THE CONCEPT OF LEGAL ETHICS

AND THE MOST COMMON BREACHES

OF ETHICS IN THE LEGAL PROFEESION

1.0 WHAT IS LEGAL ETHICS?

The most important thing to understand before dealing with any ethical issues in the legal
profession is the concept of legal ethics itself. The Word “Ethic” has been defined in deferent
ways by various scholars and global dictionaries. But for the purpose of this article, I define
Ethic as a certain discipline that deal with both sides of our behaviour (bad and good) as human
being. Therefore, for purpose of this study, ethics are set of rules or principles being moral or
legal that govern a person's behaviour and the conduct of various people in their profession. 1

Then what is Legal Ethics? According to various dictionaries, legal ethics are the minimum
standards of appropriate conduct within the legal profession. It is the behavioural norms and
morals which govern the conduct of judges and lawyers.2 Legal ethics can also refer to the
study or observance of roles and duties of lawyers or the written regulations governing those
duties and roles.

Another dictionary defines Legal ethics as principles of conduct that members of the legal
profession are expected to observe in their practice. They are an outgrowth of the development
of the legal profession itself.3

The third dictionary defines Legal ethics as the code of conduct regulating and instructing
behaviour of persons within the legal profession. This definition covers not only the nature of
the interaction of the lawyer with the client, but is recognized to include the duty owed to the
wider population.4

2.0 SOURCES OR APPROACHES OF LEGAL ETHICS

According to Dr Fauz Twaibu Legal Ethics can be approached in two ways; the Narrow Sense
of Legal Ethics (Fear Play) and Broad Sense of Legal Ethics (Fair Play). These two
approaches of legal ethics have drawn some debate among scholars and great thinkers. Some
believe that the best approach to ethics is by moral conducts while others believe ethical
principles have to be codified and legislated to give them enforceable status.

In the present society, many things follow positivists approach rather than rules of nature and
morality. However, other scholar’s advocates for the mixed approach. That is to say in order
to have respectable legal profession that respect and live legal ethics, we have to employ both
approaches, fair and feat senses of ethics.

For instance, SOCRATES identified 2 notions about ethics: "it is not just about any
question, but about the way one should live." These 2 notions of legal ethics are inseparable:

1
Prepared by Onesmo Paul Kasale Olengurumwa
2
https://definitions.uslegal.com/l/legal-ethics/
3
https://www.britannica.com/topic/legal-ethics
4
https://www.cleverism.com/lexicon/legal-ethics-definition/

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“The study of codified rules apart from broader ethical principles runs the risk of superficiality
and even irrelevance. But a philosophical study of ethics that ignores the doctrinal bases of
lawyers’ legal practice can't succeed either.”

2.1 Fear Play or Narrow Sense of Ethics

American Professor Michael Krauss Krauss thus defines legal ethics, in a both a narrow
sense, and a broad sense. In the narrow sense, legal ethics is “the system of enacted regulations
governing the conduct of lawyers.”

Under this approach it is law and various enactments that dictates and instil ethical behaviours
among legal practitioners. This approach implies that some cant behaves ethically without
being surrounded by various laws. Plato once said;

“Good people do not need laws to tell them to act responsibly, while bad people will find a
way around the laws”

Therefore, this narrow sense of ethics has prompted Tanzania to come up with various
enactments including laws, codes and rules that govern legal profession in Tanzania. These
laws and codes make one class of approach that govern legal profession in Tanzania. As of
2019 the following are the list of laws, regulation and rules that govern professional conduct
in Tanzania both Zanzibar and Mainland:

(a) State Attorneys and Law officers

ü Tanzania Mainland
(I) All Laws that Govern Public Service Servants
(II) Public Service Regulations, GN NO.163 of 2003 (made under section 34 (1)
of the Public Service Act N0.8 of 2002)
(III) The Office of the Attorney General Discharge of Duties Act as
Amended in 2018 and its Regulations
(IV) Disciplinary Proceeding Act No.7 of 2018
(V) National Prosecutions Service Act, 2008
(VI) Office of the Attorney General (Re-STRUCTURE) Order by GN NO.
48 of 2018
(VII) The National Prosecutions Services (Establishment) Order by GN.NO.
49 of 2018
(VIII) The Office of Solicitor General (Establishment) Order by GN NO. 50 of
2018

ü Zanzibar

(I) Attorney General's Chambers (Discharge of Duties) Act of 2013

(II) The Office of the Director Prosecution Act, 2010

(b) Private lawyers/Advocates

• Tanzania Mainland
(i) The Advocate Act, Cap 341
(ii) The Advocates (Professional Conduct and Etiquette) Regulations, 2018

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 (iii) The Advocates (Disciplinary and other Proceedings) Act of 2018
(iv) The Advocates (Remuneration and Taxation Costs) Rules of 2015
(v) The Notaries Public and Commissioners for Oaths Act, CAP 12

• Zanzibar
(i) Legal Practitioner Decree of 1941
(ii) Legal Practitioners Rules
(iii) The Notaries Public Decrees

(c) Judicial Officers (Judges, Magistrates and non-lawyers)

• Tanzania Mainland

(i) The Constitution of the United Republic of Tanzania of 1977,

(ii) The Judicial Administrative Act No.4 of 2011
(iii) The Public Service Act (R.E 2010)
(iv) Public Service Regulations, GN NO.163 of 2003 (made under
section 34 (1) of the Public Service Act N0.8 of 2002)
(v) The Public Service Code of Ethics Act, CAP 398 of 1995
(vi) The Bangalore Principles of Judicial Conduct of 2002
(vii) Judicial Code of Conduct for Judicial Officers
(viii) The Leadership Code,
(ix) The Code of Ethics and Conduct for the Public Service,
(x) The Client’s Service Charter of the Judiciary, and
(xi) The Standing Orders for the Public Service in Tanzania.

• Zanzibar

(I) Judiciary Administration Act, 2018

(II) Zanzibar Judicial Ethics Commission Act,2003
(III) Code of Ethics and Professional Conducts for Prosecutors of
Zanzibar

This therefore tells that even if ethics is general about morality which is mostly unwritten we
should at all times endeavour not to lose sight of positive law,5 the legal prescriptions that make
up the ethical standards of lawyering. It is these laws, as enacted by the legislator, that give
legal backing to professional moral standards.

2.2 Fair Play or Broad Sense of Ethics

But in a broader sense, Kraus considers 'legal ethics' as simply a “special case of ethics in
general, and in this sense it concerns the fundamentals of a lawyer’s moral lives.” Under this
approach, sources of ethics are morals and values attached to human character. This tells you
don’t need to have laws around you to be ethical but rules of morality will guide you depending
on the context you are operating.

Majority believe that the legal profession is largely governed by unwritten principles derived
morals and values. That is to say in absence of the above set of laws listed in fear play approach

5
According to Positivists, everything has to be dictated by law

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a lawyer is governed by moral conducts. According to Crisin , a code does not, and cannot,
provide a complete solution to ethical issues (K. Crispin, p. 28):

“Lawyers tend to see rules as things to be circumvented in the pursuit of the client’s
interests. They may be honoured in the letter but ignored in the spirit. This is a
potentially dangerous situation, for if lawyers approach codes of professional ethics in
the same way they approach, say, revenue law, then the underlying aim soon becomes
avoidance rather than compliance.”

It is advised to follow ethical or moral approach rather than legalistic approach. “Most people
say that it is the intellect which makes a great scientist. They are wrong: it is character.”

— Albert Einstein, Mathematician, physicist & philosopher (1879-1955).

“We should not rely too much on the letter of our laws. True ethics lie in the hearts
of men and women who constitute our profession. When ethics die there, no law
can save it. While it lies there, it needs no law to save it.” Dr Fauz Twaibu

This tells that legal ethics is pervasive and mostly guided by daily conducts in life. Legal ethics
does ends in courts rooms but apply even when we are in other private life especially for
judicial officers. Good Character and trust are some of the key attributes which can make a
good lawyer or judicial officer with ethical values.

3.0 IMPORTANCE OF LEGAL ETHICS

The reasons why legal ethics or importance of legal ethics is centered around the following
three aims of why ethics is paramount in the legal profession. According to Dr. Fauz Twaibu,
rules of ethics can be classified into three, depending on the aim behind them, or the effects
thereof. There are those geared towards:

• Protecting the integrity of the legal profession

• Promoting the administration of justice and rule of law
• Protecting the general public
• Protecting Clients

Therefore, according to the provided above definition of legal ethics, lawyers (both private and
public), Judges/Magistrates and other Judicial officers are principally required to behave and
conduct themselves without breaching the above three rules.

Legal ethics requires judicial officers and lawyers to among other things observe the following
duties; Their duties to one another, Duties to their clients; Duty to public and Duties to Court.
The Following are some of the key objectives of Legal Ethics derived from the above core
three principles.

(i) Responsible practice is the goal of learning and teaching Legal Ethics

The achievement of this goal requires cultivation of the ability to see ethical dimensions of
situations as they are likely to arise in practice. It requires the ability to respond to those

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situations with lawyering practices that concretely respect the complex values implicit in the
moral dimensions of those situations.”6

(ii) Addressing Previous Ethical Issues affecting the legal profession

Previously, there were no prescribed qualifications existed, and these specialists were not
subject to legal controls. The incompetent, unscrupulous, and dishonest charged exorbitant
fees, failed to perform as promised, and engaged in delaying and obstructive tactics in the
tribunals before which they appeared. Action to prevent such abuses was taken by legislation
and by judicial and other governmental measures. A consciousness developed within the
profession of the need for standards of conduct. This became the core of legal ethics.7

(iii) Ensure Credibility of the Profession and Trust

Ethics in any profession are crucial, and it is perhaps more pressing in the legal profession
where lawyers especially are viewed with suspicion as most corrupt and rogue people on earth.
Thus, an enforced code of conduct is vital in ensuring the credibility of the practitioners and
legal system as a whole.

(iii) To Safeguard the interest of the Client and the Public

Ethics also serve to safeguard the interests of the client being represented and ensure they
receive service without discrimination or overcharging.

(iv) To increase Judicial Independence, Impartiality and Integrity

Judicial ethics can generally be recognized as ensuring the independence, impartiality and
integrity (the three big “I”) of courts and judges, which have always been recognized as the
core values in a democratic society, as reasonably expected from the judiciary.

4.0 COMMON ETHICAL VALUES IN THE LEGAL PROFFESION

Over the years, each bar association has adopted its own rules of conduct, which take into
account national or local traditions, procedures and laws. Judicial officers and lawyers should
respect these rules, which, notwithstanding their details, are based on the same basic values set
forth below. Some of these values are provided by both written and unwritten rules of ethics
in the legal profession.8

4.1 Independence of the lawyer, the Bar and the Judiciary

In order to fulfil fully the lawyer’s role as the counsel and representative of the client, the
lawyer must be independent and preserve his lawyer’s professional and intellectual
independence with regard to the courts, public authorities, economic powers, professional
colleagues and the client, as well as regarding the lawyer’s own interests.

6
Robert P. Burns: “The Purposes of Legal Ethics and the Primacy of Practice”:
7
American Bar Association
8
Refer sources and approaches of legal ethics above.

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The appointed judges have to be independent when conducting judicial proceedings. The
appointed judges have to apply the law as they understand it without fear or favour and without
regard to whether the decision is popular or not. This is the cornerstone of the rule of law.
Judges individually and collectively should protect, encourage and defend judicial
independence.9

4.2 Confidentiality and Non-Disclosure of Information

Legal professional privilege is traditionally understood to be the lawyer’s duty not to disclose
confidential information that is learned in the practice of the profession. This obligation has a
moral and contractual foundation (not betraying the trust owed to a person who has confided
in a lawyer, and the lawyer’s commitment, even if tacit, to the client). This ethical value is
provided by Rules 29,30, 31,32, 33 and 34 of the Advocates Regulations of 2018. The
regulations compel and advocate not disclose the information of his clients including the
previous client’s information.

4.3 Prohibition of conflicts of interest and Duty to Impartiality

In order to uphold legal professional privilege and the principles of independence and loyalty,
the lawyer must avoid conflicts of interest. He or she therefore cannot represent two or more
clients in the same case if there is a conflict or risk of a conflict between them. Likewise, the
lawyer must avoid acting for a client if that client has confidential information obtained from
another former or current client of the lawyer.

Similarly, the lawyer may not use information in one case that was obtained confidentially in
another case or a previous case . An advocate is also prohibited to engage in any case where
his close people from firm, family of office are involved. Rules 35, 36,45 and 46 of the
Advocates Regulation of 2018 clearly stipulates clearly conflict of interest that may arise
between a client and his advocate.

4.4 Competence and Quality Service

The lawyer can only practice his or her profession properly with appropriate professional
training, which the lawyer must obtain, maintain and pursue throughout his or her career. The
lawyer may agree to provide services only in fields with which the lawyer is competent, or in
any other legal or other fields with the assistance of professional colleagues or experts, after so
informing the client. An advocate must have the capacity to deal adequately with any matter
he or she undertakes on behalf other client as provide under Rules 8, 9, 12, and 13 of the
Advocate Act Regulations of 2018.

This is to say an advocate has to take a matter that he honestly believes to have competence to
handle without undue delay. The same applies to judges in courts, they have to perform their
duties in court with competence and diligently as provided by Bangalore Principles and
Judicial Code of Conduct. Judges should have good knowledge of the law to administer justice
promptly.

5.5 Dignity, probity, loyalty and diligence

9
The Bangalore Principles of Judicial Conduct

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The lawyer must prove worthy of the trust placed in him or her by upholding the principles of
dignity, probity, loyalty and diligence. The lawyer must not do anything that damages the
lawyer’s reputation, or that of the profession as a whole or the public’s trust in the profession.
The lawyer must not under any circumstances facilitate the commission by a client or a third
party of an illegal act punishable as a criminal offence, or an act that constitutes tax fraud.

5.6. Respect towards professional colleagues

In the interest of the proper administration of justice, the lawyer must comply with the rules of
the profession by maintaining a spirit of trust, fairness and cooperation with the lawyer’s
professional colleagues, bearing in mind that the lawyer must always defend the interests of
the client to the best of the lawyer’s ability.10

5.7 Contribution to the proper administration of justice and respect for the rule of law

Rule 2(1) of the Advocates (Professional Conduct and Etiquette) Regulations of 2018, GN
NO.118 sets out principles to be followed by lawyers in order to maintain proper administration
of justice.11 While acting respectfully and in good faith towards the courts, the lawyer must
defend his or her client with complete freedom in compliance with applicable procedural rules
and customary practices before the relevant court. Both a Judge and a lawyer have duties to
ensure justice is seen to be done by ensuring proper administration of justice and respect for
rule of law.

5.8 Right to fair Remuneration

The lawyer is entitled to legal fees and to the reimbursement of the expenses incurred in
providing the exercise of the profession. These fees and expenses are determined by agreement
with the client, in accordance with the law and the ethical rules by which the lawyer is bound.
Rule 72 of the Advocates Regulations GN NO 118 provides how an advocate can charge fees
and how to appropriately client’s money. Undercutting or overcharging is strictly prohibited.
At the outset of the representation, the lawyer should inform the client if the client is eligible
for legal aid.

5.9 Integrity

According to Rules 4 and 5 of the Advocates (Professional Conduct and Etiquette) Regulations,
advocates are required to conduct themselves with integrity while discharging their duties
towards the court, client, public, another lawyer and the profession. They have to observe
principles of natural justice and human rights.

5.10 Judicial Impartiality

Impartiality is essential to the proper discharge of the judicial office. It applies not only to the
decision itself but also to the process by which the decision is made. A judge should perform

10
Rules 82,83,84,85,86,87,89 ,90 and 91 of the Advocates (Professional Conduct and Etiquette) Regulations of
2018.
11
The same is provided by other laws and codes governing legal profession both Mainland
and Zanzibar.

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his duties without favour, bias or prejudice. A judge has to disqualify himself or herself from
the case he cannot decide with impartiality.

5.11 Equality

Judicial Officers and lawyers should always conduct themselves or proceedings before them
in a such as way that equality is guaranteed according to the law. That is to say they should
carry out their duties without discrimination based on race, political affiliation, nationality ,
economic status and gender.

5.12 Propriety

Propriety is essential for good performance of the judge. A judge shall avoid impropriety and
any appearance of impropriety in any court activity. A judge shall not use the prestige of
Judicial office for any personal gain or family advantage. A judge must accept restrictions in
some personal life freedoms and conducts.

5.0 COMMON BREACHES OF ETHICS IN THE LEGAL PROFESSION

It is very obvious that issues of ethics are contextual and depending on every circumstances
and available codes. However, there are some common malpractices that apply across the board
as follows;

• Neglect and lack of communication: Lawyers must keep their clients informed on
matters about their cases and should not ignore or intentionally delay in responding
to any queries and concerns raised by the clients.
• Misappropriation of client’s funds: The lawyer should keep the client’s money
separately from his own to avoid mismanagement.
• Conflict of interest: A lawyer should not have divided loyalties when representing
the client nor have vested interest in the opposition. A lawyer is at times faced with
the question of whether to represent two or more clients whose interests conflict
• Malpractice: This may include forging of documents or fabrication of evidence.
• Solicitation: Lawyers should not use false or misleading information to attract
more clients. It is worth noting that Judges are held to the same code of conduct
used on lawyers. However, judges also have specific rules they are bound to in the
execution of their duties in their office
• Corruption: Most of time Judicial officers and lawyers are accused of corrupt
practices
• Failure to follow Client Instructions: This has been a common problem to private
advocates and lawyers as they often work without client instructions.
• Touting and Advertisement
• Failure to discharge duties with integrity
• Undercutting and Overcharging
• Incompetence and lack of quality services
• Failure to act for public interest and proper administration of Justice
• Failure to be impartial, especially judicial officers when handling cases where
the government and state is a party
• Poor preparation of witnesses
-ALUTA CONTUNUA-
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What's Next?
It’s Been Fifty Ye

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