INTRODUCTION

The legal professional in Tanzania is regulated by different laws including the Constitution of
United Republic of Tanzania and the Advocates Act and its regulations among other laws.
Despite the fact that these laws clearly provide for the ethical values which has to be
adhered by legal professionals but there are circumstance they faces dilemma. Dilemma
most of the time is caused by the tendency of the lawyers need to ensure he retain the client
by winning the case whatever means he uses.

DEFINITION OF KEY TERMS

Ethical values, are principles and values which together with rules of conducted and laws
regulate a profession. Ethical values include confidentiality, competent, integrity, honest,
duty of advocate or lawyer. Ethics are the guide or standard to be abided with by the lawyer.
Ethics means rules of conduct or behavior pertaining to a particular class of human beings. 1

Ethical dilemmas, refer to the circumstance in which a lawyer is required by the law to
adhere to ethical values but at the same time he has to violate the same for the purpose of
making his client win a case.

MAIN BODY

Confidentiality, is an ethical value that legal privilege is traditionally understood to be

lawyer’s duty not to disclose confidential information that is learned in the practice of
profession which includes also all information previously acquired by virtual of practicing law
should be remain confidential as per rules 29_342. Confidentiality is a term in a retainer
agreement that the lawyer will preserve the confidentiality of all information
communication between the lawyer and the client, as it arises from the fiduciary relationship
between the lawyer and the client. This duty tells that the duty continues even when the
agreement is over or final dismissed the lawyer owe not to disclose the information to any
one, furthermore this duty extends to lawyers’ employees. Despite of having confidentiality
as ethical value there are some circumstances which led lawyer into dilemma (ethical
1
Ndika, Dr.G, A.M. “Judicial Ethics in Tanzania, 2006 pg.1s
2
Advocate (Professional Conduct and Etiquette) Rules, of 2018

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dilemma) especially when the lawyer is compelled by the court and or the law to disclose
client’s information. The duty to confidentiality does not extend to documents forming part
of a criminal or fraudulent act, or communication which, take place in order to obtain advice
with intention of carrying out an offence. Lawyers as an office of the court owes a duty not
to mislead the court there for his obliged to disclose any relevant law even though such
disclosure will result or adversely affect lawyer’s own client’s interest. Also, the duty to
confidentiality can be waived when disclose is required to defend disciplinary proceeding
(when the lawyer need to defend themselves to a criminal charge of professional
misconduct complaint usually initiated by client, of which, such act by the client is regarded
as waiver of the right to confidentiality and thus creates dilemma to the lawyer. Another
situation of dilemmas is where the client authorized the disclosure and where the
information is already publicized. Therefore, at the end you come to realize that ethical
values are not ethical truism, thus they are used as means to gather clients.

Independence, a lawyer in order to fulfil fully the lawyer’s role as the counsel and
representative of the client he must be independent and preserve his lawyer’s professional
intellectual independence with regard to courts, public authorities, economic powers,
professional colleagues and clients as well as regarding the lawyer’s own interest.
Independence is key to provide unbiased advice and representation to a client.

“Yes, he (advocate) must keep his vision unclouded. It is very well to point justice blind, but he (the
advocate) does better without a bandage around his eyes, he must be blind in deep to favour or
prejudice, but clear to see which way lies the truth”. 3

BUT there are circumstances in which it is difficult for lawyers to protect the interest of their
client especially when they are subjected to interference from those in power, this situation
create dilemma to lawyers.

Integrity, literally means quality of being honest and having strong moral principle towards
their clients, court, and colleagues. Advocates have to observe principles of naturel justices
and human right, they owe the duty to contribute to the proper administration of justices

3
Lord Denning: The Process of the Law, p 60

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and respect to the rule of k law as provided for under rule 4 and 4 of the rules. 4 HOWEVER
the experience has shown that some lawyers do not maintain their integrity, amongst other
things money, influence and pressure push lawyers to partake activities that usually prove
detrimental to their hard reached goal of being lawyers. Example, very often, a friend or a
colleague will ask a lawyer to certify document and or commission a document without
producing the original document or the identity document. And also, a lawyer may ask for a
favour from his opponent, which, in fact jeopardizes the inters of client of the lawyer doing
favour thus creates dilemma because it’s hard to reject due to relationships the had to each
other. However, it should be noted that, doing each other favour is appeasable and
advisable and if it advances the interests of both parties in the case and if it strengthens and
contribute positively to the law, and this has nothing to do with right behavior.

Honesty, a lawyer has to maintain the duty of being honesty to his client and the court5. An
advocate needs to be honest and openly in disclosing all relevant facts relating to the kind of
advice sought by his client according to his best knowledge in law. 6 Sometimes the client
has to win the case by avoiding disclosure of some facts which are true as provided by the
other side of the case despite to the fact that advocate is prohibited from instructing the
client on how to violate law.7 An advocate knows the reality and whole story of case at hand
but he cannot disclose those information before the court of law thus he must protect and
defend his client even of the heaven fall, as the result this creates dilemma. Thus, it is true
that ethics are there not to regulate behavior of lawyers rather are used as a tool to gather
and preserve clients.

Competence, this requires legal skills, knowledge thoroughness and self-preparation

reasonably and necessary to represent client, it further in tells about basic legal knowledge
and application to keep abreast of the law in the field of practice. 8 An advocate has to make
better and quality service in handling undertaken legal work competently and diligently
without delay, and when he found out that he is not competent with the matter at hand he
4
The Advocate (Professional Conduct and Etiquette) Rules
5
Regulation 15 of the Advocate (Profession conduct and Etiquette) Regulation, 2018
6
Rule 16 0f the Advocates (Profession conduct and Etiquette) Regulation
7
Regulation 21 Ibid
8
Regulation 8 Ibid

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is supposed to decline to act or collaborate with another advocate who is competent under
the consent of the client. 9 However the dilemma comes into play when the advocate
undertakes legal work while he is not competent, No advocate case decline the case by the
reason on incompetence, thereafter I agree with the notion that important ethical value
have not been ethical truism, they have been concerned with gathering and retention of
clients rather than right behavior

Ambulance chasing/Touting, this is the use of intermediary to bring or attract clients to an

advocate, this can be done through telling lies with promise to reduce the instruction fee,
promising victory on the matter for the purpose of only winning the clients interest. 10 BUT
these restrictions create dilemma when the lawyer ignore the advertising rules, most
advocates do not agree with the rules. Also, once those clients brought before him, he can
reject to take their case for representation. This restriction is meant for professional
conformity but it does not regulate right behavior.

Remunerating the unadmitted, advocate has a duty to assist in preventing the unauthorizes
to practice law and to ensure that legal advice are not offered by unadmitted person. 11
However the practice has been shown that most advocates do hire law graduate as legal
assistants in their offices, those lawyers perform may tasks which are purported to be
performed b advocate or lawyers and that reason they offend legal professions thus it is an
ethical dilemma. Law ought to abide with remunerating rules however it should be bearing
in mind that the existence of the lose has nothing to do with right behavior.

Champerty, this is an arrangement between Advocate and client where an advocate

undertakes legal obligations towards the case without being paid with the promise that he
will be paid to the finality of the case and the clients liability depend on the outcome of the
case.12 This is un ethical prohibited because it creates lawyerss interest in the case as he
steps in the shoes of his client.

9
Regulation 9 Ibid
10
Regulation 128 Ibid
11
Regulation 121 &124 opcit
12
Dr. Twaibu, F. “The Bench, The Bar and The Concern for Truth”. Williams Binchy &Catherine Finnegan (eds)
p.300

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Remunerating rules, most advocate admit that when fixing fees, they never make
adherence to these rules. There is variation of charges from one advocate to another from
case to case. Therefore, the rule of fixing charges is there however impactable.

CONCLUSION

Despite the fact that there are circumstances in which a lawyer might be in dilemma but
legal professional ethics should be adhered for the purpose of bringing justice in a case.
Therefore, there is a need for a lawyer to adhere to the legal ethics for him to perform his
duty well. Hence the ethical values are absolute and there is no any law providing for the
exception of adhering to the legal ethical values.

BIBLIOGRAPHY

PAPER AND ARTICLE.

Ndika, Dr.G, A.M. “Judicial Ethics in Tanzania, 2006

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Twaibu, F. “The Bench, The Bar and The Concern for Truth”. Williams Binchy &Catherine
Finnegan