Key rulings have major implications for lawyers

Two recent decisions from the courts in Zambia have serious implications for lawyers. In one, the appeal court rescued legal practitioners from a decision of the high court that found lawyers in private practice weren’t allowed to accept full-time employment. In the other, the appeal court had strong words for lawyers representing clients on trial for criminal offences: they should be sure that fee arrangements were recorded in writing and that there was genuine negotiation between the two sides over what would be charged.

Read high court decision

Read appeal court decision

It was a case with serious implications for lawyers in private practice, after the high court unexpectedly found that legal practitioners weren’t allowed to accept full-time employment with a non-legal entity.

The advocate at the centre of the case that led to the controversial decision, James Mataliro, appealed against the outcome at the high court. The matter was then heard by three judges of appeal who have now given their finding.

Mataliro was engaged in full-time employment with the board of the Occupational Health and Safety Institute as in-house counsel. But the two sides fell out over certain terms of the agreement between them. When that dispute was considered by the high court, the judge, Derrick Mulenga, said that a court, approached to deal with a contract between parties, also had a duty to ensure that the contract being enforced was ‘legal and enforceable at law.’

India

In this particular case, said Mulenga, the advocate in dispute with the board of the institute was a legal practitioner who had appeared before court in a number of occasions. This in turn raised a question for the court: could an advocate in private practice be employed full-time or part-time at the same time?

Quoting a case from the Supreme Court of India, Mulenga said that the situation in India was ‘not any different’ from that in Zambia, and that in Zambia ‘like other Commonwealth jurisdictions’, ‘an advocate who is in private practice cannot at the same time work as a full-time salaried employee of a company or institution.’

For this reason, said the high court, the contract was tainted with illegality and the court had to decline to enforce it.

Appeal

That outcome had potentially far-reaching results for the rest of the profession as well as for Mataliro, who duly appealed.

The three judges who heard the appeal were unanimous in their decision: Zambia’s own rules governing the legal profession stipulated that a non-legal entity, such as the board of the institute in Mataliro’s case, was not allowed to employ a legal practitioner to do legal work ‘for third parties’ to the benefit of the non-legal practitioner. This section of the rules was intended to avoid a situation where ‘non-legal practitioners employ legal practitioners for purposes of offering legal services to third parties or the public.’ But the rule did not stop an advocate in private practice from also working for another institution or company, either full-time or part-time.

Similarly, if a legal practitioner was employed as in-house counsel, the rules did not prohibit that person from engaging in private practice.

Prohibit

Indeed, the rules did make provisions for certain advocates not to be allowed to practice if they had other positions, but these provisions related to people appointed to public office. Government ministers, deputy ministers, the attorney general, the director of public prosecutions and the solicitor general – if any advocate held any of these positions or any other office in government, he or she would have to stop private practice work.

‘We are therefor convinced that the only category of legal practitioners who are required to … refrain from engaging in private practice upon appointment are those who hold public office or other positions in government. If the intention was to prohibit all legal practitioners employed as in-house counsel from engaging in private legal practice, the framers of the rules would have expressly stated so.’

The appeal judges went on to confirm that the contract between Mataliro and the institute, in which he held the position of corporate secretary, ‘is not a public office or position in government’ and that he was thus not required to stop private practice. By extension it was ‘wrong’ for the high court to hold that the contract was ‘tainted with illegality’ and the court had ‘misdirected’ itself when it relied on the Indian case to decide the matter since the principle in the Indian case did not apply to Zambia.

Exceptions

The judges also warned that, while the number of ‘supplementary occupations’ in which advocates may now legally engage has considerably increased, there are still exceptions.

The rules insist that advocates do not engage in any other occupation that could adversely affect their reputation or prejudice advocates from properly attending to the interests of their clients.

The judges also found for Mataliro in his contractual dispute with the institute.

Murder defence counsel

In the second case, an advocate, Kelvin Bwalya Fube, had a dispute with his former clients, Sabbir Suleman Patel and Idris Suleman Patel, over his fees.

The brothers were arrested and charged with murder. Fube and other law firms were retained to defend the case. For more than seven months of the time they were on trial, Fube was barred from legal practice and his firm was closed. During the time he could not practice, however, he still attended court, though he did not sit with the rest of the advocates, and during breaks from the hearing he gave his advice to the brothers’ legal team as they made strategic decisions about the running of the case.

The key dispute between the brothers and Fube was over the fee arrangement between them: the brothers said that they had been quoted a ‘flat fee’ and that they had paid this in three instalments. Fube said that he had told them it was not possible to estimate a ‘flat fee’ because there was no way to predict how long the case would last and the amount of work that would be involved. In his view the money paid was a ‘deposit’.

Outraged reaction

After the case ended, Fube sent a bill for K1,430,000,000 which produced an outraged reaction from the brothers who said they had already paid, in full, the ‘flat fee’ he had initially quoted. There were also disputes over other amounts that one side said had been paid to the other for other purposes.

Judge Charles Zulu who heard the matter, said instructions between the two sides had been verbal and were never put in writing. He stressed that once verbal instructions had been received by a lawyer from clients, ‘it was imperative’ that the advocate should write to the clients ‘to confirm the instructions and the terms … or at least keep file notes, diary notes or attendance notes’ as proof of instructions.’

The judge stressed that the absence of written instructions created ‘a potential minefield of wrangles between a legal practitioner and a client’, but that this was not an unusual state of affairs.

Undesirable

He wrote, ‘The common practice of receiving instructions from clients in criminal (matters) without a properly settled retainer, is undesirable. A client has a right to be informed how he or she will be billed, the deposit to be paid and how it will be applied, and whether the billing will be phased or … a flat fee, paid once and for all.’

When a legal practitioner did not put the terms and conditions in writing, there could be ‘serious financial consequences to his or her professional business. The word of a client against the word of his/her advocate invariably prevails.’

He also warned that just because there was no scale of fees for criminal matters this did not provide a ‘wanton excuse’ to charge exorbitant sums. It should also not be used to make it appear to clients that an estimation of legal fees for legal representation in criminal cases was ‘hopelessly unpredictable or ungovernable.’

Instead, the non-imposition of a statutory tariff was intended to ‘promote access to justice through legal representation.’

‘That access must correspond with reasonable professional charges procured by a process of full and frank disclosure of material terms and bona fide negotiations between a client and an advocate.’

* 'A matter of justice', Legalbrief, 26 April 2022