MALAWI LAW SOCIETY

CODE OF ETHICS

Chapter 18 as amended on 1st April 2004

CONTENTS
Definitions
Chapter 1 - Relationship of the Lawyer and the Society and Justice System
Chapter 2 - Competence
Chapter 3 - Relationship of the Lawyer to the Profession
Chapter 4 - Relationship of the Lawyer to other Lawyers
Chapter 5 - Accessibility and advertisement of Legal Services
Chapter 6 - Clients’ Property
Chapter 7 - Conflict of Interest
Chapter 8 - Confidentiality
Chapter 9 - The Lawyer and Business Aspects of Practice
Chapter 10 - The Lawyer as Advisor
Chapter 11 - The Lawyer as Advocate
Chapter 12 - The Lawyer as Negotiator
Chapter 13 - The Lawyer In Corporate or Government Service
Chapter 14 - Fees
Chapter 15 - Withdrawal and Dismissal
Chapter 16 - The Lawyer in Activities Other than the Practice of Law
Chapter 17 - Law Firms and Associations
Chapter 18 - Arrangements on death of Sole Principal
Chapter 19 - Breaches of the Code
 DEFINITIONS
Unless otherwise stated the following words shall be defined in the following manner:

Lawyer means legal practitioner admitted under the Legal Education and
Legal Practitioner’s Act cap 3:04 of the Laws of Malawi

Solicitor-Manager means legal practitioner managing a law firm upon the death of a legal
practitioner with duties and responsibilities as outlined in this Code and similar to those
executed in England and Wales.

MALAWI LAW SOCIETY

CODE OF ETHICS

In exercise of the powers under section 36 of the Legal Education and Legal Practitioners Act, Cap
3:04 of the Laws of Malawi, the Malawi Law Society hereby promulgates this Code.

CHAPTER 1

RELATIONSHIP OF THE LAWYER TO SOCIETY AND THE JUSTICE SYSTEM

PRINCIPLE

A lawyer shares the responsibilities of all persons to society and the justice system and, in addition,
has certain special duties as an officer of the court and by virtue of the privileges accorded to the
legal profession.

RULES

1. A lawyer must respect and uphold the law in personal conduct and in rendering advice and
assistance to others.

2. A lawyer should seek to improve the justice system.

3. A lawyer must not act in a manner that weakens public respect for the law or justice
system or interfere with its fair administration

4. A lawyer should support and contribute to the Malawi Law Society’s efforts to make legal
services available to all who require them.

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5. A lawyer must be courteous and candid in dealing with others.

6. A lawyer’s position must not be used to take unfair advantage of any person or situation.

7. Except under extraordinary circumstances, a lawyer must not tape record a conversation
with anyone, nor enable a third party to hear the conversation, without first obtaining the
consent of the person to whom the lawyer is speaking.

8. A lawyer must not harass any person or discriminate against any person on the basis of
race, language, creed, colour, nationality or ethnicity, gender, religion, marital status,
sexual orientation, age, mental disability or physical disability or otherwise or on the basis
of any similar personal attribute

9. A lawyer must not sexually harass a colleague, staff member, client or other person.

CHAPTER 2

COMPETENCE

STATEMENT OF PRINCIPLE

A lawyer has a duty to provide competent representation to a client. Competent representation

requires the legal knowledge, skill, thoroughness and preparation necessary for the representation.

RULES

1. A lawyer, to be competent, must possess the skills and attributes relevant to each matter
undertaken on behalf of a client and must apply them in a manner appropriate to that
matter.

2. A lawyer must not act or continue to act in any matter in which it may be reasonably
foreseen that the lawyer will be unable for any reason to provide services.

3. A lawyer who is prevented from acting or continuing to act by Rule #2 must make
reasonable efforts to assist the client in obtaining competent representation.

4. A lawyer may assign to support personnel only those tasks that they are competent to
perform and must ensure that they are properly trained and supervised.

5. A lawyer must refrain from conduct that impairs the lawyer’s capacity or motivation to
provide competent services.

CHAPTER 3

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 RELATIONSHIP OF THE LAWYER TO THE PROFESSION

STATEMENT OF PRINCIPLE

A lawyer has a duty to uphold the standards and reputation of the profession and to assist in the
advancement of its goals, organizations and institutions.

RULES

1. A lawyer must refrain from personal or professional conduct that brings discredit to the
profession.

2. All correspondence and remarks by a lawyer addressed to or concerning another lawyer,

the Malawi Law Society or any other professional organization or institution must be fair,
accurate and courteous.

3. A lawyer must respond on a timely basis and in a complete and appropriate manner to any
communication from the Malawi Law Society that contemplates a reply.

4. A lawyer must report to the Malawi Law Society any conduct of which the lawyer has personal
knowledge and which in the lawyer’s reasonable opinion acting in good faith raises a serious
question about the competence, honesty or trustworthiness of another lawyer or is likely to
harm any person.

5. A lawyer must not frustrate efforts to settle matters out of court or deliberately prolong litigation
when it is apparent that the client ought to settle or concede.

6. A Lawyer shall encourage the client to settle disputes through negotiation, mediation or
arbitration in appropriate circumstances. (see Section 13 of the Constitution)

CHAPTER 4

RELATIONSHIP OF THE LAWYER TO OTHER LAWYERS

STATEMENT OF PRINCIPLE

A lawyer has a duty to deal with all other lawyers honourably and with integrity.

RULES

1. A lawyer must not lie to or mislead another lawyer.

2. If a lawyer becomes aware during the course of a representation that

(a) the lawyer has inadvertently misled another lawyer, or

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 (b) the client or someone allied with the client or client’s matter has misled another
lawyer intentionally or otherwise; or
(c) the lawyer or the client or someone allied with a clients matter has made a
material representation to another lawyer that was accurate when made but has
since become inaccurate; then (subject to confidentiality – see Rule #7 of Chapter
8, Confidentiality ) the lawyer must immediately correct the resulting
misapprehension on the part of the other lawyer.

3. A lawyer must not take advantage of a mistake on the part of another lawyer if to do so
would obtain for the lawyer’s client a benefit to which the client has no bona fide claim or
entitlement.

4. A lawyer must agree to reasonable requests by another lawyer for extensions of time
waivers of procedural formalities and similar accommodations unless the client’s position
would be materially prejudiced.

5. A lawyer must be punctual in fulfilling commitments made to other lawyers and must
respond on a timely basis to all communication from other lawyers that contemplate a
reply.

6. If a lawyer is aware that a party is represented by counsel in a particular matter the lawyer
must not communicate with that party in connection with the matter except through or with
the consent of his counsel.

7. A lawyer may give a second opinion to a client regarding a matter in the hands of another
lawyer.

8. A lawyer who comes into possession of a privileged written communication of an opposing

party through the lawyer’s own impropriety, or with knowledge that the communication is not
intended to be read by the lawyer must not use it nor the information contained therein in any
respect and must immediately return the communication to opposing counsel or if received
electronically purge the communication from the system.

9. A lawyer must honour all undertakings given by the lawyer regardless of their form or the
manner in which they have been communicated

CHAPTER 5

ACCESSIBILITY AND ADVERTISEMENT OF LEGAL SERVICES

STATEMENT OF PRINCIPLE

The profession has a duty to ensure that the public has information regarding the nature and
availability of legal services and access to the System. To this end the Malawi Law Society shall
quarterly publish in leading dailies a list of licensed practitioners, their addresses and areas of

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expertise.

RULES

a. The MLS shall lay down procedures for certification of lawyers as specialists or experts
in specific fields or areas of the law.

b. A lawyer must not state that the lawyer is a specialist or expert unless certified as such
by the Malawi Law Society or by a body recognised by the Malawi Law Society for the
purposes of certification.

c. A lawyer shall not make a false or misleading communication about the lawyer or the
lawyer’s services. A communication is misleading if it:

a) contains a material misrepresentation of fact or law or omits a fact necessary to

make the statement considered as a whole not materially misleading;

b) is likely to create an unjustified expectation about results the lawyer can achieve or
states or implies that the lawyer can achieve results by means that violate the
rules of professional conduct or other law; or

c) compares the lawyer’s services with other lawyer’s services, unless the
comparison can be factually substantiated.

4. Every lawyer shall observe and abide by the Legal Practitioners Practice Rules made under
section 36 of the Legal Education and Legal Practitioners Act Cap 3:04

5. A lawyer must ensure that his fee schedule

A. is precise as to the services offered

B. where applicable refer to minimum or scale fees
C. state whether other amounts such as disbursement and taxes will be charged in
addition to the fee and
D. is strictly adhered to in every applicable case

8. A lawyer must not give anything of value to a non- lawyer for recommending the lawyer’s
service or referring a client to the lawyer.

9. A lawyer must not invite public or media attendance at any proceeding involving a client
unless the client has consented.

CHAPTER 6

CLIENTS’ PROPERTY

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 PRINCIPLES

1. All funds of clients paid to the lawyer shall be dealt with in accordance with the Legal
Practitioners (Accounts ) Rules made by the Malawi Law Society pursuant to section 36 of
the Legal Education and Legal Practitioners Act ( cap 3:04)

2. At the end of the practice year each lawyer shall comply with the Legal Practitioners
(Accountant’s Certificate) Rules promulgated pursuant to Section 44 of Legal Education
and Legal Practitioners Act ( Cap 3:04)

CHAPTER 7

CONFLICT OF INTEREST

PRINCIPLE

In each matter a lawyer’s judgment and fidelity to the clients interests must be free from
compromising influences.

RULES

1. A lawyer must not represent opposing parties to a dispute.

2. A lawyer must not act for more than one party in a conflict situation unless all such parties
consent and it is in the best interests of the parties that the lawyer so acts.

3. Except with the consent of the client or former client a lawyer must not act against a client
or former client if the lawyer has confidential information that could be used to the person’s
disadvantage in the new representation

4. When:

(a). A lawyer transfers from one firm (“former firm”) to another (“new firm”) and

(b). Either the transferring lawyer or the new firm is aware at the time of the transfer or
later discovers that

(i) the new firm represents a client in a matter that is the same as or related to a
matter in respect of which the former firm represents its client (“former client”).

(ii) the interests of those clients in that matter conflict and

(iii) the transferring lawyer possesses relevant information respecting that matter
then the following rules apply:

1. If the transferring lawyer does possess confidential information respecting the

former client that if disclosed to a member of the new firm could prejudice the

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 former client (“prejudicial confidential information”) the new firm and the
transferring lawyer must refrain from acting in the matter.

2. If the transferring lawyer possesses prejudicial confidential information the new

firm must cease to act in the matter.

5. When two firms have been representing different parties in a matter and the firms merge
during the course of the matter the following rules apply:

(a). If the matter constituted a dispute the merged firm must not continue acting for
opposing parties to the dispute.

(b). If the matter constitutes a conflict or potential conflict the merged firm may
continue acting for more than one party only in compliance with Rule “#2.

(c ). Whether the matter constitutes a dispute a conflict or a potential conflict the

merged firm may continue acting for one of the parties only if all parties consent.

(d), A lawyer must not personally represent a party to a dispute when a related person
is acting for an opposing party.

(e). Unless all parties consent a lawyer must not personally represent a party to a
matter when a related person is representing another party to the matter whose
parties are in a conflict or potential conflict situation.

7. A lawyer must not act when there is a conflict or potential conflict of interest between
lawyer and client unless the client consents and it is in the client’s best interests that the
lawyer so acts.

8. A lawyer must not act personally in a matter when the lawyer’s objectivity is impaired to the
extent that the lawyer would be unable to properly and competently carry out the
representation.

9. A lawyer must not engage in a business transaction with a client who does not have
independent legal representation unless the client consents and the transaction is fair and
reasonable to the client in all respects.

10. When a lawyer leaves a firm to practise elsewhere, the following rules apply:

(a) The client’s interests are paramount and accordingly, the decision whether the
lawyer will continue to represent a given client must be made by the client in the
without undue influence or harassment from either the lawyer or the firm.

(b) In their relationship and dealings with each other the lawyer and the firm must
conduct themselves in a manner that is honourable professional and consistent
with the best interests of the profession.

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 CHAPTER 8

CONFIDENTIALITY

STATEMENT OF PRINCIPLE

A lawyer has a duty to keep confidential all information concerning a client’s business interests and
affairs acquired in the course of the professional relationship.

RULES

1. A lawyer must not disclose any confidential information regardless of its source and
whether or not it is a matter of public record.

2. A lawyer must not disclose the identity of a client or the fact of the lawyer’s representation.

3. A lawyer must preserve and keep confidential property of a client under the lawyer’s
control.

4. A lawyer must take reasonable steps to ensure the maintenance of confidentiality by all
persons engaged or employed by the lawyer.

5. A lawyer must continue to hold a client’s information in confidence despite conclusion of

the matter or termination of the lawyer/clients relationship.

6. A lawyer who possesses confidential information of a client or former client:

(a). must not use such information for the lawyer’s personal benefit nor the benefit of a
firm member or a related person or affiliated entity of the lawyer; and

(b). must not act or continue to act for another client if the lawyer would have a duty to
disclose such information to that client.

7. When in other provisions of this Code an ethical obligation of lawyers is stated to be

subject to confidentiality:

(a). confidential information of a client must not be disclosed to any party without the
client’s consent.

(b). A lawyer must seek the client’s consent to disclosure of confidential information to
the extent necessary to permit the lawyer to fulfil the ethical obligation: and

(c ). In the event that consent is withheld the lawyer must withdraw.

8. The foregoing rules of this chapter are subject to the following.

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 (a). A lawyer must disclose confidential information when required to do so by Law.

(b ). A lawyer must disclose confidential information when necessary to prevent a crime

likely to result in death or bodily harm and may disclose confidential information
when to prevent any other crime.

(c). When acting for more than one party in the same matter a lawyer must disclose to
all such parties any material confidential information acquired by the lawyer in the
course of the representation and relating to the matter in question.

(d). A lawyer may use or disclose confidential information of a client when or impliedly
authorised by the client;

(e). A lawyer may disclose confidential information to another lawyer to secure legal
advice about the lawyer’s proposed conduct;

(f). A lawyer may disclose confidential information when reasonably necessary for the
lawyer to properly prosecute an action or defend a claim or dispute with a client.

9. When confidential information is disclosed by a lawyer pursuant to Rule #8 the lawyer

must disclose the minimum information required to give effect to Rule #8 and no more.

CHAPTER 9

THE LAWYER AND BUSINESS ASPECTS OF PRACTICE

STATEMENT OF PRINCIPLE

Except where a higher standard is imposed by this Code a lawyer in conducting the business
aspects of the practice of law must adhere to the highest business standards of the community.

RULES

1. A lawyer having a legal obligation to another party must not raise a defence to its
enforceability if, at the time it was undertaken, the lawyer was aware and the other party
unaware that that defence applied to the transaction.

2. A lawyer is personally responsible for financial commitments incurred by the lawyer on

behalf of clients unless the lawyer has expressly disclaimed responsibility to the relevant
party beforehand.

3. A lawyer having personal responsibility for a financial commitment incurred in the business
aspects of practice must ensure that such commitment is fulfilled unless there is
reasonable justification for the lawyer’s failure to do so.

CHAPTER 10

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 THE LAWYER AS ADVISOR

STATEMENT OF PRINCIPLE

A lawyer has a duty to provide informed independent and competent advice and to obtain and
implement the client’s proper instructions.

RULES

1. A lawyer must not lie to or mislead a client.

2. Except when the client directs otherwise a lawyer must ascertain all of the facts and law
relevant to the lawyer’s advice

3. A lawyer must not render advice in situation in which the independence of the lawyer’s
professional judgment is impaired.

4. A lawyer must not render advice unless competent to do so.

5. A lawyer must not obtain instructions from any person on matters not falling within the
express or implied authority of the client.

6. When a lawyer is unable to obtain instructions from a client because the client cannot
readily be contacted, the lawyer must take reasonable efforts to locate the client.

7.1. When a client is unable to provide proper instructions in a matter due to incapacity:

(a). the lawyer must make reasonable efforts to cause the appointment of legal
representative for the client and

(b). pending such appointment the lawyer must continue to act in the best interests of
the client to the extent that instructions are implied or as otherwise permitted by
law.

7.2. In an emergency where the health, safety or a financial interest of a person lacking
capacity is threatened with imminent and irreparable harm a lawyer may take legal action
on behalf of such a person even though the person is unable to establish a client/ lawyer
relationship or to make or express a considered judgment about the matter when the
person lacking capacity or another acting in good faith on that person’s behalf has
consulted the lawyer.

8. When a lawyer receives instructions given in good faith by the legal representative of a
minor or dependent adult to act in that regard the lawyer owes to both such parties the
duties normally owed by lawyer to a client and the following rules apply:

(a). If the lawyer received instructions given in good faith by the legal representative

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 that are within that person’s authority but that are not in the lawyer’s view in the
best interests of the minor or dependent adult the lawyer must either comply with
such instruction or withdraw in accordance with Chapter 14 Withdrawal and
Dismissal;

(b). If the lawyer reasonably believes that the actions or intentions of the legal
representative are not in good faith or one outside that person’s authority and are
not in the interests of the minor or dependent adult the lawyer must take steps as
are reasonably necessary to protect the interests of the minor or dependent adult.

9. When receiving instructions from a third party on behalf of a client a lawyer must ensure
that the instructions accurately reflect the wishes of the client.

10. A lawyer must not implement instructions of a client that are contrary to professional ethics
and must withdraw if the client persists in such instructions.

11. A lawyer must not advise or assist a client to commit a crime or fraud.

12. A lawyer must use reasonable efforts to ensure that the client comprehends the lawyer’s
advice and recommendations.

13. A lawyer must be punctual in fulfilling commitments made to a client and must respond on a
timely basis to all client’s communications that contemplate a reply.

14. A lawyer must keep a client informed as to the progress of the client’s matter.

15. A lawyer must :

a) not make a settlement offer on behalf of a client except on the client’s

instructions.

b) promptly and fully communicate all settlement offers to the client.

16. A lawyer must recommend that a client accept a compromise or settlement of dispute if it
is reasonable and in the client’s best interests.

17. At the request of a client and in appropriate circumstances, a lawyer must assist the client
in obtaining a second opinion.

18. A lawyer must promptly inform the client of any material error or omission in connection
with the lawyer’s representation irrespective of whether it is capable of rectification.

CHAPTER 12

THE LAWYER AS ADVOCATE

STATEMENT OF PRINCIPLE

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When acting as advocate a lawyer has a duty to advance the client’s cause resolutely and to the
best of the lawyer’s ability subject to limitations imposed by law or professional ethics.

RULES

1. A lawyer must not take any step in the representation of a client that is clearly without merit

2. A lawyer must use reasonable efforts to expedite the litigation process

3. A lawyer representing an accused or potential accused must not influence the complainant
or potential complainant with respect to the laying prosecution or withdrawal of criminal
charges

4. A lawyer representing a complainant or potential complainant must not advise or threaten

the laying of a criminal charge nor advise seek or procure the withdrawal of a criminal
charge in an attempt to gain a benefit for the client.

5. A lawyer must not participate in the preparation or delivery of a document resembling a

document issued by a court or other authority and intended to deceive the recipient

6. When a lawyer is required by law to notify one or more parties of a step taken or to be
taken in a matter the lawyer must notify all parties to the matter.

7. A lawyer must not communicate with the court respecting a matter unless the other parties
to the matter (or if represented their counsel) are present or have had reasonable prior
notice or unless the circumstances are exceptional and are disclosed fully and completely
to the court

8. In an ex parte proceeding a lawyer must (subject to confidentiality – see Rule #7 of chapter

8 Confidentiality) inform the court of all material facts known to the lawyer that will enable
the court to make an informed decision whether or not the facts are adverse.

9. Except with the consent of all parties a lawyer must not appear before a judge or a court
when the lawyer’s past or present relationship with the judge or the court would create a
reasonable apprehension of bias.

10. A lawyer must not act as counsel in any proceedings in which it is likely that the lawyer will
give evidence that will be contested.

11. A lawyer must not express a personal opinion or belief to the court as to facts in evidence.

12. A lawyer’s dealings with the court must be courteous and respectful

13. A lawyer must not misrepresent to the court the identity of the lawyer’s client or witness the
client’s position in the litigation nor the issues to be determined in the litigation.

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14. A lawyer must not mislead the court nor assist a client or witness to do so.

15. Upon becoming aware that the court is under a misapprehension as a result of submission
made by the lawyer or evidence given by the lawyer’s clients or witness a lawyer must
(subject to confidentiality- see Rule # 7 of chapter 8, Confidentiality) immediately correct
the misapprehension.

16. When the court requests that a lawyer answers a question or provides information the
following rules apply:

(a) The lawyer may decline to respond on the ground that to answer the question or
provide the information would

i) contravene the lawyer’s obligations of confidentiality, or

ii) have the effect of making the lawyer a witness in the proceeding ,or
iii) be detrimental to the client interest the lawyer not being required to
respond by any other provision of this Code.

(b) The lawyer who chooses to respond must do so in a complete and truthful
manners.

17.(a). A lawyer’s representation to the court concerning the fact of a case must be limited
to representation supported by the evidence.

(b). A lawyer’s representations to the court concerning the law must be supported by
judicial decisions or other legal authority unless the lawyer informs the court that
there is no such support.

18. A lawyer must inform the court of relevant adverse authority of which the lawyer is aware
and that has not been raised by opposing counsel.

19. A lawyer must not introduce or otherwise bring to the court’s attention facts or evidence
that the lawyer knows to be inadmissible.

20. A lawyer must not counsel or participate in:

(a) the obtaining of evidence or information by illegal means:

(b) the falsification of evidence.
(c) the destruction of property having potential evidentiary value or the alteration of
property so as to affect its evidentiary value
(d). the concealment of property having potential evidentiary value in a criminal
proceeding.

21. A lawyer must treat with fairness all witnesses and others involved in a matter.

22. A lawyer must advise or encourage a witness or potential witness to refrain from
communicating with other parties involved in the matter subject to the exceptions recognised by

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law.

23. A lawyer must not permit or participate in a payment or other benefit to a witness in
excess of reasonable compensation.

24. A lawyer must not counsel a witness to give evidence that is untruthful or misleading.

25. A lawyer involved in a proceeding must not during

(a) a cross-examination obstruct the cross examination in any manner and
(b) a break in a cross-examination discuss with the witness the evidence that
that witness has given or is about to give.

26. A lawyer involved in a proceeding must not discuss the testimony of a witness with a
person excluded by the court during such testimony.

27. A lawyer must not enter a guilty plea nor make an agreement with the prosecution to enter
a guilty plea on behalf of a client unless the client:

(a) so instructs the lawyer after receiving full information and advice from the lawyer;
and
(b) is prepared to admit in court the necessary factual and mental elements of the
charge or claim

28. When engaged as prosecutor a lawyer exercises a public function involving much
discretion and power. Accordingly :

(a) a lawyer’s prime duty is not to seek to convict but to see that justice is done
through a fair trial on the merits.
(b) a lawyer must act fairly and dispassionately:
(c) a lawyer must not do anything that might prevent the accused from being
represented by or communicating with counsel.
(d) a lawyer must make timely disclosure to the accused or defence counsel (or to the
court if the accused is not represented) of all known relevant facts and witnesses
whether tending toward guilt or innocence.

CHAPTER 12

THE LAWYER AS NEGOTIATOR

STATEMENT OF PRINCIPLE

When acting as negotiator a lawyer has a duty to seek a resolution in accordance with the client’s
instructions subject to limitations imposed by law or professional ethics.

RULES

1. A lawyer must not lie to or mislead an opposing party.

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2. If a lawyer becomes aware during the course of a negotiation that

(a) the lawyer has inadvertently misled an opposing party or

(b) the client or someone allied with the client or the client’s matter has misled an
opposing party intentionally or otherwise or
(c) the lawyer or the client or someone allied with the client or the client’s matter has
made a material representation to an opposing party that was accurate when
made but has since become inaccurate.

Then, (subject to confidentiality – see Rule # 7 of chapter 8, confidentiality) the lawyer must
immediately correct the resulting misapprehension on the part of the opposing party.

3. (a). A lawyer must not make a settlement offer on behalf of a client except on the client’s
instructions.
(b) A lawyer must promptly and fully communicate all settlement offers to the client.

4. A lawyer must not negotiate an agreement that the lawyer knows to be criminal, fraudulent
or unconscionable.

5. When negotiating with an opposing party who is not represented by counsel a lawyer
must:

(a) Advise the party that the lawyer is acting only for the lawyer’s client’s and is not
representing that party; and
(b) Advise the party to retain independent counsel.

CHAPTER 13

THE LAWYER IN CORPORATE OR GOVERNMENT SERVICE

STATEMENT OF PRINCIPLE

A lawyer in corporate or government service has a duty to act in the best interest of the corporate
or government as they are perceived by the corporation or government subject to limitations
imposed by law or professional ethics.

RULES

1. A lawyer in corporate or government service must consider the corporation or government

to be the lawyer’s client.

2. A lawyer may act in a matter for another employee of a corporation or government only if
the requirements of Rule # 2 of chapter 7, Conflict of Interest are satisfied.

3. If a lawyer while acting for a corporation or government receives information material to the

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 interest of the corporation or government the lawyer must disclose the information to an
appropriate authority in the corporation or government.

4. A lawyer must not implement instructions of a corporation or government that would involve a
breach of professional ethics or the commission of a crime or fraud.

5. A lawyer in corporate or government service shall not undertake work for and on behalf of any
person other than the corporation that employed such a lawyer or Government. If a lawyer in
corporate or government service wishes to practice independently of the employer and the
employer so consents the lawyer shall be required to have separate offices of his own and
comply with the Legal Practitioner’s Practice Rules.

6. A lawyer in corporate or government service must not act for a person who is required by law
or statute to obtain consents or approvals from the lawyer’s corporation, department or Ministry
and shall at all times avoid conflict of or potential conflict of interest situations.

CHAPTER 14

FEES

STATEMENT OF PRINCIPLE

A lawyer’s fee must not exceed a fair and reasonable amount.

RULES

1. The factors determining the amount that is a fair and reasonable fee in a given case
include but are not limited to the following;

(a). the nature of the matter including its difficulty and urgency, its importance to the
client, its monetary value and the need for special skills or services.
(b). the time and effort expended.
(c ). the results obtained.
(d). the customary charges of other lawyers of equal standing in the locality in similar
matter and circumstances.
(e). the likelihood if made known to the client that acceptance of the retainer will result
in the lawyer’s inability to accept other employment.
(f). the experience and ability of the lawyer.
(g). any estimate given by the lawyer.
(h). whether the fee is contingent on the outcome of the matter
(i). the client’s prior consent to the fee and the sophistication of that client and
(j). the direct costs incurred by the lawyer in providing the services

2. A lawyer must provide to the client in writing before or within a reasonable time after
commencing representation as much information regarding fees and disbursements as is
reasonable and practical in the circumstance including the basis on which fees will be

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 determined.

3. A lawyer and client may in personal injury cases agree on a fee not exceeding 15% as the
lawyer’s fee contingent on the outcome of a matter.

4. A lawyer must clearly identify on each statement of account the amount attributable to fees
and the nature and amount of any disbursements.

5. A lawyer may charge as disbursements only those amounts that have been paid or are
required to be paid in relation to the work he is handling or those that are paid or are
required to be paid to a third party by the lawyer on a client’s behalf.

6. A lawyer must disclose to a client all party-and-party costs received by the lawyer in
connection with the client’s matter.

7. Provided that the client does not pay more as a result a lawyer may divide a fee with the
following.

A. a firm member.
B. A lawyer who is not a firm member but only if the client is aware and approved of
that lawyer’s involvement and the fee is divided in proportion to the work done and
responsibilities assumed by each lawyer.
C. A lawyer who is not a firm member who has referred a client as compensation for
the referral but only if the client is aware and approves and the fee to the client is
not thereby increased.

8. Unless the client has consented a lawyer must nor accept from anyone other than the client a
commission or other compensation related to the lawyers professional employment in a matter.

9. A lawyer must not assert a solicitor’s lien against a client unable to pay the lawyer’s
account in circumstances in which it would materially prejudice the client.

10. Money held in trust by a lawyer to the credit of a client may not be applied to fees incurred
by the client unless an account has been rendered to the client.

11. All lawyers in private practice shall be bound by the Minimum scale charges made under
the Legal Education and Legal Practitioners Act.

CHAPTER 15

WITHDRAWAL AND DISMISSAL

STATEMENT OF PRINCIPLE

Having agreed to act in a matter a lawyer has a duty not to withdraw without legal or ethical
justification.

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 RULES

1. A lawyer may withdraw upon reasonable notice to the client when justified by the
circumstances. Circumstances that may justify withdrawal include the following:

(a). the client fails after reasonable notice to provide funds on account of fees,
disbursements in accordance with the agreement made with the lawyer.
(b). the client’s conduct in the matter is dishonourable or motivated primarily by malice;
(c). the client is persistently unreasonable or uncooperative in a material respect;
(d). the lawyer is unable to locate the client or to obtain proper instructions; or
(e). there is a serious loss of confidence between lawyer and client.

2. A lawyer must withdraw upon reasonable notice to the client when:

(a). the client persists in instructing the lawyer to act contrary to professional ethics.
(b). the client persists in instructions that the lawyer knows will result in the lawyer
assisting the client to commit a crime or fraud.
(c). the lawyer is unable to act competently or with reasonable promptness; or.
(d). the lawyer’s continued employment would violate the lawyer’s obligation with
respect to conflict of interests.

3. If a lawyer withdraws or is discharged from a matter the lawyer must endeavour to avoid
prejudice to the client and must cooperate with successor counsel.

4. Upon withdrawal or dismissal a lawyer must promptly render a final account and must
account to the client for money and property received from the client.

5. Before assuming conduct of a matter previously handled by another lawyer a lawyer must
be reasonably satisfied that the other lawyer has withdrawn or been discharged by the client.

CHAPTER 16

THE LAWYER IN ACTIVITIES OTHER THAN THE PRACTICE OF LAW

STATEMENT OF PRINCIPLE

Activities engaged in by a lawyer other than the practice of law must not compromise the lawyer’s
professional responsibilities nor bring discredit to the profession.
RULES

1. When there may be doubt as to the capacity in which a lawyer is acting the lawyer must
ensure that such capacity is made as clear as possible to anyone with whom the lawyer
deals.

2. A lawyer’s conduct in an activity other than the practice of law must be compatible with the

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 best interests of the profession and the justice system.

3. If a lawyer makes a referral to a business in which the lawyer or a related person has a
direct or indirect financial interest, the interest must be fully disclosed to the client whether
or not a financial benefit accrues to the lawyer as a result of the referral.

CHAPTER 17

LAW FIRMS AND ASSOCIATIONS

RULES

17.1 RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER

1. A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that all lawyers in the firm conform to the Rules of
Professional Conduct.

2. A lawyer having direct supervisory authority over another lawyer shall make reasonable
efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

3. A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional
Conduct if:

(i) the lawyer orders or, with knowledge of specific conduct, ratifies the conduct
involved; or

(ii) the lawyer is a partner in the law firm in which the other lawyer practices, or has
direct supervisory authority over the other lawyer, and knows of the conduct at a
time when its consequences can be avoided or mitigated but fails to take
reasonable remedial action.

17.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER

1. A lawyer is bound by the Rules of Professional Conduct notwithstanding that the

lawyer acted at the direction of another person.

2. A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer
acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable
question of professional duty.

17.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS

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With respect to a non-lawyer employed or retained by or associated with a lawyer.

1. A partner in a law firm shall make reasonable efforts to ensure that the firm has in
effect measures giving reasonable assurance that the person’s conduct is compatible
with the professional obligations of the lawyer.

2. A lawyer having direct supervisory authority over the non-lawyer shall make
reasonable efforts to ensure that the person’s conduct is compatible with the
professional obligations of the lawyer; and

3. A lawyer shall be responsible for conduct of such a person that would be a violation of
the Rules of Professional Conduct if engaged in by a lawyer if:

(i) the lawyer orders or, with the knowledge of the specific
conduct, ratifies the conduct involved; or
(ii) the lawyer is a partner in the firm in which the person is
employed or has direct supervisory authority over the person, and knows of
the conduct at a time when its consequences can be avoided or mitigated but
fails to take reasonable remedial action.

17.4 FIRM NAMES,LETTERHEADS AND COMMUNICTION OF FIELDS OF PRACTICE

17.4.1 A law firm having more than one office shall indicate on its letterheads the names
of the licensed lawyers practising from each of its offices.

17.4.2 The name of a lawyer holding a public office shall not be used in the name of the
law firm or in communications on its behalf during any substantial period in which
the lawyer is not actively and regularly practising with the firm or is barred by the
nature of his office from practising. This rule shall not apply where the lawyer has
sold or divested himself of any interest in the firm.

17.4.3 Lawyers may state or imply that they practice in a partnership or other
organisation only when that is the fact.

17.4.4 A lawyer may communicate the fact that the lawyer does or does not practice in
particular fields of law, A lawyer shall not use any false, fraudulent, misleading or
deceptive statement, claim or designation in describing the lawyers or the lawyer’s
firm’s practice or in indicating its nature or limitations.

17.5 PROFESSIONAL INDEPENDENCE OF A LAWYER

1. A lawyer or law firm shall not share legal fees with a non-lawyer, except that:

(a) an agreement by a lawyer with the lawyer’s firm, partner, or associate may
provide for the payment of money, over a reasonable period of time after the
lawyer’s death, to the lawyer’s estate or to one or more specified persons;

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 (b) a lawyer who undertakes to complete unfinished legal business of a deceased
lawyer may pay to the estate of the deceased lawyer the proportion of the total
compensation which fairly represents the services rendered by the deceased
lawyer; and

(c) a lawyer or law firm may include non-lawyer employees in a compensation or

retirement plan, even though the plan is based in whole or in part on a profit-
sharing arrangement.

(d) A lawyer who has agreed in consideration of a salary to do the legal work of
an employer who is not a legal practitioner may agree with such employer to
set off his profit costs received in respect of contentious business from the
opponents of such employer or the costs paid to him as the legal practitioner
for such employer by third parties in respect of non contentious business
against the salary so paid or payable to him; and the reasonable office
expenses incurred by such employer in connection with such legal practitioner
(and to the extent of such salary and expenses)
(This rule is taken from the existing Legal Practitioner’s (practice rules; rule 5)

2. A lawyer shall not form a partnership with a non-lawyer if any of the activities of the
partnership consist of the practice of law.

3. A lawyer shall not permit a person who recommends, employs, or pays the lawyer to
render legal services for another to direct or regulate the lawyer’s professional
judgment in rendering such legal services.

4. A lawyer shall not practice with or in the form of a professional firm or association
authorised to practice law for a profit if,
(a) a non-lawyer owns any interest therein, except that a fiduciary representative
of the estate of a lawyer may hold the stock or interest of a lawyer for a
reasonable time during administration;

(b) a non-lawyer is a corporate director or officer thereof; or

(c) a non-lawyer has the right to direct or control the professional judgment of a
lawyer.

5. A lawyer shall not assist a person who is not a member of the bar in the performance of an
activity that constitutes the unauthorised practice of law.

17.6 RESTRICTIONS ON RIGHT TO PRACTICE

A lawyer shall not participate in offering or making:

1. A partnership or employment agreement that restricts the rights of a lawyer to practice

after termination of the relationship, except an agreement concerning benefits upon

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 retirement; or

2. An agreement in which a restriction on the lawyer’s right to practice is part of the

settlement of a controversy between private parties.

17.7 SETTING UP LAW FIRMS

Any lawyer wishing to set up a practice or a branch shall comply with the minimum requirements
for setting up a firm and shall apply to the Secretary of the Malawi Law Society for the pre setting
up inspection certificate and approval of the name under which the lawyer intends to practice.

CHAPTER 18

ARRANGEMENTS ON DEATH OF SOLE PRINCIPAL

STATEMENT OF PRINCIPLE

A sole principal should make a will containing adequate provision for the running of the practice,
after his or her death, by a lawyer who is admitted for at least three years and holds a current
practising certificate.

RULES

Making Arrangements and Notifications

1. Clear instructions should be left by the sole principal to ensure that the executors are able
to make arrangements immediately after his or her death to appoint a legal practitioner of
sufficient seniority to run the practice, pending its disposal.

2. Although it is not essential to appoint a legal practitioner as executor, this would greatly
facilitate the running of the practice. The will could include an authority for the legal
practitioner executor to purchase the practice if he or she desires.

3. Clients should be notified by the executors of the arrangements made for the continuance
of the practice. The Society must also be notified of the legal practitioner appointed to run
the practice and ultimately of the arrangements made for its disposal.

4. The managing legal practitioner must arrange for the stationery of the practice to be
changed so that his or her name appears on the letterhead as the sole principal. He or
she may be described as the manager of the firm.

Books of Accounts and Clients’ Account

5. Fresh books of account should be opened immediately following the principal’s death and
should be kept as the managing legal practitioner’s books until the practice has been
disposed of and clients’ money received after the date of death and before grant of probate

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 is obtained should be in a special clients’ suspense account.

6.1 The sole principal’s client account will be frozen on death. The managing legal practitioner
will normally arrange with the sole principal’s bank to open a new client account with an
overdraft matching that of the existing client account. The managing legal practitioner must
make arrangements for the former client account balances to be transferred to the new
(overdrawn) client account as soon as the grant of representation is registered with the
bank or building society. The managing legal practitioner must not draw money from the
new account in any circumstances where it would be improper to draw the same amount
from the old account.

6.2 A similar arrangement can be made for office account purposes.

6.3 No further monies should be paid into the deceased principal’s client account. Client’s
money received by the practice must be placed in the new account operated by the
managing legal practitioner. The managing legal practitioner should encourage the
personal representatives to supply an accountant’s report up to the date of death. The
legal managing legal practitioner must deliver a separate report in respect of any other
client monies which he or she has held in any other practice.

MANAGER’S RESPONSIBILITES

7. Where a managing legal practitioner is appointed in respect of a deceased legal

practitioner’s practice, he or she becomes the sole principal and must comply personally
with all professional obligations in relation to the practice.

8. The managing legal practitioner must comply with the Legal Practitioners Accounts rules ,
and the Legal Practitioners Practice Rules.

9. The managing legal practitioner should take care to ensure that confidential information
relating to the clients of the deceased sole principal is kept confidential and that any
conflict of interest is avoided. The managing legal practitioner must personally exercise
control over staff and must supervise or arrange for the supervision of the office(s). The
managing legal practitioner will conduct the practice for the personal representatives, and
pay the profits, less any remuneration agreed to be paid to him or her, to the estate.
Arrangements for remuneration of the managing legal practitioner are a matter between
the managing legal practitioner and the personal representatives. The personal
representatives are entitled to the professional profits earned during this period. Only in
exceptional circumstances should these arrangements continue beyond the executor’s
year.

10. If the managing legal practitioner purchases the practice from the personal
representatives, he or she must not act for the personal representatives and must insist
that they be independently advised in this transaction. The Society must be informed of
the arrangements for the disposal or sale of the practice.

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INTERVENTION

11.1 If no appointment of a suitable managing legal practitioner is made, the Society may
intervene in order to serve clients interests. The intervention may take place where the
Society has reason to suspect dishonesty on the part of the personal representatives or
where there has been undue delay on the part of the personal representatives. To avoid
difficulties to clients following intervention, every effort should be made by the personal
representatives to find a managing legal practitioner. In cases of difficulty, the Society may
be able to help.

11.2 The Society may intervene in order to inquire, advise and offer guidance to the personal
representatives of a deceased lawyer.

Intestacy

12. If a sole principal dies intestate, those entitled to apply for letters of administration strictly
have no right to take active steps in administering the estate until so authorised. However,
in these circumstances the prospective administrators are encouraged to nominate
managing legal practitioner for the practice before the grant is obtained.

13. Where there is a failure, within a reasonable time of death, to apply for a grant of Letters of
Administration in respect of the estate of a deceased sole principal (whether under a will or
on intestacy), the court may be asked to protect the interests of the clients by making an
order for a grant in respect of the deceased legal practitioner’s estate in favour of a
nominee or nominees of the Society. The grant may be general or limited depending on
the circumstances.

14. A manager of the practice of an intestate sole principal shall be subject to the same rules
as those applicable to the manager of a testate sole principal.

CHAPTER 19

BREACHES OF THE CODE

Principle

Any breach of the code shall be punishable by the Malawi Law Society.

1. The breaches of this code shall be reported to the Secretary of the

Malawi Malawi Law Society shall forward the complaint to the Disciplinary Committee of
the Society appointed under Section 37 of the Legal Education and Legal Practitioner`s
Act cap 3:04 of the Laws of Malawi.

2. The sanctions against an offending legal practitioner after due process of law shall include
a. admonishing
b. suspension from practice

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 c. striking off the Roll as provided for in section 21 of the Legal Education and Legal
Practitioners Act.

3. The Malawi Law Society may also impose on its members penalties which shall include
suspension and expulsion of a member in terms of section 36 (2)(d) of the Legal Education
and Legal Practitioner’s Act.

4. The rules for suspension and Expulsion of members of the society shall be promulgated by
the Malawi Law Society in terms of section 36 (2) (d) of the Legal Education and Legal
Practitioner’s Act.

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