Silence of law is not its absence (Part II)

The special importance of the presumption of innocence in Malawi and developing democracies cannot be overemphasised. The criminal justice system, which is inundated with numerous accusations of crimes based on political vendetta, deserves the necessary checks and balances against political excesses.

Politicians have for many years overreached to accuse political opponents with various crimes merely to settle political scores or to shield political friends.

A robust judicial system can only flourish with judicial officers, including lawyers, that have the training, mental capacity and moral or ethical integrity to even challenge interests of the political class without fear, favour or malice to ensure justice is not only done, but also be seen being done.

That being said, the Act also recognises that some cases or accusations of crimes, by themselves, impede public interests if the accused lawyer is permitted to continue representing clients while facing charges arising out of the same or similar facts involving the retained lawyer.

Section 21(1)(i) of the Act provides that the High Court may discipline a lawyer if the lawyer “has been guilty of conduct tending to bring the profession of the law into disrepute.” The section grants powers for the High Court to review cases of lawyers accused of serious crimes in order to protect the interests of the public and maintain the reputation of the legal profession.

According to Section 21(1) of the Act, the High Court may do so on its own motion to investigate and adjudicate the alleged misconduct that puts the legal profession as whole into disrepute. The question in this case, however, is whether the lawyers’ representation of clients while the lawyers are themselves being accused of similar serious crimes amount to an ethical violation which rises to the level of conduct that puts the legal profession into disrepute.

An adequate response to this question requires satisfaction of two elements. The first element requires the High Court to determine whether, based on existent law, the accused lawyers representing clients are in violation of some law or ethical rules of professional conduct. The existing laws are not clear and none of the lawyers has yet been convicted or found guilty of any serious crime. Apparently, Malawi Law Society (MLS), which was granted the powers to make rules for the legal profession according to Section 36 of the Legal Practitioners Act, has not promulgated an ethical rule preventing lawyers accused of serious crimes from representing clients, particularly those with whom the lawyers face similar charges arising out of the same or similar nucleus of operative facts.

Generally, when the first element fails as is the case here, the analysis need not reach the second element. Yet, although there may not be a specific disciplinary rule against the accused lawyers, the second element is crucial because the alleged ethical violation strikes at the core of the substantive objective of the disciplinary rules as the Act promulgates.

The disciplinary rules contained in sections 21 to 24 of the Act were intended to protect public trust and the reputation of the legal profession. It would, therefore, be an offense to public policy to limit the analysis and, indeed, the application of law merely because the first element has not been clearly satisfied. In such circumstances, it is within the common law tradition for courts to look to the spirit of the law to divine and effectuate the totality of the framers intentions.

Courts in Malawi and particularly the High Court that is vested with the power to monitor lawyers’ ethical duties and professional conduct, may look into the spirit of the law to protect the public and the reputation of the legal profession. Therefore, the second element is still needed for analysis.

A prudent lawyer, therefore, must be able to refer cases to another competent lawyer when confronted with the dilemma to represent clients in cases the lawyer knows or should know arise out of the same or similar nucleus of operative facts involving the accused lawyer. The goal is to avoid conflict of interests at various levels of the judicial process.

Apart from the general conflict of interests, there are additional ethical issues that can further taint the reputation of the legal profession and justice. There is no denying that the accused have a right to zealous representation by a competent lawyer of their choice. Yet, the selection of the accused lawyers could have been based not only on the lawyer’s legal expertise, but also the lawyer’s inside intimacy with the facts of the case.

Here, for example,Raphael Kasambara was the Minister of Justice and Constitutional Affairs who had significant factual knowledge material to corruption charges. Wapona Kita was Kasambara’s partner and close friend who also had inside knowledge of his dealings while serving as minister.

It is, therefore, conceivable that the alleged clients might have retained the alleged lawyers with a view of gaining competitive advantages derived not only from the lawyers’ zealous legal representation, but also from the lawyers’ inside knowledge of material facts. Any finding of not guilty, exonerating the accused clients of their corruption charges, would be received with public distaste as ‘compromised justice’ irrespective of the lawyers’ zealous expert representation and clients’ actual innocence.