Written by,

Sylvester Sebastian
University of Dar es Salaam, School of Law. (Student)
+22578810761
LAWYERING IS THE PUBLIC DUTY

Lawyering is a term ordinarily denoting duties and functions performed by a

lawyer.1 In nut shell, what lawyers do in daily basis include; drafting and signing

documents, representing clients in courts of law, issuing notice on behalf of their

clients, tendering legal advice and educating clients and the general public in legal

matters within the parameters of the legal profession.

Lawyering is the public duty due to its nature and essence. Ordinarily, lawyering is

reputed to be a matter of largely private concern, however, the practice of law

remains, nonetheless, very much public profession.2 That is why lawyers have

constituted one of the most active groups of professionals in public affairs.3

His excellence, the former president of the United Republic of Tanzania, Ndg.

Benjamini W. Mkapa happened to note that;

“…Although the Tanganyika Law

Society consists largely of individual
Lawyers, in their private capacity, both
the Society and its members have been
vested with an important public duty - a
duty that derives from "the bosom of
God", and the pursuit of which brings
"harmony in the world."4

1
Google Search; ttp://en.wikipedia.org/wiki/Law 27th/Jan/2014
2
C.f Luchham. R, (1981) as quoted by Fauz P 93 Supra.
3
T. Fauz (1997) The Legal Profession in Tanzania, Law and Practice, p 93
4
See his speech at a dinner Hosted in his Honour by the Tanganyika Law
Society, Sheraton Hotel, Dar Es Salaam, 10th January, 1997
 Written by,
Sylvester Sebastian
University of Dar es Salaam, School of Law. (Student)
+22578810761
In this paper, an assessment as to how lawyering is a public duty has been clearly

performed. Looking at the nature and essence of legal profession in relation to the

public, a general reference has been drawn on the obligations of lawyers to ensure

that the public maintain confidence to the legal professional at the uppermost regard.

It is pompously said, of course by lawyers, that when a person is isolated from the

society, it is the God and a Lawyer that will stand and say such a person still has

some rights.

Lawyers are the fruits of the society. They are part of it too. It is important to note

therefore that there is no how justifiable that a lawyer will isolate from his society.

Majorly three factors should be considered in this contention.

Firstly, lawyers are human beings. The intrinsic connection within lawyers and the

rest human beings gives an automatic duty to any ethical lawyer, to act on behalf of

his fellows without whom no any lawyer would become so. Thus, by considering this

moral duty lawyering s a part of a public duty and not of an individual sole business.

Secondly, there should be no lawyer if there was no law. Any law in that note is the

property of the public. In essence, either the society agrees directly or

representatively to enact laws which are to govern the conducts among or between

them. Laws safeguard the interest and existing public policy at a material time. That
 Written by,
Sylvester Sebastian
University of Dar es Salaam, School of Law. (Student)
+22578810761
when lawyering, lawyers are doing nothing but effecting what the public intended

and therefore they should do it in a good faith.

Thirdly and lastly in this regard, the process of one becoming a lawyer involves

several things one of it being public initiatives in matters like building schools and

institutions, providing other human and material resources towards molding a person

into a lawyer. Now, the concern is what a lawyer should do than honoring the public

as the consideration and therefore be loyal to it. Thus, therefore, any lawyer is duty

bound to use his knowledge and skills not only for the benefit of himself, or /and his

client but of the society as a whole. That is, he must be something more than a man,

he must be in the fullest sense, a part of the society in which he lives and he must

understand that society if he is to able to participate in its development and

advancement of the economic and social well being of its members

In the course of lawyering, lawyers are officers of the court5, whether acting for or

against the government, they are demanded not to act violently to defeat the existing

public policy. They are required to be condour with court, act with civility and

integrity. In Rondel v. Worsley6 it was held that “ Every counsel has a duty to his

client…as an officer of the court concerned in administration of justice he has an

overriding duty to the court and to the public…”

5
See s.66 of the Advocates Act, [ Cap.341 R.E. 2002]
6
[1967] AllER 993
 Written by,
Sylvester Sebastian
University of Dar es Salaam, School of Law. (Student)
+22578810761
In that sense, lawyers are required to avoid sharp practices and other means bad

enough to inculcate injustices. What is expected from the public is to see justice is

being manifestly done. Thus, the respect that the public honors the court and its

officials need to be maintained and respected, where the vice verse is to tarnish our

legal profession and consequently social unrest to take the scene. The legal profession

therefore, has an obligation that is more than simply performing the call of their

paying clients and it intends to stop injustices being committed.7

Moreover, lawyering is seen to be a public duty and indeed it is in the sense that it

involves education to the public. Indeed, it the duty of the lawyers to disseminate

legal education to the society so that to expand justification on several legal issues

that a layman may be unable to appreciate and understand. Judge Fauz8 in his writing

has this to say; “Law provide the procedures on how the country should be run and

also assist in the maintenance of the rule of law and constitutionality, justice and

equality before the law as legal profession is obliged to educate the public on issues

touching upon their area of expertise.”9

Lawyering more to say is spirited with maintainace of peace and tranquility within

the society. This is observed in the duty of confidentiality. Non disclosure10 of the

7
C.P Maina & H. K. Bisimba , Justice and Rule of Law in Tanzania pg 583
8
Currently the judge of the High Court of Tanzania
9
T. Fauz (1997) The Legal Profession in Tanzania, Law and Practice,pg 103
10
See Rule 22(b)(ii) of the Rules of Proffessional Conduct and Ettiquette of Tangayika Law Society.
 Written by,
Sylvester Sebastian
University of Dar es Salaam, School of Law. (Student)
+22578810761
client’s information has more to do with peace among the people. If it happens that

lawyers abandon this ethical duty the society can never be peaceful as some of

information may lead into fighting, isolation even inter societal wars. Confidentiality

that a lawyer is required to maintain has more to do with the public interest than, even

at the side of a client.

In expanding the scope of lawyering to be the public duty, one should consider the

extinguished role of lawyers in preparing and drafting laws and other legal

documents. And here the words of the fore said former president are quoted with

approval;

“…on legislation, I am glad to learn that you

have actively participated in preparing the
proposed Land Law Bill, the Court Brokers
Rules, and the Advocates Remuneration
Rules. I welcome you to do much more for
instance in reinforcing the work of the Law
Reform Commission by advising on the state
of the existing laws and the problems
encountered in administering them. Your
Society should also scrutinise and advise the
Government on the Bills it proposes to table
in the National Assembly…”11

Indeed, it is indicated that the public is serviced in that manner too.

Legal aid. leaving aside an ordinary legal representation to the clients, lawyers are

owed a duty of providing a legal aid to the individuals who cannot afford to pay for

advocates and those who qualify in that category according to the law. Thus, the law

11
See footnote 4 Ibid.
 Written by,
Sylvester Sebastian
University of Dar es Salaam, School of Law. (Student)
+22578810761
requires a lawyer to accept a professional obligation the duty to represent the indigent

and persons assisted under Legal Aid and, where he does not must use the same degree

of skill and case on their behalf as he uses on the case of other client12 as a matter of

emphasis Samatta, J in Almas Kalumbeta v. R13 held inter alia that the legal

representation is the constitutional right.

Lastly but not least, lawyering is said not to be a business in its nature. Lawyers are

discoursed by law from advising14 and touting.15 Lawyers are unethical if engage in

sharp practices or were they undertake contingent arrangements.16

In the world of business under free market economy the practices above make the order

of the day. Thus, normal businessmen distinguished from lawyers are monopolizing the

business in order to accumulate not only profit but super profit.

For a lawyer such practices are said to be unprofessional, unethical and punishable. The

rationale for this, still lays on the want of legal service for the public service and not for

the personal gain.

Therefore, it is to be concluded in appreciation that, through performing the

duties that are ethically and legally required, lawyring becomes a public duty.

12
See Rule 37(3)(c) supra
13
(1982) TLR. 329

14
Rule 4 Ibid.
15
S. 47 of Advocates Act Cap. 341.
16
See. Mkono & Co. Advocates v. J. W. Ladwa [2002] EA 145 where Kalegeya J. Held such arrangements as
invalid and unenforceable
 Written by,
Sylvester Sebastian
University of Dar es Salaam, School of Law. (Student)
+22578810761
However, one cannot deny private gains that lawyers are exposed to through lawying

but for the large extent the service of a lawyer is done for the public good. Hence gives

a courage to vehemently say that lawyers training and tasks they perform places them

in a unique position in the society, perhaps more than any other profession in modern

history as lawyers have been more influential group. Thus, an ordinary person looks

upon the lawyer not only for guidance on the law but also for many other social

problems.