‘Advocate and instructing attorney’: Hidden dangers

Sharon Hofisi Legal Letters
The bench in Zimbabwe seems to have some judges who want to maintain the language of fission of the legal profession.

They are quick to remind lawyers who do not openly practise as advocates that they cannot give each other instructions to appear in a court of law.

The advocate in Zimbabwe is considered by such judges to be the one who runs a form of advocate chambers and would address himself or herself in court as “My Lord and my lady, I am Advocate X, appearing under instructions from Mr P”.

An instructing attorney is in the picture. The advocate is allowed to address the judge in that manner. Conversely, a junior lawyer or a colleague who runs a law firm must not address such judges in the “advocate’s style”. Rather, he has to stand up and address himself to the court — “I appear at the request of my colleague Mr C, to have his matter postponed or stood down”. Carefully measured words!

Any “mistake” such as “My Lady I have been instructed by my colleague or my principal . . .” will invite a rapid response, “No, you can’t receive instructions, you are not an advocate”.

The danger of this response is not hidden. If it is hidden, it is hidden in the need for courtesy. Need I mention that the lawyer is an officer of the court and the judge is a case and court manager, the latter preferring a certain language.

The lawyer tries to argue, the bench feels the argument is unmeritorious. Legal instructions, one of the most useful ethical tools for any lawyer, are received from clients.

Lawyers who run law firms are as much as all the times qualified to give each other legal instructions on matters pertaining to the advancement of their client’s cause.

Legitimising the existence of a bar under fission is, with due respect, very wrong. It can cause lawyers to abandon the rule of law under the Legal Practitioners Act, in favour of a rule of constant practice, preferred by the language during proceedings.

For a time, the dangers of a bench that is inclined towards separation of the roles of an advocate and instructing attorney have been observed, if seldom heeded to by the lawyers.

First, it was the late retired Chief Justice (CJ) Godfrey Chidyausiku. I addressed this in one of my articles on him on the effects of his views to the debate on the fission or fusion of the legal bar. The present article is informed by observations on what is currently obtaining during the course of proceedings at the High Court.

The role of the judge in regulating the conduct of the lawyer who appears before him needs careful scrutiny. Before that, let me hasten to thank the lawyers who debated their legal practice out on one of my co-authored article, at the Zimbabwe Legal Forum. A few things need attention though, the bar is not an institution.

Separating personalities and the legacy that they leave behind is also needed when mounting arguments. The article, presented in form of a eulogy, was loudly clear that readers could viciously critique the legacy, or fervently support it. For the late CJ, it is on public record that he believed there were two schools of thought on the land issue. One was the school of thought which said the land reform was unlawful. The other was the one which said it was lawful. He subscribed to the latter.

As such, readers who associate with the view that the CJ was wrong are allowed to adopt their stance with verve. This is why this think piece considered him a constitutional politician for zanu-pf. This point was affirmed in media circles when he passed on.

I will critique his judgments in the near future. For now, he was a judge who, as judge president, could find a way to circumvent the powers of the Supreme Court to find a way to give legitimacy to his decision.

A serious argument can be made on whether this is was equivalent to overruling the decision of the Supreme Court. A culture of reading law is needed, lest we read it low.

Enter the Zuva Judgment — serious labour rights implications An advocate raised a very good point, the existence of an employer’s right at common law to terminate his relationship with an employee. Why this right? It was always there.

I understand the way some employers abused the Zuva judgment. I also understand the concerns of employers in the wake of the biting effects of an economy that is on the downturn. Added to this is the high unemployment rate and the dominance of the informal sector.

But under close scrutiny, a lawyer went to court, instructed by his client, to seek the intervention of the court to declare the existence of an employer’s right to terminate an employment relationship on notice. Chidyausiku CJ agreed.

The employer had an extant right at common law. What was good for the employee was also considered good for the employer. An employee could simply leave. Production was affected. The employer felt the biting effects. The relationship was untenable.

The employee would leave the employer with an egg on the face. Sales would dwindle. Staff turnover would be affected. Income would be drastically affected. And with the Zuva judgment, the employer and the employee are now looking at equal benefit of the law.

Perhaps the shortcoming in the Zuva judgment was that the common law position was not developed. It was simply referred to and affirmed. The legal position is that legal practitioners can assume any title that they want: advocates, attorney-at-law, solicitor and so on. There are those legal practitioners who have decided to maintain the orthodox title “advocate” in its “pure form”.

There is no trouble with trust funds as no trust account is maintained. Theirs are not offices “rooms” that are maintained. They maintain the orthodox advocate’s conventional way of not taking legal instructions from the client or the prospective litigant.

The instructing attorney, who deals directly with the client, does some initial research, solicits the opinion of the advocate. A legal brief to counsel is produced. Some Pelican Brief in Grisham’s creativity. The evidence from court decisions by the Supreme Court is found from the case of Sibanda and Hashiti v Ochieng and Ors (2003) SC 46. In that case, Ziyambi J (as she then was) observed remarkably that:

“The effect of the Legal Practitioners Act 1981 was that all practising lawyers were called legal practitioners. They were all endowed with the right of audience in the superior courts. Former attorneys began to appear in the High and Supreme Courts, no longer fettered by the need to brief advocates. “The former advocates chose to continue with their previous mode of practice. They remained at advocates chambers and communicated to the former attorneys their intention to continue as before. As a result, what is now known as the de facto bar emerged and is still in existence today”.

Thinking without the “advocate” box is urgently needed. If we continue to see the box this big, would we forget it or help avoid it? As a teacher, researcher and mouthpiece, one of my recent discoveries is that doctrines are not the opiate of the legal fraternity: words are. Words expressed to any lawyer can be processed differently: as the most potent stimulant, or the inflammatory tool. Perhaps, we need not be trapped in language thunderclouds.

The Retired Honourable Justice McNally taught us that “one can maintain a de facto bar, standing on its own feet and unsupported by unwarranted monopoly rights”. With this in mind, judges who incline towards fission can silently decide to do so without burdening the lawyer who wants to enjoy the gains of professional independence that is protected under the Legal Practitioners Act.

To do otherwise is tantamount to violating the freedom of occupation and profession that is protected by the Constitution — the mother law in Zimbabwe.