Cameroon Bar Association: Duty of Lawyers and Law Chambers (Professional Ethics). DUTY OF LAWYER IN CRIMINAL CASES.
This comprehensive write-up stipulates the duty of lawyers and law chambers as enshrined under the Law of Cameroon and the Cameroon Bar Association.
APPLICABLE LEGISLATION, USAGES, and PRECEDENCE
- Law N° 90/059 of 19th December 1990 on the Organisation of the Bar ;
- Arrêté N° 41/DPJ/S4/MJ of 12th April 2005 on the homologation of the Internal Regulations at the Bar.
By the strength of the laws mentioned above and with the proper coordination of the President of the Bar Association and Bar Council, whose ultimate goal is to maintain the highest standards of professional conduct, etiquette, and discipline among legal practitioners in the following situations better known in the French acronym as Les Devoirs Moraux et de Courtoisie.
Cameroon Bar Association: Duty of Lawyers and Law Chambers (Professional Ethics)
These are rules that are universally applicable in Bar Associations, be they of civil or Common law origin blended with Court practice and directives and usages in the legal profession.
- The duty of Counsel to Client;
- The commitment of Client to Counsel;
- The duty of Counsel to Court;
- The duty of Court to Counsel;
- The duty of Counsel to fellow Counsel;
- The duty of Counsel to opponents;
- The duty of Counsel to the State of Cameroon;
- The duty of Counsel to Criminal Cases;
- The duty of Counsel to Civil Cases;
- The duty of Counsel to the profession.
1. DUTY OF COUNSEL TO CLIENT
a) Duty to accept brief
Upon acceptance of a brief from a client, Counsel must appear on that behalf in Court to represent the Client in robe.
See section 28 of the 1990 laws.
Lord Denning Rondel V. Worsley,
"A Barrister can not choose a client; he is ……….to accept anyone who comes to Court.
No matter how great the rascal may be, however, a Lawyer may refuse to accept a brief in particular circumstances to wit:
- Nonpayment of a proper professional fee;
- Cases of specialized practice, e.g., Specialist in Intellectual Property;
- Conflict of interest;
- Disagreement in defence strategy
- Where his conscience does not permit
- Where his independence is trampled upon
See Section 51 of the Internal Regulations at the Bar.
b) Duty to accept brief in Chambers save for exceptional cases.
Counsel should not call at the Client's house or visit his house like it is indeed the case with Medical Doctors.
See S. 52 of the Internal Regulations
- The Client is ill;
- Where the Client is corporate
- Any other cogent reason that prevents Client from coming to Chambers.
c) Duty to take full instructions
A lawyer should take full instructions from the Client before advising. Advise is on merits. You need not give confidence to the Client that you must win a case.
- Counsel should always inform his Client of the progress of the case;
- There is conflict on instructions between client/Lawyer that if the Client prevails, the Lawyer should withdraw from the file as prescribed by Law.
See S. 51 Internal Regulations
d) Duty to disclose conflicting interests.
Once briefed, Counsel should not have any conflicting interest with his Client as this will constitute an affront to S. 56 of the Internal Regulations. In the event of any personal interest, Counsel should do full disclosure.
- Counsel should not act for a company in liquidation where he is a debtor or creditor.
- Where Counsel is related or is the son of the presiding Judge, his Client's interest may likely be jeopardized.
The practice in England follows that Counsel does not appear in lower courts if presided over by his parent. As for the higher jurisdiction, the issue of family relations has no bearing. From experience in Cameroon's civil law jurisdiction, their family relationship issue does not constitute any hardship as Counsel appears before his relative.
e) Duty not to Breach fiduciary relationship.
A Lawyer should not breach the trust or take advantage of the confidence reposed on him. He should disclose any profit or compensation paid to him for his Client.
f) Duty to give a candid and honest advise
Where a Lawyer deliberately misleads the Client, he shall be liable for negligence. e.g., Instituting a cause of action which is statute-barred. He should avoid frivolous actions or actions intended merely to harass or embarrass the opponent. Counsel should tell his Client whether he has a bad or a good cause, thus leaving the Client to choose.
He should not prosecute a matter which he knows is bound to fail.
g) Duty to keep professional secret.
A lawyer is duty-bound to keep a professional secret. S. 60 of the internal regulations frown on any lawyer who discloses information confided to him by his Client.
The scope of professional secrecy could be circumvented as follows:
- All consultations between Advocate and Client
- Correspondences between advocate and Client
- Parallels between advocate and his fellow colleague
- Minutes of meetings, reports, and documents of a file.
- Information and confidential documents received during the exercise of his profession
- But where such confidentiality is not valid, the Lawyer is not compelled to lie to deceive the Court.
This rule or duty of secrecy equally applies to his collaborators and partners. The Cameroonian legislator's importance of keeping professional secrets has been adumbrated as a criminal offense per S.310 0f the Penal Code, which imposes 3 months to three years imprisonment term and a fine of 20 000 to 100 000 FRS on any lawyer who violates this duty.
h) Duty to follow clients' instructions
Duties here are limited to lawful instructions and those that are not against professional ethics. Where such instructions are unlawful, such a brief is terminated, and Counsel could withdraw from the brief.
i) Duty to represent Client to the conclusion of the case.
Save Client wants him to do something unlawful, immoral, or unethical. Withdrawal must be with the leave of Court and sufficient notice to Client to brief another Lawyer.
2. DUTY OF CLIENT TO LAWYER
The duty of the Lawyer to Client goes with a corresponding responsibility of the Client to the Lawyer. The Client must pay the agreed fee even when he terminates the brief. Refusal implies the
The Lawyer should withdraw from the brief and institute withdrawal proceedings.
General Rules on Professional Fee
- A Lawyer should be separately instructed and remunerated for each piece of work done.
- A lawyer's fee should not be overvalued or undervalued.
- A Lawyer is not allowed to share his fee with anyone other than another who participated in the case.
Condition for charging a fee
- Time required for job & how difficult it is;b) Whether acceptance of the position may preclude the Lawyer from accepting some jobs arising from the transaction;
- Whether acceptance of the job will involve the loss of other employment or antagonism with other clients;
- Customary fee charged by the Legal Practitioner in similar jobs;
- The amount involved in the benefit that will accrue to the Client;
- The contingency of indeed of compensation;
- Whether the Client is constant or casual.
See Article 65 of the Internal Regulations.
3. DUTY OF COUNSEL TO COURT
A Lawyer must be punctual in Court. Courts business in Cameroon starts at 7:30 a.m. where the Lawyer is not punctual, the Court may strike out his case, adjourn with cost, or proceed with the matter.
Where the Lawyer is unavailable, he should write to the Court and his Colleague seeking for adjournment at the Court discretion;
b) Attend all sittings
A Lawyer has no right to unilaterally withdraw from a case without obtaining leave of Court.
Persistent absence of the Court without leave tantamount to contempt of Court. This is why the attendance date is given to the convenience of Counsel and the Court.
c) Dress properly
A lawyer should be adequately and decently dressed without unusual ornaments. The ornamental presentation of Common Law Lawyers is a wig on a black gown and a bid on a white shirt and a collar over a black suit, a black sock, and a shoe.
Under the French Civil Law System, Counsel is dressed in a toque and black gown and a white bid attached with two épitoge overlapping on the shift. The dressing code from a practical reality is stringent in the Common Law divide.
An avalanche of cases have been reported were at the request of Counsel for the opposing side, improperly dressed Counsels have been ordered by the Court to walk out or get their matters adjourned for one of proper dressing
d) To maintain decorum
A lawyer should show respect for the office of the Judge. He must stand up when the Judge enters, when addressing the Judge or the Court, or when he is addressing him.
A lawyer should sit appropriately in Court; he should not read newspapers when a session is going on. A Lawyer should not interrupt a Judge while talking or delivering judgment, and a Lawyer can walk out on the Judge.
A Lawyer should mind his language when addressing the Court;- A lawyer should not criticize a Judge openly, but instead report the Judge to the appropriate authority:
Supreme Council for magistracy;
Apply to transfer the case to another Court.
Any attempt to underlook the Judge or disrespect the Judge is tantamount to the contempt of Court punishable under S. 154(a) of the penal code.
This is a moral obligation imposed on lawyers to respect the Judge not for the sake of his person but for the respect of the office of the Judge as the temple of justice.
It is better to know the correct mode of addressing a judge, Magistrate, and Colleague. In the French-speaking jurisdiction, they are commonly called Mr. le Président or Votre Honneur irrespective of the hierarchy of the Courts.
The English Common Law Jurisdiction has a more categorized and dignifying approach depending on the hierarchy of the Court.
- Superior Courts i.e., High Court, Court of Appeal, Supreme Court: my Lord;
- Magistrate Court: Your Worship
- Customary Court: Your Honour
- Colleague: My Learned Friend or Senior.
e) Prepare case with care
A lawyer should assist the Court by preparing his case and not lead the Court to make a wrong decision.
If there is a wrong decision on the point of Law, Counsel should draw the attention of the Court or initiate an appeal for such a decision to be overruled.
A Lawyer, therefore, has the moral duty to prepare his case at best, inform the Court of any plan to settle or discontinue.
f) Condor and fairness
In conducting a case, a Lawyer should maintain fairness.
A lawyer should not misquote an authority or statute, i.e., should ensure full disclosure and not do anything to mislead the Court.
Suggested: How to Become a Lawyer in Cameroon.
4. DUTY OF THE COURT TO THE LAWYER
a) Right to audience
Unless the Lawyer is in default of payment of his dues, he has the right to the audience. And the Court should not do anything to deprive the Lawyer of this right.
b) Fair hearing
This may take different forms:
It may occur where the Court refuses a reasonable defense for adjournment, right to call witnesses or address the Court, or any act or impartially on the part of the Court. c) Non-interference by the Court
The conduct of the case should not be taken over totality by the Courts, i.e., examination of witnesses even though the Court may put a few questions for clarity.
The Court should be an umpire; it cannot descend to the arena.
The Court should allow the Lawyer to present his case in the best way that he can.
See S. 51 of the Internal Regulations.
The Judge may give hints to the Lawyer but not embarrass him.
c) Respect for the Lawyer
Respect is reciprocal. Some Judges are very punctual, and when they appear late in Court, they apologize. This is excellent.
5. DUTY OF A LAWYER TO FELLOW LAWYERS
a) Most courtesy and respect
- A lawyer cannot look down on a colleague subject to the rule of precedence; all Lawyers are equal;
- Do not interrupt the other colleague when he is addressing the Court unless it is for a tangible reason;
- Address a colleague as my Learned Friend;
- Where a lawyer shows discourtesy to a fellow colleague in front of the Court is tantamount to contempt of the Court.
See S. 48 of the Internal Regulations
See Also: Best Lawyers and Law Firms in Cameroon.
b) Keep promises
Promises may be oral, written, or by conduct.
A Lawyer that does not keep promises is challenging to deal with. He is not "fit and proper "for the Bar. The Court has high regard for statements made at the Bar. This regard should not be abused.
c) Avoid sharp practices
Anything done by a lawyer to gain an undue advantage is sharp practice.
An advocate should do total and mutual communication of all documentary evidence and means of proof vis a vis the opposing Counsel to ensure the smooth administration of justice.
d) Equality of Lawyers or confraternity
Save for the rule of precedence, Lawyers should address colleagues on first-name terms.
That is to say, an Advocate should recognize any other Advocate be it in the Country where he is practicing or an Advocate from a foreign country.
Confraternity is predicated on a relationship of trust and confidence for the common interest of their respective clients. The appeal of the clients and justice should prevail in such situations as opposed to that of Counsels. e) Duty not to institute criminal action or accept a brief against an officer of the Court.
Article 47 of the Internal Regulations jettisons any Lawyer who commences criminal proceedings or accepts a brief against a fellow lawyer, Magistrate, or a judicial officer without the prior notice or authorization of the President of the Bar Association. This is to put in place the duty of the Bar Council President as a conciliator.
e) Duty not to convert Clients
Conducts frowns on any direct or indirect way by a Lawyer to encroach on the employment of another Lawyer.
To enter such brief, notice must be given, and when taking over from the brief, the newly constituted Council should make sure that the other colleague's fee has been fully settled.
Authority for this is S. 50 of the Internal Regulations.
f) Negotiating with the opposite party
It is established practice that when a party is represented by a Lawyer, all communications should be with the Lawyer and not with the opposing party.
Where the opposing party is not represented, the Lawyer should avoid everything to mislead the opposing party. He should instead advise him on the Law in the issue.
h) Ill feeling between lawyers
Clients, not lawyers, are litigants. Whatever may be the ill-feeling between clients, it should not be extended to fellow lawyers.
6. DUTY TO THE OPPONENT
A Lawyer should avoid instituting a civil case or a defense predicated to harass, injure or oppress the opposite party. This includes questions asked in cross-exams. In such instances, the opponent shall have the protection of the Court.
7. DUTY TO THE STATE OF CAMEROON
Duty to uphold the Law
- A Lawyer is a minister in the temple of justice and must enforce the Law;
- A lawyer should not join in committing or concealing unlawful transactions;
- A lawyer has to report the conduct of anyone involved in illegal transactions (even a fellow colleague)
8. DUTY OF LAWYER IN CRIMINAL CASES
The Constitution of Cameroun provides for a fair hearing. In this situation, the worst criminal is entitled to legal representation. Counsel must accept such brief. It is for this reason that R 9 of the Rules of professional conduct in England and other Common Law Jurisdiction duty provides:
"The primary responsibility of the Prosecution is not to secure the conviction of an accused but to ensure that justice is done. The Prosecution should fairly and impartially presents all the facts to the Court. He should not suppress evidence that is favorable to the case of the accused. "After conviction, the Prosecution should not ask the Court to impose the maximum penalty. ENAHORO V. STATE
Duty of the Defense Lawyer
The primary responsibility of the defense Counsel is not to ensure the acquittal of the accused but to ensure that justice is done; he can only be expected to do his best; he should put all possible defenses. This is basically the spirit of the recent Cameroon Criminal Procedure Code, which is blessed with about 80% of the Common Law practice and procedure and 20% of Napoleonic schools.
9. DUTY OF THE LAWYER IN CIVIL CASES
A Lawyer must not conduct a case or defense where the purpose is only to harass, embarrass or injure the opposing party. Therefore where a Lawyer misconducts his case, he shall be liable in negligence. Consequently, any agreement excluding liability for failure is void. However, a lawyer shall not be responsible for negligence in the following cases:
- Where gives services ex gratia
- Negligence is committed by a lawyer in the actual conduct of an issue in Court.
10. DUTY TO THE PROFESSION
a) Duty not to instigate litigation
A lawyer should not give the advice to initiate litigation. Or, e.g., searching defective titles at the registry to institute litigation.
b) Rule against advertising and touting
- A Lawyer should not distribute his cards e.g., in a Square;
- Indirect advertisement in a newspaper or magazine;
- Publication in reputable law lists, journals, internet containing the biography of the Lawyer is allowed;
- Interviewing newspaper, radio, television should not be granted as a means of advertising his services.
- Sign Board should be moderate in size: No neon lights; A Lawyer should not wear his collar, bib, robe, outside the Court; Not encourage musicians to sing his praise name; Can make publications in news papers but not against compensation; Can such notices for change of location of Chambers.
ConclusionThe duties mentioned above and obligations attached to that make practice into the Bar a distinguished and noble profession. That is why practice-e into the Bar is a call and not ordinary recruitment.
This explains why in his oath-taking ceremony, the Lawyer swears thus:
"I swear as Advocate to perform my duties as Counsel for the defense ….. following the ethics of my profession and due respect to the Courts and Tribunals and the Laws of the Republic" Experience has proven that a successful Lawyer can only fulfill his duties as hereinabove illustrated. And this can only be sustained under the strict supervision of a credible Bar Association that is determined to uphold the profession's noble character, which is seemingly threatened by those who fail to maintain the ethical values of the job.