Legal Profession and ethics

Introduction

• Ethics, is a branch of philosophy, deals with general moral

principles and specific moral choices to be made by an individual in
his relationship with others.
• It is a code of moral standard for what is “good” and “right” as
opposed what is “bad” or “wrong”.
• It studies what is morally right or wrong, just or unjust.
• Ethical principles may differ depending on the profession; for
example, professional ethics that relate to medical practitioners will
differ from those that relate to lawyers or real estate agents.
Professional ethics
Professional ethics are moral principles that govern the behavior of
a person or group in a business environment.
It provide rules on how a person should act towards other people
and institutions in work environment.

Professional ethics is “the rule or standard governing the conduct of

members of a profession.”

Unlike ethics which applies to every one, professional ethics

applies only to members of the profession.
 Cont..
Now the issue here is what is profession???
 The word “profession” or “professional” frequently appears in many branches
of Ethiopian Law.
 For example, Art. 41 of the Constitution guarantees every Ethiopian the right
to choose his/her profession.
 Art. 2031 of the Civil Code provides for professional fault.
 Article 69 of the Criminal Code provides that acts done in the exercise of
professional duty is not liable to punishment.

 Defining profession and professionals is difficult. Thus many authors, instead

of defining profession or professionals, identified some features that can be
taken as necessary for an occupation to be a profession.
 Cont…

A Profession is a disciplined group of individuals who adhere to ethical

standards and who hold themselves out as, and are accepted by the public as
possessing special knowledge and skills in a widely recognized body of
learning derived from research, education and training at a high level.
Profession is a vocation which requires advanced education and training.
Professional is a person who belongs to a learned profession or whose
occupation requires high level of training and proficiency.
Essential elements of professional behavior include knowledge and skills
about the field, work ethics, moral and ethical behavior, accountability, equity,
and passion.
 Legal ethics

 Professional ethics for lawyers is legal ethics.

 It is “the standard of minimally acceptable conduct within the legal profession, involving
the duties that its members owe one another, their client and the court”.
• The fundamental aim of legal ethics is to maintain the honor and dignity of the law
profession.
• legal ethics maintains the honor and dignity of legal profession in the promotion of
justice.
• loss of honor and dignity of profession of law results in disrespect for court and law.
• People may lose confidence in courts, as a result grievances will not be brought to court.
• To avoid the destruction of society, legal ethics requires the legal professional to be
ethical.
• For example, they should not take part in a case involving conflict of interest and they
should not reveal confidential information.
 Moral Dilemmas

• A moral (ethical) dilemma is a situation that involves a choice, decision,

act/action, solution that may include an unpleasant problem or situation where
you feel you simply do not know what to do or which way to turn.

• Moral (ethical) dilemma is not simply a question that requires you to make a
decision of “What color outfit should I wear today”.
• A response to a moral (ethical) dilemma is not always a matter of “right
versus wrong,” as both courses of action or decision could seem moral or
ethical (or the “right thing to do”).
• In some cases, it is a “right versus right” type of dilemma.
• The “right versus wrong” ethical dilemmas, are not usually the ones we have a
problem resolving.
 Cont..
• Moral dilemmas always involve sacrificing something of significant because
they involve conflicts of interests we want to preserve.

Example: Confidentiality of information vs liberty of individuals.

• Imagine that you are a criminal lawyer defending a client who is on trial for
aggravated homicide. You are quite certain that she is innocent of the crime.
You have established a good relationship with her and she tells you that
although she did not commit this homicide she did commit another homicide
four years earlier. She goes on telling you that another woman with long
criminal record was convicted of that homicide and is serving life
imprisonment for it. You attempt to persuade her to confess to crime but she
adamantly refuses. What would be your decision?
 Cont..
• Example 2: Your eighteen-year-old son/daughter confided in you
that they had been involved in the recent theft of your neighbor’s
car. Should you call the police and turn your son/daughter in
because you want to be honest with you neighbor, as well as want to
tell the truth? Or do you simply “keep quiet” because you want to
remain loyal to your son/daughter, especially since they told you in
confidence? (Think about truth versus loyalty when pondering this
dilemma, such as in the relationship with your son/daughter and
your neighbor.)
 The Theory of Moral Obligation
The study of theory of moral obligation equip Legal Professionals with some tools
which they can use when they discover that there is “no rule on the point” or that
the rule on the point is open textured”
Utilitarianism
An action is right if it tends to promote happiness and wrong if it tends to produce the
reverse of happiness.
Not just the happiness of the performer of the action but also that of everyone affected
by it.
Utilitarianism holds that the most ethical choice is the one that will produce the greatest
good for the greatest number.
It asks us to look beyond self-interest to consider impartially the interests of all persons
affected by our actions.
For example, assume a hospital has four people whose lives depend upon receiving
organ transplants: a heart, lungs, a kidney, and a liver. If a healthy person wanders into
the hospital, his organs could be harvested to save four lives at the expense of one life.is
this morally right?
 Cont…
• There are different kinds of utilitarianism. For our purpose, we focus on the
following two: Act utilitarianism and Rule utilitarianism.
• An act Utilitarianism holds that an action is right if and only if it produces the
best consequences.
• Act Utilitarianism tells us that what determine whether a given action is right
are that action's consequences.
• Hence, lying is wrong in a given situation if and only if telling the truth or
remaining quiet produces better consequences.
• By the same token, lying is right in a given situation if and only if lying
produces better overall consequences than either telling the truth or remaining
quiet.
• One difficulty with act Utilitarianism is that it seems quite possible for it to
conflict dramatically with justice and rights.
 Cont..
Rule Utilitarianism
• According to rule Utilitarianism, an action is right if and only if it is in accordance
with a set of rules conformity which produces the best consequences.
• A rule Utilitarianism does not depend on its consequences. Rather, it depends on
whether the action is in accordance with a set of rules of conduct.
• A rule Utilitarianism does not depend only on the consequences of the action.
Rather, it depends on whether the action is in accordance with a set of rules of
conduct.
• For example, suppose the following rules are members of the set of those rules
conformity which produces the best consequences:
1.Everyone shall tell the truth
2.No one shall steal the property of another
3.No one shall torture other person
 Golden rule
• The golden rule is best interpreted as saying: "Treat others only in
ways that you're willing to be treated in the same exact situation."
• To apply it, you would imagine yourself in the exact place of the
other person on the receiving end of the action.
• If you act in a given way toward another, and yet are unwilling to be
treated that way in the same circumstances, then you violate the rule.
• To apply the golden rule adequately, we need knowledge and
imagination. We need to know the effect of actions on the lives of
others.
• And we need to be able to imagine ourselves, vividly and accurately,
in the other person's place on the receiving end of the action.
 Moral Imperative
• According to Immanuel Kant imperative is any proposition that declares a
certain action (or inaction) to be necessary.
• A moral imperative is a strongly-felt principle that compels person to act.
• There are two kinds of imperatives. They are hypothetical and categorical
imperatives.
• Categorical imperatives is commands or moral laws all persons must follow.
• It is unconditional commands that are binding on everyone at all times.
• Accordingly, act only according to that maxim by which it can at the same
time will become a universal law.
• Before doing anything imagine a world where every action was generalizable;
every action can be replicated by everyone.
• For example, if one person stole an item and got away with it, then everyone
could steal items in the same way.
 Cont..
• Hypothetical Imperative is a rule of action for achieving certain ends. It
guides an action in an instrumental way.
• Hypothetical imperatives tell persons the best way to achieve their goals.
• For example, if you want to score ‘A’ in Legal Profession and Ethics you must study
hard. Your end is scoring ‘A’ and the way to achieve this end is ‘studying hard.’
• “Do not steal if you want to stay out of jail.
• Hypothetical imperative is conditional. It depends on the existence of certain end.
• Their difference is Categorical imperatives specify actions we ought to
take regardless of whether doing so would enable us to get anything we
want.
• Hypothetical imperatives identify actions we ought to take, but only if we
have some particular goal.
THE LEGAL PROFESSION
 Introduction
• Legal profession is the collective name given to lawyers.
• The Legal profession is also understood to include judges, prosecutors, legal
educators, attorneys, and others.
• For example, one author described the legal profession by referring “the whole
occupational roles purposely oriented towards the administration and
maintenance of the legal system”.
• Legal profession unlike other profession, which are generally taken up with the
sole objective of earning money it is a profession of high dignity.
• Legal profession is a profession, not a business.
• The motive in legal profession is safeguarding liberty and attaining justice.
• Fees to the advocate or other legal professionals are incidental upon
safeguarding liberty and attaining justice.
• Fees are only honorarium payment. Fees do not depend on winning of the case.
Cont..
• There is no loss whether the advocates win or not. In business, however, loss
is an important concept as its main motive is to obtain profit.
• Strictly speaking, there are no competitions in the legal profession because the
goal of all legal professionals is one and the same: liberty and justice.
• Thus, legal profession is characterized by cooperation between the
professionals.
• All legal professionals have common enemy __ injustice and violation of
liberty.
• This cooperation should also exist between the bench and the bar. An advocate
and a public prosecutor should help the judge to render a correct decision.
 Admission to the legal profession.

• The admission to the legal profession differs in various jurisdictions. The

following are experiences of some countries.
a)Canada
• A person should pass through three distinct stage of legal education to be
admitted to the bar in Canada. The stages are pre-law university instruction,
the academic stage and vocational stage.
• The first stage consists of at least two and usually four years of university
study in an undergraduate degree program.
• The second stage consists of a three year degree program in law.
• The last stage consists of a period in articles with an experienced legal
practitioner which is 12 mounth.
b)South Africa

In South Africa, a person should pass through four stages of education and
qualification and pass bar examination to become an attorney.

The first stage is university education for four years leading to an L.L.B.
degree.

The second stage is attendance at a practical legal training school.

The third stage is service of articles of clerkship under a practicing attorney;

and the final stage is employment in a public interest law firm.

Constitutional Right to Exercise Legal Profession
Article 41(2) of the FDRE Constitution provides that: “Every Ethiopian has the right
to choose his or her means of livelihood, occupation and profession”.

Profession within the meaning of this article means any activities that form the
basis of one’s life.

According to this article, it is the constitutional right of Ethiopian citizens to

choose legal profession as their means of livelihood.

Article 41(2) of the constitution does not attach any restriction or provide any
exception to this right.

Now the point here is can any Ethiopian choose legal profession as a profession??
 Dissatisfaction with Legal Profession
One of the causes of popular dissatisfaction with the legal profession is the
abuse of adversary system.
This abuse lead to bullying of witnesses and sensational cross examinations,
thus creating a general dislike and impairment of the administration of justice.
It also criticized for prioritizing wining over seeking the truth.
 Commercialization and problematic billing practices are other causes of
dissatisfaction with the legal profession.
 Advocates turned legal profession into business.
• The main reason of the search for cases and the initiation of litigation became
advocates’ fee.
• Are there other factors that caused dissatisfaction with legal profession?
 Unauthorized Practice in Legal Profession
• Unauthorized Practice is the performance of professional services such as the
rendering legal assistance by a person who is not licensed by the state to do
so.
• An unauthorized practice of law is engaging in the practice of law by persons
or entities not authorized to practice law pursuant to state law.
• Prohibition of unauthorized practice of law aimed to protect the public from
persons who are not trained to give professional assistance.
• Like other countries, unauthorized practice of law is a crime in Ethiopia.
• Unless the provisions of the Penal code provide a more severe penalty, any person who
renders or attempts to render advocacy services without having obtained a license or
renewing his license in accordance with this Proclamation shall be punished with a fine not
less than 2,000 birr and not exceeding 10,000 birr or imprisonment not less than 6 months
and not exceeding 2 years. (Article 31 of Proclamation No. 199/2000)
JUDICIAL CONDUCT
 Introduction
• This part will also cover such related issues as appointment,
withdrawal and removal of judges, factors affecting judicial ethics,
and liability for violating code of judicial conduct.
• Under the ethical requirement of judges in or out of court we will
discuss issues such as ethical duty to be independent, duty to be
impartial, duty to be competent and diligent, duty to treat all before
the court as equal, promoting judicial independencey, civility among
judges and social or business activities that incumbent judge should
avoid.
 Ethical Duties of Judges in Judicial activities
Independence
It is the ability of courts and judges to perform their duties free of influence or
control by other actors.
judges are not subject to pressure and influence and are free to make impartial
decisions based on fact and law.
Independecy of judiciary is a pre-requisite for democratic and impartial
administration of justice.
As provided in many legal instruments around the world, judges should be
guided only by laws and that is the true meaning of judicial independence.
 judicial independence has individual and institutional aspects.
 Every judge is free to decide matters before him in accordance with his
assessment of the facts and his understanding of the law, without any improper
influence, inducement, or pressure, direct or indirect, from anyone or for any
reason. (personal independency)
 Cont..

• Judicial independence also means that the judiciary is independent of the

executive and legislature and has jurisdiction, directly or by way of review,
over all issue of a judicial nature.(institutional independence)
Factors that affect independency of the judiciary
Security of tenure and financial security
The assumption is a judge who has no security of tenure makes the decision
that favors the executive or legislature to retain his position.
As per Article 79(4) judges cannot be removed from their office arbitrarily or
at the discretion of the executive or legislature.
The other identified factors are; ex parte communication, gifts and certain
problematic relationship.
Art 23 of federal Code of Judicial Conduct prohibits ex parte communication.
 Cont..
• It prohibits judges from discussing the merits of pending pending cases.

• Article 25 of federal code of judicial conduct prohibits judges from taking bribe,
gifts or any other benefits in relation with the cases at hand.

• Donation to the judge may be direct or indirect.

• It is direct when the judge personally receives donation or any other benefits. It is
indirect when it is given to some other persons who have a relation with a judge.

• Certain problematic relationships that affect decisional judicial

independence include family relations and extra-judicial activities.
 Accountability
According to Article 12 of the constitution, “any public official” or an “elected
representative” is accountable for failure in official duties.
Elected representatives are accountable to the people they represent. Thus,
members of the parliament are accountable to the people (Article 54(4)).
The executives are accountable to the House of Peoples’ Representatives as
per article 72(2).
 Judges are not elected representatives as judges are appointed. Is a judge a
public official?
Are Ethiopian judges accountable? To whom they are accountable?
Some say that the judiciary should not be accountable because of its
independence as institution and of being unelected.
 Cont…
• According to the Australian high court judge, Michael Kirby, Judges are
accountable on three grounds.
• First, judges render decision in public. Second, decision of judges is reviewed
by the appellate court. Finally, Judges are appointed by executives or
legislature who is accountable to the people.
• He also identified criticism and comment on judgments as accountability
mechanisms.
• Another way of holding judges accountable for their deeds is by subjecting
them to discipline for judicial misconducts. (
• judicial discipline seeks to prevent potential prejudice to future litigants and
the judiciary in general.
• judicial independence "does not refer to independence from judicial
disciplinary bodies.
 Cont..
• However, disciplinary proceedings should not be instituted against a judge for
mere legal error. Subjecting a judge to discipline for legal error undermines the
judicial independence.
• If judges are subject to discipline for mere legal error, they will be confronted by
two choices:
1) The decision based on conscious understanding of law and evidence, and
2) The decision that is less likely to subject him to discipline.
They most likely choose the second. In such situation, judicial accountability
put judicial independence at stake.
• This attempt to establish accountable judiciary will erode judicial independence.
• In this case, judicial independence and judicial accountability cannot co-exist.
• However, clear error, decision made in bad faith and egregious legal errors
should subject a judge to a disciplinary measures.
Impartiality
It is one of the basic ethical duties of judges in performing judicial activities.
It is about equal treatments of all clints or disputants in the case.
It applies not only to the decision itself but also to the process by which the
decision is made.
 Impartiality and independence are mutually reinforcing. Independence is the
necessary precondition to impartiality and is a prerequisite for attaining
impartiality.
Impartiality cannot exist without independence but independence can exist
without impartiality.
There are two aspects to the requirement of impartiality. They are subjective
and objective impartiality.
For example, a judge who is predetermined to rule in favor of the plaintiff
despite the merit of the case is subjectively partial.
 Objective or perceived impartiality exists when a reasonable observer is free from
legitimate doubt in the impartiality of the judge.
 There are persons of high integrity who rules against their interest or interests of
their relatives. Such persons determine the matter impartially.
 But, the involvement of the interests of such judges or their relatives may give a
reasonable observer the perception that those judges are not impartial.
 A judge shall insure that his or her conduct both in and out of court maintains and
enhance the confidence of the public the legal profession.
 Conflict of interest of judges in the case gives rise to both actual and perceived
partiality.
 Thus, the judge should reduce the possibility of conflict of interest.
 According to Article 24 of the Federal judges Code of Judicial Conduct, judges must
recuse themselves of their own motion as soon as they are aware of grounds on
which the law prohibits them from sitting over the case.
 Similarly article 33 of the 1234/2021 stipulated the removal of the judge when there
is a conflict of interest.
Ethiopian Monitor
Daily News from Ethiopia
Judge Removed from Federal Court for Violating Judicial Code of Conduct

in a statement, the Supreme Court said the council found him guilty of violating the judicial
code of conduct after looking into the evidence brought before it.

As per the Supreme court, the evidence showed that the judge discussed with one of the
parties in an ongoing court case he was presiding over and received 100,000 birr bribery.

His actions violated the concept of impartiality, integrity, and independence of the
judicial role set in the Federal Judges Judicial Code of Conduct and Disciplinary Procedure
Regulation, the statement reads.

The council unanimously passed a resolution to remove him from his federal judge position
and referred its decision to the House of People’s Representatives (HoPR) for a final ruling.
 Competence and Diligence
• Incompetence and inefficiency is a ground of removal of judges as per article
79(4) of the Constitution of FDRE.
• The ethical duty of competence requires “legal knowledge, skill,and
preparation”
• The use of alcohol or drug or the physical or mental impairment of a judge
affects his/ her competence.
• According to Article 4 of the code of judicial conduct, the principal duty of any
judge is to apply the law in force in the country. This duty presupposes the
judge’s knowledge of the law.
• judge has individual duty to read laws and books, articles, journals and other
sources of law.
• They should be aware to keep in touch with the changes in law and legal
system.
 Equality
According to Article 5 of federal Code of Judicial Conduct, a judge shall equally treat all
litigants before the courts and protect their right.
Thus, a judge shall not allow family, religion, nation, nationality, political, social or other
relationship that affect the performance of judicial office.
Judges should not manifest prejudice towards any person or group on irrelevant grounds,
judges should avoid comments gesture, expression or behavior that may reasonably
interpreted as showing disrespect.
They should also avoid insulting remarks.
Civility among Judges
Civility is a politeness or courtesy. Intemperate criticism of a fellow judge is incivility.
Incivility implies lack of respect and cooperation among judges. Article 9 of Code of
Judicial Conduct requires federal court judges to carry out their judicial duties in
cooperation with their colleague.
Judges should avoid making personal attack of fellow judges when they write majority
opinions, concurring opinions or dissenting opinions.
Appellate court judges should avoid personal attack on lower court judges.
 Ethical Requirements of Judges in Extra Judicial Activities
• Extra judicial activities are activities that have no connection with judicial duties.
• Judges are human beings they have economic, social, political, religious, commercial
and other relationship with other persons.
• also every judge engages in some sort of financial activities.
• Federal code of judicial conduct does not prohibit particular business or other
activities.
• Art. 28 prohibit in general term activities which are in consistent with judicial duties.
• Under Art. 27 judges are prohibited form using the office for advancing personal
interest.
• In some jurisdiction judges are allowed to carry out certain activities and prohibited
from carrying out others.
• The restrictions are aimed at avoiding the activities that might interfere with judicial
duties or at eliminating conflicts of interests.
• Bangalore Principles of Judicial Conduct 4(12) prohibits judges from participating in
practice of law.
 Appointment, Withdrawal, Transfer, Promotion and Removal of Judges
• The selection, appointment, and promotion procedures, as well as the
transparency of those procedures are important for both securing judicial
independence and promoting public understanding and confidence in the
courts.
• Different legal systems use the career and non-career judicial appointment
models.
• In countries with career judiciaries appoitment, the selection, appointment,
and promotion of judges are made from within a judicial career system or civil
service.
• Non-career judicial selection and promotion procedures are made through
appointment by the executive, legislature, or some combination.
• article 20 and the ff of federal judcial admnistration proclamation no
1233/2021 stipulates about judcial appointment.
 cont..
• Federal judges of any level except the President and Vice President of the
Supreme Court are appointed by House of People’s Representatives among the
list submitted by the Prime Minister.
• This list contains candidates selected by federal Judicial Administration
Council.
• The executive plays important role in the appointment of the federal judges.
However, the executive has no role in removing judges from their office.
• Even the legislature can remove the judges only on certain grounds. These
grounds are: (article 79(4) of the constituion)
a.Violation of Disciplinary Rules
b.Gross incompetence or inefficiency
c.Incapacity to carryout judicial duties due to illness
 CHAPTER FOUR
ADVOCATES’ ETHICS
 introduction
• Advocate is a person who speaks on behalf of other and advocacy service is
speaking for others.
• The famous special dictionary, black’s law dictionary also defined it as a person
who assists, defends, pleads or prosecutes for another.
• The Federal Courts advocates licensing and registration proclamation No
1999/2000 under At 2(2) provided the broadest and authoritative definition stating
advocacy service.
• The Civil Code of the Empire of Ethiopia under article 2205(2) of TITLE XIV
also recognizes this special type of agency relationship.
• the advocate must be a lawyer, a professional who is acquainted with at least basic
knowledge and skill in the field of law.
• One of the major purposes of advocacy service is to assist (support) the justice
machinery.
• The presumption is the probability of occurrences of miss carriage of justice is
high in the absence of legal assistance.
 Ethical Requirements of Advocates
• Being distinct from ordinary persons, even other professionals an advocate owes a
number of ethical responsibilities unique to the profession, advocacy.
• He shall act in accordance with the rules of the professional conduct, including
honor, dignity & integrity.
• They have ethical duty to up hold respect for the profession in general.
• Advocate is the most sensitive relationship of all relations .Most clients are laymen,
emotional, unfamiliar with the justice system and usually come to get professional
service.
• He has the duty to serve justice, Moreover; he has to cooperate for justice by
showing special endeavor for the administration of the justice machinery.
• In addition he has to provide community service. The good example of these is pro
bono public service.
• The federal court advocates’ code of conduct, council of ministers regulation
No.57/99). Provides any advocate shall render at least 50 hours of legal service, in
a year, free of charge or upon minimum payment.
 Diligent and Competent Representation
Diligence
Diligence implies being careful; which usually involves the use of a lot of effort to do so.
An advocate shall act with reasonable diligence and promptness in representing a client.
Competence
Competent representation requires the legal knowledge, skill, attitude, thoroughness and
preparation reasonably necessary for the representation.
An advocate need not necessarily have special training or prior experience to handle legal
problems of a type with which he is unfamiliar.
Communication
Lack of openness is one of the major sources of misunderstanding in the advocate –client
relationship.
Thus, the advocate should be transparent to his client as much as practically possible being
confident that they owe duty of confidentiality that information will be maintained secretly.
Even when a client delegates authority to the advocate, the client should be kept advised of
the status of the matter.
 Cont.
Withholding Information
• In some circumstances, an advocate may be justified in delaying transmission
of information when the client would be likely to react imprudently to an
immediate communication.
• For instance, he might withhold a psychiatric diagnosis of a client when the
examining psychiatrist indicates that disclosure would harm the client.
B) Duty of confidentiality
Confidential client information consists of information about a client or a
client’s matter contained in oral communications, documents, or other forms
of communications, other than information that is generally known, if the
lawyer or the lawyer’s agent learns or comes into possession of the
information.
 Cont...
• A fundamental principle in the client-lawyer relationship is that the advocate
maintains confidentiality of information relating to the representation.
• The client is there by encouraged to communicate fully and frankly with the
advocate even as to embarrassing or legally damaging subject matter.
• The confidentiality rule applies not merely to matters communicated in
confidence by the client but also to all information relating to the
representation, whatever its source maybe.
• If information is known by a majority of individuals, it may lose
confidentiality under the rules.
• An advocate may not disclose such information except as authorized or
required by the rules of Professional Conduct or other law.
• Duty continues even after the end of client-advocate relationship.
must avoid a Conflict of Interest

• Conflict of Interest: Prohibited Transactions

• An advocate shall not enter into a business transaction with a client or
knowingly acquire an ownership, possessor, security or other
pecuniary interest adverse to a client