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UNIVERSITY OF DAR ES SALAAM FACULTY OF LAW University Examinations LW 404: Professional Ethics, Office Management and Accounting
Time: 8:30 to 12:00 noon. (20th January, 2003)

INSTRUCTIONS:
(i) This OPEN-BOOK EXAM consists of FOUR questions, to be chosen from a set of Seven Questions, which you have a total of three and a half hours to answer. You may have with you any books or written materials. Please take the time to think through and map out the organization of your answers before writing out the answer in the exam booklet. This will help you not only with organization, but also with spotting issues. If you assume any facts or legal arguments not mentioned in the fact pattern, make those assumptions clear and express in your answer. Argue both sides of each issue, where appropriate. Your handwriting should be legible, and your answers lucid but concise. Avoid verbiage and unnecessary quotations.

(ii)

(iii)

(iv)

1.

As a young Advocate, your client tells you that he has discovered he is HIV-positive from a botched injection by his doctor. He requests you to negotiate a settlement on his behalf. Negotiations proceed quickly and the doctor's Advocates seem willing to settle for a sizeable amount of Tshs. 200,000,000/= (Two Hundred Million). Shortly before you finalize the settlement, the client informs you that he has had a second medical examination, which has revealed conclusively that he is not HIV-positive. He insists, however, that he still wants you to continue the negotiations on the basis that he is HIV-positive and to take the settlement as offered. He actually tells you ..What they

dont know wont hurt them and since we are together in this we shall split the funds settled half/half.

2 What should you do considering the duties of an advocate to his Client, the Court and the Public? Would your opinion be any different if you ascribe, on the one hand, to the traditional image of a lawyer as a Hired-Hand (Hired-Gun?); or, on the other hand, you ascribe to the current image of a lawyer as a Civic-Campaigner. 2. Asha Mrisho, a law student at the University of Manzesia, Bongoland, was badly injured in a car accident and after a brief hospitalization at Gabacholi Hospital, she was discharged prematurely as she could not pay for medical costs. Asha who has no visible income asks Advocate Maimuna to represent her against Jackton, the Driver who caused the accident, and the Manzesia Insurance Corporation (MIC) who insured the car. Maimuna agrees that she would institute a suit on a contingent fee arrangement (or no-win-no-fee basis) of 30% of the settled or decretal amount and she would advance the costs of litigation, settle Ashas medical and hospital bills, and pay for her living expenses during the pendency of the suit. Identify and comment on the Ethical issues raised by this fact situation and, in doing so, consider the relevant legal provisions that govern the Advocate/Client relation in Tanzania. 3. The Bank of Tanzania (BoT) has sued Gabacholi Bank (GB) and its Directors, individually, for fraudulent mismanagement of Clients funds to the extent that some of its Customers have threatened GB with insolvency proceedings. The Advocates for the Bank, SalaSala Chambers, have filed a defense essentially stating that commercial failure per se cannot amount to fraudulent mismanagement and that the Suit by BoT is politically motivated. Meanwhile, Alex Mpakanjia and his wife Sweetie, wealthy clients of SalaSala Chambers, instruct the Firm to sue GB for mishandling their funds deposited with GB in a manner amounting to civil fraud. The Managing Partner of SalaSala Chambers asks you to write a Legal Opinion on the following alternative scenarios: a. Citing the relevant law, whether there are any conflicts of interest associated with accepting the Mpakanjias instructions.

3 b. If any conflicts exist can both GB and the Mpakanjias waive the conflicts? Should the answer be positive, what will be the Firms ethical position in both cases when in GBs case it denies liability for mismanagement amounting to civil fraud, and in Mpakanjias case it asserts the existence of fraud against GB? Is a Chinese wall possible? c. If waivers are acceptable can they later be withdrawn? 4. Jah Rasta a prominent lawyer and academician in Manzesia, Bongoland, requests you as an old law school classmate to take on the defense of his 16 years old son Junior who has been arrested and charged for unlawful possession of a narcotic drug known as Ganja. Junior, who is on bail, comes to your Chambers for interview and states that on the particular afternoon he was driving his Dads car and was stopped by a traffic policeman who asked for his license and the registration card for the car. As he opened the cars dashboard cabinet for the documents a packet of Ganja fell out right in front of the cops watchful eyes. Junior was immediately booked. You assure Junior the case may be contested and even if it is lost there will be no custodial sentence - just some fine. Joe instantly turns gossipy and tells you: Ah! I am so relieved; the Ganja actually belongs to my father who, as

you must know, regularly smokes the stuff ever since his primary school days. Bad habits die hard. He requested me to take the rap for him and keep mum, as otherwise the truth will greatly embarrass him and tarnish his image as an Advocate and an Ethics Professor at the Law School! You are visibly shaken by this information and Junior, who is startled by your facial reaction, tells you Dont worry I wont tell! and runs out of your office.
Consider and resolve the ethical issues that would arise in your representation of Junior Jah Rasta in the Criminal trial. 5. Pondamali is a graduate of the University of Dar Es Salaam, Faculty of Law, and works as a Principal State Attorney in the Zanzibars Attorney Generals Chambers. He is presently prosecuting a Sedition case in the High Court of Zanzibar against 8 members of the ZUF Political Party. For their defense, the accused have jointly instructed

4 Johnson Zeze, a prominent criminal trial lawyer practicing on the Mainland Tanzania. Mr. Zeze happens to be Pondamalis classmate at the law school. The Chief Justice of Zanzibar, exercising his powers under the Legal Practitioners Rules, has issued a Certificate admitting Zeze to appear as an Advocate in this particular case. At the first hearing of the case Pondamali, for the Prosecution, raises an objection on a point of law submitting that Zeze cannot practise before the Courts in Zanzibar and moves the High Court to strike out the practicing certificate issued to Zeze. The defense is caught off guard and a ruffled Zeze prays for one day adjournment to prepare his answer to the preliminary objection. The prayer for adjournment is quickly granted by the presiding Judge. You are Zezes assistant and, back at your seaside luxury hotel, he tells you that he is seriously messed up by the silly objection and cannot concentrate; he will spend the whole afternoon at the hotels swimming pool and massage parlor. He asks you to spend the afternoon in the High Courts library writing a brief on the admission requirements for advocates on the Mainland vis--vis those of Zanzibar. And in doing so, he directs, challenge the outrageous objection since, prima facie, Pondamalis qualifications are similar to his and after all he practices in a commonwealth jurisdiction, i.e., Tanzania Mainland. Write the Brief. 6. Max Zembwela graduated some three years ago with a First Class honors law degree from the University of Manzesia. He interned for two years with the SalaSala Law Firm in Manzesia. During that time, whenever he met privately with unsuspecting Clients he would introduce himself as Advocate Zembwela. After admission a year ago he decided to go solo and opened a general practise law outfit styled Zembwela & Company. In order to drum up business Max executes an ingenious and aggressive marketing plan: a) Max circulates letters of introduction entitled Meet the First Class Lawyer, particularly to people he considers to be middle and upper class businesspersons. He tells everybody who would

5 listen that he does not deal with the riffraff or walalahoi, as he has left that to Poor Law experts. b) Max phones Clients he had worked with at SalaSala advising them that he has left that old and expensive law firm and offers his inexpensive but first class services. c) Max directs his Clerks, each armed with his flowery business cards, to scout for potential Clients around the Court corridors, the Traffic Department, funeral parlors and Hospital reception halls, especially the casualty departments. Similarly, his Secretary is to join all sorts of women groups and NGOs looking for potential divorcees and sexually harassed types. He promises a commission for any successful catch. d) Max, for his media onslaught, appears weekly on the Meet the High Flyers Program of the Manzesia TV where he answers legal questions from an audience. Maintains a popular Column entitled Business Law Made Simple in the afternoon tabloid The Aristocrat; whose byline introduces Max as Our own super Lawyer alongside his academic qualifications, address, and email with contact phone numbers. e) Max, who is totally apolitical, joins the Ruling Revolutionary Political Party, becomes its youth wing secretary general, and offers them free legal services as he argues that is where the bread is buttered, the opposition cannot offer you tenders. He applies a similar tactic with the Manzesia Chamber of Commerce. f) Max, takes a whole page of the local Yellow Pages telephone directory where he boldly displays his qualifications with a long list of legal services some in areas he has least acquaintance. He launches a Website, which profiles his curriculum vitae (CV), family history with pictures, the clients he deals with, and the court cases he has won. The Website is inscribed Like the proverbial cock we chase new business leaving old clients satisfied. Applying the Tanzanian law regulating the legal profession briefly identify and comment on the ethical issues raised by any three of the above listed fact situations.

6 7. Write short notes on any three of the following: a. The Advocates Committee. b. The Remuneration Rules and Ethics. c. Judicial powers of discipline over Advocates. d. The Tanganyika Law Society. e. Vakils.