The Role of Lawyers in the Society: The Case of South Sudanese Lawyers and Judges
By Tong Kot Kuocnin, Juba, South Sudan
Friday, March 29, 2019 (PW) — A lawyer is a licensed professional who advises and represents others in legal matter, one as counselor, solicitor, attorney, barrister or advocate. Under a contract of service, a lawyer owes duty to his client, to the court and also to his firm.
In order for legal assistance to be effective, it must be carried out independently. To this end, international law establishes safeguards aimed at ensuring the independence of the individual lawyer, as well as the profession as a whole.
However, the continuing challenges facing the criminal justice system in South Sudan raises a sizeable number of questions about the adequacy of the country’s criminal justice system.
While there have been notable achievements in the context of providing legal representation and legal aid to the accused and paupers by the state, it is clear that the unsteady progress in continuing this criminal justice package casts doubts in improving the performance of law and justice processes in the country.
As I write this piece, there occurs a public outcry, in which one of the local artist, Doggi Di Kats, hit lawyers and judges, in a song dubbed as ‘Moulana’. The song comprises of two folds: one which urges lawyers in the country to do their work professionally and another which deplores and reminds judges to be fair in their judgments, by not passing a judgment based on the statuses of the people in society.
According to Doggi Di Kats, the singer, all people, both rich and poor, must be given a fair hearing on issues affecting them such as land dispute, commercial transactions and matrimonial disputes as well as many injustices.
As he continue singing his song, ‘Moulana’, he alleged that someone tried to grab his piece of land and when the person, who wants to grab his piece of land, brought a lawyer to defend his case, he almost lost the case.
To him, this incident, compelled him to compose the song, which he dubbed ‘Moulana’, an Arabic colloquial referring to lawyer. He continue alleging that he heard many cases where some lawyers tend to defend only people who have money, leaving the poor legally unattended to.
The singer continue to emphasize that judges should not be driven by lust for money but they must be justice conscious where they must follow the law and what the constitution, which is the fundamental law says when doing their work.
Many other concerned citizens expressed discontent and agreed with the singer that, indeed in most cases, poor people are not judged fairly by some judges and lawyers do play an indignant role in defending the poor.
As the singer continue singing, members of the public attest that many people lost their properties because of not being able to hire a lawyer to represent and defend their rights. Doggi believes that, as he sang the song ‘Moulana’, many lawyers and judges will listen to the outcry of the poor members of the society who can’t withstand to defend their properties from the rich. He concluded by appealing to lawyers to support poor members of the society who cannot afford to pay legal fees to let their cases be defended and heard.
The song touched many hearts. But to unpack these sentiments, as a lawyer myself, one would categorically say that all lawyers are subject to strict standards of professional responsibility. These standards are set forth in codes of conduct and privileges, ethics, rules of professional conduct that are established by state bar association.
The rules vary from state to state. The basic ethical professional rules a lawyer must follow includes: Must represent the client ethically, zealously and within the bounds of the law; must competently analyze legal issues and exercise knowledge of the law applicable to the client’s case; Must communicate with the client in a timely and effective manner; Must not create a conflict of interest; Must follow the client’s directions in handling your case unless they are illegal; Must keep the client’s personal property separate from his or her own property, and must your money in an escrow account; Must return the client’s money or property when requested; Must keep client conversations confidential, except in specific and rare occasions; Must not act against the clients best interest unless he or she first obtains the clients best interest, unless he obtains the client informed written consent; and Must be royal to the client. If the lawyer fails to practice these rules, he or she can be disciplined by the disciplinary committee.
However, one must remind the heartbroken singer that, an advocate is a special agent, a representative of parties, an officer of the court and public citizen. In this position he is under a responsibility to ensure that the rule of law is upheld and that justice is served to all who seek redress from the legal system.
Let the singer be told that the advocate’s sacred duties and position stem from the oath of office which precedes his signing the role of advocates and admission to the bar. It also flows from his specialized training of the law and the level of responsibility bestowed upon him as an advocate.
Equally, a substantial part of the advocate’s duties come from substantive law and the rest flows from the rules of ethics, conduct and etiquette promulgated by advocates themselves as professionals within the conduct of statutory guidelines and good sense.
Thus, an advocate owes certain duties to court, which of course, include an obligation of honesty and directness. The need for integrity is absolute. Hence, Lord Denning in the case of Ronder v Worsely highlighted the role of an advocate to the court. He stated that as an advocate is a minister of justice who is equal to a judge and as such has certain responsibilities.
Lord Denning went on to assert that a barrister cannot choose his clients and should accept instructions from any man who comes to court. A barrister is under a duty to defend a client to the end provided that he is paid a proper fee or instances of dock brief a nominal fee. He also has the opinion that the advocate’s duty to the court is paramount and that he owes allegiance to a higher cause which according to him is the court.
The nature of those obligations was described also by the House of Lords in Arthur J.S. Hall and co. v Simons where he, Lord hope’s comments, whilst specifically referring to advocates area of wider application. He said;
“As one of an advocate’s duty to uphold the administration of justice, as an officer of the court, an advocate should only use proper and lawful means to promote and protect the interests of his clients. Advocates must not knowingly mislead the court. He or she should not fabricate evidence, coach witnesses to deceive the court or support any form of perjury”.
As it is a duty for an advocate to defend his client, he must do so to the conclusion of the suit even if that client fails to pay his fee. Once a suit is concluded an advocate is permitted to sue for his fees. This is the correct procedure of dealing with clients. An advocate should never abandon a case on the grounds that he had not been paid his fee but as stated above must conclude the suit to its finality then sue for his fees.
But as the sentiments of the artist stems from pauperism to which many members of the society losses cases and hence their properties due to lack of money to hire an advocate, the singer must be reminded that an advocate has a duty to which he must charge a fee consistent with the rules and regulations governing advocates.
The poor artist must also be reminded that an advocate (lawyer) doesn’t look for a client who needs legal services just like a medical doctor doesn’t look for where the patients are.
However, as an old adage goes, it is the sick person who looks for a doctor and not the doctor to look after the sick person, and thus, does those who are in need of legal services should look for a lawyer of one’s convenience.
It has to be noted that there is a policy in place in which those accused persons who can’t afford to hire a lawyer are paid by the state (Ministry of Justice and Constitutional Affairs) to have them legally represented at all levels and for all crimes.
Equally the same, the judge seeing the case is a state official who favours none. the judge hear and decides cases based on facts, evidence produced and points of law. The judge favours no party but a party who proves beyond reasonable doubt his case before the court of law. The judge is a neutral member of the court who hear and decide cases according to law.
Thus, the argument that judges do connive with the rich and decide cases in favour of the rich people is a lame allegation which must be proved beyond reasonable doubt and a tangible and undisputed and corroborated evidence produced.
But, as South Sudanese society is a society in war, there are unaccountable challenges with regards to the administration of justice and as such, those allegations can’t be ruled out categorically.
It is pompously said, of course by lawyers, that when a person is isolated from the society, it is the God and a Lawyer that will stand and say such a person still has some rights. Lawyers are the fruits of the society. They are part of it too. It is important to note therefore that there is no how justifiable that a lawyer will isolate from his society.
Majorly three factors should be considered in this contention. Firstly, lawyers are human beings. The intrinsic connection within lawyers and the rest human beings gives an automatic duty to any ethical lawyer, to act on behalf of his fellows without whom no any lawyer would become so. Thus, by considering this moral duty lawyering is a part of a public duty and not of an individual sole business.
Secondly, there should be no lawyer if there was no law. Any law in that note is the property of the public. In essence, either the society agrees directly or representatively to enact laws which are to govern the conducts among or between them.
Laws safeguard the interest and existing public policy at a material time. That when lawyering, lawyers are doing nothing but effecting what the public intended and therefore they should do it in a good faith.
Thirdly and lastly in this regard, the process of one becoming a lawyer involves several things one of it being public initiatives in matters like building schools and institutions, providing other human and material resources towards molding a person into a lawyer.
Now, the concern is what a lawyer should do than honoring the public as the consideration and therefore be loyal to it. Thus, therefore, any lawyer is duty bound to use his knowledge and skills not only for the benefit of himself, or /and his client but of the society as a whole. That is, he must be something more than a man, he must be in the fullest sense, a part of the society in which he lives and he must understand that society if he is to be able to participate in its development and advancement of the economic and social well being of its members.
In the course of lawyering, lawyers are officers of the court, whether acting for or against the government, they are demanded not to act violently to defeat the existing public policy. They are required to be condour with court, act with civility and integrity.
This has thus been logically illustrated in the case of Rondel v. Worsley, where it was Held that “ Every counsel has a duty to his client…as an officer of the court concerned in administration of justice, he has an overriding duty to the court and to the public…”
In that sense, lawyers are required to avoid sharp practices and other means bad enough to inculcate injustices. What is expected from the public is to see justice is being manifestly done. Thus, the respect that the public honors the court and its officials need to be maintained and respected, where the vice verse is to tarnish our legal profession and consequently social unrest to take the scene.
The legal profession therefore, has an obligation that is more than simply performing the call of their paying clients and it intends to stop injustices being committed. Moreover, lawyering is seen to be a public duty and indeed it is in the sense that it involves education to the public.
Indeed, it the duty of the lawyers to disseminate legal education to the society so that to expand justification on several legal issues that a layman may be unable to appreciate and understand.
Thus, lawyering more to say is spirited with maintenance of peace and tranquility within the society. This is observed in the duty of confidentiality. Non-disclosure of the client’s information has more to do with peace among the people. If it happens that lawyers abandon this ethical duty the society can never be peaceful as some of information may lead into fighting, isolation even inter societal wars.
Hence, confidentiality dictates that a lawyer is required to maintain has more to do with the public interest than, even at the side of a client. In expanding the scope of lawyering to be the public duty, one should consider the extinguished role of lawyers in preparing and drafting laws and other legal documents.
The author holds Bachelor of Laws (LLB) Degree from the University of Juba and a Master of Laws Degree (LLM), specializing in Law, Governance and Democracy from the University of Nairobi. He is an Advocate Before All Courts and his areas of research interest are: Constitutional Law and Human Rights, Access to Justice and Transitional Justice, Rule of Law and Good Governance.
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