Why a lawyer is ‘my learned friend’

21 Feb, 2016 - 00:02 0 Views
Why a lawyer is ‘my learned friend’

The Sunday Mail

The term “learned friend/brother/sister” is mostly associated with those in the legal fraternity but why is it so and what exactly does it mean?

In order to attempt possible answers, it is necessary I digress and then zero in on possible explanations later. It seems logical that I begin by defining what a profession or professional is.

According to Wikipedia, “a profession is a vocation founded upon specialised educational training, the purpose of which is to supply disinterested objective counsel and service to others, for a direct and definite compensation, wholly apart from expectation of other business gain”.

In addition to possessing specialised educational training, a profession is also governed by a self-regulating body such as the Nurses Association of Zimbabwe, the Bankers Association of Zimbabwe, the Law Society of Zimbabwe, the Health Professions Council, the Institute of Internal Auditors, and so on.

It is also thought that the concept of being employed and being in a hierarchical structure that has a certain line of reporting is alien to a real profession.

Accordingly, doubts have arisen as to whether bankers, members of the disciplined forces, accountants, internal auditors, nurses, teachers and many other vocations may be defined as “professions or professionals” more particularly because there is little, if any, scope for individual enterprise and the excise of unfettered discretion.

It seems that professionals or professions are only, doctors, lawyers, architects all of who have to be in private practice and to some degree, external auditors because apart from possessing certain specialised training, they are also governed by the strict rules of conduct imposed by the relevant self-governing bodies and that they operate as individuals with virtually nobody to report to.

They are also individually liable for the consequences of their advice and actions.

Further, once they complete the task assigned to them by the client or patient, as the case may be, that will be the end of their association.

The lawyer or the doctor attends to the client/patient’s matter with complete independence and without the expectation that the same person will one day, return with some more “business” although it frequently occurs that the same person may subsequently return to the same lawyer or doctor but that will be out of that person’s own volition and not a result of canvassing by the service provider.

In fact, it would be an act of misconduct for the doctor or the lawyer after concluding/treating the client or patient’s case, to make any insinuations amounting to baying for the client or patient’s custom so that he/she may return tomorrow with a new case or ailment.

With respect to those lawyers who are not in private practice but are employed by corporations such as mining houses, financial institutions, municipalities or any other private or public entities, there are some misgivings as to whether such lawyers are “professionals”.

The reason is that these lawyers operate at the direction of their employers, receive a salary, are in a hierarchical structure and most importantly, they are there to safeguard and promote the interests of their employers.

These lawyers do not offer “disinterested advice”. If a lawyer who is employed by a corporation is candid enough to advise his employer that a certain position preferred by the employer is legally untenable and the employer rejects that advice, the lawyer in such a situation does not have the freedom “to resign” from the case as that will amount to insubordination which itself is a dismissible offence.

The lawyer in private practice does not suffer the same compromise because upon the client refusing to take his advice, the lawyer has the latitude to stop representing that particular client.

To that extent, therefore, employed lawyers are probably not “professionals”.

Vocations such as those carried out by drivers, geologists, pilots, marketers, builders, pharmacists, so-called professional sports personalities like Charles Manyuchi, Serena Williams or Cristiano Ronaldo and the like, are probably not “professionals” in the true sense of the word because either they work under the direct control of their superiors or they are paid wages and in addition, where they offer advice, they do so with the hope for other business gain in the future.

By this analysis, I do not, even for one crazy moment, seek to undermine or belittle those in other trades that seemingly fall outside “professions”.

If anything, I have the greatest respect and admiration for all those in other vocations and callings for it is by them that the world has come thus far and without them, the world is definitely much the poorer.

I now wish to separate the meat from the bone in so far as the term “learned friend” is concerned. In particular, I wish to answer the often asked question why lawyers, judges and magistrates refer to themselves as “learned”.

What is so special, if at all, about them that is not present in other “professionals or professions”?

It has been said that by labelling themselves with the “learned friend” sticker, lawyers, judges and magistrates somehow, place themselves at positions that are loftier than other “professionals”.

It has been said that those in the legal profession see themselves as being superior and have sometimes been accused of looking down upon other “professionals” as inferior and unimportant.

However, nothing can be further from the truth.

To start with, the term “learned friend/brother/sister” as the case may be is used in court more as a tradition. Second and more importantly, it is a respectful way of addressing a fellow lawyer in court.

It is particularly suitable when used in those situations when one lawyer is not in agreement with the submissions made by his adversary. One might also say the term is, therefore, used to embellish, if not to sugar-coat, criticism of the other lawyer so that the working environment remains conducive for the proper resolution of the matter before the court.

You can imagine if out of disagreement, lawyers resorted to calling each other names and other ungentle-man-like words in court. Certainly, that would not aid the proper resolution of the case before the court.

Away from court decorum, lawyers, magistrates and judges are unlike any other professionals you can think of. They are not like doctors, nurses, architects, accountants, internal auditors or any other so-called “professionals” because by the very nature of their training, lawyers, judges and magistrates are expected to know everything that is under the sun and all that is beneath the oceans.

It may be said that doctors know everything about the human body and medicine, accountants know all about accounting, engineers know all about their particular fields of trade, robotic scientists know everything about their chosen calling and so on and so forth.

The situation is somewhat different with lawyers.

At law school, aspiring lawyers are taught how to understand and interpret the law. By the time they complete the course, they will know how to understand the client’s case, where to find the applicable law and how to interpret and apply that law.

That is why in court, a lawyer is able to question and cross question a witness who is a “professional” in his own trade to the extent that the witness may end up agreeing with the lawyer that what he, the witness, thought was a certain state of affairs was, in fact, not so.

Prosecutors, although employed by Government, may also qualify to be called “professionals” in that when they handle cases in court, they do so without seeking to protect or advance the interests of anyone except the ends of justice.

In addition, they are also trained to prosecute any person, with the exception of the President while still in office, who has committed a criminal offence of whatever nature and in doing so, they have unencumbered discretion.

Some readers may recall many years ago then Attorney-General Patrick Chinamasa, just an ordinary lawyer without any training whatsoever in medical science, was able to secure a conviction for a certain Dr Richard Gladwell McGown for an offence arising directly out of the practice of medicine.

One cannot seek the services of an accountant if he has a headache and neither can an engineer consult an auditor if he wants to know how best to get his product onto the market.

Equally, if a shop-owner wants to know if he is making profit, he has to liaise with his accountant and not his insurer. If a cattle rancher wishes to ensure that his animals do not contract foot-and-mouth or any other disease, he has to see a veterinary doctor and not an architect.

If you wish to move your goods from one location to another, you have to call a logistics practitioner.

Equally, a barber cannot be consulted by a motor vehicle owner if the vehicle breaks down or is due for service and so on.

But when all these “professionals” have a legal problem arising out of their chosen vocations, they will all line up at the lawyer’s door and each and every one of them will be ably attended by the very same lawyer.

So, to the extent that a lawyer is able to handle cases arising out of all these diverse vocations, it may be accurate to come to the conclusion that the legal profession is in a class of its own but not necessarily that it is special, no.

Equally, all magistrates and judges from the Magistrates Court, High Court, Supreme Court and the Constitutional Court have sat over and effectively dealt with all sorts of cases from the law of the seas, commercial law, labour law, criminal law, family law, international law and any other matter that has been brought there before them.

In short, the work of lawyers, magistrates and judges cuts across all facets of life with nothing excepted.

There is not one case that has been brought before a court of law and the magistrate or judge has said “no, I am not possessed of the requisite knowledge about this case, therefore, it is not going to be heard”.

It is that ability, that uniqueness or exclusivity to understand everything legal issue of whatever nature that those in the legal profession are capable of that makes them qualify to be called or to call themselves “learned”. Those in all other “professions” may be said to be “educated” but certainly, they are not “learned”. No disrespect or offence intended to those in other “professions” and I am certain, none taken.

If it will sooth those in other professions that might feel offended or disrespected, then I would conclude that lawyers are probably not “educated” but that they are “learned” with the two terms, however, balancing each other out on the                                                                       scale.

Tichawana Nyahuma is a legal practitioner who writes in his personal capacity. Feedback: [email protected]


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