Thursday, May 8, 2008



The fact that lawyers form a profession seems to be accepted as a truism. It is one of the few occupations which for centuries have enjoyed the status of a profession. Even after the field was narrowed in the past two centuries, the profession of the law has continued to occupy a place among professions, and to enjoy the status of professionalism.

According to Black’s Law Dictionary a profession is a vocation, occupation requiring advanced education or training.A profession is further defined as an especially desirable and dignified occupation. It implies intellectual training and an expertise which is largely mental in character


The 1980 Report of the British Royal Commission on legal services described “profession” as follows:
When a profession is fully developed it may be described as a body of men and women (a) identifiable by reference with some register or record; (b) recognized as having a special skill and learning in some field of activity in which the public needs protection against incompetence, the standards of skill and learning being prescribed by profession itself; (c) holding themselves out as being willing to serve the public; (d) voluntarily submitting themselves to standards of ethical conduct beyond those required of the ordinary citizen by law; (e) undertaking to accept personal responsibility to those whom they serve for their actions and to their professions for maintaining public competence

A legal profession is, therefore, an occupation calling or vocation of those people who have attained advance specialized education and training in the field of law and are qualified and licensed to practice law. These people are called Legal Practitioners or advocates.

The legal profession is governed by various legislations, in order to make them not go outside the ethical and other obligations of legal practitioners. Among the legislations in Tanzania are the Advocates Act
[3] and subsidiary legislations made thereunder, the Tanganyika law society Act[4], and The Rules of professional conduct and Etiquette of the Tanganyika Law Society. The latter is the one in which we can find the characteristics of a legal profession.

This work shall be confined into differences between legal profession and business while discussing in details the main characteristics of the legal profession.


To determine as to why law is a profession one has to look upon the characteristics of a legal profession that distinguish law from other business as hereunder provide


The first characteristic which distinguishes legal profession from business is the rule against advertisement. The advocates Act and the Rules of Professional Conduct and Etiquette of the Tanganyika Law Society (hereinafter referred to as the Rules of Professional Conduct and Etiquette) prohibit the employment of any kind of advertisement through the media or such other means which are regarded as amounting to advertisement.

The provisions of rule 5 of the Rules of Professional Conduct and Etiquette, provides among other things, the following;
No advocate may directly on indirectly apply for or seek instruction for professional business, or do or permit in the carrying on of his practice any act or thing which can reasonably as…advertising or as calculated to attract business unfairly.
In its scope, the rule against advertisement is wide under the law; it embraces not only self-promotion in newspapers, magazines and so forth, as is ordinarily understood in business. In respect of an advocate or firm of advocates it covers a considerably wider area. It includes such acts as an over description of oneself on a nameplate, the use of an ostentatious nameplate, or displaying a nameplate elsewhere than at one’s place of business. It also includes the taking of photographs which are intended for publication while wearing his gown

The rule against Touting

The other difference between the two is the rule against touting. This rule is covered by section 47 of the Advocates Act and rule 5 of the Rule of Profession Conduct and Etiquette. Touting is the use of intermediaries (touts) to bring or attract clients to one-self. Although this is prohibited in law it is a very common, important and legal practice in business transactions.

Touting is not only professional offence but also criminal. In fact, tout are regarded with such aversion among legal circle that the law gives to the Chief Justice Powers to exclude them from the precincts of the Court. In a certain case an aspiring Advocate was removed from the list of applicants for enrolment after allegations of touting were levelled against him. He had to wait for an entire year before being admitted

Exclusion of non lawyers.

Another difference is that, for a person to act as a lawyer he/she should have obtained some special qualifications, whereas in business, so long as a person has got capital there are no any prior qualifications for him to be a businessman. In our country, before a person can practice as a lawyer he should, first, be enrolled as an advocate as per the provisions of the Advocates Act
[7]. Or a person may be entitle to practice as an Advocate if he is solicitor of the supreme Court in England, Northern Ireland or the Republic of Ireland, or if he hold some qualifications as are provided under the Advocates Act[8] or if he is the holder of any similar qualification which is accepted by the council of legal education as a professional qualification.

Section 41 of the Advocates Act provides for the restriction of unqualified persons not to act as Advocates. Sub section (2) of this section makes the contravention of this section an offence and contempt of the Court which may result to penalty or incapacitation of maintaining action for any costs in relation to the suit, forfeiture and fine. In addition to section 41, section 42 of the Advocates Act provides for penalty for pretending to be an Advocate.

However there are some circumstances in which non lawyers are allowed in some restricted sense to represent others before the Court. A party may be represented in civil suit, if he is a minor or, for any sufficient cause, he cannot adequately put his case or defend himself. The court should not allow a representative of a party to act on his behalf merely because he would like the representative to speak for him, or he thinks that the representative is cleverer than he is.
[9] But this practice of finding for the sole reason of his competence is very common in business transactions.

The above point was illustrated in the case of N.K.J. Zabron v.Naiman Moiro
[10]. In that case, a non lawyer named Rangia was seeking to represent a person who was a party to the case on the basis of a power of attorney in which the party purported to grant him the right to represent him before the Court. In denying audience to him, Nyalali, C.J., said;
I am not aware of any provision of law permitting the conduct of case by a person holding a power of attorney where the party concerned is also present in Court. The learned trial judge undoubtedly was wrong to permit the said C.J. Rangia to appear in the case.


The remuneration rules also mark the distinction between the two. In normal business transactions remuneration is subject to contractual agreement between the parties transacting, whereas in legal profession remuneration of Advocates are governed by the orders made by the Remuneration committee. According to section 49(2) of the Act, the Chief Justice or the remuneration committee may make orders prescribing and regulating the remuneration of advocates in regard to both contentious and non contentious business.

Advocates are not allowed to agree or accept remunerations above that which is provided by the remuneration rules. However this rule is somewhat watered down by other rules, for instance, rule 13 and 14 of the Advocates Remuneration and Taxation of costs Rules
[11], under which as between client and advocate, additional remuneration may be allowed where a job requires and receives exceptional dispatch. However, despite the fact the fact that the Advocate may agree with his on the amount he is going to charge him, he cannot charge him below the minimum amount set by the Remuneration rules[12].

The prohibition of the sharing of profit with non legal personnel.

According to Rule 6(f) of the Rule of professional conduct and etiquette of the Tanganyika Law society, an Advocate is not allowed in any way to share his profit with a person who is not a legal professional. This is different from normal business transactions, where a businessman can share his profits with whoever he wishes.

A lawyer should not be used as a tool by his client.

Though a lawyer is an agent or representative of his client, he cannot afford to be tool in hand of the client. No member of the legal profession should accept such work which make him disloyal to the court or place him in a compromising position. In normal business transactions however, the businessman is allowed to undertake any type of business provided that it legal and it is not contrary to any public policy.

Fiduciary duty to the client.

Despite the fact that a lawyer is not a tool in the hands of his client, yet he is in a position of trust, and he must do every thing to protect the interests of his client according to law. Whenever it appears that a lawyer gives out the secret of his or her client that means he break the fiduciary duty that he or she owes to his or her client. Whereas in business transaction the relationship between the businessman and his client is based upon contract, a business man is not a trustee of his client (subject to various exceptions, like banking business)


No member of legal profession should compete with the other members of the profession. Allowing competition among advocates will amount to defeating the purposes for the enactment of provisions which prohibits advertisement and touting. However competition is the key feature in normal business transactions, since businessmen have to compete with each other in order to establish themselves in their respective businesses.

Conflict between duty and personal interests

Whenever there is conflict between his interests and duty, his duty must prevail, whereas in normal business transactions the businessman’s interests prevail. In an application before the Advocates Committee at Dar es Salaam
[13], the Mr. Benard Mrema complained against Dr. Lamwai for not represented. The reason given for non representation is that the advocate (Dr. Lamwai) was a member of parliament hence too busy to attend the case. The committee ruled for the complainant stating that the complainant had lost the case due to Dr. Lamwai’s negligence. Being a member of parliament was Dr. Lamwai’s personal interest in relation to his duty as an advocate.


The discussion above reveals how law is not only a profession but a legal profession distinct from business basing on its characteristics.

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