GOVERNMENT NOTICE NO………………….published on………… ……………
THE ADVOCATES ACT
(Cap 341)
RULES
(Made Under Section 14(1)
THE ADVOCATES (DISCIPLINARY AND OTHER PROCEEDINGS) RULES, 2015
PART IPRELIMINARY PROVISIONS
1. / Citation
2. / Application
3. / Interpretation
PART II
COMPLAINTS AND APPLICATIONS AGAINST AN ADVOCATE
4. / Application to remove the name of an advocate from the Roll or to require advocate to answer allegation
5. / Fees
6. / Service of application or complaint
7. / Reply to the application or complaint
8. / Date of hearing of the application or complaint
9. / Appearance
10. / Effect of non-appearance
11. / Hearing of application or complaint
12. / Evidence
13. / Burden of proof
14. / Determination of an application
15. / Appeals
PART II
APPLICATION AT THE INSTANCE OF AN ADVOCATE
16. / Application at the instance of an advocate
17. / Notice of application
18. ` / Notice of objection
19. / Inquiry
20. / Determination of application or complaint
PART IV
GENERAL PROVISIONS
21. / Proceedings to be in camera
22. / Recording of proceedings of the Committee
23. / Withdrawal of application
24. / Adjournment
25. / Amendment of application
26. / Effect of death of complainant or advocate
27. / Dress code
28. / Extension of time
29. / Custody of filed documents
30. / Copies of rulings
31. / Committee may dispense with requirements
32. / Revocation
33. / Saving provisions
GOVERNMENT NOTICE NO………………….Published on………………………
THE ADVOCATES ACT
(Cap 341)
RULES
(Made Under Section 14(1)
THE ADVOCATES (DISCIPLINARY AND OTHER PROCEEDINGS) RULES, 2015
PART I
PRELIMINARY PROVISIONS
Citation / 1. These Rules may be cited as the Advocates (Disciplinary and Other Proceedings) Rules, 2015.Application / 2. These Rules shall apply in respect of any applications or complaints against an advocate and an application at the instance of an advocate to the Committee.
Interpretation
Cap. 341
Cap. 341
Cap. 341 / 3. In these Rules unless the context requires otherwise -
“the Act” means the Advocates Act;
“Committee” means the Advocates Committee established under section 4 of the Advocates Act;
“a duly recognized agent” includes an advocate, next friend and guardian ad litem;
“the Secretary” means the Secretary to the Advocates Committee appointed under section 4 (8) of the Act.
PART II
COMPLAINTS AND APPLICATIONS AGAINST AN ADVOCATE
Application to remove the name of an advocate from the Roll or to require an advocate to answer allegations / 4. (1) Any person who is aggrieved by the conduct of an advocate or believes that an advocate has -
(a) committed professional misconduct;
(b) failed to discharge his duty to the client in a professional manner;
(c) engaged in a business which is inconsistent with the dignity of the profession;
(d) permitted his professional service or his name to be used by an unauthorized person; or
(e) committed any act prohibited by the Act, the Advocates (Professional Conduct and Etiquette) Rules or any other Rules regulating the professional conduct of an advocate,
may, in writing, apply to the Committee for removal of that advocate’s name from the Roll or that advocate be required to answer the allegation against him or her.
(2) The application under subrule (1) shall be either in English or Kiswahili in the Form 1 set out in the First Schedule and be addressed to the Secretary save that a complaint to require an advocate to answer the allegation may be in by letter.
(3) The Secretary shall, upon receipt of the complaint or the application made under this rule and being satisfied that the application or complaint is in order, open a file and assign a number to that application or complaint.
Fee / 5. (1) Every application or complaint to the Committee shall be accompanied by the fees set out in the Second Schedule.
(2) Notwithstanding the provisions of subrule (1) no fee shall be paid in any of the following applications or complaint-
(a) to require an advocate to answer an allegation of misconduct; and
(b) to require an advocate answer an allegation of misconduct referred to the Committee by a judge or magistrate.
Service of application / 6. (1) The compliant or application made under rule 4 shall, within fourteen days after being admitted by the Secretary, be served on the advocate against whom the complaint or application is made with a notice to file a reply.
(2) Service of application or complaint under subrule (1) shall be done by-
(a) sending the application to the advocate’s physical or postal address by registered mail;
(b) sending the application to an advocate working in the same firm with that advocate or to an employee or authorized agent of that advocate, if the advocate against whom a complaint or an application is made cannot be found;
(c) electronically by way of email or facsimile using the addresses previously disclosed by the advocate; or
(d) service through the Registrar of the High Court, if the Committee so directs.
(3) The notice referred to under subrule (1) shall be in the Form 2 set out in the First Schedule.
Reply to the application or complaint / 7. (1) An advocate against whom a complaint or an application has been made and being served with a copy of the application or complaint shall, within fourteen days after being served with a copy of the application or complaint, file his reply with Committee.
(2) The reply referred to under sub rule (1) shall be by way of-
(a) counter-affidavit where the allegations bear elements of deceit or moral turpitude.
(b) a statement of reply where the allegations contain any matters other than those referred to under paragraph (a).
Date of hearing the application or complaint / 8. Where the Committee after scrutinizing the application or complaint is satisfied that, a prima facie case has been made out, it shall fix a day of hearing of the application and notify the complainant and the advocate against whom the application or complaint is made of that date.
Appearance / 9. (1) The complainant or the advocate against whom the application or complaint is made may appear before the Committee in person or by duly recognized agent.
(2) Where the complainant is-
(a) not a resident of the United Republic, he may appear by lawfully authorised attorney; and
(b) a body corporate, it may appear either by a duly recognized agent, by its director, manager or secretary, who is appointed by resolution under the seal of the company, a sealed copy of which shall be lodged with the Secretary.
Effect of non-appearance / 10. (1) If on any day fixed for the hearing of an application or complaint, the complainant does not appear, the application or complaint may be dismissed, unless the Committee sees fit to adjourn the hearing.
(2) If the complainant appears and the advocate fails to appear, the hearing of application or complaint shall proceed in the absence of the advocate, unless the Committee sees fit to adjourn the hearing.
(3) Where an application or complaint has been dismissed under sub-rule (1) or allowed under sub-rule (2), the party in whose absence the application or complaint was determined may apply to the Committee to restore the application for hearing or to re-hear it, as the case may be, if he can show that he or she was prevented by good cause from appearing when the application or complaint was called on for hearing.
(4) An application made under sub-rule (3) shall be made within thirty days of the decision of the Committee or in the case of a party who has been served with notice of the hearing but was not present when the decision, within thirty days of his first hearing of that decision.
Hearing of application / 11. (1) The hearing before the Committee shall be by way of oral or written evidence and /or submissions.
(2) Where an application or a complaint has been fixed for hearing and the complainant and the advocate against whom the application or complaint is made are both present, the Committee shall accord the complainant a right to begin.
(3) On the day fixed for the hearing of the application or on any other day to which the hearing is adjourned, the complainant having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(4)The advocate against whom the application is made shall then state his or her case and produce his evidence and may address the Committee generally on the whole case.
(5) The complainant may reply generally on the whole case.
Evidence / 12. (1) The evidence before the Committee may be adduced by the complainant, the advocate against whom the application or complaint is made or any person who has been called upon to testify.
(2) The Committee may direct that the evidence adduced before it be adduced orally or by way of witness statement.
(3) The language of the Committee shall be either English or Kiswahili or such other language as the Committee may direct but the record and decision of the Committee shall be in English.
(4) The Committee may issue summons to appear and shall have power to compel the attendance of the witness through Form 3 set out under the First Schedule of these Rules.
Burden of proof / 13. (1) It shall be the duty of a complainant to prove his complaint against the advocate.
(2) The standard of proof shall be-
(a) beyond reasonable doubt where the allegations are having elements of deceit or moral turpitude; or
(b) on a balance of probabilities, where the allegation are having elements other than those referred to under paragraph (a).
Determination of an application or complaint / 14. The Committee shall deliver its ruling within ninety days after hearing of the application or complaint.
Appeal / 15. An appeal against the decision of the Committee under section 24A of the Act shall be by way of a memorandum of appeal.
PART III
APPLICATIONS AT THE INSTANCE OF AN ADVOCATE
Applications at instance of an advocate / 16. (1) An advocate who intends to require the Registrar of the High Court to remove his name from the Roll of Advocates shall apply in writing in the Form 7 set out in the First Schedule to these Rules.
(2) The application under subrule (1) shall be accompanied by an affidavit and be addressed to the Secretary.
(3) A copy of the application shall be served upon the Secretary to the Tanganyika Law Society.
Notice of application / 17. The Committee may, if it thinks fit, require the advocate to give notice of his application and the date of hearing by advertisement or otherwise, as it may direct.
Notice of objection / 18. Where any person intends to object to the application made by an advocate pursuant to rule 16, that person shall give notice in writing to the advocate and to the Secretary at least seven days before the day fixed for hearing, specifying the grounds of his objection.
Inquiry / 19. (1) Where a person who objects to an application by an advocate appears before the Committee on the date fixed for hearing and the Committee, after considering the objection and hearing the advocate, is of the opinion that the objection discloses a prima facie case for inquiry, it shall direct an inquiry to take place and give directions relating thereto, including directions as to the party on whom the burden of proof shall lie.
(2) Any inquiry directed pursuant to subrule (1) shall be held in accordance with the rules contained in Part II of these Rules.
Determination of application / 20. The Committee shall, after the receipt of an application made under rule 16, determine that application and deliver its ruling within seven days after the hearing.
PART IV
GENERAL PROVISIONS
Proceedings to be in camera / 21. All the proceedings before the Committee shall be conducted in camera.
Recording of proceedings of the Committee / 22. The proceedings of the Committee shall be taken or recorded by the Secretary or a person appointed by the Committee by shorthand notes or electronically or stenographically recorded; any party who appeared at the proceedings shall be entitled to inspect the transcript thereof.
Withdrawal of application / 23. The Committee may at any time grant the application to withdraw an application or complaint upon such terms as to costs or other conditions it deems fit.
Adjournment / 24. The Committee may of its own motion, or upon the application of either party, adjourn the hearing upon such terms as to costs or otherwise as it shall appear just.
Amendment of application / 25. If upon the hearing of an application or complaint it appears to the Committee that the allegations in the affidavit in support of such application require to be amended, or added to, the Committee may permit such amendment or addition, and may require the same to be embodied in a further affidavit, if in the judgment of the Committee such amendment or addition is not within the scope of the original affidavit:
Provided always that if such amendment or addition shall be such as to take the advocate by surprise or prejudice the conduct of his case, the Committee shall grant an adjournment of the hearing upon such terms as to costs or otherwise, as to the Committee it shall appear just.
Effect of death of complainant or advocate / 26. (1) Where a complainant dies and his application or complaint is pending before the Committee and there is no representative who is willing to further prosecute the application or complaint on his behalf, the Committee may, having regard to the allegations made in the application or complaint and the evidence available, make a suitable order either to proceed with the enquiry or to drop it.
(2) Where an application or complaint-
(a) is against one advocate and that advocate dies, the Committee shall record the fact of such death and drop the proceedings;
(b) is against more than one advocate and one of the advocate dies, the Committee may continue the application or complaint against the other advocates unless it sees reason to decide otherwise.
Dress code / 27. An advocate against whom the application or complaint is made or who has filed an application to the Committee shall, when appearing before the Committee, be in the court dress code as may be prescribed from time to time by the Chief Justice.
Extension of time / 28. The Committee may, upon good cause shown, extend the time limited by these Rules for the doing of any act authorized or required by these Rules, whether before or after the expiration of that time.
Custody of filed documents / 29. All documents shall be filed with and kept by the Secretary.
Copies of rulings / 30. The Secretary shall send or provide to each of the parties in the proceedings, a certified copy of the ruling free of charge.
Committee may dispense with requirements / 31. The Committee may dispense with any requirements of these Rules respecting notices, affidavits, documents, service, or time, in any case where it appears to the Committee to be just so to do.
Revocation
GN. No. 135 of 1955 / 32. The Advocates’ (Disciplinary and Other Proceedings) Rules, 1955 are hereby revoked.
Saving provisions / 33. Notwithstanding the revocation of the Advocates (Disciplinary and Other Proceeding) Rules, anything done or any action taken or purported to have been done under the revoked Rules shall in so far as it is not inconsistent with the provisions of these Rules, be deemed to have been done or taken under the corresponding provisions of these Rules.
FIRST SCHEDULE
FORMS
(Under rule 4)