CHALLENGES FACED BY THE LEGAL PROFESSION 1N THE 21sT
CENTURY lN ~ALA UGANDA
BY Y ALEDI ELIZABETH
LLB/38479/123/DU
A RESEARCH REPORT SUBMITTED TO THE FACULTY OF LAW IN PARTIAL FULFILLMENT OF THE REQUIREMENT FOR THE AWARD OF BACHELORS DEGREE lN LAW OF KAMPALA INTERNATIONAL UNIVERSITY
JUNE 2016 TABLE OF CONTENTS
TABLE OF CONTENTS ...... i DECLARATION ...... iii APPROVAL ...... iv ACKNOWLEDGMENT...... v DEDICATION ...... vi ACRONYMS ...... vii LIST OF CASES ...... viii LIST OF STATUES ...... ix ABSTRACT ...... x
CHAPTER 0 NE ...... 1 1.0 Introduction ...... 1 1.1 Background of the study ...... 1 1.1.1 Profession ...... 4 1.1.2 Internal Concerns ...... 5 1.1.3 External Concerns ...... 5 1.2 Statement of the problem ...... 6 1.3 Pmpose of the Study ...... 8 1.4 Research objectives ...... 8 1.5 Research questions ...... 8 1.6 Scope of the study ...... 9 1.6.1 Geographical scope ...... 9 1.6.2 Content scope ...... 9 1.6.3 Time scope ...... 9 I. 7 Methodology ...... 9 1. 7.1 Reliability of the instrument ...... 10 I. 7.2 Data gathering procedures ...... 10 I. 7.3 Ethical considerations ...... I 0 1.8 Significance of the Study ...... 11 1.9 Limitations of the study ...... 11 1.9 Chapterization ...... 12 1.10 Literature review ...... l2 1.1 0.1 The concept of legal profession ...... 12 1.10.2 Legal Sector ...... 13 1.10.3 The organisation Structure of the executive council of the Uganda Law Society ...... 13 1.11 The precaution, categories and actions of legal profession ...... 14 1.11.1 Actions enhanced by legal profession ...... 14 1.11.1.1 Social role ...... 15 1.11.1.2 Private practice ...... 17 1.11.1.3 Public-directed practice ...... 18 1.11.1.4 Teaching and scholarship ...... 21 1.12 Trends of activities enhanced by legal profession ...... 22 1.13 Challenges faced while enhancing the activities by legal profession ...... 26 1.13.1 The Forces that have led to the Legal Profession's Challenges ...... 29
CHAPTER TWO ...... 32 A CRITICAL ANALYSIS OF THE LAW GOVERNING THE LEGAL PROFESSION IN UGANDA 2.0 Introduction ...... 32 2.1 The Legal Profession ...... 32 2.2 Duties of an advocate ...... 33 2.2.1 Communication ...... 33 2.2.2 Fees for Legal Services ...... 34 2.2.3 Minimum Fees for Legal Services ...... 34 2.2.4 Timely Work ...... 35 2.3 Fees in Excess ofthe Minimum Fees ...... 36 2.3.1 Fees Taxed as Costs ...... 36 2.3.2 Retainers ...... 37 2.3.3 Fees in Connection with Land Transactions ...... 37 2.3.4 Non-Monetary Fee Payments ...... 38 2.3.5 Contingent Fee Arrangements ...... 39
CHAPTER THREE ...... 41 CHALLENGES FACING THE LEGAL PROFESSION IN UGANDA ...... 41 3.0 Introduction ...... 41 3.1 Analysis of the Law ...... 41 3.2 Code of professional conduct...... 42 3.3 Legal Ethics and Professionalism ...... 42 3.5 Essence of the existing ethics ...... 48
CHAPTER FOUR ...... 4 9 RECOMMENDATIONS AND SUGGESTIONS ...... 49 4.0 Introduction ...... 49 4. l Recommendation ...... 49 4.2 Suggestions ...... 51
CHAPTER FIVE ...... 52 CONCLUSIONS ...... 52 5. l Conclusion ...... 52
REFERENCES BOOKS ...... 53
ii DECLARATION
I, Yaledi Elizabeth undersigned declare that this dissertation entitled "challenges faced by the legal profession in the 21 51 century in kamala Uganda" is my own original compilation and has never been presented to any organization or institution of higher learning either as a paper or for any academic award.
~-- Signature: : . ~ ......
Y ALEDI ELIZABETH
iii APPROVAL
"I confirm that the work reported in this dissertation was carried out by the candidate under my/our supervision".
Signature: ......
COUNSEL WANDERA ISMAIL
iv ACKNOWLEDGMENT
This work would not have been produced in the form and level it IS, if it were not the contribution of many people from different walks of life.
Thanks go my mother for having raised me since my childhood, her protection, provision and all related necessities she did to me. I pray God to bless you surely.
I appreciate my family members that stood with me since, you contribution made a lot to me.
Firstly, I acknowledge with appreciation the parental advice from my supervisor Mr. Wandera Ismail. Am thankful for the advise given to me continually that has made this work take the current shape.
Thanks go to my friends who have been there for me since my studies began may the Almighty God reward you abundantly.
Thanks to my friend Mr. Mugalula George for all the secretarial services.
Am also grateful to all the lecturers in the school of Law and the entire community of Kampala International University both academic and non academic staff for their various contributions that made my stay at KIU a memorable one.
I cannot forget my teachers since I toddled to school. Each ones contribution is what has made me what I am today.
May God reward you all
v DEDICATION
I dedicate this to my mother the Mawebwa Esther who dedicated all their recourses to educating me despite her low levels of education and Minimum income.
vi ACRONYMS U.S. United States GOU Government of Uganda UN United Nations s Section DVBT Dollar value of billable time GC General Commissioner LPM Legal project management CAP Chapter LDC Law Development Center
vii LIST OF CASES 1. Uganda vs. Aggrey Kiyingi & Others Crim. Session 2. R v Nedrick [1986]1 WLR. 1025 and R v Hancock [1986]2 WLR 357 3. Francis Coke vs. Uganda (1992 -93) HCB 43 4. Patrick Makumbi & Another v. Sole Electronics (U) Ltd 5. A.P.C Lobo Vs Scalene. Dhiyesi 6. Joseph Tumushabe Vs AG
viii LIST OF STATUES
1. The Advocates Act 267 2. The Constitution of the Republic of Uganda 1995 3. The Advocates (Remuneration and Taxation of Costs) Rules 4. Mental Treatment Act, Cap. 279. 5. Penal Code Act, Cap. 120. 6. Prevention of Corruption Act, Cap. 121. 7. Taxation of Costs (Appeals and References) Rules. 8. Judicature Act, Cap. 13. 9. Civil Procedure Act, Cap. 71
ix ABSTRACT
The study shows that challenges faced by the legal profession in the 21 '' century in kamala Uganda can be attributed to the inadequacy and inefficiency of existing advanced legal norms and enforcement practice. The author paints a brief picture of the state to which legal profession in 21'1 century has an impact on professions. A legal system will be of little benefit or value to people unless they are able to make use of it. Low literacy levels in Uganda and a larger proportion of people living in poverty render the law with the social benefits it brings largely unheard of and under utilized. The legal system, particularly courts can be accessed with the assistance of lawyers or legal practitioners. However, the glaring challenges of few legal practitioners compared to the population and expensive legal services or reluctance of providing legal services to the rural poor makes this impossible. Similarly, the right to legal representation is narrow in scope and is accessed by an accused shortly before trial begins while legal aid is currently not firmly rooted in the framework of justice. The profession is under pressure to accommodate a new economic model one that is premised on lower billable hours for associates and a greater amount of time spent on non-office activities. These changes are being advocated by younger men and women alike who have differing views towards work from those held by the boomers. The rate of change in the practice of law has been unequalled when considering the impact of technology. Although the thought processes of the practice of law have not changed since the days of Socrates, the ways of practising law are as different now as night and day. Since we live in the beginning of the Information Age, it is a given that changes yet to come will make the recent past look like the Stone Age to us. This is necessary to gauge the success of existing strategies and map out the way forward towards legal profession practitioner in the 21" century.
X CHAPTER ONE
1.0 Introduction
This Paper analyzed the historical evolution of professional laws and challenges faced by the legal profession in the 21 '' century in Kampala Uganda. Legal profession is a profession, and legal professionals study, develop and apply law. Usually, there is a requirement for someone choosing a career in law to first obtain a law degree or some other form oflegal education. While in civil law countries there are usually distinct clearly defined career paths in law, such as judge, in common law jurisdictions there tends to be one legal profession, and it is not uncommon, for 1 instance, that a requirement for a judge is several years of practising law privately •
1.1 Background of the study
A distinct class of legal specialists other than judges first emerged in Greco-Roman civilization, and, as with the law itself, the main contribution was from Rome in the period from 200 bee to 600 ce. In the early stages of both Greece and Rome, as later among the German tribes who overran the Roman Empire, there was a prejudice against the idea of specialists in law being generally available for a fee. The assumption was that the citizen knew the customary law and would apply it in transactions or in litigation personally with advice from kinsmen. As the law became more complex, men prominent in public life usually patricians found it necessary to acquire legal lmowledge, and some acquired reputations as experts. Often they spent periods serving as magistrates and in Rome as priests of the official religion, having special powers in matters of family law. Among the German tribes, noble experts were allowed to assist in litigation, not in a partisan fashion but as interpreters (Vorsprecher) for those who wished to present a case but felt uncomfortable doing so themselves. The peculiar system of development of early Roman law, by annual edict and by the extension of trial fmmulas, gave the Roman patrician legal expert an influential position. He became the jurisconsult, the first nonofficial lawyer to be regarded with social approbation, but he owed this partly to the fact that he did not attempt to act as an advocate at trial a function left to the separate class of orators and was prohibited from receiving fees.
1 Current ABA Definition of Legal Assistant!Paralegal.
1 The modem legal professional, earning his living by fee-paid legal services, first became clearly visible in the late Roman Empire, when the fiction that a jurisconsult received only gifts was abandoned and when at the same time the permissible fees were regulated. Changes in the methods of trial and other legal developments caused the juris consult to disappear in time. The orator, who now was required to obtain legal training, became the advocate. A subordinate legal agent of the classical system, the procurator, who attended to the formal aspects of litigation, took on added importance because later imperial legal procedure depended largely on written documents that the procurators produced. The juris consults had been important as teachers and writers on law; with their decline this function passed to government-conducted law schools at Rome, Constantinople, and Berytus (now Beirut) and to their salaried professors. There was also a humbler class of paid legal documentmy experts, the tabelliones, who were useful in nonlitigious transactions.
The legal profession is in the midst of a dramatic transfonnation, and it is not leading the rapid change that is occurring in the world. Legal futurists and commentators cite many factors effecting this change that were in play long before the collapse of the global economy in late 2007. They also agree that once the economy improves, the profession will not return to pre recession prosperity. Patrick Lamb, who writes and speaks about the change taking place in the profession in the ABA Journal's "The New Normal" blog, observes that lawyers suffer from an incredible lack of interest in understanding the forces that are changing the foundation of the profession. To succeed in this new reality, attorneys need to keep abreast of the changes so that they are prepared to assist, counsel, and advise their clients. Lawyers also must be aware of these challenges so they can take advantage of the opportunities for those prepared for what lies ahead.
It is the story of Ulysses, king and adventurer, who lived over three thousand years ago, as taken 2 up by the poet Alfred, Lord Tennyson • Ulysses has travelled the world, fought great battles and won the City of Troy. Home at last, he sits by the hearth. Yet he is not content; his mind goes to new ventures. He concludes that "Some work of noble note, may yet be done." And so he resolves to move on: "Come, my friends," he says, "T' is not too late to seek a newer world".
2 J.E. Tilton and Co., Poems ofAlfred Tennyson (1866), Ulysses, at pp. 153-154.
2 Today, as my thoughts turn to the future of the legal profession, I take Ulysses' words as my theme. Like Ulysses, the legal profession has a noble history replete with great achievements. But, as in Ulysses' world, times are changing and work remains to be done. The legal profession, like Ulysses, has a choice. It can sit back and rest on what has been accomplished, or it can resolve, as did Ulysses, to venture forth to seek a newer world democratic society. It is vital to provide justice to individuals; to buttress the economy and investment; and to ensure that state power is exercised constitutionally. In a word, it is vital to maintaining the rule of law.
To ensure that it remains strong, independent and relevant in the 21st century, the profession must meet the challenges of our times, adapt and, like Ulysses, move fmward with conviction, hope and optimism.
Worldwide legal profession
Contrary to conventional understanding, there were antecedents of a legal profession outside Europe prior to the spreading of such ideas through European colonialism. In China, for example, there was a long history of unofficial legal advisers often young men preparing to take imperial examinations for official appointment who assisted merchants and other laymen in the preparation of legal documents, including those needed to commence litigation. Although operating in the shadow of an imperial legal code that prohibited the instigation of litigation, these quasi-lawyers also enjoyed a fair measure of tolerance from officialdom, which suggests that at least some of them may have served a useful purpose.
Such indigenous developments notwithstanding, the rise outside Europe of a modern legal profession in the sense of a class of specialists recognized by the state and yet operating with some measure of independence from it is generally associated with European colonial expansion. In Britain's North American colonies, and particularly in the United States soon after independence, lawyers assumed a prominent role in both public and private life, which led the French social observer Alexis de Tocqueville to write early in the 19th century that "it is at the bar or bench that the American aristocracy is found." The English system also provided a model for most former English colonies in Africa, for most of the Indian subcontinent, and for Australia, Hong Kong, Malaysia, New Zealand, and Singapore. The Romano-Germanic practices that in time became the civil law made their influence felt in Scandinavia, eastern Europe, Latin
3 America, and many Muslim countries in the Middle East; in French, Spanish, Belgian, and Portuguese colonies in Africa; and in Japan, Thailand, the French colonies of Southeast Asia, and, in some measure, the Republic of China (which existed on the Chinese mainland prior to 1949 and today exists on Taiwan). It should be noted, however, that the association between the modem legal profession and colonialism was not always felicitous. Although lawyers were in some instances at the forefront of their countries' independence movements (as were Mohandas Gandhi in India and Lee Kuan Yew in Singapore), in other cases they worked to uphold colonial rule.
1.1.1 Profession 3 Four years ago, The Economist ran an article entitled: "Law Firms: A less gilded future" • The piece painted a bleak picture of the legal profession. It mentioned that, according to the annual survey by the National Law Journal, the 250 biggest U.S. law firms in 2009 shed more than 9,500 lawyers. In recounting the collapse of the big American IP firm Howrey in the midst of the 2009 recession, the article proposed that a downward trend was beginning to hit the profession and was likely here to stay. Increased competition for market share; plummeting profits; clients' determination to keep their bills down. Those were mere symptoms of a graver malady.
This pessimistic view has been echoed by legal commentators, scholars and lawyers. One only has to look at the shelf at the local bookstore, where the titles of the books on the legal profession speak volumes: The Lawyer Bubble, Declining Prospects, The American Legal Profession in 4 Crisis, Failing Law Schools, The End of Lawyers, The Vanishing American Lawyer ,
The Destruction of Young Lawyers, The Betrayed Profession, The Lost Lawyer The assault on the legal profession and its way of doing business has two facets the first internal, the second external.
3 The Economist (May 5, 201 1). 4 Steven J. Harper, The Lawyer Bubble, Declining Prospects (2013); Michael Trotter, Declining Prosects (2012); James E. Molitemo, The American Legal Profession in Crisis: Resistance and Response to Change (2012); Richard Susskind, The End ofLawyers (201 0), Thomas Morgan, The Vanishing American Lawyer (20 I 0); Douglas Litowitz, The Destruction of Young Lawyers: Beyond One L (2006); Sol M. Linowitz & Martin Mayer, The Betrayed Profession: Lawyering at the End of the Twentieth Century (1994); Anthony Kronman, The Lost Lawyer: Failing Ideals ofthe Legal Profession (1993).
4 The assault on the legal profession and its way of doing business has two facets the first internal, the second external.
1.1.2 Internal Concerns Let me first tum to internal concerns. Discontent within the legal profession runs deep. A fair share of the blame is laid at the feet of big law firms. As one Canadian commentator says, "most law firms around the world still practice law the way it has been practiced for centuries; a labour intensive endeavor carried out by high-priced personnel billing by the hour. Protected by 5 legislated monopolies, law firms have been allowed to grow complacent, fat and inefficient" • And the law firms have only gotten bigger. In 1960, the largest American law finn had 169 lawyers.
1.1.3 External Concerns From concerns within the legal profession, let me tum to voices of concern from outside the profession. Sometimes the criticism is gentle the mild contempt of the jokes about lawyers that turn on motifs of self-importance and greed. Other criticisms are more substantive. The main one is that justice is no longer accessible. Lawyer fees are too expensive. Court proceedings are too complicated and too long. Going to court is a last resort, critics say. Point me to other experts that will help us deal with the matter more efficiently, they demand.
Statistics support the view that accessing the justice system with the help of a legal professional is increasingly unaffordable to most people. Nearly 12 million Canadians will experience at least one legal problem in a given three-year period, yet few will have the resources to solve them. According to an American study from a few years ago, as much as 70%-90% of legal needs in society go unmet6
What is known that unresolved legal problems adversely affect people's lives and, ultimately, the public purse. Among the hardest hit are the middle class who earn too much to qualify for legal aid, but frequently not enough to retain a lawyer for a matter of any complexity or length.
5 Mitchell Kowalski, Avoiding Extinction: Reimagining Legal Services for the 21st Century (20 12), at p. xiii. 6 Russell Engler, "Connecting Self-Representation to Civil Gideon: What Existing Data Reveal about when Counsel is Most Needed" (2010) 37 Fordham Urban L.J. 37, at p. 40 (citing Legal Services Corporation, Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low Income Americans, updated report (Washington, D.C.: Legal Services Corporation, September 2009).
5 Additionally, members of poor and vulnerable groups are particularly prone to legal problems, 7 and legal problems tend to lead to problems of other types, such as health issues .
The cry for access to justice is rising from what was once a dull murmer to a crescendo. Other actors including courts and governments bear much of the responsibility. But lawyers can be a big part of the solution. Everyone needs justice. Lawyers hold the key to exclusive domain called justice. But they open the doors only to a privileged few, the critics charge.
The sad truth is that around the world, the legal profession and the courts are often not fulfilling the expectations of consumers of legal services. Legal systems everywhere are experiencing an access to justice crisis that cries out for innovative solutions. Legal aid funding and coverage is not available for most people and problems, and the cost of legal services and length of proceedings is steadily increasing.
Fulfilling the public's expectations for justice in a phrase, providing "access to justice" is vital. It is vital to providing the justice to which every person is entitled. Statistics show that people who get legal assistance in dealing with their legal problems are much more likely to achieve better 8 results than those who do not . As servants of justice, lawyers have a duty to help solve the access to justice crisis that plagues our legal systems. It is vital to the rule of law. And finally, it is vital to the future of the profession. If the legal profession fails to meet the demands of the public for prompt and affordable justice, people in search of justice will go elsewhere, rendering the legal profession increasingly irrelevant.
1.2 Statement of the problem All members of the legal profession have a paramount duty to the Court and to the administration of justice. This duty prevails over all other duties, especially in circumstances where there may be a conflict of duties, for example, following a client's instructions if those instructions are inconsistent with the practitioner's duties to the Court. Whilst this duty affects professional conduct within the solicitor client relationship, it is a broad duty, and each member of the legal profession is entrusted to maintain the independent and impartial administration of justice. It is important that legal practitioners conduct themselves with integrity, provide competent
7 Action Committee on Access to Justice in Civil and Family Matters, Access to Civil and Family Justice: A Roadmapfor Change (2013), at p. iii. 8 Action Committee on Access to Justice in Civil and Family Matters, p. 4.
6 assistance to the courts, and promote public confidence in the court system. In canying out their duties, legal practitioners are required and expected to deal with other members of the legal profession with courtesy and integrity.
The role of the legal practitioner when representing a defendant is to look after his or her interests by assisting them to understand the case against them, their legal rights and obligations, 9 and the consequences of the decisions they may make in relation to the conduct of their matter .
They have represented thieving clients with deception and manipulation of the law. A number of advocates have been caught wallowing in conflicts of interest by disgracefully representing opposing litigants at the same time. These are advocates who practise law maliciously with enrichment and acquisition of wealth as the only motive that matter. At one time the profession was regarded as a service to the community but today most lawyers and Law students see Law practice as the quickest route to wealth. Some lawyers resent and fight against their colleagues who still harbour the notions of ethics and integrity or who continue dreaming that the profession is something resembling a service to litigants. Long gone are the notions of practising Law in the pursuit of principles, the law and justice.
The new trends of understanding of most successful lawyers in Uganda include lying and deceiving litigants, judges and others that what is wrong is right, what is corrupt is gainful of great wealth and the lastly never annoy or oppose those who have status or who possess and exercise it, or are companions of the rulers and the mighty. Few lawyers who still cling to the principle that Law is a noble and intended to protect the weak and reward the innocent are laughed at as dinosaurs in the profession. Members of the public are actively discouraged from engaging honest and principled lawyers as their advocates and legal representatives because of the campaigns and false stories told about them.
The most unfortunate consequence of the rotten eggs in the legal profession is that often the same rotten eggs are appointed or promoted to become judges in the Judicimy. No Ugandan needs to be reminded that if one includes rotten ingredients in a brew, the brew can never taste good or wholesome whatever one does to correct the taste or deceive the consumers. Judicial nominees are recommended and appointed unconstitutionally simply because they are loyal
9 The Uganda Constitution of 1995
7 cadres to the establishment. In this regard, it would be unfair to blame the incumbent government alone.
Evidence is available to show that several members of the so-called opposition parties happily, selfishly and enthusiastically nominate and support the same rotten eggs in the Law to become 10 judges and other categories ofjudicial officers because of diverse reasons •
Therefore there is need to gain insight into challenges faced by the legal profession in the 21" century in Kampala Uganda and develop solutions to the hindrances that are limiting the operations of profession.
1.3 Purpose ofthe Study The purpose of the study examined the challenges faced by the legal profession in the 21 '' century in Kampala Uganda.
1.4 Research objectives 1. To examine the precaution, categories and actions of legal profession m Kampala Uganda. 2. To examine the trends of activities enhanced by legal profession in Kampala Uganda. 3. To examine the challenges faced while enhancing the activities by legal profession in Kampala Uganda. 4. To examine the solutions or amendments towards the challenges with aim of promoting legal profession in Kampala Uganda.
1.5 Research questions 1. What are the categories and actions oflegal profession in Kampala Uganda? 2. What are the trends of activities enhanced by legal profession in Kampala Uganda? 3. What are the challenges faced while enhancing the activities by legal profession m Kampala Uganda? 4. What is the solution or amendment towards the challenges with aim of promoting legal profession in Kampala Uganda?
" Prof Kanyeihamba is a retired Supreme Court judge
8 1.6 Scope of the study
1.6.1 Geographical scope The research covered all legal professions in Kampala and Uganda at large including the institutions, governance and government bodies in-line with legal profession. The research was done in Kampala capital city which lies within the Kingdom ofBuganda, in Central Uganda.
1.6.2 Content scope The study was limited to challenges faced by legal profession in the 21 ''century within Kampala Uganda. The legal profession in Uganda is not fused; an advocate differs from a lawyer, but both are lawyers. An Advocate is an enrolled lawyer to the bar and can address court whereas a lawyer cannot address the court as he is not enrolled. Only Advocates have a right of audience before the court.
1.6.3 Time scope The study looked at the 21" century is the current century of the Anno Domini era or the Common Era, in accordance with the Gregorian calendar. It began on January 1, 2001, and will end on December 31, 2100. It is the first century of the 3rd millennium. It is distinct from the time span known as the 2000s, which began on January I, 2000 and will end on December 31, 2099. Therefore, the study will be covered within a period of 4 month April2016-July 2016.
1.7 Methodology 1 Methodology utilized qualitative in nature as, according to Leed/ , this methodology is aimed at description. By utilizing qualitative methodologies the research is able to evaluate both formal and normative aspects of political activity. Qualitative research is used in several academic disciplines, including political science, sociology, education and psychology. According to Peshkin (200:134) in Patton, it usually serves one or more of a set of four purposes: description, interpretation and evaluation of a hypothesis or problem.
According to QSR (a, 2011:115), qualitative research "is used to gain insight into people's attitudes, behaviors, value systems, concerns, motivations, aspirations, culture or lifestyles."
11 Established on 2001:148
9 QSR continues to explain qualitative research as a method of making informed decisions in both business and politics.
This study utilized a descriptive approach as it was necessary to observe and describe the challenges of creating the appropriate laws in regards to legal profession. Thus the researcher utilized a descriptive approach so as to be able to assess the challenges faced by legal profession. The descriptive approach may be considered as inductive, according to Rhodes (1995:44) as conclusions are drawn from repeated observations that is letting facts speak for themselves. Statements are made about Causes and consequences of the phenomenon being observed
1.7 .1 Reliability of the instrument
Reliability is the measure of the degree to a research instrument yields consistent results after repeated trials. According to Christensen (1988), reliability of the questionnaire, the researcher employed the methods of expert judgment and pretest in order to test and improve the reliability of the questionnaire.
1.7.2 Data gathering procedures
According to Krishnaswami (2002: 197) data are facts, figure and other relevant materials, past and present that serve as bases for the study and analysis. He further states that data may be classified into primary and secondary sources. The researcher will obtain an introductory letter from the School of law of Kampala International University Kampala, Uganda, which he will present to the heads of legal institutions, heads of government ministries and authorities and leaders of Non Governmental Organizations which will involve in the study. The researcher therefore will develop rapport, sought for consent and appointments with respective respondents to obtain the information.
1.7.3 Ethical considerations
To ensure that ethics is practiced in the course of the study as well as utmost confidentiality for the respondent and the data provided by them, the following will be done, (1) Coding of questionnaire (2) The respondent will be requested to sign the informed consent ;(3) Authors
10 mentions in the study will acknowledge within the text;(4) finding will be presented m a generalized manner.
1.8 Significance of the Study
This study is significant because the findings could assist policy makers make informed policy decisions that could help promote legal professions in Uganda.
The findings of the study will also fill the intellectual and information gaps about the legal criteria adopted while enhancing a legal profession.
The findings could be invaluable in guiding policy implementers to promote Legal profession in Uganda
The findings could also help contribute to the body of knowledge in-regards to legal profession in Uganda.
Finally, this study will be carried out in partial requirements for the award of bachelors of laws degree of Kampala international university which will enable the researcher obtain the degree.
1.9 Limitations of the study The researcher expected some challenges during the study. Poor attitude of some respondents will be one of such. For example the officers in respective departments were skeptical about responding to some questions. Some information was regarded confidential and therefore bringing difficulty in accessing it. However, the researcher built rapport and explained fully the purpose of the study, which convinced the respondents to give the confidential information.
The researcher also met some financial challenges. The process of data collection took a period of 3-4 weeks, which means that the researcher was incurring transport and other support costs. However, the researcher intended to operate on minimal expenditure. The researcher did not get the respondents in time as planned. Some of the respondents did not respect time and appointments. Also the research faced the challenge of poor roads which were brought about the heavy floods that were evident in the region. This affected the transport system the researcher was using at that time.
11 1.9 Chapterization This study was arranged as follows: Chapter one covers the introduction, general background, problem statement, objectives ofthe study and the literature review and methodology that guided the study and chapterization.
Chapter two covers law related to legal profession. Chapter three will examine the legal framework and institutions in-regards to resolve the challenges and chapter five recommends and concludes on challenges intervening the actions of legal profession in the 21st century in Kampala Uganda. Chapter three with challenges facing the legal profession in Uganda while chapter has been arranged with recommendations and suggestion and finally chapter five indicates the conclusion towards the challenges faced by the legal profession in the 21st century in Uganda.
1.10 Literature review
1.10.1 The concept of legal profession Legal professionals may be in private practice or public practice. Private practitioners are advocates employed in private law firms and they represent individuals in litigation and other legal matters. Infonnation about private law firms may be got from the Uganda Law Society. Advocates in public service are employed by the Government and serve as state attorneys in the Ministry of Justice and Constitutional Affairs.
All practicing lawyers can subscribe to the Uganda Law Society, which is the main legal professional organization in Uganda. At regional level, one can join the East African Law Society. The main functions of the law society include maintenance and improvement of the standards of conduct and learning of the legal profession, and to facilitate the acquisition of knowledge by the legal profession. More information about the Uganda Law Society can be obtained at the official website.
Other professional bodies which lawyers can subscribe to include; the Uganda Women's Lawyers Association, Advocates Coalition for Development and Environment, and Uganda Christian Lawyers Association.
12 1.10.2 Legal Sector The legal sector in Uganda comprises of various institutions concerned with the provision of legal services, the administration of Justice and the enforcement of legal instruments or orders. The main institutions as established by the 1995 Constitution of the Republic of Uganda include the Ministry of Justice and Constitutional Affairs, the Judiciary, the Parliament, the Uganda Police Force, the Uganda Law Reform Commission, the Uganda Human Rights Commission. Furthermore, there are the legal education institutions such as faculty of law Makerere University, the Law Development Center, professional bodies such as the Uganda Law Society, the Judicial Service Commission, and other organizations involved in legal sensitization, and advocacy.
1.10.3 The organisation Structure of the executive council of the Uganda Law Society
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13 1.11 The precaution, categories and actions oflegal profession
1.11.1 Actions enhanced by legal profession
In Uganda vs. Aggrey Kiyingi & Others Crim. Session. Case No. 30 of 2006, excusable circumstances were expounded on to include justifiable circumstances like self defence or when authorised by law. The term 'homicide' has been invariably defined as the killing of a human being by another human being. Therefore, in the present case the defences of the accused persons notwithstanding, the present murder indictment would prima facie place the deceased's death within the category of deaths defined as homicides. It therefore follows that the deceased's death would have been prima facie unlawful unless the circumstances surrounding the said death are such as would make it excusable or justifiable.
An evaluation of the prevailing circumstances of the present death is instmctive. In the instant case, however, there were no circumstances presented to this court that would make the
deceased's death either excusable or justifiable. While A 1 contended that the deceased died of
natural causes, A2 simply denied any hand in the deceased's death. Neither of the positions advanced by the accused persons in their defence would amount to circumstances that make the present homicide excusable or justifiable within the precincts of the law. I am therefore satisfied that the deceased's death was neither excusable nor justifiable, and do find that the said death was unla·wful.
Having established that the deceased's death was unlawful, this court must establish as a fact whether the said death was caused with malice aforethought or, for present purposes, whether or not the accused persons' alleged actions were such as would infer an intention to cause death rather than accidental death.
In the cases of R v Nedl"ick [1986] I WLR. 1025 and R v Hancock [1986] 2 WLR 357, it was the position of the courts that what the judge had to decide, so far as the mental element of murder was concerned, was whether an accused intended to kill; and in order to reach that decision the judge was required to pay regard to all the relevant circumstances, including what the accused said and did. Indeed, in the case of Nandudu Grace & Another vs. Uganda Crim. Appeal No.4 of 2009 (Supreme Court), their Lordships cited with approval their earlier holding
14 in the case of Francis Coke vs. Uganda (1992 -93) HCB 43, where it was held that the existence of malice aforethought was not a question of opinion but one of fact to be determined from all the available evidence.
1.11.1.1 Social role The legal profession has always had an ambiguous social position. Leading lawyers have usually been socially prominent and respected the sections of the profession so favoured varying with the general structure of the law in the particular community. The family status of early Roman juris consults may have been more important than their legal expertise in securing such a position, but by the time of the principate it was their legal eminence that made them respected. The English sergeants lived magnificently, especially in Elizabethan times, and the French Ordre des 1 Advocates was established (14 h century) by feudal aristocrats in circumstances reminiscent of early Rome including an insistence on receiving gifts rather than fees. The early Italian doctors 1 1 of civil and canon law (12 h -15 h centuries) were revered throughout Europe. In England and the countries influenced by its system, the highest prestige gradually came to be conferred on the judges rather than on the order of sergeants, of which the judges were members; even now, the judges of high-level courts in liberal-democratic common-law countries tend to enjoy appreciably greater respect than their brethren at the bar. In the Romano-Germanic systems it is the notaries and the advocates who have come to be most trusted or admired, the judiciary being more closely identified with the civil service.
Yet, along with this high repute, sustained over two millennia, lawyers have also engendered tremendous distrust and even hatred in many societies. In a few cases this has been the consequence of a general hostility to the whole idea of law. In the Soviet Union, for example, the early leaders (1917-22) imagined that law and lawyers were the instruments of the ruling classes and that law would soon wither away in classless communism. This belief was revived during the first three decades of communist rule in China, especially during the Cultural Revolution (1966-76). Further experience persuaded these governments that there was room for "socialist legality" and for lawyers to serve it. Indeed, since 1977 China has pursued the most ambitious program in history to develop a legal profession, though the legacy of the earlier era still makes itselffelt in subtle ways.
15 There is an inherent conservatism to the legal profession, owing to its commitment to working chiefly through existing institutions and to the fact that law itself is predominantly intended to satisfY expectations arising from inhe1ited patterns of behaviour. Individual lawyers, nevertheless, occasionally have been on the side of revolutionaries and rebels; Robespierre and Lenin were both lawyers, to cite two extreme cases. In addition, there is a long and rich tradition in many countries of lawyers' serving as leaders of struggles for social justice, as did Gandhi, Thurgood Marshall in the United States, and Nelson Mandela in South Africa. The prevailing attitude of the legal profession, however, is one of moderation. Thus, many lawyers took the British side in the Ame1ican Revolution, and, even among the lawyers who took the other side, the predominant influence was against any attempt to tum the political revolution into a socioeconomic revolution.
Along with these ideological and political reasons for popular distrust, and even more deep seated, are the inherent difficulties associated with law and with some legal functions. Many people would like law to be so clear that its application is equally certain in all cases and so simple that any person of sense can readily see how it applies. But in a discipline sharing the imperfection and complexity of society itself, no such situation is attainable, and lawyers are consequently blamed for the basic difficulty of their craft which, it must be said, they sometimes compound by multiplying obscurities, contradictions, and complexities. The legal function likely to be most distrusted by the average person though it also produces some of the law's heroes is litigious advocacy, particularly in the criminal law. Plato and Aristotle condemned the advocate as one who was paid to make the worse cause appear the better or who endeavoured by sophisticated tricks of argument to establish as true what any person of common sense could see was false. The feeling against advocacy in the criminal law was so strong that, at least in cases involving more serious kinds of crime, a right to representation by a trained advocate was 1 nowhere generally recognized until the 18 h century.
The organized legal profession has in some jurisdictions endeavoured to meet the problem of litigious advocacy by contending that the dominant duty of the advocate is not to the client but to the truth and the law. Since the late Roman Empire, advocates in many countries have been required to take oaths to this effect, and lawyers have often technically been classed as "officers of court." The duty of the advocate, so conceived, is to fight for the rights of his client, but only
16 up to the point where an honourable person could fairly put the case on his own behalf. Others have agreed that, particularly in a highly adversarial legal system such as that of the United States, lawyers are obliged to advocate zealously for their clients, even if they disagree with the client's position or views, provided that they neither misrepresent the law nor misstate the facts.
1.11.1.2 PI"ivate practice Client-directed lawyers often are called counselors, but in the original sense of that word giving advice as to how the law stands this is rarely an independent function; it is an inseparable part of other functions. In his client-directed activities the lawyer is concerned with how the law affects specific circumstances, which can for convenience be divided into two main types: transactional and litigious.
In the transactional type the lawyer is concerned with the validity or legal efficacy of a transaction independent of any immediate concern with the outcome of litigation. In most countries such activities constitute the largest area of lawyerly activity, whether considered with respect to the number of lawyers involved, the time spent on the task, or the number of clients affected. If the events constituting the transaction in question happen before the lawyer is consulted, he can only advise on their legal significance and perhaps suggest methods of overcoming legal deficiencies in what has been done. If future conduct is involved, he is better placed to help his client plan a course of action that will achieve the desired outcome in the most economical fashion that the law permits and in a manner that minimizes the chances of future litigation.
Transactions may concern words and acts, but characteristically they require the drafting of documents. In the Romano-Gennanic systems these often require notarization. Typical activities falling in this category today include the following: transferring interests in land; transmitting property on death; settling property within a family; making an agreement (especially a commercial agreement of some complexity and duration); incorporating or dissolving a corporate entity; varying the terms on which a corporate entity is conducted (classes of shares, managerial rights, distribution of profits, etc.); and adjusting the ownership and control of property and income to comply with the requirements of taxation laws and minimize their impact
17 on the property and income in question, to ensure the proper management of the assets and distribution of the proceeds among beneficiaries (as in estate planning), or both. In the Romano Germanic systems many of these functions are discharged by notaries, and in the English and similar divided systems they are perfmmed by solicitors, though in difficult situations the opinions of advocates or barristers may be obtained. In the fused professions of North America, some firms of attorneys, or departments within firms, specialize in business of this type and avoid, so far as they can, the litigious function.
The litigious function is subdivided into three main stages. First is the preparation of the case: interviewing the client and investigating the circumstances on the basis of leads provided by the client, attending to the formal requirements of the procedure in question which may involve writs, summonses, and statements of claim or defense and preparing for trial. Second is the trial proper, in which the facts and law are established and argued before the judge and a decision is made. Third is the execution of the judgment payment of damages, delivery of property, or perfonnance of obligation in civil cases; payment of fine or imprisonment, etc., in criminal cases. Similar stages arise on appeal. In the divided professions the sharing of these functions is intricate and varies between one system and another. The advocate or barrister is especially responsible for the second stage, but he rna y advise upon or draft many of the documents used in other stages. If incidental disputes concerning procedure have to be litigated, he is likely to conduct the proceedings; and, if the procedure includes a pretrial conference, he is likely to represent the client. Othe1wise, the first and third stages are mainly the province of the procurator or solicitor.
1.11.1.3 Public-directed practice Many law graduates choose to enter public service rather than private practice. Of the public roles played by members of the legal profession, that of judge is most visible, but the status of judge and the mode of entry into this branch of the profession vary considerably from country to country.
The traditional independence, power, creativity, and prestige of the Anglo-American judge contrast with the status of most Continental judges, which is more akin to that of civil servants, especially at lower levels of the judiciary. In the countries of Anglo-American influence, at least until recently, appointment (or, in some U.S. states, election) to a judgeship has been viewed as
18 the crowning achievement of a long and often distinguished legal career. In the Continental countries, by contrast, a law graduate who wishes to be a judge merely completes a training period and passes an examination to get a job deciding cases. The beginning civil-law judge can expect to start at the lowest level and, like any other civil servant, to rise in the hierarchy through a series of promotions (though a modest number of positions on the highest courts are reserved for distinguished practitioners or professors as well as for career civil servants). Lateral entry into the judiciary at any level is uncommon. It has frequently been observed that, because of their standardized training, civil-law judges tend to share a common outlook. Moreover, because of their concerns about advancement, they tend to adopt a civil-service mentality that may appear, at least from an Anglo-American perspective, to discourage initiative and independence. Any tendency toward judicial individualism is apt to be further inhibited by the fact that Continental judges, even at the lowest levels, usually sit in panels and typically present their decisions in unsigned opinions. Except in a few courts, such as the German Federal Constitutional Court, disagreement among judges is generally not revealed, either in the form of a dissenting opinion or in a record of the judges' votes.
1 Since the late 20 h century, however, the contrast between Continental and Anglo-American judicial roles has diminished. In the United States the prestige of judgeships, except at the higher levels, has declined somewhat. It is not as unusual as it once was for judges to resign and return to private practice or for eminent lawyers to decline to be considered for judicial positions; relatively low judicial salaries and public scmtiny are often mentioned as key reasons. Meanwhile, in some Continental countries, such as Germany as well as in other countries with similar systems, including South Korea and Japan judges are recmited from among the best law graduates and sometimes from among experienced practitioners. Because of their special training, Continental judges are almost uniformly professional and competent.
Governments have always required legal specialists, and the scope for such employment today is enormous. Most countries have a senior political officer minister of justice, attorney general, solicitor general who by convention needs to be a lawyer, and a department concerned mainly with the legal problems of the government as client (in the English-derived systems usually the office of the attorney general). Increasingly, however, the great departments of state need their own legal sub-branch. In some countries, such as Germany, lawyers dominate the higher offices
19 in the civil service, while in others, such as Japan and France, the various official bureaus are more likely to be staffed, respectively, by law graduates not admitted to practice or by non lawyers who have been trained in a special school of administration. In the formerly socialist countries of eastern Europe, most lawyers tended to work for government or for collectivized industrial and farm organizations.
One of the oldest and still most difficult of governmental legal functions is that of prosecutor. Prosecution is sometimes in part carried on by private persons acting through private lawyers, but the recent trend has very much been to concentrate the function in government legal officers. In most Commonwealth countries the crown, or public, prosecutor is a specialized officer under the general control of the attorney general. England has an independent "director of public prosecutions" concerned only with the most serious types of crime, but most prosecutions have been conducted by private ban·isters briefed by him or by the police. A 1985 law, however, provided for the establishment of a body of official prosecutors similar to the public prosecutors (procurators fiscal) of the Scottish system. In the United States this function has come to be mainly local, and prosecutors, whose most common title is district attorney, are elected for short terms.
In most civil-law systems prosecuting is a career service. In Italy and France the prosecutor is a member of the judiciary. Both prosecutors and judges receive the same training, and both may move from one role to the other in the course of their advancement in the civil service. In Gennany, although the prosecutor is not technically a member of the judiciary, he is not strictly separate from it, and individuals move easily from one position to the other. In China considerable effort has been made in recent years to distinguish the functions of judge, prosecutor, and defense counsel, but these roles remain in an early stage of development.
The prosecuting function is particularly delicate because criminal prosecution can be used as an instrument of oppression and persecution, even where conviction is not obtained, and because in most systems prosecutors are expected to act with a degree of fairness and restraint not necessarily expected of the parties to civil litigation. Many Romano-Germanic systems employ officers who supervise the working of the courts, especially their criminal jurisdiction. This is the office of the "prosecutor general," or "officer of justice"; a similar service existed in most of the socialist countries of eastern Europe.
20 Another branch of government, the legislature, usually requires legal assistance. Legislation needs to be expressed in language readily comprehensible by judges and lawyers and to be framed in harmony with the existing body of law. This requires the service of parliamentary draftsmen who are expert lawyers. A further specialized branch of advisory activity associated with legislation has become prominent the law-reform commission or committee.
1.11.1.4 Teaching and scholarship Since Roman times teaching and scholarship in the law have provided prominent roles in the legal profession. Until the 18th century, teaching of the English common law was vested exclusively in the Inns of Court, and a good deal of continental European teaching for professional practice particularly in the case of notaries and procurators was also professionally organized. Even university law teaching in Europe often involved interchange between practitioner and teacher, exemplified in such great figures as the French 18th-century teacher, advocate, and judge Robert Joseph Pothier, whose commentaries provided the foundation for the Napoleonic Code of civil law. Much law teaching in the new university law schools that sprang 2 up in the United States, the United Kingdomt , and the Commonwealth in the 19th and 20th centuries was initially carried on part-time by attorneys, barristers, and judges, and some still is. Sir William Blackstone, the first holder of a chair of English law the Vinerian professorship at Oxford came from the bar and became a judge. Only in the 20th century did law teaching become a distinct, full-time profession, and then to a greater extent in the United States, the United Kingdom, Australia, and Canada than in many civil-law countries.
Teachers and practitioners in all countries contribute to a vast professional literature, comprising textbooks, practical manuals, theoretical monographs, and a periodical literature whose bulk is becoming almost as big a problem as the enonnous number of reported judicial decisions that are consulted for guidance and precedent. Fortunately, the development of sophisticated computerized legal-infmmation services and the Internet have greatly facilitated access to this literature, though they arguably contribute to what has been described as an excess of data. Civil law judges have traditionally paid close attention to the views of legal scholars as expressed in general and specialized treatises, commentaries on the codes, monographs, law review articles
12 Blackstone, Sir William [Credit: Courtesy of the National Portrait Gallery, London]
21 and case notes, and expert opinions rendered in connection with litigation, though some commentators have suggested that the role of jurists is diminishing as law practice and the academy change, especially on the European continent. Persistent scholarly criticism often prompts reexamination of a legal doctrine and sometimes even leads to the abandonment of an established judicial position. In the Anglo-American systems, legal writing has certainly become influential, as indicated by the increase in citations to secondary sources in contempormy judicial opinions. Nonetheless, the degree of deference to academic opinion is in general appreciably less than in the Continental countries.
1.12 Trends of activities enhanced by legal profession
Non-lawyer competition, Several developments indicate that non-lawyers may become a larger factor in providing legal services. The Washington State Supreme Court has approved a rule creating non-lawyer legal technicians. The New York State Bar has recommended going ahead with a pilot program to permit trained non-lawyer advocates to provide out-of-court assistance in specific areas to low-income New Yorkers. In California, the State Board of Trustees has expressed interest in a limited-practice licensing program. In August, the ABA said it was softening its position on fee sharing with non-lawyers. Add these developments to the ongoing litigation on whether firms can have non-lawyer owners (which we discussed in last year's report) and it appears non-lawyers will have a strong impact on the profession.
Non-lawyers to have a voice in the profession Professor James Moliterno of the Washington and Lee School of Law suggests letting non-lawyers serve in leadership and policy positions in the ABA and also state bar associations. He wrote, "Turning to creative non-lawyers presents the most advantageous way for the legal profession to grow and change on its own tenns." GC compensation. A new survey just released by Equilar Inc. reports that median total compensation for general counsels at Fortune 1000 companies has jumped almost 5% from last year. The reasons? Corporations' profits are rising even as they face a host of new regulations as well as other legal challenges, and chief legal officers are being given broader responsibilities that require business as well as legal acumen.
Divorce is getting easier thanks to technology; Wevorce, a start-up online service, has run a pilot program that separates the process into discrete steps that are easily managed without getting into
22 a court battle. And Philadelphia-based Fox Rothschild has latmched a New Jersey divorce app designed to provide resources and tools for the various stages of tbe divorce process. Merger mania, although talks involving two major mergers were called off right before Thanksgiving, the number of completed mergers has shot up this year and more are under consideration as we write this repmi. Some have resulted in even larger international firms, while others have mostly involved larger or midsize U.S. firms acquiring and tbat is the proper word much smaller firms. However, historically half the mergers fail and should not have occwTed, as discussed in our November Legal Communique, "Pay Attention to the Red Flags." Furthermore, some top legal officers at Fortune 100 companies say this merger mania doesn't impress them. One example: IBM General Counsel Robert Weber said, "I'm pretty skeptical about the value these big mergers give to clients."
Virtual law firms. The trend continues. But what is a "viiiuallaw firm" and are they here to stay? Chad Burton discusses the issues in his recent piece in Attorney at Work. Malpractice claims Although there are no definite figures yet for this year, according to seven major insurers the number of law firm malpractice claims increased last year as angry clients filed suits over conflicts of interest and other alleged missteps.
Smaller finns getting a bigger piece of the pie. As noted twice above under Practice Areas, midsize and small firms are receiving more work that used to go to big-name firms. According to the Wall Street Journal, midsize firms are now getting 41% of the big-ticket litigation. Three years ago they only got 22 percent. The reasons were: (1) Many smaller firms have partners and associates who were trained at the country's biggest firms and then left; (2) their rates are lower; and (3) lawyers at these firms are more attentive to their clients' needs and desires than those at the large firms are.
Hourly rates. Many fmns, pmiicularly the largest ones, have raised their rates again! But that's not the whole picture. You have to look beyond the standard rates. Except for "bet the company work," these firms are then offering widespread discounts and write-offs which result in lower realization. In fact, as we reported in our Mid-Year Update, full realization the percentage of collections compared to tbe dollar value of billable time (DVBT) has continued to decline.
23 Another factor contributing to lower realization is the increase in aged accounts receivable as clients take longer to pay and contest films' charges.
Seeking new paths for young lawyers. The New York City Bar Association is exploring some alternatives for young lawyers who are not getting hired after graduation. One is to place them in apprenticeships with large banks and other employers. Another is to start up a law fum where young lawyers could gain experience and hopefully earn a decent living by helping people and small businesses that can't afford market-rate legal fees. Cisco Systems is exploring a similar route. It plans to team up with the University of Colorado Law School on a program in which students will be paid to work full time in the company's legal department while taking extra classes to make up for missed coursework. The goal of Cisco's GC is to develop a number of companies and firms that will take two or three students a year on this basis. B Corps. This is a new legal category of company, created by B Lab in Wayne, Pa., that expands its fiduciary responsibility, not just to its shareholders, but also to other stakeholders such as employees, neighbors and the environment. Nineteen states and the District of Columbia have passed B Corp legislation and 850 companies now cany the B Corp certification.
Questions raised about litigation funding. As we reported in our Mid-Year Update, "a new wave of investors are funding lawsuits in hopes of collecting when verdicts come down." And Kent Gardiner, chairman of Crowell Morning, stated, "I think you would find a notable percentage of the Fortune 100 have engaged in some kind of funded litigation." But Baker Bolt's Lisa Thomas wrote that the communications necessary for litigation funding groups to perform their due diligence on the merits of the case raise discoverability issues for eventual litigation. Another concern by critics is that third-party investors will exert undue control over legal decisions and that the practice will drive up the overall cost of litigation.
Legal project management (LPM). No question that it is necessary, but a growing number of COOs continue to state that the process gets more attention than the results. Non-JD programs. Enrollment has increased 13% in the last three years. Why? They are attracting people such as doctors and environmental consultants, who do not intend to practice law but feel they need grounding in legal basics. Pro bono, Despite the reports that show a drop in the number of pro bono hours in the last few years, to paraphrase Mark Twain, "the reports of its death are greatly
24 exaggerated." There are many examples in addition to New York State increasing the voluntary goal for lawyers to 50 hours a year from 20. Steve Taylor addressed the subject in the November Of Counsel, and included examples such as the IMPACT project, launched by the Association of Pro Bono Counsel, and the programs of several major law firms to provide non-litigation pro bono opportunities. Steve concludes by stating, "One thing that's certain is that the young generation of lawyers has as much, or perhaps more, interest in performing free legal work and giving to their communities as their older colleagues" and that "law school graduates are attracted to firms that have successful pro bono programs."
For-profit law schools, a private-equity firm launched Infllaw in 2004, shortly after buying the Florida Coastal School of Law in Jacksonville. Infllaw then launched two other for-profit schools, the Phoenix School of Law in Arizona and the Charlotte School of Law in North Carolina. The schools have had no trouble getting students but, judged by other metrics, they have been less successful. Graduates' bar-passage rates have generally been below state averages and so have job-placement rates. Now Infllaw is trying to buy Charleston School of Law in South Carolina, but is running into opposition from alumni and even students. Plus the company is now faced with two recent federal lawsuits.
Entry-level hiring. Midsize and smaller finns continue to benefit from the availability of qualified laterals who either have been pushed out of large firms or leave of their own choice. However, some of the midsize firms continue to hire young lawyers as opposed to laterals because, as one managing partner put it, "There's a deep talent pool and it's a buyer's market." Succession planning. This continues to be one of the hottest and most important issues. Small and midsize firms are now recognizing this too. It involves much more than transitioning clients. Many factors must also be addressed, including retirement funding, mandatory retirement, firm infrastructure, compensation and grooming future finn and practice leaders.
Alternative fee arrangements No report would be complete without discussing them! While many clients exert pressure for something other than hourly fees, what they are really seeking is transparency: What will the total legal bill amount to? Fixed fees are obviously one approach but so are hourly fees with a cap or a base fee with a bonus or "kicker" based on results. In other words, the billable hour is not dead.
25 1.13 Challenges faced while enhancing the activities by legal profession
Changing demographics
Cowiesy of the baby boom, society in general and the legal profession in particular is facing the imminent retirement of the largest group of lawyers in practice. The effects of this demographic shift will be felt in many ways. Most law firms were predicated on a 'pyramid' a small number of pminers supported by a large number of associates and staff. Today, most smaller to mid-size firms resemble a pyramid turned upside down a large number of partners with a smaller number of associates and staff.
If the partners have not already made plans for their retirement (and that time is on them now), then financing the retirement of so many lawyers will place a bmden on firms trying to bring in associates. After all, the cost of setting up a new office will be, in most cases, less than the retirement buy-out requested by the retiring lawyers.
On top of this, firms in smaller communities are having difficulty recruiting lawyers a trend that will become even more acute as the existing lawyers ease out of practice. Furthermore, the new generation of lawyers is seeking changes to the economic basis of practice: They are less willing to work 1,800 plus billable hours a year only to see those profits flow into someone else's retirement.
Gender and generational differences
The profession is under pressure to accommodate a new economic model one that is premised on lower billable hours for associates and a greater amount of time spent on non-office activities. These changes are being advocated by younger men and women alike who have differing views towards work from those held by the boomers.
Other factors are also at work. Since more than 50 per cent of graduates from law schools today are female, law finns cannot afford to lose the female members of the current generation in the same numbers as in the past. Associates are looking for mentoring, for flexibility in how they work and for greater time spent with their families. Associates also recognize that the current economic model is based on 'churn' and in many cases, they peremptorily leave the finn as they
26 recognize that the partnership carrot is too uncertain and has too great a personal cost. If the baby-boomer partners wish to attract younger associates to their flrrn (and thereby pay for their retirement buy-out packages), they are going to have to change to meet the needs of the younger generation or face the bottom dropping out of their flrrns as the younger members leave.
Technology the continuing challenge
The rate of change in the practice of law has been unequalled when considering the impact of technology. Although the thought processes of the practice of law have not changed since the days of Socrates, the ways of practising law are as different now as night and day. Since we live in the beginning of the Information Age, it is a given that changes yet to come will make the recent past look like the Stone Age to us.
One of the most promising new technologies to emerge falls under the name Web 2.0 (pronounced '\yeb-two-point-oh"). This name symbolizes the interactive web where collaboration, cooperation and jointly working with clients on projects is the nonn. Contrast this with the image of the traditional lawyer working quietly away in his/her office in seclusion.
Today, the web offers the ability to create an extranet a secure, protected area on the web where a lawyer, client and experts can come together to share documents, information, ideas and strategy and work jointly on a file. As they say, the whole is greater than the sum of the parts. Some lawyers will flee from this concept. Others will realize that this offers an unprecedented ability to 'bind' with your client and create a strategic advantage over their competition.
Web technologies also offer new approaches to knowledge management and tapping into the stored knowledge inside everyone in the flrrn. Studies have shown that f11ms who have implemented Microsoft's Share point Services and other similar extranet technologies have seen collaboration and knowledge sharing both within their firms and with flrrn clients.
The new economics of law
When goods and services are bought and sold in a free market, buyers seek out lower costs. This applies equally to clients buying legal services from lawyers, and to flrrns looking to engage other lawyers. At the present time many factors are fundamentally changing the economics of the practice of law.
27 Outsourcing has burst onto the legal scene. Using part-time lawyers allows you to reduce your costs by hiring a "temp" lawyer for short-term assignments, or even a single task. And, the major difference in the cost of legal expertise in India and other common-law jurisdictions compared to North America is spawning a whole industry, namely the outsourcing of!ega! work to lower-cost jurisdictions. Some law firms and in-house corporate counsel are currently experimenting with sending work directly to lawyers in these jurisdictions, and the real entrepreneurs are already actively doing it.
This is just one indicator that the legal profession is under unprecedented economic attack. Another indicator is the growth of paralegals and notaries (who are seeking to enlarge their mandate in provinces that allow such activity). Other economic factors are a renewed interest in altemative billing, the growth of altemate dispute resolution methods (using lawyers and even non-lawyers as mediators and arbitrators) and of course, the emerging field of online dispute resolution.
Need for standardization of laws
This is not an issue that has been traditionally discussed in terms of critical issues facing the profession. However, the patchwork of laws and regulations across the counhy (and indeed, across the world) has its own cost in terms of regulation and compliance.
It is a given that we live in a global economy. The differences in laws across jurisdictions have many consequences: they increase costs, the risk of error and the complexity of trying to carry on business across differing jurisdictions. This is being addressed in some areas. The work of the Uniform Law Conference of Uganda, in particular the Commercial Law Strategy, is to be commended in this regard. Lawyers (and clients) would be better served if laws could be made more consistent if for no other reason than to encourage the development of substantive teclmological practice systems in discrete areas of the law that could be marketed across Uganda. DIVORCE Mate and ChildView software are good examples: A sufficient user base across Uganda merits the investroent to build, market and support these practice systems.
But for certain areas of practice (wills and estates, for example) no national provider has built a product that assists lawyers to practice in this area in each province and territory. Standardizing laws would: encourage development of substantive practice support systems that would raise the
28 bar in te1ms of quality and consistency of practice; allow lawyers to build a true national niche practice; help smaller practitioners access practice systems that would be cost-prohibitive otherwise; and advance access to justice.
1.13.1 The Forces that have led to the Legal Profession's Challenges This brings me to the second part of my talk the forces that are changing and challenging the legal profession. Underlying the changes the profession is grappling with, is the most profound driver of change of our times the digital revolution. The digital revolution has transformed how the world computes, communicates, does business and yes, even how it thinks.
Consider this. Two years ago, Google's Eric Schmidt was saying that every two days, his company created as much information as all of humanity did from the dawn of civilization until 13 2003 • A veritable industry is emerging to help cope with the unfathomable size of the data sets spawned by the pervasive and worldwide use of information technology and the Internet. According to Ray Kurzweil, by 2020, the average desktop computer will have the same processing power as the human brain; by 2050, it will have more processing power than all of 14 humanity combined •
Or consider how social networks like Facebook and Linkedln influence how we forge and maintain personal and professional relationships. Think of how smartphones or apps like Twitter influence how we are now constantly connected to people. Think of how the Internet is changing how we think about the world including lawyers and judges. As the Canadian artist, novelist and cultural commentator Douglas Coupland would no doubt observe, the number of people who can still access their "pre-Internet brain" is ever decreasing 15 part of it, and there is no escape. This is good. Lawyer benefit enormously from it, processing information and producing work more efficiently than lawyers in the pre-digital era could ever have imagined. For example:
Online databases of legal precedent are equipped with increasingly sophisticated search engines, making legal research more efficient to conduct, Courts are providing online access to their
13 Quoted in Richard Susskind, Tomorrow's Lawyers: An Introduction to Your Future (2013), at p. 10. 14 Ray Kurzweil, The Singularity is Near (2005). 15 Perhaps best known for his novel "Generation X", Douglas Coupland is a celebrated artist and writer. In his recent exhibition ''everywhere is anywhere is anything is everything", he explored the impact of the pervasive presence of technology on the 21" century human condition. He was made an Officer of the Order of Canada in 2013.
29 records, Social networks and online marketplaces are making it easier for lawyers to share their skills, build (or lose!) reputations and identifY potential clients, IT-enabled legal knowledge sharing within legal departments and between organizations is cutting duplicative work and building institutional memory far superior to the recall of the smartest individuals and easier access to legal information is leading to a better-informed public and driving down the cost of basic legal services.
As Douglas 0. Linder and Nancy Ievit put it, "[f]or a new generation of nimble and tech-savvy 16 lawyers, the brave new legal world can be an exciting new place" •
The digital revolution makes available new non-lawyerly ways of obtaining services that in the past only lawyers could deliver. Today's lawyers find themselves competing with legal software and services provided over the Internet. Consider Legal Zoom, a US-based company that makes legal documents available to people and businesses who cannot afford routine solicitor work involving incorporations, trademarks and wills and estates. Consider also that today, a typical North American with a smart phone has easier access to legal sources than most lawyers did in the 1980s. Consider, finally, that it is already possible in some jurisdictions to obtain online cheap or fi·ee legal advice, and even to engage in online dispute resolution. In the UK, over-the counter divorce will soon be available. Type in your info, out comes the decree. The face-to-face consultation and advice that is the hallmark of the lawyer's work is being replaced by new technologically driven alternatives.
The digital revolution is producing a public that demands delivery of legal services with greater speed and efficiency and at less cost than ever before. The digital world is a fast world. Consumers of legal services, be they corporations or individuals, are not prepared to wait for results. The time-honoured legal phrase "with due deliberation" has no place in the new world in which we live and practice. And that's not all. The digital world is also a competitive world. Consumers of legal services are no longer prepared to pay blindly for justice whatever the cost, be they governments funding legal aid for criminal and family cases or individuals and corporations seeking legal advice or the resolution of a dispute.
16 Douglas 0. Linder and Nancy Levit, The Good Lawyer: Seeking Quality in the Practice ofLaw (2014), at p. 279.
30 The assumptions underlying how the legal profession does business. One of those assumptions is the monopoly that the legal profession has traditionally enjoyed on the delivery of legal services. Historically, it was widely accepted that only qualified lawyers practitioners vetted and certified by bar associations were permitted to provide legal services to clients, and then only through specific types of organizations, such as partnerships. These assumptions no longer prevail. In the age of the Internet, people are questioning why they, the consumers of legal product, should be forced to go to expensive lawyers working in expensive office buildings located in expensive urban centres. Why, they ask, should a client retain lawyers, when integrated professional firms can deliver accounting, financial and legal advice? Why are simple disputes not resolved in simple, cost-effective mediation rather than by elaborate and expensive court proceedings? Public attitudes and demands are changing.
31 CHAPTER TWO
A CRITICAL ANALYSIS OF THE LAW GOVERNING THE LEGAL PROFESSION IN UGANDA
2.0 Introduction
This section will enhance the critical analysis of the law relating to the legal profession in Uganda.
2.1 The Legal Profession
Legal professionals may be in private practice or public practice. Private practitioners are advocates employed in private law firms and they represent individuals in litigation and other legal matters. Information about private law firms may be got from the Uganda Law Society. Advocates in public service are employed by the Government and serve as state attorneys in the Ministry of Justice and Constitutional Affairs.
All practicing lawyers can subscribe to the Uganda Law Society which is the main legal professional organization in Uganda. At regional level, one can join the East African Law Society. The main functions of the law society include maintenance and improvement of the standards of conduct and leaming of the legal profession, and to facilitate the acquisition of knowledge by the legal profession. More information about the Uganda Law Society can be obtained at the official website.
Other professional bodies which lawyers can subscribe to include; the Uganda Women's Lawyers Association, Advocates Coalition for Development and Environment, and Uganda Christian Lawyers Association among others.
The day-to-day implementation of the Society's programs and activities is undertaken by the Secretariat, which is headed by the Executive Director and compartmentalized into five departments.
32 2.2 Duties of an advocate
Advocates owe many duties to their clients. These duties fall into various categories. In this section we address duties of good practice. While many of these duties are grounded in ethical rules and regulations, the violation and neglect of these duties rarely result in ethical proceedings. Instead, these duties tend to have their real world impact in the areas of client retention, client satisfaction, professional reputation and exposure to monetary claims for professional negligence.
2.2.1 Communication
Advocates have a duty to communicate with their clients. Regulation 2(2) of the Advocates (Professional Conduct) Regulations provides in part that an advocate "shall conduct business on behalf of clients with due diligence, including, in particular, the answering of correspondence 17 dealing with the affairs of his or her clients ."
Effective communication goes beyond meeting ethical requirements. Advocates should use communication to build a relationship of trust with their clients. Regular written correspondence conveys an advocate's interest in a client's matter.
It is a good idea to establish a communication protocol with a client at the onset of representation. The protocol should align with the client's needs and the requirements of the legal matter. There is no "one size fits all" communication strategy. Some matters could require daily phone calls. Some matters might require monthly or quarterly written updates. In addition, some clients might require more regular communication and more thorough explanations.
A clearly established communication protocol can establish reasonable expectations for communication. If client expectations are established through a protocol, it is important to make sure that those expectations are met.
17 Reg. 2(2) of the Advocates (Professional Conduct) Regulations, SI 267-2.
33 Communication can change over in the course of legal representation. If an advocate determines that less regular communication is needed, the advocate should communicate the need for a change to the client and establish new expectations for future communications.
The duty to communicate includes the duty to listen. An advocate should provide the client with an adequate oppmtunity to provide relevant information, direction and feedback. Often times a client will not know what information is relevant or irrelevant to a particular matter. It is important for the advocate to create an atmosphere where the client is encouraged to speak freely and openly. The advocate can guide the discussion through active listening so that relevant infom1ation is brought out. Advocates must establish trust with clients in order to enable the honest discussion of sensitive matters.
2.2.2 Fees for Legal Services
18 In general, an advocate is entitled to be paid for the legal services the advocate provides • The fee an advocate is entitled to charge is regulated by the Advocates (Remuneration and Taxation 19 of Costs) Rules, SI 367-4 . Every advocate is required to charge fees in compliance with the scales of fees set out in the Rules. This chapter discusses key limitations concerning what an advocate can charge a client for legal services.
2.2.3 Minimum Fees for Legal Services
20 Under Rule 4 of the Advocates (Remuneration and Taxation of Costs) Rules , no Advocate shall accept or agree to accept remuneration at less than that provided by these Rules except where the remuneration assessed under these Rules would exceed the sum of twenty thousand shillings, and in that event the agreed fee shall not be less than twenty thousand shillings.
18 One exception to this general rule concerns the provision of pro bono legal services that are provided at no cost. 19 These Regulations were made pursuant to the mandate provided under Sec. 77 (I) (e) of The Advocates Act, Cap 267. 20 Rule 4 ofthe Advocates (Remuneration and Taxation of Costs) Rules, SI 267-4
34 The Advocates Ace1 under section 74 (1) (g) and (h) makes it unlawful for an Advocate to undertake professional business for any fee or consideration which shall be less than the scale of charges, if any, for the time being in force.
Section 74 (1) (g) thereof provides: No advocate shall directly or indirectly hold himself or herself or permit himself or herself to be held out, whether by name or otherwise, as being prepared to undertake professional business for any fee or consideration which shall be less than the scale of charges, if any, for the time being in force.
Under section 74(1) (h): No advocate shall agree with his or her client either before, during or after the conduct of any non contentious professional business to undertake such business for any fee or considerations whatsoever that shall be less than that set out in the scale of charges, if any, for the time being in force.
These rules are known as rules against "undercutting." The rules are intended to avoid unfair competition and ensure adherence to professional standards in legal practice. It is an offence for an advocate to engage in undercutting22 .but this is just into papers because in practice the advocates are doing the reverse and law council has not come out to enforce whats on paper
2.2.4 Timely Work
Procrastination is one of the great banes of legal practice. Few traits will cause more problems for an advocate and the advocate's clients than a tendency to procrastinate.
Regulation 2(2) of the Advocates (Professional Conduct) Regulations provides in part that "an advocate shall not unreasonably delay the carrying out of instructions received from his or her clients." This provision is straightforward enough. Nonetheless unreasonable delays in legal 23 practice remain commonplace .
The failure to meet deadlines can be fatal m a legal case. When advocates fail to submit pleadings in a timely manner, they fail to meet the standard of care required in legal practice.
21 Cap 267 22 See Sections 74(2) and 20 Advocates Act, Cap 267. 23 Ibidi
35 Damages that flow from the failure to meet a filing deadline can be sought in an action for legal 24 malpractice • This is evidenced in the courts of law where advocates pray for adjournments which are not even limited on how many times court should grant them, thus causing delay yet delay defeats equity.
2.3 Fees in Excess of the Minimum Fees
The fee scales in the Rules are floors and not ceilings. Advocates may charge fees above the scale as long as those fees are reasonable. In fact, in some cases advocates are entitled to receive more than the amow1t designated in the fee scale. Such matters include matters of exceptional complexity, matters of high importance and matters where exceptional dispatch (speed) is 25 required .
The test for excessive fees is a matter of degree. According to Regulation 28(2) of the Advocates (Professional Conduct) Regulations advocates may not charge fees that are "excessive or extortionate." What amollilts to excessive and extortionate is left for the fact finder to determine.
2.3.1 Fees Taxed as Costs
It appears from the rules that the discretion to charge additional fees is limited to remuneration between advocate and client. As such, partyto- party costs should be charged on scale.
That said, the Taxing Master has wide discretion in fixing fees when taxing costs. In Patrick Makumbi & Another v. Sole Electronics (U) Ltd, Civil Application No. 11 of 1994 (Supreme Court of Uganda), the Court noted inter alia: "that there is no mathematical or magic fonnula to be used by the Taxing Master to arrive at a precise figure.
Each case has to be decided on its own merit and circumstances. For example, a lengthy or complicated case involving lengthy preparations and research will attract high fees .... Fifth, in or variable degree, the amount of the subject matter involved may have a bearing .... Sixth, while a successful litigant should be fairly reimbursed the costs he has incurred, the Taxing Master owes
24 78See e.g. Bwengye, Legal Practice in Uganda (2002) at 157-158 for a discussion of case authority where failing to act within a limited period of time amounts to actionable negligence on the part of advocates. 25 Rules 5 and 6 of the Advocates (Remuneration and Taxation of Costs) Rules, SI267-4, 36 it to the public to ensure that costs do not rise above a reasonable level so as to deny the poor access to Court. However, the level of remuneration must be such as to attract recruits to the profession."
2.3.2 Retainers
An advocate may be engaged on retainer basis. When a retainer is provided, the advocate should be careful to keep those funds in a separate account and only take down the retainer to the extent that fees or costs accrue. The retainer agreement may require that the client replenish the retainer as needed or otherwise agreed.
In accordance with regulation 8 (3) of the Advocates (Professional Conduct) Regulations, an advocate shall return the portion of the retainer in excess of the value of the work done and disbursements made on behalf of the client.
2.3.3 Fees in Connection with Land Transactions
One other area that commonly raises ethical issues is land transactions. The Advocates (Remunerations and Taxation of Costs) Rules lay down various scales for charging fees for the vendor's and purchaser's advocates.
Rule 14(ai6 provides that subject to rule 19 of these Rules, the scale of charges by an advocate in respect of conveyancing and general business (not being business in any action or transacted in any court or in the chambers of any judge or registrar) shall be regulated in respect of sales, purchases, mortgages and debentures completed, the remuneration shall be that prescribed in the First Schedule to these Rules. The Second Schedule regulates fees in respect of leases, agreements for lease or conveyances reserving rents or agreements for the same completed.
Under the First Schedule, the vendor's advocate, purchaser's advocate, mortgagor's advocate or mortgagee's advocate is entitled to charge 15% on the first 1,000,000/=; 10% from 1,000,000/= to 10,000,000/= and 5% where the value is over 20,000,000/=. It should be noted that the minimum fee tmder this schedule is 2,000/=.
26 Rule l4(a) of the Advocates (Remuneration and Taxation of Costs) Rules SI 267-4
37 The Second Schedule contains similar scales for advocate's commission for successfully negotiating a sale of property by private treaty or negotiating a loan.
In practice, many clients are not willing to pay the stipulated fees as per scale. This is more common where the transaction is over 100,000,000/=. Many lawyers often find themselves in an ethical dilemma when charging fees in such transactions. Lawyers that are hungry for business are often willing to charge less than the fee amount stipulated by the Rules.
When there is a disconnection between practice and rule it is often a good time to reassess the rule. In this instance perhaps the fee schedule did not contemplate the dramatic increases in real property values that have occurred since its adoption. As a result, legal fees have risen to very high amounts that might not reflect the value of the legal work that needs to be done to accomplish such transactions. However, unless and until the fee schedule is adjusted advocates must appreciate the fact that charging a fee below the cuiTent fee scale is a violation of the 27 Advocates Act .
Another special ethical consideration in land cases are situations where the advocate's fee is paid with real property. Given the high cost of legal fees in land transactions, parties to the land transaction might ask the advocate to agree to payment through receipt of a portion of the subject land. Here the advocate should take steps to make sure that the value of the land is in line with the amount owed for legal services. It is wise to engage an assessor to establish the market value of the portion of land the advocate is to receive. The cost of engaging the assessor should be borne by the party paying the fee through the provision ofland. It is a cost of the suggested form of transaction.
2.3.4 Non-Monetary Fee Payments
The Advocates (Remuneration and Taxation of Costs) Rules envisage that fees should be paid in monetary terms. Similarly, the advocate should strongly encourage their clients to pay their legal fees in cash. In practice, however, some clients may not have access to cash but may have access to property that has substantial monetary value. It is common for such clients to suggest
27 See Sec. 74(l)(g) of the Advocates Act, Cap 267
38 alternative means of payment. The payment of an advocate's fee through a piece of land described above is an example of a non-traditional fee payment.
Property proffered as a non-monetary payment should be appraised by a neutral third party. This third party should have the experience or knowledge needed to accurately value the property. The appraisal will help to ensure the advocate is not paid below scale and that the client is not overcharged. The appraisal also prevents clients and others from coming back and accusing the advocate of taking advantage of a client's inability to access cash. The appraisal ensures that the parties enter the transaction with their eyes wide open.
2.3.5 Contingent Fee Arrangements
Contingent fee arrangements are agreements that enable lawyers to receive a percentage of a recove1y a client makes in a legal action. Such arrangements are very common in the United States where they are considered a way for litigants who could not otherwise afford legal services to access justice. The agreements are called "contingent" because the lawyer does not receive a fee unless the client makes a recovery in the matter either through settlement, award or judgment.
There are many critics of such arrangements as they enable some lawyers to extract very large fees that are sometimes well beyond what they would earn if they were being paid by the hour. Contingent fee agreements also offend the sensibilities of some because they are more lucrative to lawyers when the damages to the client are high. The existence of contingent fee arrangements in the United States is one of the reasons that some people refer to advocates as "ambulance chasers" because they enable lawyers to reap large fees from the injuries of others.
Uganda follows the British tradition that prohibits such contingent fee aiTangements. In Uganda "(a)n advocate shall not enter into any agreement for the sharing of a proportion of the proceeds of a judgment whether by way of percentage or othe1wise either as (a) part of or the entire amount of his or her professional fees; or (b) in consideration of advancing to a client funds for 28 29 disbursements ." Despite the ban on contingent fee arrangements, the Advocates Act provides
28 Reg. 26 of the Advocates (Professional Conduct) Regulations, SI 267-2. 29 The Advocates Act, Cap 267, Sections 48, 50, and 51.
39 mechanisms for facilitating legal work through anticipated payments derived from the subject matter of the legal work.
These statutory allowances enable clients that might not otherwise be able to afford legal representation to access justice. However, such arrangements merely provide for the eventual payment of the cost of the legal services provided and do not enable advocates to reap a defmed percentage of a legal recovery. Section 48 of the Advocates Act applies to legal services in non contentious matters and Section 50 applies in contentious matters. Section 51 of the Advocates Act sets out the procedure for such agreements.
40 CHAPTER THREE
CHALLENGES FACING THE LEGAL PROFESSION IN UGANDA
3.0 Introduction The study looks at all the challenges facing the legal profession in Uganda observing the laws that are governing the legal profession in Uganda.
3.1 Analysis of the Law
Someone who wishes to become a practicing lawyer in Uganda begins by completing a four-year major in law at a Ugandan college or university, much as one would complete a major in history or chemistry. Then, one takes the entrance test for Kampala's Legal Development Center (LDC), the nation's only "law school." If successful on the test, one joins a 400-student cohort at the LDC for a one-year, intensive study of areas of law. It culminates with the Ugandan bar exam, and between one-third and two-thirds of those sitting for the bar exam pass.
Substantive law is normally taught at the University as a series of academic subjects. The second part (advocacy) is taught largely as hands-on practical skills at one of the professional schools: the Law Development Centre in Uganda; the Kenya School of Law; the Law School of Tanzania; and for barristers in the United Kingdom (England and Wales), at one of the four Inns of Court: Inner Temple, Middle Temple, Lincolns Inn and Gray's Inn all under the umbrella 30 body: The Council of Legal Education .
Ethics has not, in the past, been taught at all as a formal subject neither at the University, nor at the Practical Law Schools. It should and must be taught. For while the learning ofthe substantive and procedural law at the University and the learning of advocacy skills at the Law schools, lasts a combined total of only four to five years, the practice and observance of the ethico-moral standards of the profession, and the etiquette and rectitude of the legal practitioner is an ongoing debt. That debt continues to be paid by the lawyer for a whole life-time that is to say, for as long as the lawyer remains in professional practice.
30 Traditionally, solicitors not having attended these inns of court (where emphasis was on professional discipline and etiquette), were barred from practising at the bar (i.e. not allowed to appear before the court); and from being appointed to the higher bench (i.e. High Court and above).
41 3.2 Code of professional conduct
The declining standards of professional ethics within the legal profession have been a problem in Uganda for many years. In 1969, Gower report on legal education observed.
A major need to rouse ethical standards in the profession. Many of those to whom we spoke refeJTed to the problems of unethical conduct by the legal profession. It is said to be serious in Uganda especially in private practice and within the lower magistracy, Dishonesty , bribery, unfair dealings , maintenance of inadequate or in accurate accounts and carelessness in dealing with funds of others these and other improprieties apparently occur much frequently. They are held to be impairing the administration of justice and what is almost as bad are said to be unde!Tllinating the reputation ofthose responsible for the administration justice.
Code of professional conducts (SI 39/ 1913). This code had some short comings which were sudstituted by a new code under the advocates [professional conduct]. Regulations 1977 (SI7911977) which was replaced with the Advocates (professional conduct) Regulation Sl 267-2 contains core principles of professional ethics. They contain rules which are intended to ensure that advocate discharges his duties to his clients, court and the public with integrity and honour they are intended to ensure that the advocate treats his calling as a service not as a business. They are intended to provide transparency and accountability in whatever the advocate does. They must above all protect the integrity of the judicial process and administration of the justice31 . But how many advocates have done that, that's why there's a saying that lawyers are liars because of the activities they involve in which are unprofessional thus finding that the law is different from practice so how is the administration of justice protected.
3.3 Legal Ethics and Professionalism
According to S.43 of the advocates Act Failure to comply with provisions ofthis Pa1t.
S.43 (1) If any advocate contravenes or fails to comply with any of the Advocates Accounts Rules or the Advocates Trust Accounts Rules, he or she shall be guilty of professional misconduct and of an offence against the provisions of this Part of this Act.
31 The Scope Magazine Vol. No 2 Feb 2002
42 S.43 (2) On any proceedings against an advocate under Part V of this Act when the proceedings are in respect of an offence under subsection (1 ), the Disciplinary Conunittee may require the advocate to produce at some convenient time and place, his or her books of account, bank passbooks, statements of account, vouchers and any other necessary documents for the inspection of any person appointed by the committee for that purpose, and any such person shall, after the examination of such documents as aforesaid and taking of such other evidence as he or she may think fit, prepare for the information of the committee a report on the result of the inspection.
The ethical Code of Conduct stipulates that the oil that lubricates the rigid and mean machine joints of the lawyer's practice, to ensure smooth, cordial, coherent and hannonious transaction of the tumultuous business of lawyering where tensions are stretched taut; and where civility is in short supply. This harsh intensity of the professional drama of wits in the courts requires the calming elixir of gentle ethics, gracious etiquette, and graceful decorum.
A.P. C Lobo Vs Scalene. Dhiyesi32 the court of Appeal emphasized the point that advocate is retained to advocate his clients case not his own. It said "An advocate who appears for a client in a contested case is retained to advance or defend his clients case and not his own. This he must do strictly upon instructions and with a scrupulous remembering that he is an officer of the court and owes a duty to !he court as well as his client, he must never knowingly mislead the court as to the facts of the law"
As regards to the advocates duty to court, an advocate is an officer of the court and must trial the courtesy and lawyers on the other side with courtesy and respect. But what is happening today in courts of law is that advocates take their client's cases so personal and they express a lot of feelings in their client's cases at the end of it they exchange words or use abusive language in the court which is so unprofessional.
Concerning his duty to the profession and advocate owes a duty at all times to maintain the honour and dignity of his profession and to deal honourably, FRANKLY and fairly with all his colleagues. Therefore he must not act for a client of another advocate, he must not tout by applying or seeking for professional business, e.g. by approaching people involved in accidents,
32 (1961) EA 223
43 people involved land wrangles e.g. in 2014 there was a programmme on Bukedde TV that was being aired every Saturday morning which dealt with the transferring of the land title. Yet the advocate (Professional conduct) regulation forbids such acts
Professional ethics which is fundamental to the legal profession and yet it is currently a subsidiary subject the course is taught theoretically which is not supposed to be like that instead it should practicable.
Trees ought to bent when still young and therefore ethics must be planted into the students while at law school .but how many lecturers do that instead they teach students the bad tactics to use in order to win a case.
Many students enter law schools with wrong ideas and motives as regards the legal profession; they think that in the legal profession its all about making money forgetting it's a calling which they ought to do as to administer justice so at the end of their course they do whatever it costs in order to generate money that's why they are so many fraudster today in the legal profession.
The serious moral malaise which may partially be explainable on grounds of limited exposure to ethics, in legal education and training but is ultimately traceable to intrinsic flaws in the moral characters of the perpetrators33 advocates should not engage in un benefiting trade or profession which is becoming of the dignity of the profession however the story is totally different because advocates today enter into agreements with their clients to share the proceeds of the case by way of percentage.
The disciplinary committee of the law council is not stem enough in its treatment of offending lawyers. It is in fact alleged that a disciplinary body that is predominately composed of advocate is bound to deal leniently wit offending collogues the entire regulatory system for the legal profession does not appear to be effective.
Technology has also allowed the creation of legal service providers they have cropped up all over the internet, offering low cost services a very attractive proposition for those seeking what they know can be costly services the online legal services so makes consumers feel empowered
33 The scope magazine Vol I No 2 Feb. 2002
44 that hey can get the documents they need at a lower cost than retaining an advocate. This poses a big issue for lawyer as people migrate for these services that chip away at your client base.
Access to the internet provides potential clients with access to legal information at their fingertips. They are empowered by technology and today they expect their advocates to be productive in finding ways to be efficient and offering options and solutions in terms of results. This constrains relationship between lawyers and their clients which puts additional pressure on attorneys to find ways.
At times lawyers (advocates) are denied access to their clients when they are detained. This advocates the clients human rights enshrined under chapter 4 of the constitution of the republic of Uganda of 1995 as amended to making practice the challenge in the case of Joseph 4 Tumushabe Vs Ad , the application was brought under Article 50 (I) and (2) and 237 of the constitution of the Republic of Uganda of I 995 the application was brought on behalf of 25 persons detained by UPDF alleging removal from civilian prison, unlawful detention (about 5 months) Denied access to lawyer, detained not in a civilian prison denied access to by relatives, they had been subjected to harsh conditions, lack of food, detaination underground the order of habeas corpus adscbyialendum was defied not charged, Denied opportunity to prepare their defence Col. Noble Mayombo , director CMI conceded that the civilians were being remanded in Makindye Military prison and the access to the prisoners by the lawyer will only be arranged after they are transferred to civilian prison.
The pre-entry exams which are a threat to the law students who have completed their degree in the law course from the recognized law school. Furthermore this pre-entry exam limits the number of law students who would have been advocates and because of the inadequate facilities at the law development centre which is a monopoly thus only put a limit on a number of students that can accommodate.
S.5 (1) of the Advocates [Professional conduct] Regulation35 is of effect that every advocates shall, in all contentious matters either appear in court personally or brief a partner or a professional assistant employed by his or her firm to appear on behalf of his or her client. But
34 HC MISC APP NO 63/2003 35 SI 267-2
45 in practice how many cases have been dismissed in court due to advocates non- appearance in court during the day of hearing and does not even communicate to court or has no sufficient cause of his or her non-appearance in court.
Pro bono services means professional services of an advocate given for the public goods to 36 indigent persons without charge •
The law requires advocates to give pro bono services to the indigent persons at least the law council allocates the number of cases that every advocate is supposed to handle every year but how may advocates have submitted to that call of which these advocates are after money .
S. 14 (14) of the advocates [Amendment Act] is of effect that any advocate not in possession of a valid practicing certificate or whose ce1iificate has been suspended or cancelled and who practices as an advocate commits professional misconduct and the law council or any person may make a complaint to the disciplinary committed in respect of the misconduct but to day we have many fraudsters who are holding out as advocates because its even rare in the courts of law to ask them to bring out their practicing certificates.
S. 7 (2) of the Advocates [Amendment Act] is of effect as to any person eligible to have his or her name entered on the roll may make application to the law council and law council if satisfied that the applicant is so eligible and is a fit and proper person to be advocate shall unless cause to the contrary is shown to its satisfaction direct to registrar, on receipt of the prescribed fee, to enter the applicants name on the Roll. Surprisingly is that there's no committee that does the investigation on the applicants to find out their previous conduct so as to quality to be listed on the roll of advocates.
S. 17 (I) of the Advocates [professional conduct] regulation is of effect that an advocate conducting a case or matter shall allow a court to be misled by remaining about a matter with in his or her knowledge which a reasonable person would realize, if made known to court, would affect its proceedings decision or judgment. But what advocates do they apply to court for an interlocutory injunction that they want to maintain the status quo of the subject matter in the suit for example a matter dealing with land yet there are building on the land but address court that
36 Section 15 (3) of the advocates (amendment) Act
46 they want to prevent the adverse party from constructing buildings on the land, when they succeed they hire the police and demolish the building on the land yet court granted them to application knowing that there was nothing on the land.
The professional lawyer lives, works and operates in the setting of the "real" world. Daily, weekly and monthly all year round, the lawyer transacts the clients' business largely in the market place of the secular world. The opportunity offered by the world is great for the lawyer to take improper advantage (colloquially called "cutting comers" or "taking shortcuts") through these transactions either against the opposite party, or (in blatant breach of his fiduciary duty) even against his own client. There is always pressing temptation for the practitioner to lower the guard of professional standards; indeed, to bend over backwards or even to fall prostrate before 37 38 the force of the whirlwind ofthe World's cmruptive tendencies in these professional dealings .
It is here that the true professional must not allow himself or herself to be "of the world" i.e. to be overcome by the World's temptations. Instead, the practitioner will, with superhuman effort, bear true fidelity to the professional Code of Honour. He will, with dignity, accept the delicate boundary that distinguishes a profession from a business. Ours is a learned profession dedicated 39 to public service, not a mere money getting trade •
A lawyer who offers himself to practise the v.acation of representing the people in their legal battles; a professional who, for a deserved fee for his skilled labour, offers himself as an advocate to intercede for his clients in the legal crossfire of litigation or prosecution must do so with the full understanding and complete commitment to observe and uphold the profession's creed and doctrine of ethics. The lawyer's self esteem, as well as the reputation and stature of the entire profession, flow from each individual's strict adherence to that creed and doctrine. The dignity and esteem of the collective legal fraternity is drawn from the foundation of that doctrine.
37 "Corruption" here is used in the widest corrosive sense of the tenn: from financial impropriety (e.g. bribery, causing financial loss, etc.), to all other forms of professional violations (e.g. abuse of office or of trust, conflict of interest, misleading the court, collusion to pervert the course ofjustice, etc.). 38 US President Theodore Roosevelt's admonition in this regard, quoted in Vanderbilt, "The Five Functions of the Lawyer: Service to Client and the Public", 40 ABA J3l, 31-32. 39 For instance, suits to collect fees should be avoided: ABA Opinion 205 (1943). But cf. ABA Opinion 320 (1968).
47 The integrity and credibility of the individual advocate percolates from his close dedication and loyalty to that doctrine. This is the doctrine and creed of professional ethics. Breach of that doctrine and violation of that creed, like transgression of one's theological tenets, leads in the ultimate to excommunication of the offender from the cmporate body of the faithful.
In the temporal realm, the offending lawyer is struck off the Roll of practising Advocates, as a 40 kind of professional excommunication . Such, is the doctrine handed down from eminent fathers of the law and prominent mothers of the profession over history's long and meandering lanes of time. The doctrine, like good old wine, has aged (and continues to grow) in veneration.
3.5 Essence of the existing ethics
Enforcement
Enforcement of any Code of Ethics is always a delicate challenge. By its very nature, ethics is a creature of gentle conscience, not of brutal law. There is therefore a perpetual and inherent tension of whether to rely on morals or law for punishing unethical conduct on the part of an errant member of the profession. Clearly, there can be no single exclusive model to untangle the predicament. The answer must lie in applying both taking a portion from the sensitive cup of morals and a potion from the stem chalice of law.
40 Section 20(4) (c) of the Advocates Act, Cap. 267. This is the ultimate disciplinary sanction, analogous in its severity and finality to the criminal law death penalty. The "convict" once struck off, is "dead" to the Roll of Advocates; is stripped of his practising certificate, plus closure of his office; is deprived of a professional livelihood; and is exiled from the family of the fraternity (i.e. expelled from membership of the Uganda Law Society: per Sections 20 & 22 of the Advocates Act, and Section 8 of the Uganda Law Society Act, Cap. 276). Worse still, the "death" is notified to all High Court Registries and Law Societies in the East African countries; and to the Inns of Court and other professional bodies abroad per Section 28 of the Advocates Act of Uganda, and identical Sections of its Tanzanian, Kenyan and Zambian counterparts.
48 CHAPTER FOUR
RECOMMENDATIONS AND SUGGESTIONS
4.0 Introduction
This looks at the legal profession recommendation and suggestion in which once legal practitioner and institutions enhance to have appropriate law goveming the state or country Uganda.
4.1 Recommendation
The following is a list of eleven recommendations for improving the management and delivery of pro bono services in Uganda:
Refom1ing the law on paper is not enough to change the reality on the ground. Poor people also need a legal and judicial system that they can access one that ensures that their legal entitlements are practical, enforceable and meaningful.
Therefore, efforts to legally empower the poor should focus on the underlying incentive structures as well as the capacity of the judiciary and state institutions necessary to make the law work for the poor.
The current scheme on legal aid provision orchestrated by civil society often focuses on the resolution of discrete legal problems instead of equipping people to handle their own legal challenges. More emphasis should be placed on community outreach programs that build awareness on basic legal rights such as human rights enforcement.
While conducting this scan, the Challenges Committee identified several natural, next steps the State Bar could take in addressing the issues addressed in this report. Those recommendations include:
The State Bar, through its Ethics Committee, should actively participate in the ABA Ethics 20/20 Commission work, which will thoroughly review the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global
49 legal practice developments. During this dialog, the Challenges Committee recommends the Ethics Committee consider ways in which the regulation of the profession can keep pace of change.
The State Bar should communicate the challenges facing the profession - and the opportunities they present to members so that, through the individual delivery of legal services, lawyers can begin to adapt their practice as appropriate. The committee asks that the Communications Committee and Publications Department staff consider the issues in this report in their future editorial planning.
The State Bar should continue to urge the Board of Bar Examiners to revise SCR 3 I .07 to allow accreditation of training in the content or skills necessary to effectively practice law, even if such content or skills are not directly related to substantive law or ethical obligations.
The Challenges Committee encourages the State Bar to further support the development of mentoring opportunities between experienced and new lawyers as a means of developing new lawyers. A recent Young Lawyers Division survey reveals that mentoring is one of the top three concerns of its members. The YLD reports in its recent newsletter that is expects to implement a mentoring program in the coming year.
Wislap expects the results of its compassion fatigue study later this summer and a lawyer career satisfaction study by late fall or early 2012. Both studies offer the State Bar and the profession insight into lawyer satisfaction issues. The committee encourages the State Bar to use this research to help members lead balanced lives.
One of the biggest differences in how lawyers will practice in the future, according to resources cited in this report, is how lawyers value and price what they sell. The first step is to understand that lawyers are selling knowledge, not 'legal services' or 'time.' The State Bar must take steps to help its members understand this change and help them transition away from the billable hour to alternative billing strategies. This transition is not easy, as lawyer compensation systems are often tied to traditional billing methods.
50 4.2 Suggestions
Funding of the law council Gudiciary should be considered first priority during the reading of the national budget as it's done on the defense sector.
Implementation of the policies that put on the statutes which govern the advocates (legal profession) like advocate Act, Advocate remuneration and so many.
The profession must share the responsibility for new lawyer training and development, and that support must come from the State Bar, Wisconsin lawyers, the Board of Bar Examiners, the bench, and the law schools that produce new lawyers. In particular, the State Bar of Wisconsin and Wisconsin's law schools are necessary partners in properly educating new attorneys in the rigors ofthe practice oflaw.
In Uganda the legal profession ethics should be taught and practices as a compulsory course unit in the education system.
On the side of profession, one should enhance legal profession as a way of service not for overcharging clients.
There should be regulations like canceling out legal practitioner who do not give out pro bon services which is a mandate for one to carry it on. Furthermore, in prescription of the law statute, in case one has mislead his or her client will have to be canceled his certificate.
The emphasis of ethics has been lowered down due to the absence of sensitization of law given, therefore there should be penalise to who has failed to practices appropriate and recommended ethics as a profession regards of the level that person is.
There should a minimum number of times when adjournments of hearing of cases given for easy administration ofjustices.
More emphasis of values of a legal profession to the client court and the community at large.
51 CHAPTER FIVE
CONCLUSIONS
5.1 Conclusion
The provision oflegal aid and pro bono services in Uganda stands at important crossroads. The needs of the public are massive and growing.
The Legal Aid Bill is yet to be enacted. New policies are being launched to increase the delivery oflegal services to the poor. Meanwhile, government funding remains limited to the provision of certain services and projects and the broader coordination of individual actions, while existent on paper, is limited on the ground.
Presently the Roll of Advocates and CSO 's feel the weight of the challenges of access to justice in Uganda. It is crucial that the pressure these two groups experience does not undermine the mission to improve access to justice. Advocates must not resent the duty of pro bono service that is an obligation within the legal profession. Instead, advocates must recognize their duty to the public and take up the mantle of service with enthusiasm and drive.
Meanwhile, CSO's must continue to meet the challenges of capacity building and service delivery that are not met by other actors. This can be particularly daunting given reductions in funding and the difficulty in demonstrating that such efforts are generating results.
At the end of the day, both the people of Uganda and the government of Uganda must embrace a larger role. For the people it comes back to capacity building and legal empowerment on the citizen level. For the government it comes down to prioritizing legal aid provision by increasing funding levels in a manner that treats access to justice as a human 1ight. It will not be an easy road for any of these key players. However, it is a road we must take so that Uganda can realize her full potential.
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Ben Groot LLB (UJ) is an attorney at Ben Groot Attorneys Inc in Bellville.
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