LAWYER’S DUTY TO THE LEGAL PROFESSION

LAWYER’S DUTY TO THE LEGAL PROFESSION

DUTY NOT TO INSTIGATE LITIGATION

Under Rule 49, a lawyer should abstain from instigation litigation, and shall not proffer advice or bring a law suit without being consulted. He should also abstain from searching Land Registry; seeking for claimants in a cause of action; or aiding someone to find accident victims with a view of getting employed or representing someone in litigation.

DUTY AGAINST ADVERTISEMENT AND PUBLICITY

Under Rule 46, a lawyer shall not accept employment from Radio and Television programmes to advise on inquiries in respect of their individual rights.

He also shall not advertise his services in any newspaper or publication, neither should he publicise himself to the press or any periodical as a lawyer except in a legal periodical.

He should abstain from distributing his card indiscriminately as a form of advertisement. His signboard should also be moderate without neon lights or unnecessary designs.

THE IMPACT OF CORRUPTION, UNETHICAL BEHAVIOUR, AND INJUSTICE GENERALLY IN THE SOCIETY

The history of corruption is as old as the world, because ancient civilizations have traces of widespread ‘illegality and corruption’. Thus, Lipset and Lenz 2000 note that "corruption has been ubiquitous in complex societies from ancient Egypt, Israel, Rome, and Greece down to the present." Corruption is also believed to be endemic in modern governments and it is not peculiar to any continent, region, or ethnic group. This does not, however, mean that the incidence and magnitude of corrupt activities are the same in every society. Some countries are obviously more corrupt; yet others have better plans in managing corrupt activities. Obviously, Nigeria is not one of those countries with a better handle on corruption, despite its unending corruption commissions and all the noise made by every administration on the efforts to transform the nation into a corruption-free society.

Thus, corruption in its ordinary meaning connotes dishonest or fraudulent conduct, typically involving bribery, attributable to persons who are in positions of authority or in a position to influence those in authority. It has also been defined as the abuse of public office for private gain.

Nevertheless, the forms of corrupt activities prevalent in Nigeria include –

1.      Political corruption;

2.      Bureaucratic corruption;

3.      Electoral corruption;

4.      Embezzlement; and

5.      Bribery.

Political corruption, which takes place at the highest levels of political authority, is a ‘corruption of greed.’ It affects the manner in which decisions are made, manipulates and distorts political institutions and rules of procedure. Bureaucratic corruption, which occurs ‘in the public administration" or ‘the implementation end of politics,’ is the ‘low level’ and ‘street level’ corruption. This is the type of corruption the citizens encounter daily at places like the hospitals, schools, local licensing offices, encounters with the police, taxing offices, etc. It is ‘petty’ -‘corruption of need’ - that occurs when one obtains a business from the public sector through inappropriate procedure. However, electoral corruption includes purchase of votes, promises of office or special favors, coercion, intimidation and interference with freedom of election. And corruption in the offices involves sales of legislative votes, administrative, or judicial decision, or governmental appointment. Embezzlement has to do with theft of public resources by public officials; and bribery deals with persuading to act improperly by a gift of money, etc.

If one may ask, who is to blame for the prevalence of corrupt activities in the society? Is it the common person or those in power? No matter who the culprits are, convention dictates that to effectively tackle a problem one should first and foremost determine and understand the cause(s) – why it happens, before one could effectively manage the effect(s) – what happens as a result. Similarly, to effectively control corruption in Nigeria it is pertinent to understand the cause(s) before looking for ways to stop it.

The lukewarm attitude of the officers charged with enforcing the laws (judges, police and other public officials) lead to corrupt behavior. They often let the culprits off hook when they are ‘settled.’ What is currently happening in the trial of Chief Omisore and others implicated in the murder of Chief Bola Ige (the Ige’s family has been frustrated out of the case) and the recent Senator Wabara episode are cases in point. Because money exchanged hand witnesses were allowed to modify their initial testimonies, and Mr. Imo (in the case of Wabara) has been bought over. However, If these cases are not resolved (killers of Bola Ige to be found and prosecuted) it may lead to another criminal behavior, because one criminal behavior leads to another. Corruption has taught the society a wrong lesson that it does not pay to be honest, hardworking and law-abiding. Through corrupt means many political office holders have acquired wealth and properties in and outside Nigeria; and they often display the ill-gotten wealth without the society blinking.

In its apparent effort to tackle corruption in the society, the nation has, in addition to the above panels, tried the Judicial Commissions, the Code of Conduct Bureau, and Public Complaints Commission without success. And the civilian administration of Chief Olusegun Obasanjo constituted the Economic and Financial Crime Commission (EFCC) to fight money laundering; the Independent National Electoral Commission (INEC) for elections-related corruption; and the Independent Corrupt Practices Commission (ICPC), which seems to have power only over the corrupt poor. To win the war on corruption, Obasanjo’s slogan of ‘no sacred cows’ should be put into practice by prosecuting all the known corrupt political ‘heavy weights’ in the society, because they contribute to making the nation’s laws inoperable. Thus, corruption, which is currently a high-profile issue, has created a dangerous mixture of celebrity and corruption in the society. Thus, Nigeria’s corruption laws are like a cob web that it is too weak for the ‘big’ politicians committing grand thefts, but strong enough to catch the poor and powerless involved in petty thefts.

One would re-call that Chief Obasanjo made a ‘financial deal’ with the family of Late General Sani Abacha who looted the nation. But he fired Mr. Vincent Azie (the acting Auditor-General) whose audit report indicted the executive, legislative and judiciary branch (among other agencies) for ‘improper accounting practices.’ See the Daily Independent of Jan 13, 2003 and Feb 26, 2003 and Ugwuanyi, in Vanguard of Feb 21, 2003. The Abacha deal and the Azie’s case show that Chief Obasanjo never had the will to fight corruption in Nigeria.

To ameliorate the scourge of corruption, Nigeria must hold politician accountable for their actions, and have effective judiciary and law enforcement to monitor the financial statements of foreign and local corporations. Also, Vanguard, May 27, 2003 reported that Halliburton, a US Oilfield Service firm admitted that it gave a bribe of $2.4 million to Nigerian tax officials through a Nigerian company (KBP Engineering Construction Company) to avoid paying taxes of $5 million. Therefore, the society must restructure and fortify the institutional ‘checks and balances among the country’s major social forces and the separation of powers within the government.’

Therefore, to effectively control corruption in Nigeria, adherence to ‘ethical standards’ in decision-making must be the foundation of the nation’s policy on corruption. The nation’s public officials are not worried about the ethical implications of their corrupt behaviors. However, armed with ethics and virtue, the nation should reduce personal gains from corrupt behavior by instituting "effective sanctions" for corrupt behavior. The World Values Surveys of 1990-1993, which has good information on attitudes and values, shows a relationship between values and corruption (World Values Study Group, 1994). Therefore, preaching the gospel of virtue alone (as is often the case with the leaders of Nigeria) is not enough to fight corruption. And Nigeria may not win the war on corruption without increasing its "economic pie" through good economic policies and increase in productivity. And the press (including electronic media) has an important role to play by exposing those involved in corruption, though, the lack of Freedom Of Information (F. O. I) Bill is a big obstacle.

To control administrative corruption, the society should not grant too much powers to officers, such as customs and immigration and the poorly paid police officers that issue business licenses, goods clearance documents and international passports. As well-stated in 1887 by Lord Acton, "Power tends to corrupt; absolute power corrupts absolutely." Nevertheless, lack of adequate rewards for good skills and honest efforts are among the reasons for the upsurge of corruption in the society. For that, adequately rewarding workers for their services could go along way to controlling corruption in the society. Nigeria needs all necessary weapons to combat corruption; the society should demand that politics, which is now less a matter of issues, should be issues-based.

ASPECTS OF THE LEGAL SYSTEM THAT ARE TROUBLING AS TO THEIR UNETHICAL OR CORRUPT NATURE AND UNJUST RESULTS, AND HOW THEY ENCOURAGE OR PRESSURE LAWYERS TO BEHAVE IN CORRUPT OR UNETHICAL WAYS

Preservation of the integrity of the judicial system is a sine qua non of its effectiveness, and this can be tarnished by the corruption of its functionaries no matter how lowly. The whole structure becomes infected resulting in loss of confidence and trust in the persons responsible for safeguarding the rights of a state’s citizens.

Members of any judiciary by virtue of their eminence are expected to be pillars of rectitude in their communities, and above reproach. They are expected to provide solutions to problems and redress for violation of rights. They are expected to be objective in assessing evidence and determining guilt or innocence.

Often times in some jurisdictions the failure of governments to ensure the independence of the judiciary by according to it adequate and reasonable financial resources leads to corruption within the court system. If judges and support staff are inadequately paid or remunerated for their services they will inevitably become vulnerable to external pressures and corruption.

In 1985 the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted the Basic Principles on the Independence of the Judiciary which was later unanimously endorsed by the General Assembly of the United Nations. One of the Principles is to this effect:

“It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions”.

The whole issue of the independence of the judiciary has been debated and discussed repeatedly at different forums. One wonders whether any judiciary can ever be totally independent having regard to the fact that its whole existence requires some dependence on the legislative and executive branches of government. The judiciary cannot stand in isolation, it needs to be funded by the government, and some postulate that this compromises its independence and violates the doctrine of separation of powers. This is a notion to which I do not subscribe since of necessity every state must provide for the establishment of a court system which must be adequately staffed and funded. To request and expect adequate financing in no way compromises the independence or integrity of those who work within the judicial system. The compromise results when little or grossly inadequate financial resources are allocated to the administration of justice in a government’s budget, and the judiciary is relegated to the position of a mendicant in order to keep the court system on an even keel.

The symbiotic relationship between the executive and the judiciary was fully ventilated in the Report of the American Bar Association Commission on Separation of Powers and Judicial Independence, where it was stated that the success of any cooperative and constructive relationship ultimately depends upon meaningful communication. The Executive must appreciate that the Judiciary is usually in a better position to determine the most efficient and effective means of administering the courts, and must remain attentive to the Judiciary’s needs and concerns. By that same token, the Executive is in a better position than the Judiciary to decide upon fiscal priorities, and it is a duty on the Judiciary to be sensitive to those priorities when communicating its own needs and concerns.

A balancing act of competing priorities for finance is always performed in developing countries with scarce financial resources. This result in the administration of justice being placed at the bottom of the scale when cash-strapped governments have to decide whether a school or hospital should be erected rather than a new court building or whether the emoluments of the judiciary should be increased.

The inevitable result of persistent failure to address the needs of a state’s judiciary is that the scourge of corruption rears its ugly head. Judicial officers may be tempted to devise ways and means to augment their limited earnings. This also spreads to an underpaid and overworked support staff within the court system. These lowly persons can influence adversely the public’s perception of a judicial administration which strives valiantly to uphold standards of fair play and principles of impartiality.

In the judicial systems of most developing countries the support staff which comprises clerks, typists, marshals and bailiffs is drawn from the traditional public service with fixed salary scales which are invariably low and hence attract persons with minimum qualifications. In most instances the wages earned can barely meet their living expenses. They are, however, expected to conform to high moral standards of behaviour befitting an institution charged with the responsibility of preserving the law and dispensing justice. They are expected to be scrupulously honest and fair in their interactions with the public, but are exposed on a daily basis to temptations and requests from parties to litigation in the courts to alter and remove files and documents or misrepresent facts or try to influence judges with whom they work.

The problem of corruption within the court system has gained momentum in proportion to the growth of the drug trafficking and narcotics trade. As law enforcement personnel seek new ways of prosecuting drug offenders these wily fiends devise methods to infiltrate the court system by targeting the persons who work within it, particularly those at the lower levels who are the most vulnerable and easy prey to temptation having regard to their fragile financial situations.

One may posit the view that all support staff in the court system should be adequately trained not only in the procedures to be followed in the performance of their duties, but also in the ethics and moral norms of behaviour which they are expected to uphold. This is a laudable and commendable objective, but is it easily achieved by personnel whose earnings are minimal? The temptation to transgress may be too great to resist. The answer to this may not be easy for poor developing countries, but efforts must be made and methods devised to increase the emoluments of the support staff in the court system. Failure to do so and do so effectively will result in an infection of the system with a virus of no mean proportion with justice being sold to the highest bidder, not to mention loss of confidence by the public in the ability of judges to effect justice fairly and without favour.

SUGGESTIONS TO MAKE THE SYSTEM MORE ETHICAL AND JUST

Having identified the problem, one may ask quite naturally what can be done to eradicate corruption. For a judicial system to function effectively, justice must not only be done but be seen to be done. Public perception is very important, and those who administer the court system must be perceived to be acting firmly and resolutely in eradicating any form of corruption. Several initiatives can be taken to maintain public confidence and restore it if it is perceived to be lost. One such initiative mentioned earlier was increasing the emoluments of the support staff. Before proceeding to discuss other initiatives it will be wise to make reference to the Limassol Conclusions.

LIMASSOL CONCLUSIONS

From 25-27 June 2002, Commonwealth Judicial Officers comprising Judges, Heads of Judiciary and Magistrates throughout the Commonwealth met in Limassol, Cyprus, at a Colloquium on Combating Corruption Within the Judiciary.

The Colloquium welcomed the commitment of the Commonwealth Heads of Government to the Framework for Commonwealth Principles on Promoting Good Governance and Combating Corruption and their intention to develop national strategies to promote good governance and eliminate corruption. The Limassol Conclusions can be regarded as one of the initiatives spearheaded by the Commonwealth Secretariat to eliminate corruption in one area where it ought not to be allowed to flourish, namely the Judiciary.

After extensive discussion in working groups on papers presented during the Colloquium by distinguished jurists, variety of recommendations appropriately called the Limassol Conclusions were adopted. These conclusions are wide-ranging and multi-dimensional covering –

1.      Guidelines on judicial ethics,

2.      Anti-corruption programmes,

3.      Strategies at eliminating corrupt practices within the judiciary,

4.      Recruiting persons of integrity and competence.

With regard to judicial ethics, formulation and adoption of a code was recommended to the judicial systems throughout the Commonwealth. However, such a code should not be confined to judges or magistrates only, but should be formulated for all support staff and personnel employed within the judicial system. Training programmes were also recommended, and again these should be organised for the support staff as well. Such persons must be sensitised to the realisation that they are an integral part of the court system, and misconduct on their part reflects adversely on the entire administration of justice.

The recommendations embraced members of the legal profession as well, with a suggestion that anti-corruption programmes for members of the Bar be promoted. This is very timely and necessary since in some jurisdictions support staff are particularly vulnerable to unscrupulous lawyers who dangle financial carrots and inducements before economically-deprived court employees in order to ensure their clients’ acquittal or determination of cases in their favour.

With regard to the underpaid support staff one working group at Limassol recommended that such persons should be appointed to positions in the judicial system by the same body or commission which is responsible for appointing judicial officers in countries where such a commission exists. This commission should be independent and constitutionally established and protected. Judicial appointments should not be placed in the hands of the Executive or Head of Government which will clearly compromise the integrity of the judiciary. Similarly, persons at lower levels in the judicial system need to be insulated from governmental pressure, and be paid salaries and emoluments commensurate with the positions they hold.

The Colloquium recognised that transparency assists in combating corruption, and suggested that judicial officers and court staff be encouraged to foster greater public awareness of the court’s operations, role and function. For too long the court has been regarded as a mysterious organisation too complex for ordinary minds to comprehend, with its sombre attire, legal jargon and age-old traditions. Appearing before an austere personage dressed in peculiar black robes and looking down from on high can be a terrifying experience for the average person. Those who are responsible for the administration of justice need to make courts more user-friendly while at the same time preserving some of the traditions and certainly its dignity.

LATIMER HOUSE GUIDELINES

These Guidelines were formally endorsed by the Commonwealth Heads of Government in 2003 at Abuja, Nigeria, and were principles on good practice governing relations between the Executive, Parliament and the Judiciary in the promotion of good government, the rule of law and human rights. The sections relevant here are Preserving Judicial Independence, Judicial Ethics, and Judicial Accountability.

In the section on Preserving Judicial Independence, the responsibility of providing sufficient and sustainable funding to enable the judiciary to perform its functions to the highest standards rests on the government. Such funds once voted for the judiciary by the Legislature should be protected from alienation and misuse. The allocation or withholding of funding should not be used as a means of exercising improper control over the judiciary. Further it was stated that appropriate salaries and benefits, supporting staff, resources and equipment are essential to the proper functioning of the Judiciary, and as a matter of principle judicial salaries and benefits should be set by an independent body and their value maintained.

The Judiciary’s independence is severely compromised if it has to depend on the Executive for increases in its emoluments whenever the Executive sees it fit to grant an increase. This should be placed in the hands of a non-partisan body to review and recommend increases whenever necessary taking into account relevant factors. As mentioned earlier in reference to the Limassol Conclusions, the Guidelines in relation to Judicial Ethics stipulate that a code of conduct should be developed and adopted by each judiciary as a means of ensuring the accountability of judges, and was in fact the basis for the recommendation in the Limassol Conclusions. Legitimate public criticism of judicial performance as a means of ensuring accountability was stressed in the Guidelines under this head.

The Colloquium at Limassol agreed that Judicial Accountability was important if the judiciary is to develop competence and remain impartial and independent, and it was imperative that a mechanism be devised for dealing with complaints against judges. It urged that such mechanism must be transparent in order to command public respect and acceptance. However, The Latimer House Guidelines suggests that discipline of judges should be conducted by the Chief Judge and should not include public admonition. The thinking which informs this view is to avoid public humiliation and embarrassment thereby bringing the entire judiciary into disrepute.

Another aspect of accountability which forms part of the Limassol Conclusions is the relationship between the judiciary and the court staff to which was alluded earlier. The view was expressed that there should be a greater degree of judicial awareness of the work of the court staff, and liaison with the said staff should be encouraged in order to ensure the smooth operation of the judicial system.

In most jurisdictions members of the judiciary are totally unaware of the functions which support staff perform except for those working in close collaboration with the judge. Members of the judiciary need to climb down from their ivory towers and take an interest in what goes on around them. They need to be familiar with all aspects of the work of the courts and the persons who operate within the system. Every cog, no matter how small, is important if the wheels of justice are to turn smoothly. A greater degree of interaction is required in order to inspire confidence and trust between the judiciary and its support staff. If a level of trust is developed this may lead inevitably to some degree of loyalty to the system, and perhaps reduce temptation which eventually leads to corruption of the entire judicial process.

The need for judicial codes of ethics cannot be over-emphasised as they may indicate what is regarded as acceptable conduct. Sadly, one cannot always assume that everyone who aspires to or holds judicial office is aware of the components of correct judicial behaviour. Codes of ethics hopefully will point would-be aspirants in the right direction.

Finally, the keys to effectively managing corruption in any society are honesty and integrity, effective leadership and governance, transparency and accountability, because corrupt leaders cannot wage effective war against corruption.

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