CASE LAWS:Handling Confidentiality, Prosecutors, Reasonable diligence, Impartiality, Trust funds, C

Generally speaking legal practitioners whether they are working for a private commercial entity or practising independently or employed by the state are bound by the same ethical duties.These duties includes the duty to be confidential with the affairs of the clients, duty to act with reasonable diligence this calls upon one to always keeps his client to mention just but a few examples. However, there are circumstances in which one practitioner can be bound by another principal that does not bind the others. .Take for instance the issue of advising clients to lawyers in private practise and those in the corporate world it is mandatory to give advice wherein to prosecutors its unheard of. .This paper seeks to explore the duties in which we find all the legal practitioners being bound by the same principals and where individuals are separately bound..

Confidentiality

The legal practitioners are generally bound by the same ethical duties, which constitutes the foundational value of the profession. As a matter of fact they are products from the same profession which demands total and absolute adherence these universal principles includes the issue of confidentiality where clients ‘affairs are concerned .Legal practitioners are obliged to keep their clients ‘ affairs confidential .This principle surpasses the principle privilege between the legal practitioner and the client. The practitioners must keep their client‘s affairs from anyone be it his other clients or partner. Also even if the client finds another practising lawyer to deal with his matter the legal practitioner is still bound by the duty not to disclose his client ‘s affairs without his permission. In the case of Masulani v Masulani[1]. The courts sated that a legal practitioner should be careful not to disclose confidential information concerning a client to any of his clients .It should be noted also as highlighted by Crozier that the rule of confidentiality supplements the constitutional right to legal representation. This is so because of the ruling that was given by the late chief justice Chidyausiku in the case of Law Society v Minister of Transport and communications and Anor [2]. The issue of lawyer-client privilege was enshrined by the chief justice for he stated that the breach of this relationship invariably leads to the violation of the client ‘s entitlement to a fair trial guaranteed in section 69 of the constitution. .Thus it could be argued that this principle should not be tempered with as it is hallowed by the constitution of Zimbabwe .

Prosecutors

Prosecutors are also bound by the principle of confidentiality where the accused persons are concerned. They must keep information concerning them confidential and must not disclose it without the accused person‘s consent but he must not keep it from the defence .The prosecutor have a duty to treat the evidence with the same degree of confidentiality as practitioners in private practise must treat the information concerning their clients.

Duty to act with reasonable diligence

Legal practitioners have a duty to act with utmost diligence towards their clients. The lawyer that is employed by a commercial company and those practising in private are bound by this principle. Practitioners must apply themselves with reasonable diligence when conducting their duties .They ought to follow what the clients require and always keep him well informed .The practitioner have an obligation not to mislead their clients thus if he acts in such a manner as to deceive the client they would be held liable for any negligence that may arise .

Prosecutors on the other hand also has a duty to act with reasonable diligence. They must dedicate themselves to the achievement of justice. Their role is not only confined to crime control it should be noted that the lives of accused persons lies in their hands thus clear evidence that in handling their matters it should be done diligently such that the liberty of the people concerned is not tempered with. Consequently in prosecuting the prosecutor is obliged to make sure that he lives no stone unturned. If he knows a point in favour of the accused he ought to bring it out. Also it should be noted that if the prosecutor knows of a credible witness who can prove that the accused is innocent the prosecutor should call such witnesses .This was stipulated in the case of Smyth v Ushewokunze & Anor[3] that a prosecutor should dedicate himself to the achievement of justice.

Duty to be impartial

The legal practitioners who are practising in private or the ones employed by the commercial entity they must be objective and impartial and dispassionate as possible. However this does not mean that they should be unsympathetic to their clients .But it should be laid clear that practitioners should not let their sympathy cloud their objective assessment of the client s prospects of success. The practitioner should not try to avoid discouraging the client by misstating the law they are obliged to tell the truth. Also it should be noted that it would be undesirable for the practitioners to represent parties in cases in which they the practitioners are involved as witnesses. This position was highlighted in the case of Trustees SOS Children ‘s Village Association of Zimbabwe v Bindura University & Ors [4]. It was stated that there is no rule of thumb that says a lawyer is automatically disbarred from representing his client in court proceedings where he was a witness to the events that forms the subject matter .But it is advisable that they act impartial .

Prosecutors are also bound by the same principal of impartiality in that they should not appear for the state in criminal cases if they are related to the accused person or the complainant or be in a position where their conduct may reasonably be questioned. If he notices that he or she cannot act impartially should disclose to the courts that he has an interest in the matter concerned they should not continue with a case where either accused or complainant is a friend or a relative .This is done so as to avoid questions from lay persons.

Nevertheless it should be noted that there are other duties in which they would not all be bound or obliged to. Take for instance the duty to advise clients. This duty is designed for the practitioners in private practise and those employed in the commercial companies. This is generally because a client who can be regarded as a lay person who does not always understand his legal position and does not know the steps to take or safeguard his interests. A practitioner must advise the client on his rights and they should be frank and honest to him or her and not act in a manner in which one would think that the practitioner is only concerned with the client ‘s money. Also the practitioner must give the advice regardless of the consequences to the practitioner or the client ‘s personal needs. It is the duty of the prosecutor to clearly tell the client of his charge in criminal matters. It should be noted that if the practitioner is to give wrong advice he or she would be held liable for the wrongs.

Prosecutors unlike the other practitioners do not have this right to advise. It is stated in the handbook by B.D.Crozier that a prosecutor must not give gratuitous advice to accused persons save on which concern the date and place of trial. Their duties like I once pointed out is the establishment of justice as they are regarded as ministers of truth. Therefore, this clearly shows that he owes the society at large the duty of establishing justice. His aim unlike the other practitioners is not about winning or losing it’s mainly centred on achieving justice.

Trust funds

Generally the duty to create trust funds is confined to legal practitioners who are practising in private and those employed by commercial entities. The lawyers with the onus to hold money for their clients are encouraged by the Act to keep the client ‘s money sacrosanct. Thus they are urged to open accounts for their clients it can be a current account or an interest bearing account and investments accounts. However it should be highlighted that the practitioners responsible for creating trust funds should not unlawfully gain profit from their clients ‘s money. Also the practitioners are urged to keep their own funds from their clients’ trust accounts so as to avoid confusion. They are urged to keep proper books of account showing trust moneys received and aid into his trust account. A practitioner is obliged to keep intact the trust funds which he holds ,except to the extent where necessary to make payment for which part of his funds is destined. However it should be noted that a prosecutor has no duty whatsoever to keep anyone ‘s money be it complainant or accused person. His relationship with either of them is only to establish justice .

Conveyancing

Private legal practitioners also have a duty that excludes prosecutors and practitioners employed in commercial companies. The duty to undertake conveyancing work is designed for the lawyers in private practise. In the case of Law Society of Zimbabwe v Lake[5] a corporate lawyer sought permission to undertake conveyancing work on behalf of his employer. The courts in this case held that he could not do so because conveyancing is work reserved for conveyancers. And thus all reserved work like notarising documents conveyancing is work that should be done by independent practitioners not by employees on behalf of their employers. This position clearly cuts the legal practitioner in the corporate world and the prosecutors as well .

Duty to disclose discrepancies

There are duties also that precludes the other legal practitioners that’s only confined to prosecutors. These duties includes the duty to disclose discrepancies a prosecutor has a duty to disclose material inconsistencies between what a state witness has said in court and what he told the police in his statement. This was clearly established in the case of S v Mutsinziri[6] where it was stipulated that a prosecutor has a duty to where there is a material discrepancy between the statement made by a witness to the police and evidence which the witness gives in court to disclose that discrepancy to the court. Another way to deal with discrepancies is by impeaching the witness ‘credibility this generally involves the aspect of confronting the witness with his or her previous statement. It should be noted also that the prosecutor also have a duty to be fair towards the undefended accused persons. A duty that cannot be undertaken by practitioners practising in town whose duty is precisely owed to their clients.

To round up it should be noted that as stated above the general rule is that all legal practitioners are bound by the same ethical values and are bound by them. These duties includes the duty to act impartially, to act with reasonable diligence and the duty to be confidential where the client ‘s affairs are concerned. However it should be noted that there are certain scenarios where the practitioners are individually bound by some duties take for instance the duty to create trust accounts this duty cannot bind the prosecutors because they are not in any position to be found in possession of either accused person or complainant‘s money. And also lawyers employed by a commercial entity are not allowed by the courts to do conveyancing it’s a duty specifically designed for practitioners in the private sector. Therefore, it can be established that there are duties which legal practitioners are bound to share and some that are specifically meant for the others with special regards as to who they are serving for instance prosecutors who are generally employed by the state.

[1] 2003 (1) ZLR 491 (H)

[2] 2004 (1) ZLR 257 (S)

[3] 1997(2) ZLR 544 (S)

[4] 2014(2)ZLR 36(H)

[5] 1988(1) ZLR168(S)

[6] 1997(1) ZLR 6 (H)

BIBLIOGRAPHY

TEXTBOOKS

A Handbook for Zimbabwean Lawyer by B.D .Crozier 1st edition

CASELAW

Masulani v Masulani

Law of Society v Minister of Transport and Communications and Anor