In the flux of life of a professional, conduct is built on trust and regulations governing that specific profession. Be that as it may, the legal profession as practiced by lawyers requires them to uphold the highest standards of integrity and honesty. One of the most egregious breaches of this trust is when a lawyer misappropriates a client’s funds. This article will explore the legal ethics surrounding this issue and discuss the remedies available to affected clients.
A bad lawyer is one who misappropriates a client’s money and such actions raise important issues regarding the fiduciary duties of advocates, the execution of court orders, and the protection of clients’ rights. All professions, especially one as central as the legal profession, should undergo a continuing process of examination and self-evaluation. Any group that does not engage in such an exercise loses much, which makes it a profession: a shared set of principles and customs that transcend self-interest and speak to the essential nature of the particular calling or trade.[1] Thus Kuloba J (as he then was) in Apollo Insurance Company Ltd v Scholastica K. Kamau & Muthanwa & Company Advocates stated that “today the “hungry and unscrupulous advocates’ are not “few’, they are not merely ‘hungry and unscrupulous”, they triple satanic depravity with wicked greed and an ever-increasing ethical decadence.
An advocate according to the Advocates Act,[2] is; advocate” means any person whose name is duly entered upon the Roll and— (a) for Section 26(2) and Part VI of this Act, includes any person mentioned in Section 11; and (b) for disciplinary proceedings under this Act, includes— (i) any person permitted to practice under Section 16(6); and (ii) any person who carries out work of a nature normally performed by an advocate or who is entitled to act or who purports to act as, or pretends to be, an advocate. Thus, Advocates are key to building the trust of the Ugandan people. Advocates must make a concerted and consistent effort to explain the nature of the profession and their services to their clients. In all circumstances, advocates should ensure that justice is seen to be done. In the case of Swinfen v Lord Chelmsford,[3] it was stated that the duty undertaken by an advocate is one in which the client, the court, and the public have an interest because the due and proper, and orderly administration of justice is a matter of vital public concern. Section 22 of the Advocates Act is to the effect that every advocate and every person otherwise entitled to act as an advocate shall be an officer of the High Court and shall be subject to the jurisdiction of the High Court and, subject to this Act, to the jurisdiction of the Disciplinary Committee.
Lord Denning in Arthur J.S. Hall v. Simons[4] rightly emphasized that it is a mistake to suppose that a lawyer herein an advocate is the megaphone of his client to say what he wants. Advocates owe clients many duties that overlap and occasionally conflict. The content of the duty to clients comes from a variety of sources, including case law, rules and commentaries, and academic writing, and he or she must serve the interests of justice as well as those whose rights and liberties he or she is trusted to assert and defend. Therefore, an advocate has a duty towards his client, the court, his opponent, and himself. Although the advocate is under a fundamental duty to give his best for the client’s interest, the advocate must be mindful of his other legal duties, which may conflict with the client’s interest. Therefore, the degree of skill required is that which pertains to a professional man, which is the general level of skill currently possessed by members of the legal profession. Goldin J, in Honey and Blanckenberg v Law,[5] pronounced himself on the duties of legal practitioner (attorney) when he said: In his performance of his duty or mandate an attorney holds himself out to his clients as possessing adequate skills, knowledge and learning for purposes of conducting all business he undertakes. In Uganda, this was reiterated recently by the Disciplinary Committee of the Law Council in Haji Kizito Bulwadda v Patrick Furrah[6] where the Committee found that the advocate was guilty of acting unprofessionally in discharging his duties. Assoc. Prof. F.A.W. Bwengye, in his book Legal Practice in Uganda,[7] also argues that more advocates must take the duty they owe to the wider community and nation seriously. A consistent commitment to upholding this duty will improve the broader society.
This results in more legal work for Ugandan advocates. National Objective XXIX of the Constitution of Uganda provides that every citizen of Uganda must inter alia be patriotic and loyal to Uganda and promote its well-being; to engage in gainful work for the good of that citizen, the family, and the common good and to contribute to national development; to contribute to the well-being of the community where that citizen lives; and to promote democracy and the rule of law.[8] Moreover, Article 17 of the Constitution provides in part that every citizen of Uganda must “cooperate with lawful agencies in the maintenance of law and order” and “to combat corruption and misuse or wastage of public property.” These Constitutional duties apply to practicing advocates as well as all other citizens of Uganda. For advocates who take these duties seriously, the practice of law is a great opportunity to contribute to Uganda as citizens. Thus, the Disciplinary Committee of the Law Council in Haji Kizito Bulwadda v Patrick Furrah[9] found that the advocate was guilty of acting unprofessionally in discharging his duties. The ruling by the Disciplinary Committee was read posthumously after the complainant passed on. Before his demise the complainant had made allegations of the respondent’s unethical conduct, whereupon the respondent was charged with four counts namely: Acting without the client’s instructions contrary to 2(1) of the Advocates (Professional Conduct) Regulations, Conduct unbecoming of an advocate contrary to Regulation 3(2) of the Advocates (Professional Conduct Regulations.
Advocates are accountable for all money they handle on behalf of clients. Serious consequences follow the failure to account for a client’s money. An advocate who fails to account for client funds is subject to disciplinary proceedings before the Law Council in Uganda. In Joseph Mpamya & 30 Others v. Matovu Kimanje Nsibambi & Co. Advocates[10] before the Disciplinary Committee of the Law Council, it states that the Advocates Accounts Rules require every advocate to keep proper account of clients’ money. For purposes of these rules, “client” means any person on whose account an advocate holds or receives the client’s money. A “client’s money” is defined to mean money held or received by an advocate on account of a person for whom he or she is acting about the holding or receipt of money either as an advocate or, in connection with his or her practice as an advocate, as an agent, bailee, stakeholder or in any other capacity, except in cases stipulated in Rule 1 (1) (e), i.e. money held or received on account of the trustees of a trust of which the advocate is advocate-trustee, or money to which the only person entitled is the advocate himself or herself, or in the case of a firm of advocates, one or more of the partners in the firm. Advocates are required to pay the client’s money into the client account under Rules 2 & 3 of the Advocates Accounts Rules.
Therefore, Money paid into the client account can only be withdrawn by Rules 6 and 7 thereof. The exception is given from payment into the client account where money is received in cash and without delay paid in cash in the ordinary course of business to the client or a third party as provided under Rule 8. Therefore, advocates must make a concerted and consistent effort to explain the nature of the profession and their services to their clients. This shows how the profession is governed by law, which controls their work and conduct. Section 83 (5) of the Advocates Act is to the effect that any advocate who contravenes or fails to comply with the provisions of any regulations made under subsection (1) (a) shall be guilty of unprofessional conduct, and the Law Council or any person may make a complaint to the Disciplinary Committee in respect of that conduct. Therefore, the Advocates Act and Professional Conduct Regulations in Uganda strictly regulate the handling of client funds by legal practitioners. Under these laws, advocates are required to maintain a client account separate from their personal accounts, and any unauthorized use of client funds may constitute professional misconduct.
Given the urgency and gravity of the matter, a client should act without delay to protect her legal rights. The remedies available will not only help her recover her money but also ensure that a bad lawyer faces appropriate legal consequences for his professional misconduct. Assoc. Prof. F.A.W. Bwengye, in his book Legal Practice in Uganda,[11] argues that advocates play a vital role in the preservation of a civilized society. The fulfillment of this role requires understanding by advocates to understand their relationship with the function of a legal system in a civilized society. The legal profession in Uganda is vast whereby it is one of the most prestigious professions in Uganda and considered to be one of the most regulated professions. The legal profession is ‘a vocation that is based on expertise in the law and in its application.’ Those who pursue these ‘vocations’ collectively form a body of individuals who are qualified to practice law in particular jurisdictions. Justice Remmy Kasule in Raymond Otucu v. Otwii Tom and others[12] stated on page 6 that “the legal profession, more than any other profession, enjoins its members to exhibit the best proficiency of expertise when handling and pursuing instructions of their clients or the state at large.” Justice Stephan Musota in Paul Mugoya v. Attorney General[13] stated on page 7 that “the Advocates Act is one of the laws that regulate the legal profession and matters relating to the legal profession in Uganda.”
Legal Framework Governing Professional Misconduct, Available Remedies for Clients, and Procedural Steps for Recovery;
Filing a Complaint with the Uganda Law Council: The Uganda Law Council is the primary regulatory body overseeing legal practitioners in Uganda. Under Section 3 of the Advocates Act, the Law Council has the power to investigate and discipline advocates who engage in professional misconduct. Misuse of client funds constitutes serious professional misconduct that warrants disciplinary action. The Law Council may suspend or disbar an advocate who has failed to meet ethical and professional standards. This avenue provides an administrative remedy for clients to recover his/her funds and ensure that the bad lawyer faces professional consequences.
under Section 27 of the Advocates Act which provides that without prejudice to the other provisions of this Act, a complaint against an advocate of professional misconduct may be made to the Disciplinary Committee by the Law Council or by any person.
The Advocates (Professional Conduct) Regulations further reinforce this standard, emphasizing that an advocate must maintain client trust and financial integrity. In Re: An Advocate,[14] the court ruled that an advocate who converted client funds to personal use was guilty of gross professional misconduct and deserved the harshest penalty.
This principle has been followed in Uganda, where advocates found guilty of similar conduct have faced significant disciplinary actions. The case of Impetus Uganda v. Atim Pule[15]saw, an advocate suspended for failing to remit client funds, reinforces the Law Council’s commitment to maintaining professional integrity. The legal profession’s credibility heavily depends on ensuring that client money is never misappropriated.
An advocate in Uganda is legally bound by the duties of good faith and honesty towards their client. Under Section 46 of the Advocates Act, every advocate is legally obligated to maintain accounts in compliance with the Advocates Accounts Rules and the Advocates Trust Accounts Rules, as set out in the First and Second Schedules of the Act. These rules require an advocate to establish a trust account separate from the firm’s operational account to ensure proper handling of client funds.
To institute suits in Uganda concerning property, the subject matter must be situated in Uganda as per Section 12 of the Civil Procedure Act. Further, suits related to immovable property must be instituted in the court within the local limits of whose jurisdiction the property is situated or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, carries on business, or personally works for gain. In Walakira v Ssengendo & Ors,[16] the court held that about suits involving compensation for moveable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides, or carries on business, or personally works for gain within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the courts as per Section 14 of the Civil Procedure Act. Other suits are to be instituted where a defendant resides or where the cause of action arose, as per Section 15 of the Civil Procedure Act. In the case of Titus Mwebe v. The Attorney General[17] established that a person who suffers from the delay in receiving a judgment debt can be compensated for any consequential loss suffered.
In my opinion, punishments against bad lawyers who misappropriate client’s money serves as a crucial reminder that lawyers who are entrusted with clients’ funds and must uphold the highest ethical standards. Failure to do so not only harm the individual client relationship but also erodes confidence in the justice system. To deter similar misconduct, disciplinary bodies must enforce strict accountability measures, ensuring that advocates who abuse their positions face severe consequences. Justice demands that lawyers as custodian or the law should also face it in case, they breach professional misconduct.
BIBLIOGRAPHY
Books and Articles
- D. Brian Dennison and Winifred Tarinyeba Kiryabwire Legal Ethics and Professionalism. A Handbook for Uganda
- Assoc. Prof. F.A.W. Bwengye, Legal practice in Uganda, 2nd edition, 2020
- G. Sharswood, An Essay on Professional Ethics (5th ed., Philadelphia: T and JW Johnson, 1907)
- Terence J. Johnson, Professions and Power (London: Macmillan, 1972)
- Assoc. Prof. F.A.W. Bwengye, Legal Practice in Uganda First Edition
- Lee Muthoga, “The Role of a Lawyer in a Developing Country” in Law and Society: selected papers from a seminar held 24-26 November 1988 at the Green Hills Hotel, Nyeri, Kenya (Nairobi: International Commission of Jurists (Kenya Section), 1988) p 49.
- Henning P.J. Lawyers, Truth, and Honesty in Representing Clients, 20(1) Notre Dame Journal of Law, Ethics & Public Policy 209 (2006)
- Hutchinson A.C. Legal Ethics and Professional Responsibility (Toronto: Irwin Law, 1999)
- Wilson M. et al. Stranded between Partisanship and the Truth: A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice, 29(2) Melbourne University Law Review 448 (2005).
Case Law
- Azedi Ntalo v A.A.R. Owori of Owori and Co. Advocates LCD/2003
- Mayanja Richard v Kateera and Kagumire Advocates LCD 99 / 2008
- Impetus Uganda v. Atim Pule LCD 90/2005
- Benon Tushemereirwe Kiuhura v Humphrey Rugambanengwe LCD 106/2005
- Umar Musaazi v. Attorney General Mengo Civil Suit No. 32 of 2001
- Azedi Ntalo v A.A.R. Owori of Owori and Co. Advocates LCD/2003
- Mayanja Richard v Kateera and Kagumire Advocates LCD 99 / 2008
- Paul Nalukoola Muwanga v. Bob Kasango (HCT-OO-CC-MA-444.2011)
- Prince David Namugala v Magellan Kazibwe LCD 58/2007
- Paul Nalukoola Muwanga v. Bob Kasango (HCT-OO-CC-MA-444.2011)
- Alexander v. Cahill, 598 F. 3d 79 – 2010
- Attorney General & Anor v Uganda Law Society HCMC no. 321 of 2013.
- Central Hudson Gas & Hudson Corporation v Public Service Commission, 477 US 557 (1980).
Laws and Statutes
- The Constitution of the Republic of Uganda 1995, as Amended
- The Advocates (Professional Conduct) Regulations. SI 267-2
- The Advocates Act Cap. 295.
- The Civil Procedure Rules.
- The Contract Act.
- The Civil Procedure Act.
- The Advocates Accounts Rules.
- The Advocates Trust Accounts Rules.
- The Penal Code Act Cap 128.
- The Judicature (Mediation) Rules, 2013.
[1] Arlin Adams, “The Legal Profession: A Critical Evaluation” (1989) 93 Dickinson L. Rev. 643.
[2] Section 1 of the Advocates Act, Cap 295.
[3] [1967] 3 All E.R. 993
[4] [2002]1 A.C 615.
[5] 1966 (2) SA 43
[6] LCD 49/2007
[7] Assoc. Prof. F.A.W. Bwengye, Legal practice in Uganda, 2nd edition, 2020 at page 137
[8] The 1995 Constitution of Uganda, National Objectives and Directive Principles of State Policy XXIX
[9] LCD 49/2007
[10] LCD 5/2001
[11] Assoc. Prof. F.A.W. Bwengye, Legal practice in Uganda, 2nd edition, 2020 at page 137
[12] (HCT-02-029-2007)
[13] (Misc. Application No. 364 of 2015)
[14] Re: An Advocate (1993) KLR 211.
[15] LCD 90/2005
[16] Walakira v Ssengendo & Ors (Civil Suit No. 152 of 2018) [2019] UGHCFD 25 (11 September 2019).
[17] Titus Mwebe v. The Attorney General [2004] UGCA 7.
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