ETHICS WEEK 11 ADVERTISEMENT AND ATTRACTION OF BUSINESS
WEEK 11
(I) ADVOCACY PRACTICE 2; (II) ADVERTISEMENT AND IMPROPER ATTRACTION OF BUSINESS
:: EXAMINATION: consist of –examination in chief, -cross examination and re-examination each of which can be used to elicit relevant evidence/information to prove, disprove or clarify assertion/ambiguities respectively.. See Section 214, 221 Evidence Act 2011.
:: EXAMINATION IN CHIEF 221 EA: examination of a witness by party who called him to elicit material evidence in support of his case-S 214 EA. Open ended questions are preferable. Leading questions are generally not allowed except for introductory matters, undisputed facts, where the court permits[1] or where the witness has been declared to be hostile by the court[2]
:: CROSS-EXAMINATION: 214 EA Is examination of witness by a party other than the party who called him so as to destroy or weaken the case of the opponent or discredit/impeach the witness’s credibility.
Cross-examination is not mandatory but may be crucial as rational and probable facts not cross-examined upon are deemed admitted. Co-accused too can cross examine witness. More leeway here as leading questions may be asked but scandalous, needlessly offensive, indecent questions would be disallowed except they are relevant and in issue.
LP may utilise the confrontation (questions which discredit evidence and ties witness to his answer… usually leading questions are used here), probing (identifying weakness in statement so as to expose his mistake or ignorance) or insinuation technique (asking witness to confirm or deny the truth of his assertion/statement). Questions here need not be limited to facts elicited in examination in chief or facts directly in issue but must be relevant.
Persons summoned to only produce documents cannot be cross examined-218 EA
:: RE-EXAMINATION: examination of witness by party who called him so as to clear ambiguities which arose during cross-examination. No leading questions (except with permission of the court) and if new issues are raised, opponent can cross-examine the witness on the issues raised.
At the end of examination, there may be final address which urges the court to deliver judgment in favour of the party addressing it by identifying the facts, issues, argument and prayer. After judgment is given, letter is sent to client telling him the outcome and possible option available. Then a dissatisfied litigant may appeal.
Note that by virtue of the Frontloading spirit, in examination in chief, the witness just adopts his written statement no oath that had already been filed rather than telling the court the whole story again. The counsel lawyer merely adopts his written address in closing address stage. This has whittled the Advocacy efficacy but it saves time and prevents springing of surprises.
:: IMPROPER ATTRACTION OF BUSINESS: is regulated so as to maintain the dignity of the profession.
– ADVERTISING: Was absolutely prohibited under R 30 RPC 1979 (LPDC v Fawehinmi) but under the current Rule 39 RPC 2007 it may be allowed where it is fair, proper, reasonable and complies with the law and Rules of Professional Conduct. The advertisement or promotion should not be calculated to mislead, exaggerate/promote his practice, constitute nuisance/annoyance, belittle other’s legal practice nor be such as can diminish public confidence in the legal profession.
– SOLICITING: Soliciting professional employment is absolutely prohibited Rule 39(3)… Whether directly or indirectly through circulating handbills, publication in newspaper, sound recording, advertisement, touts, and other self-aggrandisement schemes. Although publishing a brief informative data about himself (like name, address, institutions attended, posts held, honours, etc.) in a reputable law list or directory may not be regarded as soliciting (39(4)).
– INSTIGATING LITIGATION OR CONTROVERSY/FOMENTING STRIFE: a lawyer is prohibited from importuning upon a person to take up legal action where he is not consulted. At Common law he may be guilty of Champerty–Re A Solicitor Ex Parte Law Society. Except ties of blood relationship or trust makes it necessary-Rule 47. It manifest in conducts like; – Searching for defects in title; – Seeking Claimants of personal injuries; – Engaging agents to follow up on accidents; – Offering rewards to persons to influence legal work in their favour, etc. all with a view to employment in litigation.
:: PERMITS: name, address on note, envelope, visiting cards, sober/reasonably designed office sign post, articles/publication, notices of change of address sent to clients or other lawyers in his locality or publication in local journal of his availability to serve other lawyers as associates or consultants, publication is for client, participation in media programs provided he does not accept employment therefrom-Rule 40-46 respectively.
It appears hosting of website should not be wrong except used to improperly attract business.
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[1] Also when there are no objections raised, such questions may still be taken-Garba v The Queen.
[2] A hostile witness is one that is biased or compromised and unwilling to testify or tell the truth-Esan v State, 231 EA… a witness that turns adverse to the case of the party that called him. Once declared hostile by the court, he can be cross examined by the party that called him and once discredited, his evidence would be treated as unreliable-Aderemi v The State. 230 EA, Esan v The State, Adeleye v The State (2015).
