MLS penalises 22 delinquent lawyers

Lawyers governing body, the Malawi Law Society (MLS) has penalised at least 22 delinquent legal practitioners for various offences and misconduct in the past 12 months.

Six lawyers face being permanently removed from the legal profession while five others risk going to prison after the MLS committee recommended that they be prosecuted for their acts of criminality.

MLS cracked down the unruly and culpable lawyers between March 2021 and February 2022 in a bid to sanitise the country’s legal profession.

According to a recently released MLS independent disciplinary committee report, the 22 errant lawyers were punished for, among others, offences relating to practitioners’ professional negligence, overcharging clients, intimidation and threats, failure to update clients, failure to handover files, failure to remit funds, failure to disclose and failure to refund deposits.

The report says: “Out of the 22 legal practitioners, the disciplinary committee recommended six lawyers be disbarred, for disbarment; one lawyer for two years suspension; five for six months suspension; five others to just being given a warning, while another five were referred to the office of Director of Public Prosecutions (DPP) for criminal prosecution.”

The MLS disciplinary committee was established by the Legal Education and Legal Practitioners Act (LELPA) under Section 90 and has powers to inquire into the conduct of legal practitioners at the request of the High Court and on a complaint made by the citizenry.

The report further discloses that the committee further ordered restitution in 20 matters shared among 14 legal practitioners in the sum of K86.4 million and of the ordered amount only K15.2 million had been paid back and remitted to the complainants, leaving a balance of K71.2 million.

According to the report, between March 2021 and  February 2022, MLS received 115 complaints from the public against 49 complaints received during the same period in 2020/2021, signifying a 66 percent increase in the number of complaints received.

MLS president Patrick Mpaka alluded the increase in number of complaints against lawyers to the global pandemic, Covid-19 prevailing situations in the past two years.

 “Last year, due to the Covid-19 situations, there was less interaction but this year, with the decrease in Covid-19 cases, there has been more interaction hence the increase in the number of complaints received,” said Mpaka.

Mpaka, however, said the development was a positive indication that the society was now becoming more open and available to the public.

“This reflects on two things—that the society is now more open and available to the public and also more transparent in the manner it operates that the public is able to come, lodge complaints and get assisted.

“We have always urged the public not to complain through social media because that [complaint] will not be sorted out but bring such complaints through the established systems,” said the MLS president.

The MLS disciplinary committee is headed by the Solicitor General, who is also Secretary for Justice, in accordance with Section 90(2)(a) of the LELPA.

During the period, according to the committee’s outgoing chairperson Reyneck Matemba, members of the committee convened five times for 32 conduct meetings and 22 disciplinary hearings.

Conduct meetings are private preliminary hearings between the committee and a legal practitioner aimed at informing the lawyer about the conduct that has resulted in the complaint and to ensure he or she understands the consequences of his or her actions.

However, Nyasa Times understand that most legal practitioners that were recommended for disbarment and criminal prosecution continue to practice just as normal and as if nothing is wrong.

This revelation cements the public perception that suspected mischievous legal practitioners are generally shielded and that they are not dealt with decisively despite that the new LELPA has in place stringent measures to be taken against the errant and wayward lawyers.

Under the new Act, the powers of the disciplinary committee have been significantly enhanced to suspend a lawyer, impose a fine, admonish, order to pay the costs of disciplinary proceedings and order a legal practitioner to pay compensation to a complainant.

Accordingly, once a lawyer is suspended, procedurally MLS is supposed to publish the same in the Gazette and in at least two newspapers with widest circulation, but this is not happening.

Further, a lawyer may not be allowed to renew his licence until he or she has complied with penalties imposed on him or her by the committee.

DPP Steven Kayuni told a local paper, The Weekend Nation, that when cases are referred to his office for prosecution, mostly they do not have a docket so his office requests other offices with investigative powers such as the Malawi Police Service to prepare the same.

“That, too, needs collaboration of the Malawi Law Society in terms of some processes. Our observation is that we need more collaborative effort than what is there now for us to make progress on these errant lawyers,” said Kayuni.

The DPP, however, could not state whether his office made the request to those offices with investigative powers to prepare the necessary docket.

Attorney General Thabo Chakaka Nyirenda, on his part, said told Nyasa Times that his office has had already started taking action on the errant lawyers.

“We are on top of things and as we speak, some of the cases against some errant lawyers are already in court and we are just waiting for the cases to start.

“We filed summons and the cases will come before the Chief Justice where we shall pray for disbarment of the legal practitioners,” Chakaka Nyirenda said.

The law does not sanction the Attorney General to suspend a legal practitioner but that power is vested in the disciplinary committee by virtue of Section 96(1)(b) of the LELPA or the Chief Justice by virtue of Section 89(1)(b) of LELPA.

However, Section 89(1) of the LELPA allows the office of the AG to apply to the High Court for the suspension of a lawyer upon being found guilty by the disciplinary committee.

In January 2021, retired High Court judge Esmie Chombo, then Judge president for Lilongwe High Court registry, blew a whistle on how some lawyers and court staff connive to “displace or destroy a court file so as to frustrate case proceedings”.

In her leaked letter, she alleged that some court staff are lured to prioritise work of certain legal houses or remove some documents of counsels representing the other parties to mislead the court that the party failed to file the necessary documents prior to the date of hearing.

According to Chombo, some lawyers and court staff sometimes conspire to open a new file and present the matter before a different judge as a new one when the last judge handling the matter had declined an application that counsel was seeking.