It’s not often that courts are called upon to decide whether to remove a lawyer from the roll of practitioners. When it does happen, it’s such a public event, and with such potentially disastrous results, that you can be sure the lawyer concerned will put up a fight.
This case involves Zambian legal practitioner, Arnold Chikoli. In the introduction to their decision on the question, high court judges Maria Mapani-Kawimbe and Ruth Chibbabbuka noted that practitioners in that country were admitted to the Law Association of Zambia (LAZ) and that the LAZ required all members to adhere to professional ethics and rules. These are ‘underpinned by principles of integrity, honesty, dignity, probity, loyalty and diligence.’ And these principles, along with how well members adhere to them, ‘have a great bearing’ on public trust.
In this case, Chikoli’s client lodged a complaint with the LAZ alleging that he failed to account for company funds. Chikoli denied the allegations, saying he had followed his client’s instructions.
LAZ’s legal practitioners’ committee heard the complaint and suspended Chikoli, before referring the case to the LAZ disciplinary committee (LDC). That body in turn found that he had acted dishonestly and without integrity in handling the client’s funds.
The next step was for LAZ to ask the court to strike Chikoli from the roll; it was this issue that the two judges had to decide.
What were the facts of the matter? Chikoli’s firm had been given two post-dated cheques and cash with a total value of ZMW111,000. The client wanted him to pay the funds to a bank to settle a loan, but this was not done. A couple of years down the line, when the client could see no other way of resolving the problem, he brought an official complaint to the LAZ.
Chikoli’s answer to the case against him was to say that he and the client had settled their dispute ‘amicably’, that all the money had been paid to the bank and that there was thus no issue for the LAZ to deal with.
It’s an argument of the sort sometimes used in other legal action; when a woman is pressured into withdrawing allegations of assault against a partner, for example, and the court is told that the complainant no longer wishes to go ahead with a case.
What would the court say about Chikoli’s claim in this case that the matter had been ‘settled’ between him and his client and that that was the end of it?
Before they could decide that part of the matter, however, the judges first had to deal with Chikoli’s other claims, namely that there were technical problems about the way that the hearings had been handled: the minutes weren’t signed and certified as they should have been, for example. And in Chikoli’s view, the LDC’s proceedings against him were thus ‘illegal’.
But Chikoli also had a fall-back position in case the court found against him. He said that if the court agreed with the LAZ, it should consider that he had already spent six years suspended from practice and had thus ‘essentially served his punishment’.
When the matter was heard by the high court, counsel for the LAZ said the issue for the judges to consider was whether Chikoli had ‘acted with honesty and integrity in dealing with his client’s funds’. In the view of the LAZ, Chikoli had withheld the funds, something essentially conceded by Chikoli, because he had offered no rebuttal to the claim, and he had offered no explanation for his behaviour.
The withdrawal by the client of his complaint against Chikoli did not affect the situation; in a previous Zambian case, the court held that even though the complainant had been paid by the practitioner, ‘the issue for consideration in the circumstances was whether the practitioner had misconducted himself.’
In that same case, the court had said that ‘no mitigation could dilute a serious offence of misconduct committed by a legal practitioner, since honesty and integrity were at the heart of the legal profession.’
In its decision, the court noted that while Chikoli’s firm wrote to the client saying the money had been paid, the bank informed the client that this was not so. The loan thus accumulated interest and eventually he complained to the LPC and to the police.
‘We find that from the date of the complaint, that is 20 February 2015 and withdrawal on 17 April 2018, a period of over three years had elapsed. Thereafter, an amicable settlement was reached between (Chikoli and his client).’
However, Chikoli’s evidence ‘did not in our view provide an explanation on why he withheld his client’s funds.’
The court thus found that his actions ‘amounted to professional misconduct …. By this we mean to say that (Chikoli’s) conduct was one that entitled the LDC to take action and the amicable settlement could not have been used to circumvent the process.’
‘We have not been persuaded by (Chikoli’s) contention that the LDC’s decision against him was discriminatory, neither are we included to his argument that there is a precedent for his case. We say so because cases of professional misconduct against advocates are not similar in circumstances and will differ from one to another. Therefore, decisions can never be uniform and will depend on individual cases.
‘In out view, the LDC ruling serves to instil discipline among advocates, while maintaining the principles of the legal profession, that is integrity, honesty, dignity, probity, loyalty and diligence. For this reason, we have no intention whatsoever to interfere with the decision.
‘In concluding, we order Mr Arnold Chikoli’s name to be struck off from the Roll of practitioners forthwith.’