Justice Werema Professional Ethics

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THE LAW SCHOOL OF TANZANIA

LS 102: Professional Practice and Ethics Module

Lectures and Seminars for the Eighteenth Cohort

LECTURE 6

PROFESSIONAL ETHICS FOR STATE ATTORNEYS

AND LAWYERS IN PUBLIC SERVICE

[By Justice Frederick Werema, former Attorney General of the United

Republic of Tanzania.]

Lecture delivered on 16th

April, 2015 in the Multi-Purpose Hall, the Law School

of Tanzania, 0900-1100hrs


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PROFESSIONAL ETHICS FOR STATE ATTORNEYS AND LAWYERS IN

PUBLIC SERVICE

By Justice Frederick Werema1

Introduction:

Any professional fraternity, and in this specific case, law, has limited freedoms when

it comes to professional practice of that vocation. Take notice and put in your

footnote that this is an uncompromising rule. There is no such thing as absolute

freedom to practice law. The freedom is curtailed by a host of rules of values and

etiquette formulated through a framework of self-regulation invented by the fraternity

or may be through external regulation such as by the Government through legislative

process.

It is the theme of this paper that although the author prefers self- regulation mode by

the fraternity, state regulation is not objectionable or apprehensive and both systems

of regulation may co-exist. However, the vitality of independent legal profession is

better maintained and cherished without unruly government interference through

regulation. Where the latter is about to take place I recommend that the Office of the

Attorney General undertake wider, sufficient and effective consultations with the Bar

and the Bench.

The purpose of regulation of ethics and conduct of legal practitioners is to ensure the

following salient objects2:

1LL.B (Hons) UDSM, LL.M (American University, Washington, District of o!"m#ia)$ former A!ternate %"&ge to the SAD'ri#"na!$ ormer %"&ge of the High o"rt of 'anania$ an& imme&iate *ast Attorney +enera! of Unite& e*"#!ic of

'anania an& - officio Mem#er of /ar!iament of 'anania. 'he a"thor starte& his *rofessiona! carrier as a StateAttorney, rose thro"gh a!! ran0s to #ecome a Director of onstit"tiona! Affairs an& H"man ights in the Ministry ofonstit"tiona! an& Lega! Affairs #efore his a**ointment to the Bench.

2-ach o"ntry has the norms an& stan&ar&s that are at the core of reg"!ation. or *"r*oses of this !ect"re, have ta0ensome *rinci*!es e*o"n&e& #y the Bar of -ng!an& an& Wa!es in res*onse to U. +overnment3s three +reen /a*ers of

%an"ary 1454 on some as*ects of the System of 6"stice in -ng!an& an& Wa!es in a #oo0 entit!e& Quality of Justice: TheBars Response(1454). t m"st #e note& that in U the Lega! *rofession *ractice is t7ofo!&. 'here are Barristers 7hore*resent c!ients in the o"rts an& So!icitors 7ho *re*are #riefs an& &ra7 instr"ments for the Barristers #"t &o notre*resent c!ients in o"rts. n the system there is therefore cross monitoring. So!icitors monitor Barristers for efficiencyas A&vocates an&, on the other han&, Barristers &o the same to chec0 so!icitors for thoro"ghness an& integrity to7ar&sthe o"rts in the *re*aration of cases. 'hat is essentia!!y se!f8reg"!ation of the *rofession. A so!icitor is res*onsi#!e in

o#taining #"siness or&ers an& is a!!o7e& to canvass for #"siness. He can &ra7 "* instr"ments s"ch as 7i!!s, conveyance,*!aint or s"ch other !ega! instr"ments re9"iring his *re*aration. So!icitors cannot ma0e re*resentation in o"rts. ABarrister is a !a7yer entit!e& to *ractice in Higher o"rts. 'he se*aration is not #ase& on aca&emic 9"a!ification or !ega!training. n 'anania, on #oth si&es of the Union, !ega! *ractice is f"se& together 7itho"t s"ch a &istinction. Ho7ever, forthe time #eing A&vocates are a!!o7e& to *ractice in the High o"rt, o"rts of esi&ent Magistrates an& District o"rts #"tnot in the /rimary o"rts. 'hat *osition is !i0e!y to change 7hen /rimary o"rts are manne& #y 9"a!ifie& !a7yers, i.e.ho!&ers of the first &egree in La7 an& 9"a!ifie& from this La7 Schoo!. Amen&ment of the contem*orary La7 7i!! #e


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(a)That justice is done to everyone seeking justice in the courts within a

reasonable time and at reasonable expense;

(b)That every person has the best possible access to the services of

qualified and competent Advocates or Attorneys licensed to practice

law;

(c) That in regard to quality and standards, at all times the services

provided by Advocates are of high quality and appropriate to each

client without discrimination based on status of a person, and that

quality and standards are sustained through continuous legal

training, ethos and disciplines of the profession exercised both

formally and informally;

(d)That Attorneys practicing law for gain are remunerated fairly and

reasonably for their services;

(e) That legal practitioners represent their clients fearlessly, independent

of all pressures and conflicting interests whether of Government or

otherwise, irrespective of the popularity or unpopularity of the client

or clients cause, and with proper adherence to the requirements of

the administration of justice [Cab-rank Rule]

(f)

That objective advice of high quality is available from Attorneys of all

categories

The grounds and objects are not exhaustive but show a general framework on the

extent of regulation. Here the Government has Constitutional obligations including

adherence to the principles of social justice, welfare of her people and equality before

the law3. It has an inviolable right to ensure that where self-regulation is inadequate it

can supplement any rules of ethics in order to safeguard its policy and constitutional

requirements. The unregulated or inadequate regulation of a profession creates crisis

of confidence by the public towards the profession or the state. A crisis of the kind

has a negative effect on the rule of law and institutions of governance.

necessary. An attem*t to &o so thro"gh a Misce!!aneo"s Amen&ment Bi!! &i& not s"ccee& on the *retet that a&vocatessho"!& not #e a!!o7e& to *ractice in the *rimary co"rts. t seems to me this 7as not #ase& on any *ar!iamentary 7is&om#"t on *artisan menta!ity an& !ac0 of "n&erstan&ing of 6"&icia! system or !ac0 of a**reciation on the right to !ega!re*resentation at a!! !eve!s.:'his genera! *o!icy is state& in /art of ha*ter 1 of the onstit"tion of the Unite& e*"#!ic of 'anania that hasenshrine& the "n&amenta! ;#6ectives an& Directive /rinci*!es of State /o!icy. 'he ight to e9"a!ity is a #asic right 7hichis 6"sticia#!e in co"rt.


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Members themselves who should believe in them and comply to the spirit and letter

of the Code. The basic element is about what you value as basic to your morals and

your resistance to temptations. It is about your inner emotional intelligence, which

will always affect your leadership skills and decision-making.5

With these introductory remarks, let me take you to the specifics relating to

professional ethics for State Attorneys and Lawyers in Public Service, that is Lecture

6.

State Attorneys and Lawyers in Public Service:

State Attorneys and Lawyers in Public Service are public officers and, as such,

regulated by statutory law6. Firstly, these Attorneys are officers in the Office of the

Attorney General who, according to Article 59 (2), is appointed from amongst public

officers qualified to perform functions of advocate or persons who are qualified to be

registered as advocates7

. Secondly, Attorneys undertake through delegation the

functions of the Attorney General under the constitution, including issuance of legal

opinion to the Government; court appearance in civil litigation for or against the

Government or prosecution of criminal matters; legislative drafting; negotiation of

commercial or trade agreements where legal inputs are required, International Treaties

including trade, regional integration, co-operation or any other legal or quasi-legal

matter referred to the Attorney General under the Constitution or any other law. All

of the officers falling under this paradigm are qualified lawyers. They are therefore

>See a" '7ai#? The Legal Profession in Tanzania; The Law and Practice, Law Africa 2007. 'his sho"!& #e a m"strea&ing 7or0 for this s"#6ect. See a!so /a"! a"stin ih7e!o? @Quality Assurance and the Teaching of law in East

Africa !hallenges and "uture Pros#ects$ in The Open University La Journal, %ol.2, &o.', (uly 200). rom the

mora!ist *oint of vie7, rea& Brian ronin$ %alues Ethics A Lonergan Pers#ecti*e +uide to Philoso#hy -eries, &o.', !onsolata /nstitute of Philoso#hy. 'he 7or0 intro&"ces the s"#6ect of @ognitiona! theory an& e*istemo!ogy interms of va!"es, eva!"ations an& va!"e 6"&gments on 7hat is ethica! or "nethica!. t is recommen&e& for rea&ing. 'here!evant 9"estion is ho7 an& 7hat g"i&ance is avai!a#!e to i&entify the activities an& ;MS that a!!o7 the ma0ing of ava!"e 6"&gment.

'he term @State AttorneyC is &efine& #y the ;ffice of Attorney +enera! (Discharge of D"ties) Act as a *erson a**ointe&"n&er Section 2< or 2> of the Act an& inc!"&es a /ar!iamentary Draftsman. As *"#!ic officers they are reg"!ate& #y thePublic Service Act, [Chapter 298, R.E 2002] and Subsidiary e!islati"n there"n. 'he re!evant s"#si&iary Legis!ation are the/"#!ic Service eg"!ations 2:, Public Service #isciplinary C"de "$ %""d Practice &%.' ()*200+ an& the Standin! rders

$"r the Public Service, 2009 &%.' -9)*2009. 'he three are ma&e #asica!!y "n&er Section :>(>) as amen&e& tho"ghSections =, :


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legal professionals and their regulation is important. Their conduct, behavior and

etiquette must not put both public and private legal practice at disrepute or ridicule.

In the operationalization of the Constitutional mandate of the office of the Attorney

General, the Office of the Attorney General (Discharge of Duties) Act, No.4/2005was

enacted and it applies to persons who perform or discharge legal functions in the

office of the Attorney General and other offices in the public service who, by virtue or

nature of their job description are required to seek or consult for legal advice from the

office of the Attorney General. This Act must be read together with the National

Prosecutions Service Act, No. 27/2008 that provides for the establishment of a

Prosecution Service under the Director of Public Prosecutions with added functions of

monitoring, supervision and coordination of criminal investigation. This is a function

that will require high moral and ethical values in assessing collected evidence against

accused persons in police investigations or those investigations by the Prevention and

Combating of Corruption Bureau, adherence to the Criminal Procedure Act and

procedures in other penal statutes other than the Penal Code; and boldly making a

decision to or not to prosecute. A law officer or a state attorney or a legal officer has

a professional duty to act fairly, independently and ethically in his duties.

Recruitment qualifications for State Attorneys are also regulated. Section 24 (2)

provides for the minimum qualifications which cuts across the board as follows:

A person shall be qualified for appointment as a Law Officer or a State

Attorney who possesses a minimum of a first degree in law or the equivalent

qualification from an institution of higher learning accredited or recognized as

such by the competent authority

What this means for the purpose of this lecture is that the persons that are regulated

by the Act are legal professionals and are presumed to be professionally competent

and that this presumed competency is vested in matters of the law. I put it to you that

competence is wider that knowledge in, or skills of, law. My thesis is that in practical

sense, competence should encompass behaviour and attitude. How you relate to

others, empathy, self-awareness or what is referred to as meta-abilities. Given the

constraint of time, I leave that subject for another occasion.


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Section 27 (1) of the Act provides for existence of A Code of Ethics for Law Officers,

State Attorneys and other Legal Officers in the Ministry, Government Departments

and Agencies8. The Code is applicable to lawyers who are qualified for employment

under Section 24(2) of the Act. It does not apply to lawyers who are not qualified

under section 24(2). The Code of Ethics will extend to Attorneys carrying the

functions of the Administrator General, Registrar General, Official Receiver and

Public Trustee as stipulated in Section 8 of the Act because they are legal functions

falling under the direct mandate and supervision of the Attorney General.

The Code of Ethics:

The Code of Ethics for Law Officers, State Attorneys and Legal Officers in the Public

Service is contained in a Schedule made under Section 27 of the Act. This Code state

itself that it is supplementary to the Public Service Regulations, 20039and the Rules

of Professional Conduct and Etiquette of the Tanganyika. What that means is that

where there is a void or inadequate rule or norm, reference shall be made to the

Regulations or the Rules as the case may be. The following are the required

minimum and basic values of ethics:

(a) Officers covered by this Code are directed to perform their functions and

discharge their duties with Integrity. The elements of integrity include:

(i) respect and compliance with the laws; (ii) conduct that promotes public

confidence, the integrity of the Public Service, office of the Attorney

General and the Legal profession; and (iii) not to allow outside interest to

compromise or in any other way jeopardize the integrity of the legal

profession, independence or competence.

(b)Every law officer, State Attorney and a Legal Officer shall be honest and

candid when discharging official duties. These are two requirements of

value. Being honest is critical and being candid is a milestone that the law

provides for.

(c) Law officers, State Attorneys and Legal officers have a duty to the

Government, the public and to him or herself to perform functions and

discharge duties in a competent manner; and in addition, is obliged and

5'he agency referre& here is the egistration, nso!vency an& 'r"steeshi* Agency or in its a##reviation ('A), 7hichcarries the f"nctions an& &"ties, referre& to in Section 5(2).4A**!ica#!e a!so are 'he /"#!ic Service Disci*!inary o&e of +oo& /ractice +. >:E2= an& the o&e of -thics an&on&"ct for the /"#!ic Service, the Stan&ing ;r&ers, 24 ma&e "n&er that /rinci*a! Act.


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expected to handle matters without undue delay, risk or unnecessary

expenses to the Government.

(d)There is an outstanding obligation to Law Officers, State Attorneys and

Legal officers to ensure Quality of Service. Any officer governed by this

Code has a duty to serve the Government and the public in a

conscientious, diligent and efficient mannerin order to provide quality

service.

(e) The Code provides for confidentiality. It bounds every officer to a duty to

hold in strict confidence all information concerning the business and

affairs of the Government and the public generally where the information

is acquired by virtue of office and except where the disclosure is expressly

or impliedly authorized by the Attorney General, or required by law. This

however, does not include matters pleaded or documents filed in support

of pleadings by a Law Officer, State Attorney or a Legal Officer. The

confidentiality of lawyer-client relationship is a matter calling for

appropriate ethical conduct in public. You have probably come across

lawyers discussing issues of conduct of cases or routine office

correspondences in social gatherings. Attorneys in public service are

restricted to do so. Unauthorized disclosure of official information shall

make one to be liable to disciplinary action or prosecution under the

National Security Act, Cap 47. It may be act of misconduct or a crime to

do so.

(f) The other Code rule is on Justice and the Administration of justice.

Justice and administration of justice is a fundamental government policy

as indicated above. In this respect, all Law Officers, State Attorneys and

Legal Officers are bound over to the following obligations; (i) encourage

public respect for justice and to uphold and try to improve the

administration of justice; (ii) a duty to treat the court with candour,

courtesy and shall not attempt to influence court decisions by use of

deceptive or reprehensible methods; (iii) a duty to deal with other lawyers

fairly, courteously and in good faith; and (iv) a duty to uphold the integrity

and reputation of the legal profession and promoting principles of fairness,

justice and honesty.


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(g) In respect to appearance, the Code requires appropriate presentation and

attire where every officer shall at all times in and outside the place of work

appear in smart, proper and decent dress and behave in a manner befitting

both the public service and the legal profession. The value of this

requirement is to maintain the decorum of this noble profession meant for

admiration by the public and members of other professions.

(h)When discharging specific duties Attorneys the Code binds Law officers,

State Attorneys and Legal officers to:

(i) act fairly and dispassionately; (ii) seek justice leading a firm, fair

and credible evidence; and (iii) not compromise personal interest to

interest of the Republic.

Drafting of bills is one of the functions of the Office of Attorney General- it is an

important professional vocation. The Code binds a draftsman to act (i) fairly and

closely interpret Government decisions; (ii) advise and influence on the prudential,

logical and intelligible manner of presenting Government Policies into bills or

subsidiary legislation; and (iii) not compromise personal interest to the interest of the

client. The client here is the Government or a Ministry or a ministerial agency. In

relation to matters of probate and registration of births and deaths, the probate officer

who is governed by the Code is bound over to: (i) ensure that the best interest of the

testator and survivors are fairly met; (ii) when issuing birth and death certificates,

have regard to the public interest to promote peace and security by controlling

immigrants; and (iii) not to compromise personal interest to those of the Government.

The categories of specific duties extend to conduct of cases or litigation where

Attorneys are bound over to interpret provisions of the law and decisions of the courts

in good faith; to ensure that the best interest of the government or complainant are

fairly met; and not to compromise personal interest to interests of the client. If the

law is ambiguous or unclear or does not reflect a plain meaning of the government

policy it is likely to cause hardship to those who are interpreting the law and probably

miss the mischief it meant to cure.

The Public Service Regulations and Rules of Professional Conduct and Etiquette of

the Tanganyika Law Society also bind the Law officers, State Attorneys and Legal


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officers. The former are made under the Public Service Act [CAP 298 R.E 2002].

Section 34 directs the Minister responsible for Public Service to make regulations

providing for the regulation of ethics and Code of Ethics of Public Servants. Using

that mandate the Public Service Disciplinary Code of Good Practice (G.N 53/2007)

was propounded as a subsidiary legislation to the Act. It governs the Public Service

in general. The Law officers, State Attorneys and Legal Officers are public officers

and are bound by the Act. The Public Service Regulations has two fundamental

issues on ethics, which should draw your attention and be a subject of further

reflection for those who want to pursue a career at the Office of the Attorney General

or in public service. Does it real enact a Code of Ethics? Is it sufficient or effective?

In paragraph 2.1 it states:

A Code of Good Practice is what is called soft law meaning that the

provisions of the code do not impose any hard and fast obligations on any

person. The only legal obligation may be to justify a departure from the

provisions of the Code.

In paragraph 3.2 it further provides:

The Code is therefore intended to help and encourage the employees to

achieve and maintain acceptable standards of conduct, and performance in

order to reach the required blend of flexibility and consistency and to ensure

that there is fairness, systematic and consistent approach to the enforcement

and application of the Code irrespective of grade and status of employers or

employees.

In essence the Code of Good Practice is descriptive of the procedure to be followed in

enforcement of disciplinary measures in the public service rather than a formulation

of code of ethics for the service. It does not actually prescribe or describe what

conduct is unethical or set standards of conduct. One has to read these provisions

together with the Standing Orders for the Public Service and the Office of Attorney

General Act. Section F of the Orders is on Rules of Conduct and Paragraph 12

prescribes serious pecuniary embarrassment of a public servant or officer as a

misconduct impacting on the image of public service. It may attract disciplinary

proceedings. Other misconduct behaviors are stated to be seeking political influence

to advance ones cause and refusal by an officer to take a post to a station allocated to

him. But what behavior is misconduct? This is a grey area in statutory law. Clarity

is needed. Paragraph F. 26 provides a general definition of this term as:


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Any act done without reasonable excuse by a public servant which amounts

to a failure to perform in a proper manner any duty imposed upon him as

such, or which contravenes any enactment relating to the public service, or

which is otherwise prejudicial to the efficient conduct of the public service or

tends to bring the public service into disrepute, shall constitute misconduct.

This definition is general implying that categories of what may be regarded as

misconduct are never closed. Is this a notion of soft law as referred to in the Code

for Good Practice? The Standing Orders prescribe what it refers to as particular

types of misconduct. The same binds Law Officers, State Attorneys and legal officers

in public service. Some of these are:

a) Act or omission involving moral turpitude. Theft and corrupt practices

are mentioned, but could also involve acts relating to sexual

harassment;

b) Act or omission which tend to bring the Public Service into disrepute;

c) Insubordination;

d) Absence from duty for more than five days without leave or reasonable

cause;

e)

Using without consent of the prescribed authority, any property or

facilities provided for the purpose of the Public Service, or for some

purposes not connected with official duties;

f) Engaging in any activity outside official duties, which is likely to lead

to taking improper advantage of ones position in the Public Service;

g) Refusal to comply with an order regarding a position to a station;

h) Failure to perform satisfactorily duties assigned to the public servant;

i)

Disclosure of information in contravention of the National Security

Act;

j) Act or omission which is against public interest;

k) Inability to perform duties efficiently by reason of the use of alcohol or

drug abuse;

l) Negligence occasioning loss to the employer;

m)Gross negligence in the performance of duty; and


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n) Contravention of the Code of Ethics and Conduct for Public Service,

Professional Code of Ethics and Conduct or the Public Leadership

Code of Ethics.

General and the particular provisions are applicable to the legal professionals in

public service. Implied misconduct behavior in the Office of the Attorney General

(Discharge of Duties) Actcould fall under Section 19 where an officer render advice

in the specified matters without approval of the Attorney General. The specified

matters are:

1. Interpretation of the constitution;

2. Any matter relating to international agreements and treaties;

3. Any matter which the law reserves for the Attorney General;

The other categories of misconduct behavior are found in Sections 20 and 23. The

former relates to an officer who breaches the terms and conditions set by the Attorney

General for the officers participation in a consultancy. The latter relates to an officer

who makes a decision to or in disregard of the opinion of the Attorney General.

Professional misconduct for Law officers, State Attorneys and Legal Officers are

therefore all those acts or omissions referred to in the Office of the Attorney General

(Discharge of Duties) Act; the Public Service Act and subsidiary legislation made

thereunder, including a Code of Ethics and Conduct for the Public Service; The

Public Leadership Code of Ethics [Chapter 398 R.E 2002]; Public Leadership Code

of Ethics [Declaration of Interests, Assets and Liabilities) Regulations (G.N

108/1996)]and the Rules of Professional Conduct and Etiquette of the Tanganyika

Law Society. It is perhaps over regulation.

Enforcement of the Code of Ethics and professional Conduct of Law Officers,

State Attorneys and Legal Officers in the Public Service:

There is a sufficient regulatory framework for Attorneys in public service as we have

noted above. Incidences of breach of ethics by the officers are not pronounced

except for isolated cases. Few are known and generally Enforcement of the Code of

Ethics is not so much pronounced. However, Section 27(3) of the Office of Attorney

General (Discharge of Duties) Act gives the Deputy Attorney General, under the

superintendence of Attorney General, a duty to enforce the Code of Ethics. In doing


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so, it is presumed that the Rules of Professional Conduct and Etiquette of the

Tanganyika Law Society and codes of ethics governing public service shall be called

for help in matters not covered by the Code. This study shows that the Public

Framework of Regulation is adequate.

Procedures for enforcement of the Act are those provided for in the Public Service

Act and the Public Service Regulations, (G.N 53/2007).There is no need for the

procedural duplication but it is neater if the procedure for enforcement of ethics for

Law Officers, State Attorneys and Legal Officers is immediately appended to the

Code of Ethics.

As we have seen from above, a breach of the Code of Ethics is regarded as

misconduct. It attracts punishment including dismissal from the service.

Ethical Challenges:

There are ethical challenges in the adherence to the Code of Conduct just as there are

challenges to the Advocates in private practice. The way people act is a result of a

complex weave of situational factors, history and personality. Even if we have good

ethical or moral values to begin with, given certain situational pressures, every one of

us can become unethical. The biggest challenge is to identify danger and prepare for it

and avoid it. The saying goes that Voyagers who know the location of quick sand

navigate around it. There are traps which may affect the independence of a law

officer, State Attorney or legal officer in public service. The following is an attempt

to identify them:

(a)

As part of value for integrity, attorneys are prohibited to allow outside

interest to compromise or in any other way jeopardize the integrity of the

legal profession and the public service and administration of justice

generally. These offices are not offices of private advocates and

individual attorneys are acting on instructions of superiors and where legal

opinions are given on an issue, the likelihood of an attorney being

overruled on his opinion on a policy consideration is not farfetched. In

appropriate cases, the right would be to decline the assignment on the

basis of self-conscientious or be held liable for disobedience.


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Justice Werema Professional Ethics

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