Introduction to The Regulation of Law Practice in Ghana
Introduction:
This note will discuss the nature and scope of regulation, the need for the regulation of law practice and the benefits of such regulation, highlight the fact that the regulation of law practice is a universal practice, highlight the various forms of regulation, and briefly discuss the Ghanaian approach to the regulation of law practice, and the legal framework for the regulation of law practice in Ghana.
Nature and Scope of Regulation:
At its core, every form of regulation involves the imposition of restrictions and the guiding of conduct through rules and standards for the purpose of meeting certain objectives. Black’s Law Dictionary defines regulation as:
The act or process of controlling by rule or restriction.
The restrictions may be in the form of substantive restrictions, where a person is prohibited from doing something, or in the form of procedural restrictions, where a person must follow a particular procedure in doing something.
In the context of law practice, regulation takes the form of prohibitions on what lawyers can and cannot do, the requirements a person must fulfil to be qualified as a lawyer, disciplinary procedures for lawyers who violate regulatory rules, among others.
Why there is the Need to Regulate Law Practice:
1. Protection of Clients:
When lawyers deal with clients, they are exposed to sensitive information, properties, and financial interests, placing them in a position of significant trust. For this, lawyers can be said to be fiduciaries. In Black’s Law Dictionary, a fiduciary is defined as:
A relationship in which one person is under a duty to act for the benefit of another on matters within the scope of the relationship.
Fiduciary relationships such as trustee-beneficiary, guardian-ward, principal-agent, and attorney-client - require an unusually high degree of care.
Fiduciary relationships usually arise in one of four situations:
3. when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or
4. when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.
Regulation ensures that lawyers, as fiduciaries, handle client matters with confidentiality, honesty, and diligence and do not act contrary to their fiduciary duties.
Further, when lawyers fulfil regulatory requirements such as academic qualifications and pupillage, they are equipped with the requisite skills and expertise to provide efficient and competent legal services to clients. In Rule 6 of the Legal Profession (Professional Conduct and Etiquette) Rules 2020 (L.I. 2423) , it is expressly provided that:
A lawyer shall provide competent representation to a client in the form of legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Finally, regulations provide protection to clients by providing systems for accountability, which they can use to get a remedy in instances of misconduct and breach of duties.
2. Maintenance of Ethical Standards:
Regulations generally establish codes of ethics for lawyers. Among others, the codes of ethics prevent conflicts of interest and misconduct among lawyers. For instance, per Section 16A of the Legal Profession Act, 1960 (Act 32) , a lawyer who has been convicted of an offence involving dishonesty or moral turpitude may have his name struck out from the roll of lawyers without holding any further disciplinary enquiry. The imposition of this penalty helps in the maintenance of ethical standards.
3. Upholding the Rule of Law:
By virtue of regulations, lawyers act in ways that uphold the rule of law. For instance, in Section 2(b) of Act 32, it is provided that:
Every person whose name is entered on the Roll to be kept under this Part shall— be an officer of the Courts.
By virtue of being an officer of the court, lawyers are required to assist the courts to uphold the rule of law and not act in ways that undermine the rule of law. For instance, in Rule 9(1) of L.I. 2423 , it is provided that:
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.
Further, in Rule 19(2) of L.I. 2423, it is provided that a lawyer may reveal information relating to the representation of a client where the lawyer reasonably believes that the disclosure is necessary “to prevent the client from committing a crime or fraud…” Finally, in Rule 87(2)(c) of L.I. 2423, it is provided that
A lawyer may withdraw from representing a client if-the client has used the services of the lawyer to perpetrate a crime or fraud;
These rules prevent lawyers from assisting or enabling clients to undermine the rule of law.
4. Ensuring Public Trust and Confidence in the Legal Profession:
First, the very fact that the public knows that lawyers are held to high ethical and professional standards and that misconduct carries real consequences, including disbarment, promotes public trust in the legal profession and reassures the public that lawyers will not arbitrarily breach their fiduciary duties.
Second, lawyers are expressly prevented from acting in ways that undermine the legal profession or bring it into disrepute. For instance, in Rule 15(7)(b)(ii) and (iii) of L.I. 2423 , it is provided that:
A lawyer or the head of a law firm shall not publish on the website of that lawyer or head of the law firm,
(b) a statement that is inaccurate or likely to
(ii) diminish public confidence in the legal profession and the administration of justice, or
(iii) otherwise bring the legal profession into disrepute;
In Rule 61(b) of L.I. 2423, it is further provided that:
A lawyer shall not engage in conduct whether in the course of practice or otherwise, which is (b) calculated, or likely to a material degree to
(i) be prejudicial to the administration of justice;
(ii) diminish public confidence in the administration of justice; or
(iii) adversely prejudice the ability of the lawyer to practise in accordance with these Rules.
These rules are meant to promote and maintain public trust and confidence in the legal profession.
5. Safeguarding the Economy and Society:
Most investors and persons interested in investing in the Ghanaian economy eventually contact a lawyer to ensure that their activities are in conformity with the law. Regulations ensure that lawyers do not offer advice to clients that promotes fraud or exploits loopholes in the legal system to the detriment of the economy and society. For instance, by virtue of Rule 9(1) (supra) and 19(2) , lawyers are prevented from assisting clients to engage in fraudulent activities and are mandated to disclose information concerning clients if the disclosure is necessary “to prevent the client from committing a crime or fraud…” These rules help safeguard the interests of society against fraud and financial crimes.
Universal Regulation of Law Practice
Countries often have in place diverse legal frameworks to regulate law practice. While these frameworks exist in various forms and are substantively diverse, the fact remains that in all countries, some form of regulation exists for law practice. The legal frameworks may take the following forms:
1. Centralised versus Decentralised Regulation:
With centralised regulation, there is often a single body tasked with the regulation of law practice. In countries like the United Kingdom and Ghana, the centralised form of regulation is practiced, as they often have a single statutory body in charge of the regulation of law practice.
With decentralised regulation, there are multiple bodies throughout the country that regulate law practice. For instance, in the United States, each state has its own regulatory framework to regulate law practice.
2. Self-Regulation versus Government Regulation:
With self-regulation, persons in the legal profession are themselves in charge of the regulation of legal practice. They often do this through organisations such as the Bar Associations. Countries like Nigeria, Japan, and Brazil are said to practice this form of regulation. Black’s Law Dictionary defines self-regulation as:
The process by which an identifiable group of people, such as licensed lawyers, govern or direct their own activities by rules; specif., an organization's or industry's control, oversight, or direction of itself according to rules and standards that it establishes.• Self-regulation is often subject to the oversight of various governmental agencies, such as the Securities Exchange Commission and the Commodities Futures Trading Commission.
With government regulation, the government is more directly involved in the regulation of legal practice. This is often done through the establishment of statutory bodies with the powers to regulate legal practice.
Ghanaian Approach to Regulation of Law Practice:
In terms of the centralised versus decentralised divide, Ghana practices a centralised form of regulation. In Section 1 of the Legal Profession Act, 1960 (Act 32) , there is established a body called the General Legal Council “which shall be concerned with the legal profession.” The legal profession here is the entire legal profession and not as existent in some parts of the country.
In terms of the self-regulation versus government-regulation divide, Ghana practices government regulation. The General Legal Council referred to above is a statutory body that is tasked with the legal profession in Ghana. While there is a Ghana Bar Association, which has its object being “to concern itself with all matters affecting the legal profession in Ghana and shall for that purpose take such action as it considers expedient and necessary” and establishes various standards, the association has no regulatory duties. It, however, supports the General Legal Council in the discharge of its duties.
Legal Framework for the Regulation of Law Practice in Ghana:
The following laws are used to regulate law practice in Ghana:
This introductory note provided an overview of the regulation of law practice in Ghana. In subsequent notes, we will discuss bodies like the General Legal Council and the Ghana Bar Association and the extent to which they regulate legal practice in Ghana.