Taming errant legal practitioners
Legal practitioners do play a vital role in the administration of justice and preservation of the constitutional order in our nation.
Over the years, a majority of practitioners have upheld their professional and ethical virtues, expected of this noble profession.
However, a case or two has been reported that a legal practitioner has embezzled client’s funds or indeed been involved in some professional misconduct.
As a matter of fact, a majority of cases of professional misconduct reported to the Malawi Law Society (MLS) for disciplinary action do involve failure to account for clients’ funds or indeed in some instances, theft.
The perception by the public has been that errant lawyers reported to MLS have not been dealt with decisively.
This was partly so because the disciplinary procedures provided for under the Legal Education and Legal Practitioners’ Act of 1965 were not robust enough to meaningfully punish such malpractices.
On January 1 2019, the Legal Education and Legal Practitioners’ Act of 2018, came into force with the aim of better regulating the legal profession. This article highlights some of the provisions that aim at entrenching professional conduct and definitively deal with unscrupulous lawyers for the better protection of consumers of legal services and the public at large.
Just as medical doctors do take the Hippocratic Oath promising to take care of patients, the new Act prescribes an oath that legal practitioners must take before admission.
Much as the Disciplinary Committee is still being chaired by the Solicitor General, as before, its composition has been beefed up with two members of good standing in society who are not legal practitioners. This will go a long way in ensuring that the decisions of the committee are seen to be fair and unbiased.
In addition, the Disciplinary Committee is now given timeframes within which to dispense with matters, which is a period of 90 days. Previously, there was no timeframe leading to a backlog of cases.
Under the old Act the role of the committee was generally to hear a matter and refer it further to the Attorney General and the High Court. This was not helpful! The new Act has specified sanctions that the committee can met out and they include suspension, imposition of a fine, admonishment and advice to the Director of Public Prosecutions to institute criminal proceedings against the delinquent legal practitioner.
There is now a presumption that where a lawyer receives money or other property from a client and fails to produce or account for the same, the court will convict him of embezzlement.
This offence attracts a maximum punishment of 10 years imprisonment, without an option of a fine.
This appears to be an appropriate response from the legislators considering the magnitude of the problem of embezzlement in the legal fraternity.
Another frequent area of conflict between a practitioner and a client is justification of legal fees.
Often times, a clients are disadvantaged as the practitioner has an upper hand. Where a client enters into an agreement in respect of legal fees, the new Act allows the client, within six months to challenge the agreement, in court, for being harsh, unconscionable, exorbitant or unreasonable.
In addition, clients can always ask that the legal fees be reviewed by the Court.
The High Court maintains the powers to discipline legal practitioners by striking them off the roll (disbarment); or suspending them for a period not exceeding two years or simply admonish them.
The new Act establishes, for the first time, a fidelity fund to which legal practitioners are mandated to contribute.
The fund is used to compensate persons who suffer loss as a result of theft committed by a legal practitioner or their employees.
This will certainly alleviate the loss suffered through acts of misbehaving legal practitioners. n
