TOPIC 1: Introduction to legal profession and Ethics

1.1 How can profession be defined

A Profession is a disciplined group of individuals who adhere to ethical standards.

1.2 What are ethics?

The most important thing to understand before dealing with any ethical issues in the legal
profession is the concept of legal ethics itself. The Word “Ethic” has been defined in different
ways by various scholars and global dictionaries. But for the purpose of this article, I define
Ethic as a certain discipline that deal with both sides of our behaviour (bad and good) as human
being. Therefore, for purpose of this study, ethics are set of rules or principles being moral or
legal that govern a person's behaviour and the conduct of various people in their profession.
Then what is Legal Ethics? According to various dictionaries, legal ethics are the minimum
standards of appropriate conduct within the legal profession. It is the behavioural norms and
morals which govern the conduct of judges and lawyers.2 Legal ethics can also refer to the study
or observance of roles and duties of lawyers or the written regulations governing those duties and
roles.
Another dictionary defines Legal ethics as principles of conduct that members of the legal
profession are expected to observe in their practice. They are an outgrowth of the development of
the legal profession itself.

1.3 What are professional ethics?

Legal ethics is a term used to describe a code of conduct governing proper professional behavior,
which establishes the nature of obligations owed to individuals and to society.

1.4 School of thoughts of legal ethics

According to Dr Fauz Twaibu Legal Ethics can be approached in two ways; the Narrow Sense
of Legal Ethics (Fear Play) and Broad Sense of Legal Ethics (Fair Play). These two
approaches of legal ethics have drawn some debate among scholars and great thinkers. Some
believe that the best approach to ethics is by moral conducts while others believe ethical
principles have to be codified and legislated to give them enforceable status.
In the present society, many things follow positivists approach rather than rules of nature and
morality. However, other scholar’s advocates for the mixed approach. That is to say in order to
have respectable legal profession that respect and live legal ethics, we have to employ both
approaches, fair and feat senses of ethics.
For instance, SOCRATES identified 2 notions about ethics: "it is not just about any
question, but about the way one should live." These 2 notions of legal ethics are inseparable:
“The study of codified rules apart from broader ethical principles runs the risk of superficiality
and even irrelevance. But a philosophical study of ethics that ignores the doctrinal bases of
lawyers’ legal practice can't succeed either.”
2.1 Fear Play or Narrow Sense of Ethics
American Professor Michael Krauss Krauss thus defines legal ethics, in a both a narrow
sense, and a broad sense. In the narrow sense, legal ethics is “the system of enacted regulations
governing the conduct of lawyers.”
Under this approach it is law and various enactments that dictates and instil ethical behaviours
among legal practitioners. This approach implies that some cant behaves ethically without being
surrounded by various laws. Plato once said;
“Good people do not need laws to tell them to act responsibly, while bad people will find a way
around the laws”
Therefore, this narrow sense of ethics has prompted Tanzania to come up with various
enactments including laws, codes and rules that govern legal profession in Tanzania. These laws
and codes make one class of approach that govern legal profession in Tanzania. As of 2019 the
following are the list of laws, regulation and rules that govern professional conduct in Tanzania
both Zanzibar and Mainland:

2.2 Fair Play or Broad Sense of Ethics

But in a broader sense, Kraus considers 'legal ethics' as simply a “special case of ethics in
general, and in this sense it concerns the fundamentals of a lawyer’s moral lives.” Under this
approach, sources of ethics are morals and values attached to human character. This tells you
don’t need to have laws around you to be ethical but rules of morality will guide you depending
on the context you are operating.
Majority believe that the legal profession is largely governed by unwritten principles derived
morals and values. That is to say in absence of the above set of laws listed in fear play approach
a lawyer is governed by moral conducts. According to Crisin , a code does not, and cannot,
provide a complete solution to ethical issues (K. Crispin, p. 28):
“Lawyers tend to see rules as things to be circumvented in the pursuit of the client’s interests.
They may be honoured in the letter but ignored in the spirit. This is a potentially dangerous
situation, for if lawyers approach codes of professional ethics in the same way they approach,
say, revenue law, then the underlying aim soon becomes avoidance rather than compliance.”
It is advised to follow ethical or moral approach rather than legalistic approach. “Most people
say that it is the intellect which makes a great scientist. They are wrong: it is character.”
— Albert Einstein, Mathematician, physicist & philosopher (1879-1955).
“We should not rely too much on the letter of our laws. True ethics lie in the hearts of men
and women who constitute our profession. When ethics die there, no law can save it. While
it lies there, it needs no law to save it.” Dr Fauz Twaib
This tells that legal ethics is pervasive and mostly guided by daily conducts in life. Legal ethics
does ends in courts rooms but apply even when we are in other private life especially for judicial
officers. Good Character and trust are some of the key attributes which can make a good lawyer
or judicial officer with ethical values.
1.5 3 Rules of ethics in Tanzania
For Lawyers, there is The Advocates (Professional Conduct And Etiquette) Regulations, 2018.
For Judges and Magistrates there is the Code of Conduct and Ethics for Judicial Officers, 2020
(Government Notice 1001 of 2020).

The reasons why legal ethics or importance of legal ethics is centered around the following three
aims of why ethics is paramount in the legal profession. According to Dr. Fauz Twaibu, rules of
ethics can be classified into three, depending on the aim behind them, or the effects thereof.
There are those geared towards:
• Protecting the integrity of the legal profession
• Promoting the administration of justice and rule of law
• Protecting the general public
• Protecting Clients
Therefore, according to the provided above definition of legal ethics, lawyers (both private and
public), Judges/Magistrates and other Judicial officers are principally required to behave and
conduct themselves without breaching the above three rules.
Legal ethics requires judicial officers and lawyers to among other things observe the following
duties; Their duties to one another, Duties to their clients; Duty to public and Duties to Court.
The Following are some of the key objectives of Legal Ethics derived from the above core three
principles.
(i) Responsible practice is the goal of learning and teaching Legal Ethics
The achievement of this goal requires cultivation of the ability to see ethical dimensions of
situations as they are likely to arise in practice. It requires the ability to respond to those
situations with lawyering practices that concretely respect the complex values implicit in the
moral dimensions of those situations.”
(ii) Addressing Previous Ethical Issues affecting the legal profession
Previously, there were no prescribed qualifications existed, and these specialists were not subject
to legal controls. The incompetent, unscrupulous, and dishonest charged exorbitant fees, failed to
perform as promised, and engaged in delaying and obstructive tactics in the tribunals before
which they appeared. Action to prevent such abuses was taken by legislation and by judicial and
other governmental measures. A consciousness developed within the profession of the need for
standards of conduct. This became the core of legal ethics.
(iii) Ensure Credibility of the Profession and Trust
Ethics in any profession are crucial, and it is perhaps more pressing in the legal profession where
lawyers especially are viewed with suspicion as most corrupt and rogue people on earth. Thus,
an enforced code of conduct is vital in ensuring the credibility of the practitioners and legal
system as a whole.
(iii) To Safeguard the interest of the Client and the Public
Ethics also serve to safeguard the interests of the client being represented and ensure they receive
service without discrimination or overcharging.
(iv) To increase Judicial Independence, Impartiality and Integrity
Judicial ethics can generally be recognized as ensuring the independence, impartiality and
integrity (the three big “I”) of courts and judges, which have always been recognized as the core
values in a democratic society, as reasonably expected from the judiciary.

Over the years, each bar association has adopted its own rules of conduct, which take
intoaccount national or local traditions, procedures and laws. Judicial officers and lawyers should
respect these rules, which, notwithstanding their details, are based on the same basic values set
forth below. Some of these values are provided by both written and unwritten rules of ethics in
the legal profession.

4.1 Independence of the lawyer, the Bar and the Judiciary

In order to fulfil fully the lawyer’s role as the counsel and representative of the client, the lawyer
must be independent and preserve his lawyer’s professional and intellectual independence with
regard to the courts, public authorities, economic powers, professional colleagues and the client,
as well as regarding the lawyer’s own interests.

The appointed judges have to be independent when conducting judicial proceedings. The
appointed judges have to apply the law as they understand it without fear or favour and without
regard to whether the decision is popular or not. This is the cornerstone of the rule of law. Judges
individually and collectively should protect, encourage and defend judicial independence.
4.2 Confidentiality and Non-Disclosure of Information
Legal professional privilege is traditionally understood to be the lawyer’s duty not to disclose
confidential information that is learned in the practice of the profession. This obligation has a
moral and contractual foundation (not betraying the trust owed to a person who has confided in a
lawyer, and the lawyer’s commitment, even if tacit, to the client). This ethical value is provided
by Rules 29,30, 31,32, 33 and 34 of the Advocates Regulations of 2018. The regulations compel
and advocate not disclose the information of his clients including the previous client’s
information.
4.3 Prohibition of conflicts of interest and Duty to Impartiality
In order to uphold legal professional privilege and the principles of independence and loyalty,
the lawyer must avoid conflicts of interest. He or she therefore cannot represent two or more
clients in the same case if there is a conflict or risk of a conflict between them. Likewise, the
lawyer must avoid acting for a client if that client has confidential information obtained from
another former or current client of the lawyer.
Similarly, the lawyer may not use information in one case that was obtained confidentially in
another case or a previous case . An advocate is also prohibited to engage in any case where his
close people from firm, family of office are involved. Rules 35, 36,45 and 46 of the Advocates
Regulation of 2018 clearly stipulates clearly conflict of interest that may arise between a client
and his advocate.
4.4 Competence and Quality Service
The lawyer can only practice his or her profession properly with appropriate professional
training, which the lawyer must obtain, maintain and pursue throughout his or her career. The
lawyer may agree to provide services only in fields with which the lawyer is competent, or in any
other legal or other fields with the assistance of professional colleagues or experts, after so
informing the client. An advocate must have the capacity to deal adequately with any matter he
or she undertakes on behalf other client as provide under Rules 8, 9, 12, and 13 of the Advocate
Act Regulations of 2018.
This is to say an advocate has to take a matter that he honestly believes to have competence to
handle without undue delay. The same applies to judges in courts, they have to perform their
duties in court with competence and diligently as provided by Bangalore Principles and Judicial
Code of Conduct. Judges should have good knowledge of the law to administer justice promptly.
5.5 Dignity, probity, loyalty and diligence
The lawyer must prove worthy of the trust placed in him or her by upholding the principles of
dignity, probity, loyalty and diligence. The lawyer must not do anything that damages the
lawyer’s reputation, or that of the profession as a whole or the public’s trust in the profession.
The lawyer must not under any circumstances facilitate the commission by a client or a third
party of an illegal act punishable as a criminal offence, or an act that constitutes tax fraud.
5.6. Respect towards professional colleagues
In the interest of the proper administration of justice, the lawyer must comply with the rules of
the profession by maintaining a spirit of trust, fairness and cooperation with the lawyer’s
professional colleagues, bearing in mind that the lawyer must always defend the interests of the
client to the best of the lawyer’s ability.
5.7 Contribution to the proper administration of justice and respect for the rule of law
Rule 2(1) of the Advocates (Professional Conduct and Etiquette) Regulations of 2018, GN
NO.118 sets out principles to be followed by lawyers in order to maintain proper administration
of justice. While acting respectfully and in good faith towards the courts, the lawyer must defend
his or her client with complete freedom in compliance with applicable procedural rules and
customary practices before the relevant court. Both a Judge and a lawyer have duties to ensure
justice is seen to be done by ensuring proper administration of justice and respect for rule of law.

5.8 Right to fair Remuneration

The lawyer is entitled to legal fees and to the reimbursement of the expenses incurred in
providing the exercise of the profession. These fees and expenses are determined by agreement
with the client, in accordance with the law and the ethical rules by which the lawyer is bound.
Rule 72 of the Advocates Regulations GN NO 118 provides how an advocate can charge fees
and how to appropriately client’s money. Undercutting or overcharging is strictly prohibited. At
the outset of the representation, the lawyer should inform the client if the client is eligible for
legal aid.

5.9 Integrity
According to Rules 4 and 5 of the Advocates (Professional Conduct and Etiquette) Regulations,
advocates are required to conduct themselves with integrity while discharging their duties
towards the court, client, public, another lawyer and the profession. They have to observe
principles of natural justice and human rights.

5.10 Judicial Impartiality

Impartiality is essential to the proper discharge of the judicial office. It applies not only to the
decision itself but also to the process by which the decision is made. A judge should perform his
duties without favour, bias or prejudice. A judge has to disqualify himself or herself from the
case he cannot decide with impartiality.

5.11 Equality
Judicial Officers and lawyers should always conduct themselves or proceedings before them in a
such as way that equality is guaranteed according to the law. That is to say they should carry out
their duties without discrimination based on race, political affiliation, nationality, economic
status and gender.

5.12 Propriety
Propriety is essential for good performance of the judge. A judge shall avoid impropriety and any
appearance of impropriety in any court activity. A judge shall not use the prestige of Judicial
office for any personal gain or family advantage. A judge must accept restrictions in some
personal life freedoms and conducts.

1.7 What are etiquettes?

The customary code of polite behaviour in society or among members of a particular profession
or group.
Etiquette is described as the “customary code of polite behavior in society or among members of
a particular profession or group.” It can be explained as the “set of conventional rules of personal
behavior in polite society. In the form of a moral code that regulates social interactions and
determines what is acceptable in a society, a social class, or a social group.

1.8 The difference between ethics and etiquettes

Both ethics and etiquette are concepts used to govern the behavior of human beings. They also
note how good behavior is to be distinguished from bad behavior.

It is noted that ethics and etiquette “Together they preside over the fundamental beliefs and
needs that we hold . . . Morality includes the concept of the sacredness of the person . . . while
manners include the dignity of the person. Morals and manners share such concepts as
compassion, respect, and toleration. . .”

Difference between Ethics and Etiquette?

The first distinction is that ethics is a branch of knowledge concerned with moral principles.
People frequently confuse ethics and morals since they are so closely linked. In contrast,
etiquette is more of customs or rules to govern behavior. Etiquette is not necessarily morals but
prescribed behavior expected to exhibit at a particular place.

Ethics are linked to morals; for example, greeting the elder implies respect for elders and has
been a part of every culture’s tradition. On the other hand, a specific form of etiquette can spread
to people at popular events such as weddings, funerals, and churches. These events seem to have
universal conduct of how people should behave.
Ethics is related to principles, while etiquette is related to behavior. Ethics have different
meanings to people, and etiquette is influenced by culture, ethnicity, religion, country, or region.
Usually, ethics are personal because a person is the one who judges what is right or wrong to
them. In contrast, etiquette tends to be a social phenomenon as an individual does not create it.
Etiquette is formal, as found in workplace behavior. Entails dealing with coworkers and
managing staff. Ethics is formal and informal, which may enter into personal relationships.
Ethics centers on “intention, conscience, absolute and spiritual,” while etiquette focuses on
“manner, formality,” among other things.