Q&A – 18 July 2016

Betrayal of attorney client privilege

I went to see my advocate and disclosed all the details of a sensitive case. We did agree on fees and I paid a certain amount as advance. It has been many months and the advocate has not performed thus far. I hence withdrew instructions and transferred my file to another law firm. The previous advocate is now threatening to disclose information that I released to him. Is this information not protected?
GF, Dar

As a general rule, whatever the client communicates with his or her advocate is privileged. That is the advocate is generally not required to release this information without the consent of his client. There are circumstances that he can be obligated to release the said communication like by order of the Court or if the information is about intention to commit a crime. In accordance with the scenario that you gave us, the advocate is legally obligated not to disclose the information unless it fits in the grounds which he will be legally obligated to disclose. Finally the basic rules of ethics of law professionals is to maintain confidentiality and whatever communicated to the advocate by his client or comes to the knowledge of the advocate in the course of attending to that client remains privileged and cannot and should not be disclosed. What the advocate is threatening to do is illegal and if he is a duly registered advocate, he should be aware of the basic principles of the attorney- client relationship. If he does reveal the said information, you can sue him and ask for compensation and he can be suspended.

Lawyers’ Rules of Professional conduct also grant clients the inalienable right to sack their lawyers at any time without the fear of their confidences being betrayed by the lawyer, his partners, associates, employees or his firm. The basic professional ethics rule on confidentiality provides that a lawyer shall not reveal information relating to representation of a client.

In the absence of all the exceptions above, the lawyer’s obligation of confidence to his client is sacrosanct. It is immaterial whether the client is a prospective, current, or a past client. It is also immaterial whether or not the lawyer-client relationship ended on a sour note.

In remand for 3 years

I am currently facing criminal charges at the District Court and have been in remand for 3 years as the offence I am charged with is not bailable. After the prosecution side closed its case, my defence case opened whereby I and another witness testified. The case has since been adjourned as my last witness is in the Democratic Republic of Congo (DRC) and has failed to attend. The case is now on last adjournment and the trial magistrate has warned me to close my defence. I have on several occasions requested the Court to issue summons but the Court has not been forthcoming. What should I do? This is a key witness for me as he shall testify as my alibi. Please assist as my life is at stake.
JJ, Dar

From the facts it seems like you have been charged with murder, for which, if convicted, you will be hanged to death. Unfortunately quite a bit of information is missing from the facts you have given us to enable us ascertain the reasons how and why the Court has reached this stage and why this is the last adjournment.

One reason for the Court to decide the way it has may be that after considering the surrounding circumstances of the case, it has formed a view that the alleged witness does not exist. This is so because a well minded magistrate or a Judge cannot deprive the accused of his opportunity to call his witnesses. In your question you have not mentioned why the witness has not voluntarily come to testify until he or she is issued with a Court summons. Why would a witness who you think will support your defence not voluntarily come unless compelled to do so? You know the facts and need to do some internal soul searching and answer this.

A further problem that arises in your case is that the Court summons you are claiming would be ineffective since your alleged witness is staying in DRC and our criminal Courts have no power to issue summons for attendance of defence witnesses residing in extra territorial jurisdictions. You are in a dicey situation. We suggest you get the services of a lawyer who can precisely guide you on the matter after reviewing your entire file.

Burial in private plot

My father bought a plot not very far from the centre of the city of Dar es Salaam. He has started construction of a house in the said plot planning for our family to move there. We have one small problem- our father has ordered us to bury him in that plot when he passes away. We do not have any objections but are unsure if the law allows this. I see the government has set aside areas which are public cemetery in many places including our neighborhood. Is my father’s wish not an offence or does it not amount to change of use of the land? Please advice.
KD, Dodoma

We are not aware of any law which imposes a legal obligation to bury a person in a public cemetery or prohibits burial in one’s own plot. The issue of place of burying may be subject to one’s decision and/or his family members’ decision. It is not an offence for one to be buried in their plot as long as burial permits are obtained from authorities before such burial. Our opinion is that the burial of your father will not amount to a change of use of the land. The plot will still be used for residential purposes despite presence of a grave. The grave might reduce the value of the plot as many people are not very receptive to living near graves. It would be wise to advise your father to be buried in a public cemetery as it is more convenient in the future. However different people have different beliefs and we must learn to respect them. Meanwhile we hope and pray that your father lives as long as he can!