The Sunday Mail
One rainy Friday afternoon, a road traffic accident occurred involving two motor vehicles. The first was being driven by a certain Christiano Messi while the second, by a Wayne Ozil.
The two blamed each other for the accident.
The matter ended up in court with Christiano Messi suing Wayne Ozil for recovery of damages sustained during the collision.
Wayne Ozil counter-claimed for more or less the same amount as he pleaded that Christiano Messi caused the crash.
Both parties were represented by lawyers and the presiding magistrate happened to be a certain Mr Jose Wenger.
It so happened that the two lawyers, as well as the magistrate, had studied law at the same university although the magistrate had been much more senior while the lawyers were actually in the same class.
It goes without saying that the three of them knew each other well. The matter went all the way to trial with this fact unbeknown to the two litigants, Christiano Messi and Wayne Ozil.
After arguments and counter-arguments, judgement was reserved and was to be delivered in about a month’s time.
In the intervening period, on a Monday afternoon while Christiano Messi was enjoying his lunch at a restaurant in the city, he caught a glimpse of his lawyer also having lunch in the company of Wayne Ozil’s lawyer.
He was surprised and not amused.
In fact, he was so incensed that the very next day he proceeded to his lawyer’s office, fired him on the spot and demanded his file back as he thought the guy had sold him out. He even complained to the Law Society over what he called his lawyer’s “unbecoming of indecorous behaviour”. He no longer felt “safe” to continue to be represented by that lawyer.
Incidentally, the following Wednesday, Wayne Ozil came across Christiano Messi’s lawyer having what he concluded was a heart-to-heart talk at a car wash with Mr Jose Wenger, the magistrate who had presided over his trial with Christiano Messi.
It would be stating the obvious what went through his mind.
The above scenario is not uncommon in the life of lawyers, prosecutors, magistrates and judges in the course of their work.
A number of questions arise: How should lawyers conduct themselves in the presence of their clients if the lawyers know each other as so often is the case? If lawyers handling the same case from opposite sides meet in public, how are they to behave?
Are they to pretend that they don’t know each other until after judgment is passed in that case?
If they exhibit familiarity with each other in the presence of their clients, how are the clients supposed to feel?
Are judges, magistrates and prosecutors to ignore lawyers when they meet them in public places lest they be accused of dabbling in corruption?
I will attempt answers to some of these questions.
I wish, however, to stress that this discussion is not connected to or concerned with those alleged underhand dealings or corrupt activities that certain members of the justice delivery system have sometimes been accused of.
To start with, it is well known that the legal profession is a restricted community. By this is meant that only those who have the requisite minimum entry qualifications qualify to be its members.
Accordingly, chances are very high that those in the profession end up knowing each other.
In any event, many would have gone to the same university and shared accommodation and notes during the struggle for the law degree.
They naturally become acquainted to each other for many years. Needless to say, some would have become much more than just classmates.
Furthermore, the longer a lawyer stays in practice, the more he or she gets to know other lawyers.
Annual events such as the winter or summer schools mean lawyers end up knowing each other better. There are many workshops and mini-conferences where lawyers always meet and mingle as happens in other sectors.
During the course of their work, lawyers exchange documents and hold meetings to resolve their clients’ disputes. For instance, if a lawyer has 20 files on his desk, it means he interacts with probably a minimum of 15 lawyers.
With respect to judges and magistrates, it is common cause that these are far fewer than lawyers.
Naturally, virtually all lawyers know all judges and/or magistrates in their city. The situation may be even “worse” in small places such as Guruve, Murambinda, Gwanda or Zvishavane where there may only be two magistrates and perhaps a handful of lawyers.
These people end up being drinking or church mates.
The long and short of my argument is that the public should not worry when lawyers representing opposing clients talk to each other.
All lawyers are officers of the court and, therefore, their first duty is to the court. In all their dealings, they have to be candid not only with their clients but also with the court.
If, upon discovering any information or evidence that tends to show that the client’s case is likely weak or unsustainable, a good lawyer has a duty to make this fact known to the client and even advise that it may be prudent to withdraw the claim or defence.
That way, the client is saved both money and precious time.
So, apart from the duty to the court, the lawyer also has a duty to his client. It matters not that the lawyer will give such advice merely because he is “friends” with the lawyer on the opposite side.
No.
Indeed, it would be a scandal of unimaginable proportions if a lawyer were to compromise his client’s case for the sake of a lawyer friend on the opposite side. I contend that such a thing has never and can never happen.
In fact, that two opposing lawyers know each other well often works to the advantage of litigants. It means negotiations will be easier to conduct and matters quicker to resolve.
It is always an advantage to go to the negotiating table knowing in advance who is on the other side.
Then there are those situations involving advocates. As a rule, advocates do not take instructions directly from clients. They interact with the instructing lawyer.
It may, therefore, be said that the lawyer is the advocate’s client.
Now, imagine a situation in which the instructing lawyer has two cases to be heard by the same judge on the same day, one after the other.
In the first case, the lawyer will be instructing the advocate and in the second matter, he will be arguing against the same advocate.
This occurs quite frequently in our courts and legal services users should not be unduly perturbed merely because the advocate and the lawyer know each other well and are in fact “friends”.
With respect to judges and magistrates, they will never recuse themselves from a case simply because they know one of the lawyers in the matter.
Judges or magistrates normally only remove themselves from a case when they are personally known to one of the litigants.
Sometimes instead of walking out on a case for the reason that they know one of the parties, the judges will announce in open court that they are acquainted with one of the litigants and that they can only proceed with the case upon the other party confirming they are comfortable with this.
I reiterate that there is absolutely nothing wrong with lawyers socially interacting with each other.
If such conduct were outlawed, lawyers’ lives would be very difficult and I can bet my last bond coin that there would be a great shortage of lawyers throughout the world as only a handful of people would opt pursue the career.
The above notwithstanding, lawyers on opposite sides should conduct themselves with restraint when they are in the presence of their clients, particularly in sensitive and emotional cases like divorce.
In criminal trials, the situation is much the same.
Prosecutors, especially in murder trials where the deceased’s relatives may be in attendance, are hardly ever seen “cuddling” with the accused’s lawyer. The same goes in all other criminal cases where the victim of the offence will be praying that the accused be convicted.
They remain professional at all times as the matter will really be between the State and the accused person and not between the defence lawyer and the prosecutor.
It is my contention that prosecutors in Zimbabwe always go about their work with due regard.
All in all, lawyers, advocates, prosecutors, magistrates and judges are just different parts of the same engine that must necessarily work together to deliver justice.
Tichawana Nyahuma is a legal practitioner who writes in his personal capacity. Feedback: [email protected]
