ZAMBIA OPEN UNIVERSITY
SCHOOL OF LAW
NAME: LAMECK CHIMOKA ZULU
TASK: ASSIGNMENT II
STUDENT NUMBER: 21811779
EMAIL:
[email protected]LECTURER: Ms. CLEOPATRA
DUE DATE: 23/04/2021
COURSE: ALTERNATIVE DISPUTE RESOLUTION
1
QUESTION:
Mr. Sekwila Gondwe, a legal practitioner is charged with the unlawful killing of his mother-in-
law. He comes into your chambers seeking to retain you as his defense counsel. He tells you
that he lost control and strangled the deceased after she accused him of infidelity at his house.
He did not mean to kill her but after her death he felt quite relieved, and he had no regrets
about what he did. She was a nagging woman who had caused him nothing but misery. To
cover himself, he had dumped the body near a homeless shelter hoping that one of the inmates
could be blamed for the killing. He knew of one shelter inmate who was particularly violent and
whose mental capacity was very limited. Gondwe had previously defended the inmate on an
aggravated assault charge, and he thought his ex-client could easily be used as a scapegoat for
the murder. He tells you that the only evidence the police have against him is the statement of
the neighbour who will attest to a violent commotion at Gondwe's house on the night of the
murder. She did not actually see Gondwe dump the body where it was later found. Gondwe
tells you that although he did kill the deceased, he has a very good chance of avoiding a
conviction if you take his instructions and craft his defense in such a way that you plant in the
mind of the judge, the impression that Gondwe's previous client, the violent homeless man
may have been responsible for the killing. He further says he will organize evidence "proving"
that he was innocent of the killing including calling his girlfriend to back an alibi placing him
many miles away from the scene of the crime. Gondwe offers to help you frame the questions
in your cross examination. He intends to plead not guilty. He is particularly anxious that he
should not be found guilty because a thorough search of the court records would reveal that,
under a false name, he had been previously convicted of a serious assault and fraud prior to his
admission to the bar. He did not disclose this in his Petition for admission to the bar and he is
afraid that revelations on his background could lead to his being struck off the Roll. After
hearing Gondwe's story, you are undecided as to whether to take instructions. You however
feel compelled to explain to Gondwe what you consider to be your duties and obligations in the
circumstances of this case and the reasons that will inform your final decision.
Tender your explanation to Gondwe.
2
INTRODUCTION
In answering this task, and in tendering my explanation to Gondwe i will coin this scenario as
as a lawyer-client confidentiality and I will give my position on this when concluding for now I
will endeavor to explain Confidentiality as it is the bedrock principle of legal ethics and as a
lawyer it is my legal obligation and duty/ethics to maintain lawyer -client confidentiality, how
confidentiality benefits lawyers and why confidentiality is important this will be seeing in most
of explanation including in the defense of confidentiality of client lawyer relationship. 1
According to representatives of the legal profession, the duty is nearly absolute. Lawyers who
learn information while representing a client are required to maintain secrecy (absent client
consent to disclosure). If the lawyer obtains information from a client that, if disclosed, would
prevent another person from being falsely convicted of murder and sentenced to death, he or
she must remain silent, even if the disclosure would not implicate the client in the crime.' The
same duty of silence remains. The Legal Services Act introduced Multi-Disciplinary Practices
(MDP’s) in which, members of other, there is still a requirement that Lawyers, and alternative
business structures should:2
Act with independence and integrity, maintain proper standards of work, act in the best
interest of clients; and Keep client’s affairs confidential.
Confidentiality generally
It is indisputable that one of the biggest attractions of the Legal profession to the ordinary man
in the street is the perceived honor and integrity that lawyers are known for. The duty to keep
the client’s information confidential is at the center of the justice delivery system because the
ends of Justice are better served when clients are secure in the fact that all the information
conveyed to their lawyer is safe. As shall be seen shortly in this paper, the Zambian Lawyer is no
longer a haven for confidential information and, like his counter parts in other jurisdictions, the
Zambian lawyer’s position as the unassailed repository of confidential information is no longer
assured.
Rule 35 (2) of the Legal Practitioners Practice Rules 2002 (The Practice Rules) obliges every Legal
Practitioner to keep the affairs of each client confidential. The duty extends to current and
former clients and outlives the retainer i.e it continues even after the end of the client/lawyer
relationship. In this respect, Legal Practitioners are specifically prevented from using
information entrusted to them in confidence by their clients for their benefit or for the benefit
of any other client without the written permission of the client to whom the duty of
confidentiality is owed. What is interesting about Rule 35 (2) is that it only provides for the
2
file:///C:/Users/Hangar/Downloads/LAZ-PAPER-Ethics-Ethical-Conduct-Challenges-and-opportunities-in-modern-
practice%20(1)%20(1).pdf
3
existence of the duty of confidentiality where the information is entrusted to the lawyer in
confidence.
Rule 32 (4) e of the Practice Rules is however more roving in its effect as it provides a blanket
restriction against disclosure of all or any information communicated to a Legal Practitioner in
his capacity as a Legal Practitioner unless permitted by Law or under an order of Court.
Therefore all information given in the course of a retainer is given to the Lawyer in confidence
and should not be disclosed. What should be borne in mind is that Rule 32 (4) e does not
require the information to have been communicated to the Lawyer by the client. It is implied
therefore that all the clients’ affairs are confidential no matter what the source of that
information is. In its most liberal interpretation, Rule 32 (4) e protects even the fact that a client
is a client from disclosure. similar repercussions as those contained in the Solicitors Code of
Conduct which entail non-disclosure of the clients’ identity without the clients’ permission.
Lawyers in Zambia are not allowed to act for any prospective client where so acting would put
an existing or former clients’ confidential information at risk 3.
In England and Wales and Canada for example, Lawyers can act for a client even where so
acting may put confidential information of another client in Jeopardy as long as sufficient
information barriers are put in place. Such Information Barriers or Chinese walls include the
sequestration of all lawyers who possess the confidential information in a separate building or
separate part of a building from where the Lawyers acting for the new or prospective client are.
Legal Practitioners duty of confidentiality as it relates to the Practitioners client, but our
consideration of the subject would be incomplete without considering a species of this duty
that is owed to the Court. It is accepted that the ends of justice are better served by parties to
litigation disclosing to each other all documents relevant to the matter during discovery. The
Courts have determined that for parties to be encouraged to make full disclosure of material
facts in litigation, lawyers have a duty not to use information disclosed to them by another
party to the proceedings during the discovery process other than for the proper conduct of the
matter in which the documents are disclosed. The Legal Practitioner therefore owes a duty of
confidentiality in these circumstances, not to his client or to the other party but to the Court
which issued the order of discovery. Lord Diplock stated the following in the case of Home
Office v Harman4
“This is why an order for production of documents to a solicitor on behalf of a party to civil
litigation is made on the implied undertaking given by the solicitor personally to the court (of
which he is an officer) that he himself will not use or allow the documents or copies of them to
be used for any collateral or ulterior purpose of his own, his client or anyone else; and any
breach of that implied undertaking is a contempt of court by the solicitor himself.” 5
3
Rule 33 (1) g of the Legal Practice Rules
4
(1982) 1 ALL E.R 532
5
Ibid. Page 538
4
The Duty of Disclosure
Section 52 (h) of The Legal Practitioners Act Chapter 30 of The Laws of Zambia provides as
follows:
“No practitioner shall –
Deceive or mislead any client or allow him to be deceived or misled in any respect material to
such client.”
The duty contained in Section 52 (h) of The Legal Practitioners Act encompasses not only the
duty not to deceive or mislead a client but also the duty not to allow the client to be misled.
Where the Legal Practitioner possesses information that is relevant to the clients’ case, failure
to place such information at the clients’ disposal would amount to misleading the client or at
the very least would amount to allowing the client to be misled.
Generally, Lawyers have a duty to disclose to a client all information that is relevant to a clients’
case. The following statement in Specta v Ageda6 aptly states the Common Law position;
“A Solicitor must put at his clients’ disposal not only his skill but also his knowledge, so far as is
relevant; and if he is unwilling to reveal his knowledge to his client, he should not act for him.
What he cannot do is to act for the client and at the same time withhold from him any relevant
knowledge that he has.”7
Where the Legal Practitioner possesses confidential information that is relevant to a
prospective clients matter, he should refuse to act for the prospective client because he would
be obliged to disclose otherwise confidential information to the prospective client.
Every Legal Practitioner is an officer of the Court and as such owes the Court a parallel duty not
to mislead or to allow the court to be misled8 In this regard, Legal Practitioners are under a duty
to disclose all relevant cases and statutory provisions that are relevant to a matter
notwithstanding that the said cases and statutory provisions do not support his/her clients’
case.
The Legal Practitioner should however first advise the client of his duty to disclose relevant law
to the Court and if the client objects to the exercise of such duty, the Legal Practitioner should
stop acting. The duty not to mislead the court extends to situations where the Legal Practitioner
fabricates facts that are relevant to his clients’ case but does not extend to revealing to the
Court facts that have been disclosed by the client to the Legal Practitioner. The duty to disclose
6
Spector v Ageda [1973] Ch. 30; [1971]
7
(1973) Ch 30 at 48
8
Section 52 (b) Legal Practitioners Act
5
all information relevant to a clients’ case can however be limited by the provisions of any
relevant law. Examples are in case of Money Laundering where tipping off is prevented even
where the Legal Practitioner knows that his client is being investigated 9 or under the Financial
Intelligence Center Act10
Client care
The Zambian lawyer is fast transitioning from merely conducting the practice of law to
conducting the business of law. In this regard, the legal duty to provide a good and efficient
client service is not only a professional imperative but an invaluable tool for the competitive
conduct of the business of law. This is particularly so, because of the emergence of a wide array
of sophisticated clients who look for superior client care and are not easily taken by the
presumption that all lawyers are of equal competence. In the increasingly competitive world of
the Law, client care has become a major differentiator. Surveys continue to show that clients
are most disappointed with their Lawyer's responsiveness and accessibility, this is also
evidenced by a lot of cases before the Legal Practitioners Committee which could be resolved
by simple but effective communication with clients. As indicated in earlier, good client care and
service is not only a professional duty owed to the client by every Legal Practitioner but is a
valuable tool for the differentiation of every legal practice and is an effective aide to increased
client retention. Rule 14 of the Practice Rules requires every Legal Practitioner in private
practice to ensure that “clients are at all relevant times given appropriate information as to the
issues raised and the progress on the matter”. The Practice Rules require Legal Practitioners to
inform clients about charges or fees and the basis of such charges or fees at the time of taking
instructions.11 The Practice Rules require Practitioners to act at all times in good faith towards
their clients.12 The duty to offer high standard of client care extends beyond the client up take
and includes the conduct of the Practitioner at the time the Practitioner is withdrawing from
acting for a client. The Practice Rules prevent a Legal Practitioner from ceasing to act for a client
without first explaining to the client the reasons for doing so13.
Throughout this legal Assignment, two distinct but complementary reasons have been put
forward to justify client-lawyer confidentiality. Each is tied to a different philosophical tradition,
and each provides some, but not complete guidance in understanding this professional
obligation.14 Both justifications begin with an understanding of a reciprocal inequality inherent
in the client lawyer relationship. On the one hand, clients have the power to select, supervise
9
Section 11 of the Prohibition and Prevention of Money Laundering Act No.14 of 2001
10
Section 33 of the Financial Intelligence Centre Act
11
Rule 17(1) of the Legal Practitioners Practice Rules 2002
12
Ibid. Rule 32 (3)
13
Ibid. Rule 34(2)a
14
Because I focus here on general rules that guide professional behavior, I follow the "theoretical-juridical"
template of most discussions of ethics over the past century that pictures "morality as an individually action-
guiding system within or for a person." MARGARET URBAN WALKER, MORAL UNDERSTANDINGS: A FEMINIST
STUDY IN ETHICS 61 (1998). I do not mean to ignore the fact that morality consists in practice as well as theory, but
instead focus here on whether the theory that guides practice makes sense.
6
and fire lawyers, and to decide when a lawyer acts in the client's best interests. On the other,
lawyers have knowledge and skill that enables them to use or abuse client information for their
own or others' benefit.15 A utilitarian justification for protecting confidentiality focuses on the
consequences of such a legal protection. Such a rationale usually, but not always, concludes
that confidentiality promotes the greatest good for the greatest number, because it encourages
clients to give lawyers facts, which are essential to making the legal system work. A utilitarian
rationale also promotes the use of lawyers and the legal system as an efficient and fair
alternative to other means of resolving disputes.
In conclusion
The Zambia legal framework supports client-lawyer confidentiality if abrogated their
consequences which can result by such acts. So, in this case if you fell you cannot help Gondwe
in this case you better withdraw but you still have the mandate even though to keep the
secrecy in confidence even though the doings of Gondwe are not acceptable and
My view is Confidentiality rules-the ethical duty of confidentiality, the attorney-client privilege,
and the work product doctrine-benefit lawyers but are of dubious value to clients and society.
Absent some more compelling justification for their existence than has been advanced to date,
these doctrines should be abolished.
Reference
http://www.laz.org.zm/wp-content/uploads/2015/04/LAZ-PAPER-Ethics-Ethical-Conduct-
Challenges-and-opportunities-in-modern-practice.pdf
15
This understanding also informs feminist notions of morality, which begin by seeking to reveal the power in
relationships that can favor a particular normative point of view. See, e.g., ROSEMARIE TONG, FEMININE AND
FEMINIST ETHICS 158-84 (1993); Margaret Urban Walker, Seeing Power in Morality: A Proposal for Feminist
Naturalism in Ethics, in FEMINISTS DOING ETHICS 3-14 (Peggy DesAutels & Joanne Waugh eds., 2001).
7
MARGARET URBAN WALKER, MORAL UNDERSTANDINGS: A FEMINIST STUDY IN ETHICS 61
(1998)
Prohibition and Prevention of Money Laundering Act No.14 of 2001
Legal Practitioners Practice Rules 2002
Financial Intelligence Centre Act , No. 46 of 2010
CASES
Home Office v Hariette Harman: HL 11 Feb 1982
Spector v Ageda [1973] Ch. 30; [1971]
