Q&A – 27 June 2011

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.

Work permit for volunteer

A friend of mine visited me from the USA and while in Tanzania felt touched by the life of orphans living at an orphanage centre which is near my house. She has decided to work as a volunteer at the orphanage centre, doing amongst others teaching English and French as she is a linguistics major. Does a volunteer who is not working for gain need a work permit? Surely the immigration cannot deny the permit can they?
LM, Dar

A foreigner who wants to live and work in Tanzania must obtain a work permit. The law requires all foreigners intending to reside in Tanzania be it for business, investment or work or any other acceptable purpose to be issued with a relevant residence permit. The authority to issue permit is vested on the director of immigration services.

Residence permits are categorized in three classes – Class A, B and class C permits. Your friend falls under resident permit class C. This is a permit which is issued to missionaries, students, volunteers and researchers. An application needs to be lodged and the immigration services may issue the permit with or without conditions. Without a valid work permit, your friend may be breaking the law and can be arrested.

There is also no waiver for volunteers- every individual must reside in the country within boundaries of the law. Without sounding like writers of a James Bond movie, history has revealed that worldwide a lot of double agents and spies worked under the shadow of volunteers and we alert you that volunteer permits in Tanzania sometimes do get rejected. Each application is judged on its merits.

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.