MIKE OZEKHOME san, ofr
Back Page Columnist

Professional ethics for the 21st century lawyer (part 1)

Introduction

This dissertation hopes to open up the entrails of the facts, myths and truths about what is expected of the 21st of century lawyer (whether he be a Solicitor, Barrister-atlaw, classroom teacher or boardroom player).

Not a few members of the society believe that lawyers are mere “hired guns” and pawns in the chessboard of their clients, and that they merely serve as their agents and advocates.

These people believe lawyers are slavishly beholden first and foremost to their clients and their clients’ interests, held in check only by the circumscribing limits of the law. Is this really true?

It appears that as the political winds blow and shift objects, so too is the legal profession’s understanding of itself. In the 21st century, the role of the lawyer has been seriously challenged, tasked and stretched beyond its earlier expectations.

It has also been expanded and expounded. It has no option than to keep growing in the aftermath of the new wave of globalization, COVID-19 pandemic, breakneck technology, cybercrimes, atomic and nuclear incursion, man-made and natural disasters, etc.

The world has since become the “new normal”. The role of lawyers had evolved over time into two broad and competing categories: call them the “zealous advocate” and the “gatekeeper.”

The Zealous Advocate and the Gatekeeper

The Zealous Advocate corresponds to the “hired-gun” image so prevalent in popular culture, while the gatekeeper builds on the public role of legal professionals. The American Bar Association’s Model Rules, which define and regulate legal practice in the United States, reflect the gate keeping role in a preamble. A lawyer, the rules state, is “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Lawyers are today expected to play a public function role partly in the judicial system, referred to as an “officer of the court.” The origin of this term appears unclear, but it is as old as the profession itself. It is generally used today to refer to lawyers’ role as part and parcel of the judiciary; including the responsibilities which that role entails. Lawyers are also referred to as “Priests in the temple of Justice”; or as “Ministers in the temple of justice”.

Who is a professional?

A professional is a person who professes certain beliefs. He articulates the values underlying his work. Professionals commit themselves to values which are higher than the mere morals of the marketplace.

 

Features of a professional

There are three essential features of a profession.

  1. Professionals are accorded a special monopoly over the right to provide social service, through licensure or certification.

  2. Professionals have a defined and limited scope of practice. A hardware store may easily change sales lines from a garment factory to a bookshop or poultry. But a lawyer cannot suddenly start designing bridges and call himself an architect; or go to the hospital theatre as a medical doctor.

  3. Professionals adhere to a clearly articulated set of values or code of ethics which are usually spelt out. They may also be codified; e.g, Legal Practitioners Rules of Professional Conduct.

The Bar and the Bench

The Nigerian Legal system comprises of the Bar and the Bench. Lawyers form the Bar, while the Judges form the Bench.

The Lawyer must fulfill certain conditions which are provided for in the Constitution to become Judges. Practice or advocacy involves Lawyers having to combine a continuous update on legal developments with service to their clients, respect for the courts, and the legitimate aspiration to maintain a reasonable standard of living for himself, family and dependants.

Being specialized professionals, lawyers are trained in the art of Law and to place the interests of their clients above their own, while striving hard to defend the Rule of Law.

A lawyer or Attorney may practise law as an Advocate, Attorney-at-Law, Barrister, Barrister-at-Law, Canonist, Canon lawyer, Civil lawyer, Notary Public, Counsel, Counselor, Solicitor, Legal Executive, or Public Servant.

They prepare, interpret and apply the law, but never as a paralegal or Charter Executive Secretary. Working as a lawyer therefore entails the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of their clients; with variation across different climes or legal jurisdictions.

The Bar

The Bar is the legal term which originates from the phrase ‘passing the Bar.’ The term is a metonym for the line (or “bar”) that separates and demarcates the parts of a courtroom usually reserved for spectators from those reserved for participants in a trial such as lawyers.

The Bench

The Bench in its legal context may have several meanings. It can simply indicate the location in a courtroom where a Judge sits. It could be used as a metonym to describe members of the judiciary collectively; or the judges of a particular court, such as the Queen’s Bench, or the Common Bench in England and Wales; or the Federal Bench in the United States; or the National Industrial Court in Nigeria.

The term may also be used to differentiate Judges who are referred to as “the Bench” from Attorneys or Barristers, who are referred to as “the Bar”.

The phrase “Bench and Bar” on the other hand denotes all judges and lawyers collectively. The term “full bench” is used when all the Judges of a particular court sit together to decide a case, as in the phrase “before the full bench”, which is also referred to as “en banc”; e.g; when a full panel of Supreme Court Justices sit to decide a knotty constitutional question.

Duties of Lawyers

All members of the legal profession are expected to maintain professional ethics, with a paramount duty to the court and towards the administration of justice. This duty prevails over all other duties, especially in circumstances where there may be a conflict of interests. Legal practitioners are expected to conduct themselves with dignity and integrity, provide proper assistance to the court, and promote public confidence in the legal system. Justice is  rooted in confidence, which where destroyed, endangers the system. In carrying out our duties, lawyers are required to deal with their colleagues with utmost courtesy and deference. Apart from being professionals, lawyers are also officers of the court and play a vital role in the administration of justice. Accordingly, the set of rules that govern the legal profession arise out of the duties owed by the lawyer to the court, his client, his opponents and other Advocates. Lawyers are generally considered to be the epicentre of the administration of justice. They are the very ones that relate to the parties. They listen to the party and collect all the relevant legal materials relating to the case; and also argue the case in court, thus helping the Judge to arrive at a correct and fair judgment. In my practice, I always tell clients: “you own the facts; I own the law”. A lawyer must ensure that his clients read over affidavits to ensure compliance with the facts as given. But the lawyer must never allow the client to smell the law. That will be infradig. Without the assistance of lawyers, the legal process will be in jeopardy. The Judge alone would be weighed down by the process and parties will not be able to articulate their matters (in terms of points of law and issues of facts), thereby aiding the Judge to come to a satisfactory decision.

Justice P.N. Sapru once stated that:

“Justification for the existence of the counsel is that each side to the controversy should be in a position to present its case before an impartial tribunal in the best and most effective manner possible”.

Legislative drafting and law reforms

 

Lawyers also play important role, in conjunction with the Judge, in the maintenance of peace and order in the society.

 

The presence of lawyers helps ascertain the validity of issues and if they have a remedy in law. Lawyers also play a very important role in law reform. By reason of the experience gained in the daily application and interpretation of laws, lawyers are best aware of the imperfections inherent in the legal system.

They thus, constitute the most competent class of men to advise on law reforms and to promote popular enthusiasm and support for it. The most difficult part of the process of legislation is the drafting of its provisions and no one is better equipped to give guidance on this than the lawyers.

Ironing out the creases

Some Judges do however who make Laws, ‘stares decisis’, mostly when they deliver judgments. Lord Denning called it “ironing out the creases”. The realist school of jurisprudence believes that a Judge’s law is in fact, the only type of law. Justice Cardoso and Justice Holmes are the greatest exponents of this theory. “The prophecies of what the courts will do in fact and nothing more pretentious is what I mean by the law”.

 

The legal profession is thus one of honour which is made for public welfare and the manners of public good. It is not for bread and butter alone, but to provide justice to persons. An Advocate is an officer of the court and is required to maintain a respectful attitude towards the court bearing in mind the dignity of the judicial office. The Supreme Court has rightly observed that the legal profession is a partner with the judiciary in the administration of justice. NOW THIS What are Ethics? Ethics have been defined to mean “a certain standard of character’’. Similarly, Chambers English Dictionary, defines ethics as ‘… professional standard of conduct’. Interestingly, the Black’s Law dictionary has no definition for “Ethics”; rather it proffered a clear definition to “Legal Ethics and Ethical considerations” which is adoptable as “Standard of Professional Conduct applicable to members of the legal profession”. It also defined “Ethical Consideration” as “a structural component of the ethical canons set forth in the legal profession’s Mode Code of Professional Responsibility, containing a goal or ethical principles intended to guide a lawyer’s professional conduct”. It is important to note that, the common word here is standard; and ‘standard’ simply means a ‘criterion of excellence’. Ethics however, are principles and values, which together with rules of conduct and laws, regulate a profession, such as the legal profession. They act as an important guide to ensure right and proper conduct in the daily practice of the law.

Ethical standards cover areas such as:

• Independence, honesty and integrity.

• The lawyer and client relationship, in particular, the duties owed by the lawyer to his or her client. This includes matters such as client care, conflict of interest, confidentiality, dealing with client money, and fees, etc.

• The lawyer as an Advocate, in particular, a lawyer’s duties to the court.

• Competence, which encompasses academic qualifications and training, and meeting other practising requirements such as holding a valid practising certificate or license. • A lawyer’s duties to other persons other than a client.

• A lawyer’s duties to other lawyers.

• Advertising of legal services.

• Human rights and access to justice.

• A lawyer’s duty to the society.

(To be continued next week).

And this

Crack your ribs

“A woman disobeyed God in the Garden of Eden and you want her to obey you? -Arab Magistrate to an aggrieved husband”. – Anonymous.

Thought for the week

“Discipline is part of my professional training as a lawyer.” (Mohamed ElBaradei).

Last line

God bless my numerous global readers for always keeping fate with the Sunday Sermon on the Mount of the Nigerian Project, by humble me, Chief Mike Ozekhome, SAN, OFR, FCIArb., LL.M, Ph.D, LL.D. Kindly, ride with me to next week’s exciting conversation.

 

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