Attorney client privilege betrayal

I went to see my advocate and disclosed all the details of a sensitive case. We did agree on fees and I paid a certain amount as advance. It has been many months and the advocate has not performed thus far. I hence withdrew instructions and transferred my file to another law firm. The previous advocate is now threatening to disclose information that I released to him. Is this information not protected? GF, Dar

As a general rule, whatever the client communicates with his or her advocate is privileged. That is the advocate is generally not required to release this information without the consent of his client. There are circumstances that he can be obligated to release the said communication like by order of the Court or if the information is about intention to commit a crime.

In accordance with the scenario that you gave us, the advocate is legally obligated not to disclose the information unless it fits in the grounds which he will be legally obligated to disclose.

Finally the basic rules of ethics of law professionals is to maintain confidentiality and whatever communicated to the advocate by his client or comes to the knowledge of the advocate in the course of attending to that client remains privileged and cannot and should not be disclosed.

What the advocate is threatening to do is illegal and if he is a duly registered advocate, he should be aware of the basic principles of the attorneyclient relationship.

If he does reveal the said information, you can sue him and ask for compensation and he can be suspended. Lawyers’ Rules of Professional conduct also grant clients the inalienable right to sack their lawyers at any time without the fear of their confidences being betrayed by the lawyer, his partners, associates, employees or his firm.

The basic professional ethics rule on confidentiality provides that a lawyer shall not reveal information relating to representation of a client. In the absence of all the exceptions above, the lawyer’s obligation of confidence to his client is sacrosanct.

It is immaterial whether the client is a prospective, current, or a past client. It is also immaterial whether or not the lawyer-client relationship ended on a sour note.

Kleptomania as a legal defence for stealing

My friend suffers from an irresistible impulse to steal. It is a condition that he seems to have inherited. Can he use this as a defence if he is caught stealing? GL, Morogoro

Kleptomania is the inability to refrain from the urge to steal items and is done for reasons other than personal use or financial gain.

One gets a release of pressure following the theft. Our research reveals that in states or countries following the M’Naghten rule, proving kleptomania would normally be no defence.

To prove the insanity defense under M’Naghten, you have to show that you had a mental defect that either prevented you from understanding the nature and quality of your act, or that prevented you from understanding that it was wrong. Kleptomaniacs generally understand perfectly well what they’re doing, and that it’s criminal and indeed, many suffer overwhelming guilt, or at least fear of arrest.

Hence it is unlikely that this defence will work. Having stated the above, we must state that a number of American states follow the A.L.I. (American Law Institute) definition of insanity, which also allows for a not guilty verdict if the defendant “lacks substantial capacity... to conform his conduct to the requirements of the law.”

This is also like the “irresistible impulse” test for insanity. However we don’t think a Court would take judicial notice that all kleptomaniacs are inherently unable to resist stealing at all times and places, so simply proving that you were a kleptomaniac would probably not be enough to get one off.

We strongly suggest that instead of looking for defences for this condition you should look at trying to treat it. You need to consult a psychiatrist.

Private plot burial

My father bought a plot not very far from the centre of the city of Dar es Salaam. He has started construction of a house in the said plot planning for our family to move there. We have one small
problemour father has ordered us to bury him in that plot when he passes away. We do not have any objections but are unsure if the law allows this. I see the government has set aside areas which are  public cemetery in many places including our neighborhood. Is my father’s wish not an offence or does it not amount to change of use of the land? Please advice. KD, Dodoma

We are not aware of any law which imposes a legal obligation to bury a person in a public cemetery or prohibits burial in one’s own plot. The issue of place of burying may be subject to one’s decision and/or his family members’ decision. It is not an offence for one to be buried in their plot as long as burial permits are obtained from authorities before such burial. Our opinion is that the burial of your father will not amount to a change of use of the land.

The plot will still be used for residential purposes despite presence of a grave. The grave might reduce the value of the plot as many people are not very receptive to living near graves. It would be wise to advise your father to be buried in a public cemetery as it is more convenient in the future. However different people have different beliefs and we must learn to respect them.

Meanwhile we hope and pray that your father lives as long as he can!

  • Send in your questions by email to:qa@fbattorneys.co.tz
    bypostto: Q&A with FB Attorneys C/o The
    Daily News, P. O. Box 9033 DSM, Tanzania

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