By Prof. Mike A.A. Ozekhome, SAN, CON, OFR
Legal practitioners, as guardians of the law, play a significant role in the preservation of society. As a result, it is the obligation of legal practitioners to maintain the highest standards of ethical conduct. The fulfilment of this role requires an in-depth analysis by legal practitioners, of their relationship with and their function in our legal system. Today, we shall continue our discourse.
Ethics in the Legal Profession: History, Nature and Meaning of Ethics (Continues)
Man was thereby ejected from the cherished garden for not keeping to the ethics attendant thereto, and that to his chagrin. This constitutes the first sanction, for failure of ethics. In ancient Rome, they talked about exadiligentia, especially when it involves the business of others. Ethics demands exatadeligentia in regard to everything. It could not be less for it to be ethical. Ethics consist of what ought to be – deferenda. It is objective, as against its subjective counterpart “What is” – de lata. What ought to be, also deals with common sense ethics vis; what do we expect will be done in the circumstances? Ethics in its wider sense affects princes, and slaves alike; it has neither physical nor class boundary, it is universal. It postulates that, no man is an island of himself entirely. Ethics may be defined simply as the performance of excellence, doing the right thing, at the right time, be it in business, profession or even in ordinary day life.
Ethics demands a round peg in a round hole, and will have nothing to do with a square peg in a round hole. However, ethics, within which the Rules of Professional Conduct for Legal Practitioners 2007 is concerned about, crystallises in the good, positively rejecting the bad and the ugly, and dwelling on the mores in the acts or actions of lawyers in all they do. With ethics, there is no partiality, no scapegoat and no sacred cow. Ethics generally craves for honesty, decorum, reliability, trust and reliance to deserve the appellation – ethics. Ethics indeed, deals with ideal human conduct.
What is Required of a Professional in Ethics
The legal profession is ideally not open to all manner of persons, because in the words of the Supreme Court of Nigeria in the case of N.B.A v OHIOMA, it was stated thus:
“Legal practice is a very serious business that is to be undertaken by serious minded practitioners, particularly as both the legally trained minds and those not so trained, always learn from our examples. We therefore, owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country.”
Ethics demands from a Lawyer, that his client must have absolute confidence in him. Ethics demands that he knows his duty to the court. On these issues, Honourable Kayode Eso enunciated two commandments:
a. A Lawyer shall never be rude, insolent or insulting to the court. The above commandment however, imports respect to Judges, but not a commandment for Lawyers to fear Judges or be intimidated by them. This is because, part of the qualities a Judge expects from an advocate is:
i. Simplicity of presentation, that is, lucidness.
ii. Selectivity, that is, ability to separate the relevant from the irrelevant.
iii. Straight forwardness – ability to go straight to the point. Avoiding being garrulous.
v. Candour (Court detests deceitful counsel).
vi. Resilience (ability to argue with conviction)
vii. Proper presentation (court must perceive you as thorough in your presentation)
viii. Courage, but not recklessness.
In the case of ETIM v OBOT the Court of Appeal deprecated counsel’s use of the words ‘strange’ and ‘mysterious’ in describing the judgement of the lower court as not only inappropriate, but also inconsistent with high ethical standard of the profession.
a. Secondly, a Judge shall never be rude, even as a result of, or over-sensitive to remarks made about or against him in the court. In this respect, it is the ethics of the legal profession that insults are better treated with disdain. The legal practitioner’s duty to the court, is higher and more important than his duty to his client. Therefore, misleading the court to obtain a judgement for a client, is seen as a miscarriage of justice. General knowledge of almost all aspects of practice is advocated, while pomposity is to be eschewed. The dress a legal practitioner wears in and out of the court, is a reflection of his state of mind. A legal practitioner in Nigeria is expected to be tidy, respectable and sober, not necessarily flamboyant. Lateness to court is unethical. A legal practitioner is expected to wait for the court, and not the court to wait for him. The responsibility of a legal practitioner to his client and the court, extends to knowing the facts of his client’s case, relevant laws, statutes, rules of court, case law, strength and weakness of a client’s case, and trying as much as possible to avoid mistakes.
It is ethical for a legal practitioner to know his Judge. The rule is that, no two human beings are the same. By extension also, no two Judges are the same; each Judge has his or her own sensitivity, peculiarities of approach and attitude. One must therefore, learn how to adapt.
It is unethical, to allow or encourage a client to disobey a court order. It is part of the ethics of the legal profession in Nigeria, for Lawyers to accept briefs pro-bono public (for public good), that is without charging any professional fees.
It is part of the ethics of the legal profession, for Lawyers working in the Attorney-General’s Chambers, whether at the State or Federal Level, to be guided by the “SHOWCROSS DOCTRINE”, and not to allow external influences or politics or money considerations to influence their decisions in “whether or not to prosecute”. Yielding to any of these considerations, may have a catastrophic effect.
Judges in Nigeria are required to be impartial unto dismal, and even unto death. Honourable Justice Kayode Eso remarked as follows:
“… It is the duty of every Judge, after his appointment, conscientiously, to stand clear of all odium. In this sense, he gives no cause whatsoever to be suspected of a process to anything that is shady. He, like linen, remains stainless but more so he guards against stain…“
The issues of the ethics and discipline in society, are the study of the problems of peace, order and stability. No form of social grouping can be maintained, without the solid foundation of ethics and discipline. They are derived from the normative and value systems of society. They enhance group dynamism, social cohesiveness and solidarity among members.
Let us consider the above in the way we live and grow in different groups/units such as home, school, market places, working environment, mosques and churches. Why are we not in a state of disorder, conflicts and instability? It is because from these social units, we learn to share and respect common values, norms, goals and aspiration based on daily interaction and relationships. This enable us to share common set of meanings and symbols, together with the feeling of unity, solidarity and a system of mutual obligations to group.
Discipline and Indiscipline Explained
Discipline can be generally defined as a set of rules for conduct. It is acknowledged in every society. Its character is defined by different social and cultural contexts and time dimension. It is moralistic and ethical.
Discipline also refers to training, especially of the mind and character, to produce self control, and habits of obedience. In sociological terms, a disciplined person is therefore, a socialised individual. The above is made possible/impossible, successful/unsuccessful through the process of socialisation. According to Paul B. Horton and Hunt, socialisation is the process whereby an individual internalises the norms of the group, so that a distinct “self” emerges that is unique to this individual and conscious of social rules and regulations.
Indiscipline is the opposite of discipline. It consists of the perverse or debases activities. It means lack of discipline, or the growing of or increase in indiscipline over time. In Nigeria, activities that are considered as indiscipline include; Rigging and other forms of electoral malpractices, succession bids by politicians, bribery, corruption and perversion of the administration of justice, flamboyant demonstration of individual’s materialistic possessions in the midst of social poverty, forgery, drug abuse, child abuse, child and female trafficking, financial misappropriation, all forms of dubious deals like advance payment/fee fraud and (149) activities.
Forms of Indiscipline
The causes of indiscipline are as varied as the types of indiscipline that we have. These can be categorised under five distinct areas or typologies:-
Political Indiscipline: this means any form of perversion of the political process in general, or electoral process in particular. Examples are rigging, bungled registration exercise, or failure to conduct elections where and when it is supposed to, use of a touts to manipulate election, etc.
Bureaucratic Indiscipline: This forms the most popular form of indiscipline. Generally, it means the use of any illegitimate governmental process in the conduct of public office. Examples are bribery and corruption, lack of probity and accountability. (To be continued).
THOUGHT FOR THE WEEK
“In just about every area of society, there’s nothing more important than ethics”. (Henry Paulson)