Thursday, 17 January 2019

Rules of professional conduct: advertisement, touting and publicity (Ethics)

                          BY C.J. OKOYE


Rule 39(3) Rules of professional conduct provides that it is unprofessional for a lawyer to solicit professional employment by circulars, advertisement for professional employment such as furnishing or inspiring newspaper comments or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged in.

Rule ….. states some forms of advertisement that is allowed.  These are:

(i) Publication in reputable law list in manner consistent with the standard of conduct imposed by the rules of professional conduct.  A brief biographical and informative date may be placed in the list.  Such date must not be misleading and may include only statement of the lawyer’s name, his professional associates, his junior in Chambers, addresses, date and place of birth date of admission to the Bar, schools attended with dates and degrees legal authorship; quasi-public offices held, post of honour, legal teaching positions; membership and offices held in the Bar Association, etc.

What we are saying is that advertisement in the newspaper is wrong.

Also permissible is sending to a client notice of a change of address or telephone number. 

Also having the word “Barrister and Solicitor” or “Solicitors and Advocate” written after the lawyer’s name displayed at the entrance or outside in building where his chambers is situated is permissible. 

The size of this should be very reasonable and the design and colours must be sober. 

A lawyer’s degree may also appear after his name.  If he is a notary public, it could also be included but it does not include specialist qualification.  For example, Commercial Land consultants, experts in family issues, divorce, custody, welfare, etc. 

Improper attraction of business includes all acts, which give an unfair advantage thus lowering the prestige of the profession.  It also causes unhealthy petition, misrepresentations, insinuations of incompetence etc.

In view of the trend of globalisation, most jurisdictions have allowed a seemingly form of advert on the net. 

In the United Kingdom, law firms are allowed to advertise on the net to a certain degree. 

In view of this, we expect our rules of professional conduct to be reviewed in line with the laudable trend in other jurisdictions.

This is the solicitation of instructions and employment and is probably the most common and degrading example of unfair attraction of business. 

It lowers the prestige and reputation of the lawyer involved and the profession as a whole.  In includes the following:

1. Solicitation for employment in Court premises.
2. Solicitation for conveyancing business.
3. Conducting search at the Land Registry to detect defects with a view to employment in litigation.
4. Instigating litigation.
5. Ambulance chasing.
6. Under association.  This is an indirect form of touting.  We could call it “class touting”. 

It is desirable for a legal practitioner to meet with people in clubs, restaurants and other social gatherings but where the aim of such gathering is for a legal practitioner to associate unduly with other persons who are in a special position to assist him to obtain employment, this is very dishonourable for a legal practitioner to distribute his cards in social gatherings to gain employment.  This is very degrading.

1. The noble and sober nature of the profession will not be maintained since success now depends on effective advertisement and not on competence.
2. Adverts tend to berate or belittle the other members of the profession.
3. It creates unfair attraction of business.  Briefs will now depend on the financial capability of the lawyer to engage the best form of advert.
4. Unhealthy competition and rivalry will be created.
5. Dignity of the profession would be eroded by such practice.

See generally Rule 1 of the Rules of Professional Conduct (RPC).

A lawyer is bound to uphold the law at all times. 
He must be law abiding and should advise is clients to do the same.  Any service(s) or advice rendered which involves violation of the law, corruption of public office holders, disrespect to the holders to judicial office will amount to an unethical behaviour and unprofessional conduct.  A legal practitioner finds his highest honour in a deserved reputation for fidelity to uphold the law and ethics of the profession. 
See RE:  SUMMERS (1945) 325 US 561.  In this case, the decision of the Bar of Illinois to refuse admission to a conscientious objector to National Service on the ground that he would be unable to subscribe to the Oath to support the Constitution of the State of Illinois was upheld by the Supreme Court. 

As a Minister in the Temple of Justice, he occupies a quasi-public office, that is, a Minister in the Court.  See MAYOR OF NORWICH V. BERRY (1767) BURR 2109, particularly 2115 where Justice Yales said: 

“The Court must have Ministers; the Attorneys are his Ministers”. 

In RE: HILL (1868) LAW REP. 308, it was held any misconduct by a lawyer which would if committed before he was a lawyer have been sufficient to prevent him from being admitted as a lawyer will be sufficient to warrant his being struck off the Roll or suspended from practice.

See also SHARMER V. ARINOLA (1993) NWLR (PT. 294) 434. 

In criminal litigation, a counsel has a sacred duty to the Court, his clients and the society.

 In OKARO V. STATE (1990) 1 NWLR (PT. 125) 128, it was held that a Counsel in Court in a capital trial has a very important and sacred duty to perform.  He owes that duty to not only his client and the Court but also to society at large.  It is of the very essence of that duty that he should promptly take objection to every irregularity at the trial, be that an irregularity relating to procedure or to evidence called at the trial. 

He must object to all irregularities in the proceedings of the case.  See WAZIRI V. STATE (1997) 3 NWLR (PT. 496) 689. 

A counsel who advises violation of the law becomes implicated in his clients’ guilt.  See GOODENOUGH V. SPENCER (1874) 46 HOW. PR. 347, particularly at pages 350 to 351 where the Court said obiter:

“No attorney or counsel has right in discharge of his professional duties to involve his client by his advice in a violation of the laws of the State, and when he does so, he becomes implicated in the clients’ guilt if, when by following the advice, a crime against the laws of the State is committed.  The fact that he acts in the capacity and under the privilege of counsel does not exonerate him from the well-founded legal principles which render all persons who advice and direct the commission of crime guilty of the crime committed by compliance with the advice.”

See also MEYERS V. ELMA (1940) APP. CASES (pp 292 to 293).  In this case, a testator instructed his lawyer to prepare certain conveyance with intent to evade payment of duty which the solicitor carried out; an order to the solicitor to produce the instructions cannot be resisted as privileged communication.

(i) Duty to take notes
Counsel ought to take his own personal notes of the evidence, submissions and rulings in the case in which he appears.  This is to aid him to know the questions to ask in cross-examination.

(ii) He will have a proper document at hand to determine the accuracy of the judge’s records for the purpose of appeal. 

(iii) It will also enable him review all the evidence given when making his final submission.

(iv) He will need the note of a witness evidence during his examination-in-chief for the purpose of cross-examining that witness or any other witness.

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