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Main Index
Index:
* Should legal ethics be a mandatory subject?
* IMPLEMENTATION OF THE MONEY LAUNDERING DIRECTIVE
section 1 of 2
* Liability for Professional Malpractice
* Union of Turkish Bar Association
And Ankara Bar Association
* Should legal ethics be a mandatory subject?
| Ingrid M Hoffmann |  |
become a lawyer, and whether law schools or bar associations should make it a mandatory
subject. I am frequently using the South African scenario as an example because this is where
I live and practise, but you will probably have no difficulties in recognizing similar situations
or problems in your own countries.
At a first glance it appears to be logical that legal ethics must be mandatory for all lawyers,
and if we were to conduct a survey amongst the public familiar with the term legal ethics,
we would most certainly get a positive reaction. Indeed, they would be most surprised if they
were told that legal ethics is often not mandatory and that, it is frequently a neglected subject.
To prove this latter point:
The other day I received a phone call from the University of South Africa, which is our longdistance learning institution, enquiring if I was available to present a course on professional
ethics. When I asked who had been the previous lecturer and why was he or she not
available, the answer was that ethics had not been part of the syllabus before. My next
question was, how many hours would I be allocated for this task. The answer was three!!!.
The telephone conversation terminated with my reply that I could not teach anybody any
ethics in three hours and that the university were wasting my time and money.
The degree of importance of ethics in South Africa
In South Africa, ethics are no longer playing as important a role as they did 20 or 30 years
ago. Not only do we find hardly anything written about the subject, but there is also no
meaningful debate amongst the ranks of legal practitioners. If there is, it relates to the
imposition of more and more restrictive rules in an endeavour to try and curb the activities of
certain practitioners who are more resourceful than others.
The trouble is, that nobody is leading the way. South African practitioners are getting all the
wrong signals at the moment from the Ministry of Justice, the courts, the judges and from
their professional organisations who are inclined to apply double-standards.
Why are ethics so unimportant?
A few years ago when I prepared a paper for the IBA Conference in Durban, I conducted a
survey amongst colleagues throughout the world to find out why in their opinion the concept
of ethics is so low on the agenda of many universities, practical training schools and law firms
not only in Africa but also elsewhere.
Amongst the replies that I received was the following: Ethics is not sexy enough, and there
are very few repercussions for failure to be ethical and even fewer rewards for ethical
lawyering. That, I think, hits the nail on the head.
There was unanimous agreement, however, to blame the universities, law schools, law
societies, other supervisory bodies and senior practitioners for not giving appropriate
importance to the need for training and ongoing training; for not taking ethics seriously; for
not lobbying that it becomes a compulsory training subject; for assuming that it cannot be
taught; for thinking that because it does not produce fees, it is a loss of valuable time and for
not being motivated to instil proper values in others by teaching by example.
That is a very serious indictment and a very dangerous situation for all our clients who are
putting their faith into our abilities and who believe that we are acting in their interests.
Can ethics be taught and when must ethics be taught?
There is no doubt in my mind - and the respondents of my survey supported me - that except
in very rare instances, ethics can be taught and by teaching ethics I mean the law of ethics
itself and not the professional conduct rules.
There is also no doubt in my mind that ethics must either be taught at the very beginning of
legal studies at university level or as early as possible and as an ongoing subject during
vocational training. I would prefer ethics to be taught at law schools instead of at vocational
training sessions.
Most vocational training is offered by practising lawyers who are not
trained teachers. And whereas they may have more practical experience than university
teachers, they also have to run busy practices and they get badly paid. In addition, there is
usually not sufficient supervision that they maintain their teaching standards and you cant
judge their performance from questionnaires completed by students. If you get tough with a
student because he is consistently late or disturbs classes, you get a bad report from him.
Ethics is a living concept and as such it is not something that can be taught once and then
forgotten.
Some practitioners may grasp the concept of ethical behaviour very early on and
are able to apply those concepts to their areas of practice without much problem. For most
though, ethical behaviour, and how that behaviour relates to every-day practice, must be
revisited regularly throughout a practitioners practising life including the judiciary. How,
otherwise can judges pass judgments on ethical breaches of legal practitioners if they dont
understand the concept themselves?
During my 25 year-long involvement in legal education in South Africa, I taught ethics at
one of our practical training schools in South Africa for 10 years. I found that students are
most receptive and eager to learn about ethics when they have just come out of university and
when they have not yet come into contact with practising lawyers.
I have also found that it is very difficult to teach candidate attorneys ethics who are
simultaneously serving their articles of clerkship at a law firm. These young men and women
have already been exposed to the hard realities of the legal profession. They come into daily
contact with the various survival techniques of their firms and they consider ethics a waste of
time. They realize early, how difficult it will be to make it to the top and the pressures of
reaching their monthly billing targets are enormous.
By and large they are completely cynical about the topic and that cynicism is often fuelled by
poverty and greed. Poverty and greed provide temptation. If people are desperate for money
as so often happens in smaller or newly established practices, they may well be attempted to
breach ethics as a short term solution. If people are motivated by greed, then often there are
limited ethical boundaries. Practitioners are human.
So the message is to get your foot into the door as early as possible and keep it there!
What ethical training is offered in South Africa
We have 21 universities and only two of them offer legal ethics as a subject for their law
degree. If you intend becoming an attorney or solicitor you receive as a general rule post
university and as part of the legal professions vocational training programme, 6 or 12 hours
tuition in professional conduct. This is far from sufficient because the syllabus mainly covers
the code of conduct of the organised profession and there is not much time to deal with the
law of ethics per se. Advocates are required to write an admission exam on legal ethics. If
you get appointed to the Bench without having been a member of the Bar or the attorneys
profession, as now happens sometimes, you dont get any training in ethics at all.
The Justice Department are thinking about the introduction of a course in ethics for Judges
but they have been doing so for the past 10 years and are still thinking. Some Judges
President in South Africa have taken it upon themselves to offer a training course in ethics to
their brother judges. I will come to this subject later.
What ethical training is offered in other countries.
South Africa is not the only country where professional ethics are low on the list of priorities
and therefore under threat. It is a universal problem in Southern Africa and my friend Mary-
Fran Edwards reports that ethics is also not required in law school in Mongolia. There is a
debate, but yet no regulation, requiring CLE on ethics for various branches of the legal
profession.
In the US legal ethics have been mandatory for a law degree for decades and many states in
the US also require some ethics as part of a mandatory CLE programme.
As could be expected, professional ethics is a compulsory course for the Diploma in Legal
Practice in Scotland which all lawyers who intend practising either as solicitors or advocates,
are required to pass.
I have a copy of the CCBE Comparative Table on Training of Lawyers in Europe. This was
compiled after the CCBE Training Committee circulated a questionnaire in September 2004
about academic and professional training of lawyers in Europe. Having regard to the fact that
cross border legal practice in Europe is now a reality, the idea was to look at the outcomes of
the training process of lawyers in terms of knowledge, skills and competencies in the various
EU member states and with a view to considering the harmonisation of certain aspects of the
training of lawyers in Europe and to update the common code of conduct.
This document makes interesting reading. It consists of 202 pages and is very
comprehensive. I was very surprised to see that of all the EU member and observers countries
only about 9 or 10 have universities offering courses in legal ethics. Amongst them are
Latvia, Hungary, Croatia and Finland.
Post university training regimes are very seldom organised by the state. About 50% of the
countries offer their own practical training courses before admission and it is interesting to
note that in most cases the bar associations and law societies pay for the costs of these
courses. There are a few instances where trainees have to bear their own costs. In Germany
these courses are financed by the state. Many countries have no entry exams at all and Judges
frequently receive different training altogether.
It is encouraging to see that the practical training syllabi of most member- or observer states
of the EU countries include some - albeit often superficial - form of training in legal ethics or
deontology but in the absence of any uniformity, the duration of these training courses differs
from country to country. It must therefore be assumed that most lawyers are not properly
equipped when they have to deal with questions on legal ethics. This assumption is supported
by the German respondent to the survey who wrote The classes do not prepare the trainees to
meet the professional standards expected by the public....
Time does not permit me to deal more extensively with the situation in the rest of the world,
but in Europe every country seems to be doing its own thing and the majority of the legal
professions do not have any recognised sets of training outcomes.
Why must ethics become a mandatory subject at law school?
That legal ethics or better formulated the ethics of law should be a mandatory subject goes
without saying and I am very pleased to read that Lord Justice Potter, the Chair of the Legal
Services Consultative Panel in the UK shares my views.
In his keynote speech on the need for a legal ethics module in the modern law degree,
particularly in the context of the ever increasing ethical pressure on the practising legal
profession and the increasingly pervasive influence of lawyers in society at large, he argues
that there is a need to provide prior to the point of initial qualification in other words as part
of a students university training, a greater depth of learning, not only in areas of basic legal
knowledge and generic skills, but in the development of common professional values.
The reasons which he advances are contained at paragraph 1.19 of the ACLEC report
(Advisory Committee on Legal Education and Conduct in England) and they are even more
valid now than they were in 1999:
As the organisations in which law is practised become larger and more complex, as competition and stability in the market for legal services increases, and as many legal practitioners experience a growing sense of insecurity, there are real dangers that professional standards will be threatened unless counter-balancing steps are taken to reinforce ethical values; no amount of external regulation of professional practice will serve as an adequate substitute for the personal and
professional values and standards that lawyers should internalise in the earliest stages of their education and training. Teaching in ethical values should include more than familiarisation with professional codes of conduct and the machinery for enforcing them. Nor is it clear that the present approach, whereby professional ethics are taught pervasively across a wide range of legal subjects and topics, is sufficient to meet the complex ethical issues that lawyers are likely
to face in modern practice; students must be made aware of the values that legal solutions carry, and of the ethical and humanitarian dimensions of law as an instrument which affects the quality of life.
the ethical challenge goes beyond the obligations that solicitors and barrister owe to their particular clients. The legal profession also carries wider social and political obligations to society as a whole. If the profession is to fulfil its role in protecting the rights of minorities within society and promoting the welfare of the disadvantaged, it is vital that its own composition reflects the social and cultural diversity of todays society;
For whom should ethics be a mandatory subject?
The next question which needs to be considered is for whom should it be mandatory to attend
a course on legal ethics. In my opinion every person who enrols for a law degree, or who
intends becoming involved in the practice of law, including judges, should be obliged to
complete a course in legal ethics at university level in every democratic country in the world
and particularly South Africa.
Traditionally judges of our superior courts were until about 1990 appointed from the ranks of
Senior Counsel - or Silks, in other words from members of the bar. By and large due to the
peer mechanism and coupled with a long waiting period before counsel could take Silk, they
were well equipped with the knowledge of ethics once they were appointed to the Bench.
Insofar as the lower courts are concerned, their presiding officers or magistrates, as they are
called, are civil servants whose prescribed standard of training is generally lower than that of
Judges.
Very rudimentary ethical training courses for candidate attorneys were first provided by the
legal profession in 1971 - that is only 35 years ago! They developed into a more formal
structure in 1990. Black law students only began to benefit from these courses 16 years ago in
1990. An added problem was that until 1994, most Black law students had to absolve their
university training at Black universities and, under the apartheid system, the quality of such
training was often inferior.
Since about 1990, but particularly after 1994 when we received a Constitution and a Bill of
Rights, pressure was brought on the Government from the Black legal profession and the
public to speed up the transformation of the judicial system and more particularly the
judiciary which until then had mainly consisted of white males. As there were not sufficient
Black Senior Counsel available for appointment, a number of Black judges in South Africa
have since then been appointed from the ranks of the attorneys profession, academics,
magistrates and even civil servants. Their inferior legal training and lack of practical
experience in high court litigation has often resulted in strange judgments. But unfortunately,
and as many of these recently appointed judges have also not had much training in the
principles of legal ethics - if at all - particularly in respect of conflicting interests, we have
recently had a number of very high profile scandals which have rocked the entire country and
definitely damaged the judiciarys reputation.
To avoid just that situation a group of senior judges prepared a code of judicial ethics before
the turn of the century, which was presented to the Justice department in 2000. The code has
already received international recognition: The Bangalore Principles of Judicial Conduct,
adopted under the auspices of the United Nations in 2002, used it as one of its sources of
reference. But our Minister of Justice has remained silent!
Historically South Africa has been a country of many cultures most of which were ignored
under the apartheid regime. Since 1990 our basically until then mono-racial culture has been
replaced not by mono-cultural multi ethnicity but by a multi-ethnic multi-culturalism.
European countries with high immigration rates will probably face the same situation in the
furue. We do have, for instance, 11 official languages. It may also surprise you to hear that in
African society a child does not belong to a parent only; it belongs to the community; or that
it is customary and permissible to kill an ox in ones backyard in up-market suburbia in order
to celebrate the send-off of a deceased family member.
Our entire legal framework has altered since 1994 with a growing inclusion of moral-based
notions in the law, predominantly in the field of human rights. The question is no longer
whether the law should be enforce morality, but instead which morality should be enforced.
By and large, and apart from the odd racial tiff, we live together in surprising harmony. Many
European countries on the other hand are still struggling to come to grips with similar
situations particular with reference to Muslim and African cultures.
Why must Judges be specifically included?
Like in many other countries, the ethical rules in South Africa derive basically from the
common law. In other words, ethical rules cannot alone be made by professional
organisations they must be instigated by the courts.
This is where the judiciary has a very important role to play. The judges have to ensure that
different cultures in an ever more mobile society are accommodated and that is why they have
to have a proper understanding and grounding of the law of ethics. For this reason also, all
practising lawyers must have a thorough knowledge of the principles law of ethics and its
underlying morals.
Which forum must offer mandatory training
As Professor Julian Webb has so rightly observed:
The Human Rights Act 1998 inter alia, raises substantive and, at the same time, ethical questions about the criminal trial process, about the content and assumptions of our professional codes of conduct, and, even more fundamentally, about the appropriate forms and content of adjudication and argumentation; as Lord Steyn has acknowledged, the HRA will oblige the courts to take into account more morally and philosophically grounded forms of argumentation than our rather pragmatic system is used to. Many of these developments raise issues which go well beyond the conduct of matters which academics can tidy away to the hinterland of vocational and
continuing education; rather they beg quite fundamental questions about the role of
law and lawyer in the 21st Century.
That observation, ladies and gentlemen is equally applicable in Africa as it is in the rest of the
world.
As the only forum through which all aspiring lawyers have to pass before they branch off into
different careers, is the university, this is where their training must take place and universities
can no longer shirk from that responsibility, even if they cant agree on a uniform syllabus.
The road forward how to implement the proposal
There only remains for me to address the question who should be the driving force behind the
project of persuading the universities.
A few months ago, the IBA through its current President, issued a statement that the IBA
deplored the increasing erosion around the world of the rule of law and that it would be
launching a worldwide campaign to promote the rule of law.
He continued to add that: An independent, impartial judiciary; the presumption of innocence;
the right to a fair and public trial without undue delay; a rational and proportionate approach
to punishment; a strong and independent legal profession; strict protection of confidential
communications between lawyer and client and equality before the law were all fundamental
principles of the rule of law.
It goes without saying, therefore, that in order to achieve these goals one of the first functions
of the IBA must of necessity be to lobby those countries and universities who have so far
refused or neglected to come to the table and to do their bit for the preservation and
promotion of the rule of law.
Ingrid M Hoffmann
Attorney and Conveyancer, Sworn Translator Eng/Ger
P O Box 219
Rondebosch 7701
South Africa
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* IMPLEMENTATION OF THE MONEY LAUNDERING DIRECTIVE
section 1 of 2
| COUNCIL OF THE BARS AND LAW SOCIETIES OF THE EUROPEAN UNION CCBE | |
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* Liability for Professional Malpractice
2006 Chicago Conference.
Constituent: Mr. Matthew Reiter
Session Title: Liability for Professional Malpractice
Author: Mrs. Ihunda Oroma Kin-Elenwo
34 Wood Green
The Hawthorns
Basildon
Essex SS13 1RU
UK.
e-mail: iomodu@yahoo.com; oromakin@yahoo.com
Tel. No.: +44 (0) 788 4016 552
Title of Paper: What Possibilities Exist to Limit the Liabilities and the Overall Exposure of the Professional Service Provider, and What Limitations Exist in the
Different Professions and Jurisdictions?
Abstract:
This paper examines the extent of professional malpractice, the law governing it in the legal profession in Nigeria and the liabilities imposed by the Law. It goes further to talk about the effectiveness of these liabilities through the various machineries set up by the Legal Practitioners Act, Laws of the Federation of Nigeria, to effect the liabilities. This paper also deals with the possibilities of limiting these liabilities and considers why limiting liablities is not feasible in the
Nigerian context.
Finally, this paper examines the exposure of the legal service provider and the possibilities that exist to limit this exposure.
Key Words:
THE CASE OF THE LEGAL PROFESSION IN NIGERIA
INTRODUCTION
Professional malpractice is an endemic that has engulfed the legal profession in Nigeria. This has been the focus of so many legal conference and seminars as the level of professional ethics among lawyers has become abysmally low. There is little left of our professional values as those values are being gradually eroded by the same persons who are meant to be the guardians of those values.
Adetokunboh .A. Kayode, while delivering a paper at the 2004 annual Nigerian Bar Associations (NBA) conference in Abuja decried the situation stating that:
Gradually, but dangerously, a culture is developing that ignores professional ethics and the values underpinning them. Gradually, the Bar is loosing the leadership role claimed by it as the guardian of the legal system, its laws and its values. Gradually, lawyers are seen more than before as subverting those very values of rule of law and transparent justice which they are supposed to be protecting.1
The role of the lawyer is almost indispensable. This is because society is based on norms and values, of rules and regulations that guide human relations. Individuals, corporations and governments sometimes infringe on one anothers rights, thus giving rise to adjudication or the determination of who is right or wrong. Because of the importance of the legal profession and the role it plays in society, it is the cynosure of all eyes. This role, therefore, raises a lot of ethical issues, the breach of which are considered to be malpractices.
Research shows that allegations, both written and verbal against lawyers for diverse kinds of professional malpractice has been on the increase. Some of these malpractices actually involve the misappropriation of a clients money and money meant for an organization or corporation that the lawyer oversees. Others involve dishonest dealing with professional colleagues. This is unfortunate, moreso, since the public is already suspicious of the lawyer.
Lord Macmillan put it better when he said that:
''Put bluntly, the charge is that no advocate can be a sincere and honest man in the performance of his daily business. This is the perennial ethical indictment against the profession.
In other callings it is admitted that there are insincere and dishonest men. But these are the exceptions. In the case of the advocate it is his profession to be insincere if not,
indeed, dishonest.''2
Note that for the conducts of a criminal nature, the aggrieved party can prosecute the offence under the criminal law.
LIABILITIES FOR LEGAL MALPRACTICE.
In Nigeria, there is no Legal Malpractice Law as exists in some other jurisdictions. The Rules of Professional Conduct, which we have had since 1967, govern the legal professional conduct and etiquette. These Rules impose the five fold obligations of the lawyer, which are
-- Duty to the client
-- Duty to the opponent
-- Duty to the Court
--Duty to himself
-- Duty to the State
The Rules are lacking in many respects and a perusal at these Rules will undoubtedly raise certain questions such as:
...whether the existing Rules reflect current needs; whether they are a true reflection of the collective morality of the legal profession today;
whether they were made after the widest possible consultations so as to be sufficiently democratic; whether the Rules are not so vague as not to be sufficiently firm; whether they sufficiently address the question of conflicting values; whether they are in a form that makes it easy to distinguish the exhortations from the prescriptive Rules...How much... should special circumstances affect the application of particular rules not withstanding that they are stated in universal terms?3
The Legal Practitioners Act4, (The Act), establishes the machineries for dealing with professional malpractice. In this Act, the following organs make up the machineries:
- The General Council of the Bar (Section 1)
- The Legal Practitioners Disciplinary Committee (Section 10)
- Appeal Committee of the Body of Benchers (Section 12)
- The Supreme Court (Section 13)
The Legal Practitioners Disciplinary Committee is the main organ charged with the duty of considering and determining any case of malpractice or misconduct brought against a lawyer.
The liabilities for professional malpractice are found in Section 11 of The Act which provides that:
(1) Where-
(a) a person whose name is on the roll is adjudged by the Disciplinary Committee to be guilty of infamous conduct in any professional respect; or
(b) a person whose name is on the roll is convicted, by any court in Nigeria having power to award imprisonment, of an offence (whether or not an offence punishable with imprisonment), which in the opinion of the Disciplinary Committee is incompatible with the status of a legal practitioner; or
(c) the Disciplinary Committee is satisfied that the name of any person has been
fraudulently enrolled, the Disciplinary Committee may, if it thinks fit, give a direction-
(i) ordering the registrar to strike that persons name off the roll; or
(ii) suspending that person from practice by ordering him not to engage in practice as a legal practitioner for such period as may be specified in the direction; or
(iii) admonishing that person,
and any such direction may, where appropriate, include provision requiring the refund of moneys paid or the handing over of documents or any other thing as the circumstances of the case may require.
(2) Where a person whose name is on the roll is judged by the Disciplinary Committee to be guilty of misconduct not amounting to infamous conduct which, in the opinion of the Disciplinary Committee, is incompatible with the status of a legal practitioner, the Disciplinary Committee may, if it thinks fit, give such a direction as is authorized by paragraph (c ) (ii) or (iii) of subsection (1) of this section; and any such direction may, where appropriate, include provision requiring the refund of moneys paid or the handing over of documents or any other thing, as the circumstances of the case may require.
(5) For the purposes of subsection (1) of this section, a person shall not be treated as convicted as mentioned in paragraph (b) of that subsection unless the conviction stands at a time when no appeal or further appeal is pending or may (without extension of time) be brought in connection with the conviction.
Because of the provisions of Sub-section (5), most lawyers who have been convicted for professional misconduct go about their duties freely under the excuse that an appeal is pending. Appeals in Nigeria take quite a long time to be decided!
It would also be instructive to reproduce the provisions of Section 12 of The Act viz:
(1) Where it appears to the Supreme Court that a person whose name is on the roll has been guilty of infamous conduct in any professional respect with regard to .any matter of which the court or any other court of record m Nigeria is or has been seized, the Supreme Court may if it thinks fit, after hearing any
representations made and evidence adduced by or on behalf of that person and such other persons as the court considers appropriate, give such a direction as is mentioned in subsection (1) of section 11, and the direction shall take effect forthwith; and except in the case of an admonition the court shall
cause notice of the direction to be published in the Federal Gazette.
(2) Where it appears to the Chief Justice that a legal practitioner should be suspended from practice, either with a view to the institution against him of proceedings under this Act before the disciplinary committee or while any such proceedings are pending, the Chief Justice may if he thinks fit, after affording the practitioner in question an opportunity of making representations in the
matter, give such direction as is authorised by paragraph (ii) of subsection (1) of section 11; and in deciding whether to give such a direction in consequence of the conviction of a legal practitioner, the Chief Justice shall be entitled to disregard the provisions of subsection (5) of that section.
What, then, is the procedure for establishing liability?
Rules 3 & 4 of the Legal Practitioners Disciplinary Committee Rules are instructive on this
and provide that :
3 Submission of complaint.
(1) A complaint by any person against a Legal Practitioner shall be forwarded in writing by the complainant or the person aggrieved to any of the following persons, that is
(a) the Chief Justice of Nigeria;
(b) the Attorney-General of the Federation;
(c) the President of the Court of Appeal or any presiding Justice of the Court of Appeal;
(d) the Chief Judge of the High Court of a State or the Chief Judge of the Federal Capital Territory;
(e) the Attorney-General of a State;
(f) the Chairman, Body of Benchers; and
(g) the Chairman of the Nigerian Bar Association or the Chairman of a state branch of the Nigerian Bar Association.
(2) A complaint received by any of the persons specified in sub-rule (1) of this Rule shall be forwarded to the Nigerian Bar Association, which shall cause the complaint to be investigated.
4. Reference of case to tribunal by panel
In any case where in pursuance of Section 10 (1) of the Act, the Disciplinary Committee is of the opinion that a prima facie case is shown against a Legal Practitioner, the Nigerian Bar Association shall forward a report of such a case to the secretary together with all the documents considered by the Nigerian Bar Association, and a copy of the charges on which the Nigerian Bar Association is of the opinion that a prima facie case is shown.
From these provisions it can be seen that unlike in some jurisdictions where a client can take a lawyer to court for professional malpractice under a Legal Malpractice Law, in Nigeria, this is not the case. There exists no legal malpractice law.
POSSIBILITIES THAT EXIST TO LIMIT LIABILITY FOR PROFESSIONAL
MALPRACTICE
The provision of Section 11(2) of The Act is vague. The Act does not define what is meant by misconducts not amounting to infamous conduct. This has given rise to the practice where quite a number of misconducts, whether done in the performance of professional duty or not, becomes the subject of a written complaint against the lawyer.
Thus, there are instances where a lawyers creditor or the landlord has written to the NBA for disciplinary actions against the lawyer for failure, on the lawyers part, to redeem his or her debt or pay up the rent. This ought not to be the case. There are other aspects of the law regulating human relationships and these ought to take care of situations where a lawyer has erred outside his professional duties. Section 11(2) of the Act could be amended to limit liability to only instances where the legal practitioner was acting in a professional capacity instead of the vague provision that exists.
Section 11 (4) of The Act enjoins the Bar Council to prepare and also revise, a statement as to what conduct is considered to be infamous conduct in a professional respect. The subsection also mandates the registrar to send a copy of such statement to every lawyer whose name is on the roll. I have never received such a statement and I do not know of any lawyer who has. Therefore, lawyers are ill informed as what conducts are considered by the Committee to be misconducts in a professional respect.
One possible way, therefore, in which liability could be limited is if the Committee could publish a list of what, in its opinion, make up offences that are incompatible with the status of a legal practitioner and also for the Bar Council to perform its duty under the Act.
Research shows that, despite the number of allegations of malpractice that have been brought against lawyers in Nigeria, there exists a dearth of accurate and comprehensive record of cases so far handled by the Disciplinary Committee. The Committee is yet to have its own secretariat and staff and these inadequacies have made the efficacy of the Committees work difficult.
Therefore:
information available from the NBAs prosecuting team indicates that so far only about fifty (50) cases have been brought before the Legal Practitioners Disciplinary Committee, of which only about fifteen (15) have been successfully disposed of, with about two (2) lawyers
disbarred, about six (6) suspended, and about seven (7) admonished.
Again, there are no records to substantiate this, and there are no records to show the comparative number of cases pending, and the nature of the complaints against the legal practitioners concerned.
There are no readily available records to enable us ascertain whether those convicted have appealed, and the result of any such appeal.5
It would be pertinent to point out that the provisions of the Act dealing with liabilities have not been really tested because the machineries for effecting liabilities have not been very effective. It is, therefore, difficult to talk about limiting these liabilities.
For instance, research shows that since the reconstitution of the Nigerian Bar Association (NBA) in 1998, after a long period of inactivity, the General Council of the Bar, one of the machineries given the power of discipline by the Act, is yet to be constituted. The NBAs Disciplinary Committee is also facing difficulties, such as, tracking down lawyers, whom complaints have been brought against, in order to send them copies of the complaints and also to obtain responses from the lawyers. Moreover, the meetings of the Committee are not regular and poorly attended by members.
Similarly, none of the various state branches of the NBA, even though each has its own disciplinary committee, has jurisdiction or authority to investigate complaints brought to it against any lawyer within its jurisdiction. They are also not allowed to refer the matters to the
Legal Practitioners Disciplinary Committee, neither are they allowed to sanction any lawyer accused of malpractice. The practice is for the state branch to forward, to the national NBA, the name of the lawyer whom a complaint has been brought against. This is as far as their disciplinary powers go. This has led to rancour between these state branches of the NBA and the national body. The branches demand for more disciplinary powers since the erring lawyers are in their jurisdiction. This, they say, would be easier for the branches to track down the lawyers and ensure that the liabilities imposed are effected. From the foregoing, I would be stating the obvious if I say that the provisions of
The Act relating to professional malpractice have not been put to test. And it is only when that has been done that one can talk of possibilities that may limit these liabilities, as far as the legal profession in Nigeria is concerned.
POSSIBILITIES THAT EXIST TO LIMIT THE OVERALL EXPOSURE OF THE
PROFESSIONAL SERVICE PROVIDER.
In Nigeria, a lawyers role is multi-dimensional and this role is carried out without any form of cover. The lawyer is professionally naked while performing professional duties, be it as a barrister, solicitor or in-house lawyer. This exposure could be limited to a great extent if insurance policies are taken out to protect the lawyers. The insurance industry is not a popular one in Nigeria. A large number of the populace knows very little or nothing about the need for insurance. The legal profession is no exception.
The Rules of Professional Conduct does not contain any rules as to the provision of insurance for lawyers. Therefore, lawyers carry out their duties, with all the risks involved, without a cover. The legal practitioner is left at the mercy of the society without any form of protection.
In Nigeria, the legal profession is fused, that is, one is called both as a solicitor and an advocate. Providing these services, the lawyer is faced with multifarious risks for which there is no form of insurance. Most times, opposing clients do not differentiate the lawyer from his client. The lawyer is seen as part and parcel of the case and it goes as far as affecting the families. Some matters are highly risky and sometimes, lawyers loose their lives, get maimed or assaulted in the performance of their professional duties. Other times, they suffer material loss and trauma. The need for insurance in the profession, therefore, cannot be
over emphasised.
A leaf could be borrowed from what obtains in the UK where there exists the Solicitors Indemnity Insurance Rules, 2006. It is a revised version which comes into effect in October, 2006, and mandates solicitors, registered European lawyers, registered foreign lawyers and recognised bodies in private practice to take out and maintain professional indemnity insurance with qualifying insurers. Under these Rules, an insurer must indemnify the insured (the firm, employee, e.t.c) against civil liability and defence costs that arise in the performance of the insureds professional duties.
The in-house lawyer seems to face an even greater predicament while rendering
professional services. Apart from the lack of an insurance policy, there is no set of rules/guidelines to govern his or her professional services. The in-house lawyer and the employer work together, not distinctively, to achieve a common goal the overall good of the organization. Though the in-house counsel may exercise some measure of independent opinion, overall, he or she forms part of the team with which he or she partakes in the outcome, whether good or bad. Therefore, this makes it impossible for the in-house counsel to deny responsibility for the actions of the employer.
I worked in my state legislature as an in-house lawyer for over 5 years and it was a difficult and dilemmatic task. One was at a dilemma whether to follow the instructions of the politicians or the Rules of Professional Conduct; and sometimes, these rules/instructions differed on a lot of issues. Our superiors in the legislature would demand absolute loyalty from us as well as try to daunt and eradicate any form of difference of opinion.
This is all in a bid to discourage us from serving both the norms of our profession and the public service rules/legislatures policies. This raises the ethical question whether professionals should not resign in such circumstances.
Donald .C. Langevoort could not have put it better when he said:
Conversely, the lawyer might strife to maintain his independence by living out the professional ideal of sympathetic detachment. But the consequences might be that the ... management would test him for loyalty, find him disloyal to the organization as well as exclude him from vital information and knowledge on which he could base his detached professional advice.6
As I have stated, in Nigeria a Lawyer is called to bar as a barrister and solicitor, therefore the Rules of Professional Conduct is formulated for both the barristers, solicitors and in-house lawyers. The Rules of Professional Conduct may seem to regulate the practice of law generally in Nigeria, but when juxtaposed with international standards, it would be obvious that there is a lacuna as regards the guidance and regulation of the practice of the in-house lawyer.
The Rules of Professional Conduct is lacking when it comes to pertinent matters such as the status and duties of the in-house lawyer; what duty of care is owed to the employer; the fiduciary relationship, if any exists, between the lawyer and the employer and other vital issues. The Nigerian Bar Association could take the initiative to limit these problems by revising the current Rules of Professional Conduct to address these issues facing the inhouse lawyer.
Although, the Nigerian Bar Association has produced a set of draft rules which
addresses some of the challenges Nigerian lawyers face, the draft Rules of Professional Conduct is yet to be implemented.
I hope that this paper has, more than anything else, been able to bring to the fore some of the challenges and limitations that the legal profession faces in Nigeria regarding the issue of professional malpractice and its liabilities. I would like to conclude with the words of Barrister I. O. A. Akinkugbe that there can be no confidence in the legal process if the high priests of the law are dishonest professionals.
Thank you.
1 Adetokunboh .A. Kayode Professional Ethics and Discipline of Lawyers pg 5
2 Lord Macmillan Law and Other Things in Adetokunboh .A. Kayode, SAN, ibid. pg 2
3 Adetokunboh .A. Kayode, SAN ibid. pg 4
4 Cap 207 Laws of the Federation of Nigeria
5 O. C. J. Okocha, RSQ., MFR, SAN, JP :A review of cases of professional misconduct by lawyers:
Synopsis of a paper
presented at the 2005 Annual Conference of the Nigerian Bar Association.
6 Donald .C. Langevoort The epistemology of corporate-securities lawyering: Beliefs, biases and organizational behaviour. 63 Brooklyn Law Review 629 (Fall 1997)
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* Union of Turkish Bar Association
And Ankara Bar Association
www.barobirlik.org.tr
Enacting laws that are suitable for the needs of our time, and executing them properly is one of the most important causes of progress and civilization.
Mustafa Kemal Atatrk
1 November 1925, TGNA, SD I : 359
The efforts of Turkish lawyers to organize go back to 1 934. As a result of these efforts, Bars were reorganized in a more effective way, and the Union of Turkish Bar Associations was established on 7 April 1 969 through the new Law governing the legal profession (the ''Attorney's Law''). Today, 55,000 lawyers are practicing registered to 77 Bar Associations.
Under the Attorney's Law, the Union of Turkish Bar Associations is ''an organization constituted from all the Bar Associations'' in Turkey, and is a ''legal entity as a public professional organization,''
In addition to its mission to develop the legal profession, The Union of Turkish Bar Associations is also charged with strengthening and protecting the concepts of the rule of law and human rights.
Illustrations of the roles of the Union in developing the profession include:
Registering attorneys, those who work in the same office and partner attorneys, properly according to the regulations;
Preparing the main contract articles of legal partnerships;
Organising and printing licence documents, identity documents and documents of authorization for legal partnerships;
Encouraging professional solidarity and continuity through a variety of activities;
Taking every opportunity to protect the legal profession and its members from transgressions of their rights.
General Assembly of the Union of Turkish Bar Associations:
This is the supreme body of the Union, consisting of at least two delegates for each Association elected through secret ballot from among members of the Bar with at least ten years of experience. The number of delegates increases according to the number of members of the Bar. The general assembly holds a general meeting for elections every four years.
Executive Board:
Selected by the general assembly from amongst its own members the Executive Board consists often members other than the President. The Board conducts its four year period of service under the President.
The Presidency:
The President of the Union is elected for a four year period by the General Assembly from amongst its own members. The position is re-electable and our current President is serving his second term.
The Presidential Board:
This consists of the President, two Vice-Presidents, the General Secretary and the Treasurer.
The Disciplinary Committee:
The Committee investigates appeals regarding penalties awarded by individual Bar Associations for actions contrary to the Attorney's Law and the Professional Regulations issued by the Union of Bar Associations, and takes action according to its legal duties and authorities.
Supervisory Board:
Supervises the financial affairs of the Union.
THE LEGAL PROFESSION IN TURKEY
Our country follows a continental European understanding of the legal profession in which the founding principles of justice include the right of unrestricted defence by a legal profession which combines the qualities of the public sector with the attributes of the private sector. In Turkey, lawyers are not required to specialize and are free to address ''...the resolution of every sort of legal relationship, every legal matter and dispute according to principles of justice and equity/' and to use their knowledge and expertise in the service of justice and persons '' ...before all courts, judges, private and public persons, boards and organizations.''
In order to enter the profession, a candidate must:
a. Be a citizen of the Turkish Republic;
b. Be a graduate of a Faculty of Law in Turkey, or a graduate of a foreign law faculty who has successfully passed exams in any missing subjects;
c. Hold a certificate confirming the completion of a year's internship;
d. Have successfully passed the Bar exam;
e. Be resident in the region of the Bar Association he or she wishes to register with;
f. Have no criminal record which would disbar him or her.
An attorney who has entered the profession is empowered to promote or defend the rights of real and legal persons before all courts, arbitrators or other bodies that have judicial power. They may give advice on law and legal issues and negotiate a settlement.
In Turkey, the profession is reserved to Turkish nationals. The only exception to this rule are those foreign lawyers involved in partnerships that fall within the scope of the regulations governing the encouragement of foreign investment. Such partnerships may be established according to the Attorney's Law and may only work within the areas of foreign and international law.
BAR ASSOCIATIONS
Individuals who are not registered with a Bar Association may not use the title ''Attorney'' or work in the profession the profession.
''Bar Associations are professional bodies with the status of public organisatons having a legal identity and working according to democratic principles. Their purpose is to meet the common needs of the legal profession, to support and protect the rule of law and human rights, and the reputation, ethical approach and order of the profession. They encourage the development of the legal profession and ensure its members treat each other and their clients honestly and with integrity.''
A Bar Association has been founded in every provincial centre with at least 30 Attorneys. There are currently 77 associations in Turkey, which are constituted in this way: A general assembly, a steering committee, a President, a Presidential board, a disciplinary committee and a supervisory committee. The General Assembly includes all registered attorneys and meets once every two years.
Since the Union of Turkish Bar Associations was established in 1 969, it has worked in the most effective way to bring about the conditions necessary for ''the rule of law'' and ''fair judgement''.
These efforts have resulted in the principles of the rule of law and right to fair judgment entering the Constitution, as part of the process of bringing this law and others into harmony with the European Union. The Union of Turkish Bar Associations is an effective participant in efforts to adapt the law as part of the EU accession process. It is an observer member of the CCBE. It is also a member of the International Union of Bar Associations. It supports Bar Associations in the Black Sea region in their efforts to create their own Union.
EXECUTIVE BOARD
President
Vice President
Vice President
Secretary General
Treasurer
& 7 Member
DISCIPLINARY COMITTEE
SUPERVISORY BOARD
TBA CONTACT
BALGAT CONTACT
KIZILAY CONTACT
Address:
Karanfil Sokak No : 5/62 06650 Kizilay
ANKARA
Turkey
Tel: +90 312 - 425 30 11 - 425 36 19 - 418 05 12 - 418 13 46
Fax: +90 312 - 418 78 57
Web Site:
www.barobirlik.org.tr
E-mail:
admin@barobirlik.org.tr
******************************************
Ankara Bar Association
www.ankarabarosu.org.tr
HISTORY OF THE BAR ASSOCIATION
The first Bar Association to be founded in our country (Turkey) was the İstanbul Bar Society (İstanbul Barosu Cemiyeti) set up in 1870. The Society had 33 lawyers, 5 of whom were Ottoman citizens and the others were foreign nationals.
The Law on Attorneys (Mehakimi Nizamiye Dava Vekilleri Hakkında Nizamname) enacted in 1876 set forth rules for the entry, discipline, dismissal and other relevant rules related with legal profession and provided for the establishment of a professional society. Articles 30 to 40 of the above mentioned Law govern establishment of the Society of Attorneys (Dava Vekilleri Cemiyeti) as well as its executive and disciplinary boards.
The first Ottoman Bar Association, İstanbul Bar Association, was set up on April 5th, 1878 by 62 lawyers. From this date onward, several bar associations were established in different parts of our country with the status of association. So a bar association was set up in Ankara . We continue our efforts to find out the date of its establishment and the fields of activity. In this connection the albums published by the Ankara Bar Association speak of a professional body before 1924 and Mr. Salih SIRRI is referred to as the President. As the beginning of the presidency term is here stated to be 1920, we are impelled to consider that the association had existed in 1920. Furthermore, a seal dated 1923 is found in our archives. So it follows that the Ankara Bar Association was in activity before 1924.
The Law on Legal Profession (Muhamat) no. 460 enacted in 1924 requires that if the number of lawyers practicing in a district reaches to 10, they must form a society or association which shall be called bar association. The Law also prohibits performing the legal profession without being registered to a bar association.
When the Law on Legal Profession entered into force, the Ankara Bar Association, having completed its organization, became legally established on July 14th, 1924.
THE LEGAL STATUS OF ANKARA BAR ASSOCIATION
Ankara Bar Association is a constitutional public professional organization. It has a legal entity.
According to the Article 135 of the Turkish Constitution, public professional organizations are public corporate bodies established by the law, the objectives of meeting the common needs of the members of a given profession, to facilitate their professional activities, to ensure the development of the profession in keeping with common interests, to safeguard professional discipline and ethics in order to ensure integrity and trust in relations among its members and with the public.
Thus, Law Number 1136 namely Attorneyship Law was in force from the date of 19th March of 1969 is regulated the functions, duties, rights of the attorneys at law and also listed the conditions of the acceptance to the professional attorneyship. It also regulates the establishment and the legal qualities of the Bars. According to the Article 76 of this Law, Bars are public professional organizations those continued their activities according to the democratic principles. They have legal entities; their objectives are to meet the common objectives of their members, to provide honesty and trust between the relations of the lawyers and the relations between the lawyers and their clients. To keep the order and the morals of the profession of attorneyship are also the duties of the Bars. Besides these, to defence the supremacy of law and to defence and protect the human rights are the main and legal duties of the Bars.
THE ANKARA BAR ASSOCIATION EXECUTIVE BOARD
President
Vice President -
Secretary General -
Accountant
& 7 Member
Disciplinary Board
Board of Inspectors
Delegation for TBB (Union of Turkish Bar Associations)
COMMİTTEES
1. BCBA Committee: (Black Sea Countries Bars Association)
2. International Law (UIA) Committee
3. Environs Committee
4. Handicapped Lawyers Committee
5. Public Lawyers Committee
6. Intellectual Property and Competition Committee
7. Young Lawyers Committee
8. Ethic Committee
9. Parliament Press Public Relations
10. Social Security Committee
11. Quality Committee
12. Tax Committee
13. Broadcast Committee
14. Social Relations and Sports Committee
15. Consumer Rights Committee
16. Training Committee
17. Civil Rights Committee
18. European Bars Federation Committee
19. Communication with Law Faculties and Cooperation Committee
20. Vocational Retraining Committee
CENTERS
1. Legal Aid Center
2. Alternative Dispute Settlement Center
3. European Union Center
4. Lawyers Right Center
5. Code of Criminal Procedure Application Center
6. Children Rights Center
7. Human Rghts Center
8. Women Rights Center
9. Data Processing Center
10. Foreign-Language Education
11. Foreign Relations Center
www.ankarabarosu.org.tr
ATTORNEYSHIP LAW - The Republic of Turkey
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2003 Iranian Bar Associations Union
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Phone: +98 21 8887167-9 Fax: +98 21 8771340
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