Disiplinary committees (continues)
Discipline at the Bar, as in other professions, is very essential. This is what we have been emphasizing. Members of the legal profession in the 21st century have an herculean task to discharge, not only to their clients but also to the court, the profession, their professional colleagues, and the entire society. However, in recent past, both the Bench and the Bar have had cause to complain about the professional ethics of some legal practitioners. Hence, the need to continue to highlight the various duties and responsibilities of the lawyer and the need for members of the Bar to be fully alive to these duties and responsibilities in order to check the falling ethical standards in the profession in which they find themselves and ultimately promote the honour and nobility of the profession.
However, if a lawyer is already representing two different clients, and a potential conflict of interest situation arises, he may choose to disclose the relevant non-confidential aspects of the potential conflict to both of them and seek their express written consent to his continued representation of them, provided that it is clear that he can represent the interests of one client without adversely affecting the interests of the other. If, however, the two interests are directly conflicting ones, the advocate will have to remove himself from the matter rather than face action for professional negligence or malpractice, the consequences of which have already been outlined above.
The performance of the duty by the Advocate defines the determination, dedication and loyalty towards the profession. The profession of law is honourable and it is expected from every person who are in this profession to be honest and work in upright manner. And any deviation in their performance of duty should be taken seriously.
The Legal Practitioner who does not work with sincerity, who does not follow the rules of conduct is said to have misconduct in his profession. He is guilty of the misconduct of duty for which he is punished. In order to avoid misconduct, one should work in proper and appropriate manner not for the sake of getting punished but for being loyal towards them, their profession.
Consequently, the essence of the profession lies in two things:
1. Organisation of its members for the performance of their function.
2. Maintenance of certain standards, intellectual and ethical, for the dignity of the profession.
International Principles on Conduct for The Legal Profession is a document made that express the common ground which underlies all the national and international rules which govern the conduct of lawyers, principally in relation to their clients. The General Principles do not cover in detail other areas of lawyer conduct, for instance regarding the courts, other lawyers or the lawyer’s own bar.
The principles and commentaries were designed to help, for instance, bars that are struggling to establish their independence and that of their members in emerging democracies, and to lawyers and bars to understand better the issues arising in cross border situations as a consequence of conflicting national rules and regulations.
Several challenges arise in the promotion of Professional ethics, some are general to both the Bar and the Bench, some are unique to a particular set of them. Some of them include:
Personal character traits and grooming
We all see life through tinted lenses, coloured by our backgrounds, education and personal disposition. Will some already have a conditioning that makes them naturally conform to laid down norms and principles, some are adversarial and challenge authority. Society is a breeding ground for all manner of persons. It becomes a challenge when the same sets of rules are passed down to people but implemented and enforced differently.
Unequal access to justice/institutional barriers
Nigeria has a yawning gap in the rule of law concerning a class of people: the poor and the disabled (80% of them are in the rural areas) and do not have equal access to justice. Close examination of the justice institutions or framework reveals that there are institutional/infrastructural barriers as there are no provisions, even in the Nigerian law court, to understand the peculiarities of and issues relating to people living with disabilities and how they can access justice. Law enforcement agents further widen this gulf. The professionalism of most lawyers and law enforcement agents is based upon who the client is and what he can pay for services rendered. The rates of pro bono cases effectively executed aren’t enough compared to the cases among the class of people who cannot afford to pay for legal services. There is dearth of experts in the judicial system that interface and deal with issues relating to people living with disability.
Paradox between law and impunity
Despite the passage of several laws that uphold fundamental human rights of Nigerian citizens, it is disheartening to observe a high level of impunity in the country. Power, sentiments born form tribalism, nepotism, religion have made and keep making Nigerians on all classes of the divide to be found acting unprofessionally. This is not only evident in the society generally but also among the law officers, public service and political office holders. Many violators of human rights are not brought to justice and this establishes the denial of victims’ right to justice and redress.
Slow grinding of the judicial process
Unlike Finland that deals with criminal justice within a 12-month timeframe, the judicial process in Nigeria takes several years and delays the dispensation of justice. The Nigerian judicial system is characterised by complex challenges that elongate the judicial process, some of the process and procedures are archaic and should be reformed. The Judicial reforms have been spoken of, but we still wait, which may consequently lead to justice denial. This makes both the Bar and the Bench to look unprofessional and incapable. The current judicial process is inherently ineffective in expediting judgments on cases, resulting in many cases lingering for several years in the courts.
Corruption remains one of the major challenges in Nigeria, as it benefits a privileged few at the expense of the majority. The fight against corruption should be in accordance with the rule of law. Cases of judicial corruption should be fought without degrading the institution. Recent years has seen a massive embarrassment to the Bench, though politically motivated, EFCC harassed properties of Judges and even Supreme Court Justices, they never came back to apologise even when the Judges were found innocent of corruption charges. Judiciary in Nigeria has been under siege for a while, such that even the educated elites in the country accept any technique used by the political class. Presumption of innocence is one of the core principles of the rule of law that should not be discarded in the corruption war. The media should not also take the place of a formal trial. The failure of a lawyer to do his best for his client or the delivery of a wrong judgement by the bench due to any financial or material incentive is absolute disregard to the rule of law and constitutes the height of injustice and corruption.
Challenge of financial autonomy
The independence of the judiciary in the Nigerian legal system is beyond the letters of the law. Ideally, institutional autonomy as a component of judicial independence necessitates freedom of the Judiciary from the Executive and the Legislature in true observance of the separation of powers, which is a strong pillar of the rule of law. Although, Sections 81(3) and 121(3) of the 1999 Constitution provide constitutional guarantees for financial autonomy of the Judiciary, these provisions are still observed in breach. This makes the Judiciary subject to the Executive for funding and invariably contradicts the constitutional provisions of judicial independence thereby adversely affecting the administration of justice, court system and legal services delivery. There is a consensus that the delay in payments of Judges’ salaries and allowances hinders their objectivity and makes them vulnerable to illegal financial incentives and ultimately affects their productivity in justice delivery.
Way forward: Awareness and advocacy
NBA has a principal role to play in creating awareness and advocacy for the rule of law in the country through different platforms with the aid of information technology, just as the International Bar Association is playing a leading role in this direction. Professional ethics has to ne ingrained in lawyers right from the universities. The motto of university reads, ‘in character and learning’. Graduates of Law should be proper in their conducts at all times.
Nigeria is due for a reform with the aim of enhancing quick dispensation of justice and promoting the rule of law. Recent advancement in crimes, world interconnectivity and globalization, terrorism and crime call for major upgrades in Law. Overhaul prosecution process Government should restructure the prosecution process to ensure that prosecutors are independent and fair in the discharge of their duties in conformity with the rule of law and that the entire process happens in a timely fashion. Trainings should be given to every part of the judiciary and prosecution system so they do their work effectively and efficiently, that way no one will stall or frustrate the efforts of another.
Access to justice
Every citizen in every locality and in every state, in every legal situation should have access to Justice. In building capacity, sign language interpreters should be trained for engagement by the courts and other organizations in the justice system. This would give people living with communication disability access to justice. Organisations should develop and implement disability employment policy. NBA should work with civil society organisations to provide appropriate measures that will ensure that people living with disability have access to justice. Class action on pro-bono basis should be encouraged for the physically challenged by the NBA. Administration of justice and judicial processes should be restructured to enhance access to justice. NBA should champion provision of necessary facilities to aid access to justice by people everywhere in Nigeria.
Every profession is also a form of business, so integrity and professionalism are very important for the survival of the business. Unless the public have faith in the practitioners of the profession, the business aspect of it is jeopardised. Every profession must guard jealously the integrity of the practitioners from the point of application for membership and throughout the period that the member is in practice. As the society grows and in the digital age, professional bodies must continue to review and update its code or rules of professional practice and where necessary propose amendment to the statue that established it. This will ensure that the professionals carry out their practice in accordance with international best practices.
Having taken a cursory look at professional ethics, it is quite pertinent that lawyers have to adopt ethical practices in all spheres of their profession from meeting clients, giving them legal counselling, presenting their cases before appropriate bodies, managing client’s accounts, etc. To conclude the above, the professional ethics are also termed as the duties to be followed, these are the morals and the basic courtesy which every person in this profession should know. These are not only the duties to be performed because of the laid down rules, but these are the basic manners which one should incorporate within them. These are the duties towards the Court, Client, Colleague or Opponent. Both the Bar and the Bench must hold these rules as creed even in an ever-evolving world.
Thought for the week
The true mark of professionalism is the ability to respect everyone else for their styles and always find something positive in every dining experience and highlight it in your thoughts and words.