Ethics and Discipline in Law: Akin to Waiting for Godot (Part 8)
Ethics and discipline are at the core of legal principles and precepts; because law is a set of beliefs and values which society has accepted, either formally in written codes, or unwritten codes like customs and traditions. In either case, they are norms which are based on what society regards as ethical behaviour, or best practices applicable in any given context or circumstances. They are usually flouted, at the risk of sanctions. This is where discipline comes in. Please, read on.
Discipline of Lawyers
The applicable rules relating to the discipline of Lawyers, is the Legal Practitioners Disciplinary Committee Rules 2006. The breach of any of the rules of professional conduct in the legal profession, could be held to constitute an infamous conduct in a professional respect. See Rule 55(2) RPC 2007. Suffices however, to say that any aggrieved party can write a written complaint against a legal practitioner to any of the following: The Chief of Justice of Nigeria; The Attorney-General of the Federation; President, Court of Appeal or Presiding Justice of the Court of Appeal; The Chief Judge of the High Court of a State or that of the FCT; The AG of a State; Chairmen, Body of Benchers; and President, NBA or Chairman of a Branch of NBA. See Rule 3(1) LPDC Rules 2006.
Procedure for the Discipline of Lawyers
The procedures for the discipline of Lawyers can be summed up as follows: Receipt of a complaint or petition; Any of the persons authorised to receive the petition or complaint shall forward same to the NBA, which shall cause the complaint to be investigated; Investigation, and if a prima facie case is established, the NBA shall forward a report of such a case to the Secretary of the LPDC together with all documents not considered by the NBA and a copy of the complaint; Appointment of a legal practitioner by the NBA to present the case before the Committee; Hearing of the case of a party, either personally or through a counsel of his choice; On the direction of the Chairman of the Disciplinary Committee, the Secretary shall fix a day of hearing and serve notices to parties (either through personal service, registered post or e-mail etc); There must be at least 15 days between the service of hearing notices and the date of hearing; Except where the service is by publication in the newspaper, the Secretary is to serve on parties, other than the complainant, both the hearing notice and copies of the report and the complaint prepared by the NBA; Upon proof of service, the Committee may proceed to hear and determine the case in the absence of the counsel against whom the complaint was made; An absent party may however, within 30 days from the date of the pronouncement of the findings and direction of the Committee apply for a re-hearing; If the Committee is satisfied that it is just to hear the case, it may grant the application upon such terms as to cost or otherwise; The Committee shall hear witnesses and receive documentary evidence, such as would assist it in coming to its conclusion regarding the truth or otherwise of the allegations; The provisions of the Evidence Act are to apply to the Committee proceedings; At the conclusion of hearing, the Committee may call for written addresses; Proceedings and announcement of the Committee decision shall be held in public; If the Committee finds that the allegations have not been proved, it shall record its findings; If it finds that the allegations are proved, it may give the following directions:
a) Order the Registrar of the Supreme Court to strike off the legal practitioner’s name;
b) Suspend the practitioner from practice;
(c) Order the practitioner to refund money or hand over documents in his possession;
(d) Admonish the practitioner,
(e) Directions made by the Committee are to be gazetted.
It must be stressed here that, where the conduct of a legal practitioner is a conduct incompatible with his status as a legal practitioner, then his name cannot be struck off the roll; the appropriate punishment is either suspension or admonition. Where directions are made by the LPDC, an affected legal practitioner has 28 days within which to appeal. The direction shall not be effective, save after the 28 days stipulated for an appeal. Where there is no appeal or where there is an appeal but it is withdrawn or struck out or dismissed, the directions become effective.
Appeals from the decision of the LPDC, lie to the Supreme Court of Nigeria. The Supreme Court and the Chief Justice, also constitute disciplinary authorities.
Where the name of a legal practitioner has been struck off the Roll or suspended, an application for restoration can be made to the Disciplinary Committee or the Chief Justice or the Supreme Court, depending on who ordered the striking off of the name. The following considerations are normally taken:
i. The gravity of the offence or offences necessitating the striking off or the suspension order as the case may be;
ii. Whether there is sufficient evidence of genuine remorse shown by the applicant in the period between the striking off of the name and the submission of the application;
iii. Whether in all the circumstances of the case, the court is satisfied that the applicant has in the intervening years become a fit and proper person to be incorporated as a member of the legal profession.
Common Cases of Professional Misconduct in Nigeria
The list of misconducts that Lawyers can be punished for in Nigeria and in different parts of the world, is inexhaustible. Such misconducts include advertisement, contempt of court, Solicitor making himself a beneficiary of a will and offering a bribe to a Judge. On many occasions, the legal profession has also frowned upon champerty, negligent handling of a client’s case, making extra-judicial statement prejudicial to a pending matter, in-house Lawyers engaging in private practice, failure to pay practising fee, lateness in paying practising fee, and sundry procedural misconducts as filing frivolous matters.
Measures to Control Indiscipline
1. Participation of the Citizens:-
A disciplined citizenry, will surely participate in the control of indiscipline in their society. This is a duty of each and every citizen in any society; such duties can be performed in a number of ways , that is, by paying out taxes, by refusing to involve ourselves in corrupt or undisciplined activities and practices. It is also our duty to expose any act of indiscipline at societal units of interaction, that is, at home, school or work. A citizen should be hardworking, patriotic, responsible and always ready to defend his/her country at all times. A citizen should accept and cooperate with those leaders who tend to unite them, and transcend religious, cultural and ethnic differences. A citizen should liaise with the Police, in detecting and reporting deviancy and other social problems in society. Such information should be protected and rewarded. If the Police and the public relations are more cordial, people will be willing to help in detecting and curtailing indiscipline in society.
2. Eradication of Poverty:-
According to a popular adage, ‘”poverty is the root cause of all evil”. This becomes more of a problem, when it exists side by side with Affluence. It is the duty of the State, to ensure that a greater percentage of its citizenry live above poverty line. Poverty eradication can be done through various means. Budgetary measures which ensure full employment for all, control resources effectively, and ensure a sound productive base for the economy. These will help greatly. Fiscal and monetary measures, could also be geared towards control of inflation and currency stabilisation. Once poverty can be eradicated, the citizenry will be more disciplined, honest and hard working.
3. Exemplary Leadership:-
Leadership by example, is the best form of leadership. Once a leader with leadership qualities, displays such qualities in his own persona, he easily and simply transmits them to the followership. As such, an undisciplined leader, that is, corrupt or fraudulent or morally bankrupt, will definitely produce a similar followership. A disciplined leadership, will not aggravate inequalities in society. Rather, it will cultivate a situation whereby everybody is given equal opportunities in life. A disciplined leadership will neither accept nor condone indiscipline, in all aspects of social life. In addition, he should be able to eschew all vices in private and public life including corruption, dishonesty, electoral malpractice like self-succession, ethnic and religious bigotry.
4. Social Legal Responses Measures:-
As Indiscipline is not so clearly defined as crime in the judicial sense, but a form of deviation from modes and ethics of society, solutions are mainly left to the family and community. As such solutions include: Ensuring stability in the family, adequate/proper socialisation, proper adherence to religious tenets, parental and peer group supervisions, and controlling the influence of mass media.
5. Code of Conduct Bureau/Tribunal:
The Federal Republic of Nigeria 1999 Constitution, in Section 153(1)(a) makes provision for a Code of Conduct Bureau, and in its Fifth Schedule, Code of Conduct for Public Officers and a Code of Conduct Tribunal This is an important step towards controlling corruption and indiscipline, by making all public officers (from the President downwards), to declare their personal asserts before their appointment in office or after leaving office. The Code of Conduct Bureau is a body with nine members, including a Chairman. It’s responsibilities include; to receive declarations by public officers, to retain custody of such declarations, to examine such declarations and to ensure that they comply with the requirements of the Code, to receive complaints about non-compliance with or breach of this Code and to refer such cases to the Code of Conduct Tribunal where necessary.
The Code of Conduct Tribunal is established by the President, and headed by a Chairman. The Tribunal has the power to try and punish, all officers found guilty of contravening any of the provisions of the Code of Conduct Bureau. Punishment ranges from vacation of an officer’s office, seizure and forfeiture to the State of any property acquired in abuse of or corruption of office. (To be continued).
THOUGHT FOR THE WEEK
“In civilised life, law floats in a sea of ethics.” (Earl Warren)