The Law Practice
Introduction:
This note will discuss the scope of law practice and where lawyers work.
Scope of Law Practice:
In legal practice, a lawyer engages in a wide range of activities. This range of activities is said to be the scope of law practice or what lawyers do. The scope of law practice includes the following:
1. Representation of Clients in Civil and Criminal Cases:
Lawyers typically represent clients in both civil and criminal cases. In civil cases,
Order 4 Rule 1(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) has provided that
Subject to these Rules, any person may begin and carry on proceedings in person or by a lawyer.
Lawyers, therefore, represent clients to commence and carry on civil proceedings.
In criminal cases, lawyers also represent clients to either argue that they are not guilty of a crime or even if guilty, to pray for a lesser sentence. In Article 14(2) of the 1992 Constitution, it is provided that
A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice.
Further, in Article 19(2)(f), it is provided that
A person charged with a criminal offence shall-
be permitted to defend himself before the court in person or by a lawyer of his choice;
The purpose of guaranteeing a right to a lawyer is to ensure that individuals have legal representation to protect their rights and interests during legal proceedings. Lawyers are often more capable of creating reasonable doubt as to the guilt of the accused by using defences, questioning the admissibility of evidence, among others.
2. Provision of Legal Advice and Opinions:
Beyond representing clients in civil and criminal cases, lawyers may also provide legal opinions to clients and to the general public.
A legal opinion can be described as an opinion that takes into account the laws governing a particular sector or undertaking. In Black’s Law Dictionary, a legal opinion is defined as:
A written document in which an attorney provides his or her understanding of the law as applied to assumed facts. The attorney may be a private attorney or attorney representing the state or other governmental entity. Private attorneys frequently render legal opinions on the ownership of real estate or minerals, insurance coverage, and corporate transactions. A party may be entitled to rely on a legal opinion, depending on factors such as the identity of the parties to whom the opinion was addressed, the nature of the opinion, and the law governing the opinion.
For instance, a client desirous of setting up a business may seek legal opinion on capital requirements, licenses to obtain, tax waivers, regulatory frameworks, among others. Also, in contentious issues that are of public interest, lawyers often offer legal opinions by which they seek to clarify the law and even predict what the courts will discuss based on the law.
3. Preparation/Drafting and Review of Legal Documents:
Lawyers prepare and review documents such as contracts, wills, and court pleadings, among others. They ensure that these documents comply with legal requirements, protect their clients' interests, and minimise potential risks.
It is crucial for lawyers to prepare and review legal documents because legal language is often technical and may differ in meaning from everyday usage. For example, in legal terms, "consideration" refers to something of value exchanged between parties in a contract, whereas in ordinary language, it simply means careful thought. Similarly, the word “determined” may mean to “terminate,” while in ordinary usage, it often means to "decide" or "conclude." So, in contract law, a clause stating that "the agreement shall be determined upon breach" means that the contract will be terminated if a breach occurs, rather than simply being decided upon. Such differences highlight the importance of legal expertise in interpreting and drafting documents to prevent misunderstandings.
4. Research on Relevant Areas of Law:
The law is ever-changing, and lawyers are always researching to be abreast with the current state of the law. For example, prior to the coming into force of the Contracts Act, 1960 (Act 25) on 22nd December, 1960, it could have been said that a promise to keep an offer open is not binding on the promissor unless supported by consideration, as held in Routledge v. Grant [1828] 4 Bing 653. However, upon the coming into force of Act 25, the position was modified by Section 8(1) . This change in law can only be found by researching the law on consideration in Ghana. In more recent times, the Supreme Court declared Section 13(h)(i) and (ii) of Act 992 unconstitutional in the case of Derick Adu-Gyamfi v. The Attorney-General Writ No. J1/18/2022 . A lawyer who is not aware of this decision is likely to advice a client who has been merely charged of an offence involving fraud that he is not qualified to be a director of a company.
Research is especially crucial in unsettled, ambiguous, or “grey” areas of law where statutes, precedents, or regulations may be unclear or evolving. In such cases, lawyers must analyse judicial decisions, legislative history, and scholarly commentary to interpret the law effectively and build persuasive arguments.
Lawyers typically embark on research after listening to clients but before commencing a case or preparing their defence. In conducting research, lawyers often look at the following sources of law:
i. The 1992 Constitution: This is the supreme law of Ghana, and finding constitutional provisions that support your arguments is extremely important. Sometimes, it is also essential to look at previous constitutions, as they provide insights into what an ambiguous provision could mean.
ii. Applicable Statutes: These are laws made by Parliament which are relevant to the area of law within which a client’s case falls. Among others, they modify the common law, regulate various activities, and make provisions for the enforceability of various acts and undertakings. For instance, acts contrary to a statute will not be enforced by the court. In the case of Schandorf v. Zeini [1976] 2 GLR 418 263 , the court held that “a contract, therefore, to do an act expressly forbidden by statute or any other law is illegal and will not be enforced by the courts.” In the case of City & Country Waste Ltd v. Accra Metropolitan Assembly [2007-2008] SCGLR 409 , the Supreme Court declared a contract unenforceable for being forbidden by the Local Government Act, 1993 (Act 462). A lawyer reviewing a contract will therefore have to satisfy himself that the contract is not expressly against statute. Beyond the statutes applicable to the area of law, one must also look at statutes like the Courts Act, 1993 (ACT 459) and the Limitation Act, 1972 (NRCD 54).
iii. Subsidiary Legislations:These include rules, orders, and regulations in the form of legislative instruments, constitutional instruments, and statutory instruments. One of such instruments is the High Court (Civil Procedure) Rules, 2004 (C.I. 47), which makes provisions for the conduct of civil proceedings in Ghana. Among others, it stipulates the time for entering appearance. If a lawyer is oblivious of this stipulation and fails to enter appearance, an adverse judgement in default of appearance may be given against his client.
iv. Case Law: Cases often clarify the meaning and effect of constitutional and statutory provisions and resolve practical issues using the law. They are used as precedents to support a position and may also be used to predict what the court is likely to decide. For example, per the case of Raphael Cubagee v. Asare and Others [2018] GHASC 14 (28 February 2018) , it becomes clear that evidence obtained in breach of a right, such as privacy, may be admissible if failing to admit it will bring the administration of justice into disrepute. A lawyer can therefore determine beforehand if a piece of evidence obtained in breach of a right will be admitted using the above test. Also, per the case of City & Country Waste Ltd v. Accra Metropolitan Assembly (supra), a lawyer drafting a contract will not only be interested in knowing whether the contract is expressly prohibited by statute, but will also analyse if the contract has been impliedlyprohibited.
5. Negotiations:
Lawyers also represent clients in negotiations, either to resolve a dispute or to settle on the terms of a contract. The skill of negotiation may be obtained by taking courses such as Alternative Dispute Resolution, which has negotiation as one of its key topics. Here, they learn about different approaches to negotiation such as positional bargaining and principled negotiation, and the five principles underlying principled negotiation: separation of the people from the problem, focusing on interests and not positions, inventing options for mutual gain, insisting on the use of objective criteria, and knowing the Best Alternative to a Negotiated Agreement (BATNA).
6. Conferencing:
Lawyers discuss, identify, and clarify legal matters with clients through a process known as conferencing. For example, in a criminal defence case, a lawyer may meet with a client to review charges, discuss possible defences, and explain the legal process.
7. Gathering Evidence:
Evidence is information used to prove the existence or non-existence of a fact. When clients go to lawyers, they may be seeking a declaration that a contract exists, or that they did not have the intent to kill, or that they had the required licence at the time of engaging in an act, among others. To prove these, the lawyer would have to gather evidence. For example, in a matrimonial cause, a lawyer may have to gather evidence on the properties owned by a spouse for the purpose of ensuring an equitable distribution of the properties acquired in the course of the marriage.
8. Due Diligence:
Lawyers may be required to conduct due diligence to verify legal, financial, and regulatory compliance before significant transactions or legal proceedings. In Black’s Law Dictionary, diligence is defined as
Care; caution; the attention and care required from a person in a given situation
And due diligence is defined as
The diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.
For example, if a client wants to buy land, the lawyer would have to find out if the seller has title to the land, if there are other legal and equitable interests in the land and the extent of those interests, among others. The lawyer would typically request for and examine the ownership documentation and the site plan, and conduct a search, among others.
9. Ensuring Compliance with Laws:
Lawyers advise their clients on how to comply with the law while simultaneously maximising benefits in their personal, business, or organisational activities. Compliance ensures that individuals and businesses operate within legal frameworks, reducing the risk of penalties, lawsuits, or regulatory actions. For example, a lawyer would advise a company to hold an annual general meeting every year and within such a period that the next annual general meeting is not more than fifteen months from the previous annual general meeting. This makes the company compliant with Section 157 of Act 992.
Where Lawyers Work:
Lawyers often work at the following places:
1. Private Practice: A lawyer may work for a law firm and serve multiple clients on a fee-for-service basis, rather than being employed directly by a company as "in-house" counsel.
2. In-House Counsel: A lawyer may be employed by a single business or entity to handle all its legal affairs. For example, the Bank of Ghana has its in house counsel who handle all issues concerning the bank and who typically do not handle issues for other entities.
3. Government Lawyers: The government also employs lawyers to work at the Office of the Attorney General and other government or public offices.
4. Judiciary: Lawyers may eventually become judges and work as part of the judiciary. For example, in Article 128(4) of the 1992 Constitution, it is provided that “A person shall not be qualified for appointment as a Justice of the Supreme Court unless he… is of not less than fifteen years' standing as a lawyer.” Thus, all Supreme Court judges are first and foremost lawyers who have become judges.
5. Academia: Lawyers may also work as law teachers.