 legal practitioners in the sum of K86.4 million and of the ordered amount only K15.2 million had been paid back and remitted to the complainants, leaving a balance of K71.2 million.

In the period under review, MLS received 115 complaints from the public against 49 complaints received during the same period in 2020/2021, signifying a 66 percent increase in the number of complaints received.

MLS president Patrick Mpaka attributed the increase in number of complaints to Covid-19 situations these past two years.

He said: “Last year [2020/2021] due to the Covid-19 situation there was less interaction but this year [2021/2022] with the decrease in Covid-19 cases there has been more interaction hence the increase in the number of complaints received.”

However, Mpaka said the development was a positive indication that the society was now becoming more open and available to the public.

“This reflects on two things—that the society is now more open and available to the public and also more transparent in the manner it operates that the public is able to come, lodge complaints and get assisted.

“We have always urged the public not to complain through social media because that [complaint] will not be sorted out but bring such complaints through the established systems,” he said.

The MLS disciplinary committee is headed by the Solicitor General, who is also Secretary for Justice, in accordance with Section 90(2)(a) of the LELPA.

During the period, according to the committee’s outgoing chairperson Reyneck Matemba, members of the committee convened five times for 32 conduct meetings and 22 disciplinary hearings.

Conduct meetings are private preliminary hearings between the committee and a legal practitioner aimed at informing the lawyer about the conduct that has resulted in the complaint and to ensure he or she understands the consequences of his or her actions.

However, Weekend Nation investigations indicate that most legal practitioners that were recommended for disbarment and criminal prosecution continue to practice.

This bolsters the public perception that suspected mischievous legal practitioners are generally not being dealt with decisively despite that the new LELPA introduced stringent measures to be taken against them.

Under the new Act, the powers of the disciplinary committee have been significantly enhanced to suspend a lawyer, impose a fine, admonish, order to pay the costs of disciplinary proceedings and order a legal practitioner to pay compensation to a complainant.

Once a lawyer is suspended, MLS is supposed to publish the same in the Gazette and in at least two newspapers with widest circulation. But this is not happening.

Further, a lawyer may not be allowed to renew his licence until he or she has complied with penalties imposed on him or her by the committee.

DPP Steven Kayuni said in an interview this week that, when cases are referred to his office for prosecution, mostly they do not have a docket so his office requests other offices with investigative powers such as the Malawi Police Service to prepare the same.

“That, too, needs collaboration of the Malawi Law Society in terms of some processes. Our observation is that we need more collaborative effort than what is there now for us to make progress on these errant lawyers,” he said.

The DPP, however, could not state whether his office made the request to those offices with investigative powers to prepare the necessary docket.

But on his part, Attorney General Thabo Chakaka Nyirenda said on Wednesday that his office had already started taking action on the errant lawyers.

“Some of the cases against those lawyers are already in court and we are just waiting for dates of hearing… We filed summons and the cases will come before the Chief Justice where we shall pray for disbarment of the legal practitioners,” he said.

The law does not sanction the AG to suspend a legal practitioner but that power is vested in the disciplinary committee by virtue of Section 96(1)(b) of the LELPA or the Chief Justice by virtue of Section 89(1)(b) of LELPA.

However, Section 89(1) of the LELPA allows the office of the AG to apply to the High Court for the suspension of a lawyer upon being found guilty by the disciplinary committee. 

In January 2021, retired High Court judge Esmie Chombo, then Judge president for Lilongwe High Court registry, blew a whistle on how some lawyers and court staff connive to “displace or destroy a court file so as to frustrate case proceedings”.

In her leaked letter, she alleged that some court staff are lured to prioritise work of certain legal houses or remove some documents of counsels representing the other parties to mislead the court that the party failed to file the necessary documents prior to the date of hearing.

According to Chombo, some lawyers and court staff sometimes conspire to open a new file and present the matter before a different judge as a new one when the last judge handling the matter had declined an application that counsel was seeking.

Reacting to the development, human rights and governance expert Undule Mwakasungula yesterday observed that while lawyers are supposed to promote justice, some of them are, indeed, a disgrace to the profession and nation.

He said there was need for sanity in the profession through “massive cleaning up of the bad apples”.

“The offices of the DPP and AG must act with urgency once lawyers have been found guilty. The profession seems to be protective of each other, hence, not very much willing to discipline each other. Unlike other professions, all lawyers seem to be friends.

“What is important now is to see the society, DPP and AG collaborating to ensure the mischievous lawyers are debarred. Lawyers must be principled. For example, how can a lawyer defend a perpetrator of a girl child because of money, instead of defending a girl child as a victim?” wondered Mwakasungula.