(HIGH COURT)

HASSAN SAAD AND OTHERS v. ABU TILLA MOHAMED AHMED

AC-REV-452-1952

Principles

·  Advocate—Professional ethics—Judge handling a civil suit then becoming an advocate is nor allowed to appear on same suit

A District Judge in Khartoum District Courts resigned from the Bench and joined the Bar. He appeared as an advocate representing one party in a civil suit, which he had already handled while he was a judge. Advocate of the other party objected the appearance of the advocate on the ground of professional ethics. District Judge rejected the application and allowed the advocate to appear.
Held: Decision of the District Judge allowing the advocate to appear is reversed, because according to the professional ethics, a judge who handles a civil suit, at any stage of its proceedings, and subsequently becoming an advocate, Is not allowed to appear representing one party in the same suit. Such situation, If allowed, may raise suspicions and doubt in respect of the administration of justice. Therefore, the party in the suit should brief another counsel.

Judgment

Advocates: Abdalla El Hassan and

Abdel Wahab Abu Shakiema for……………………. applicant

Abdel Wahab and Tigani for………………………… respondent

S. E. M. Shibeika J. January 12, i966 :—The facts are simple and brief. M the proceedings of the civil suit, which is the subject-matter of this revision, the former District Judge Sayed Omer Abdel Atti allowed the petition on November 9 , 1964. On November 28, 1964, he recorded the defendants’ statement of defence. Some time thereafter Omer Abdel Atti joined the Bar and on June 9, 1965 he appeared representing plaintiff (respondent). On the d fixed for hearing advocate for defendant (applicant) objected to the appearance of Omer Abdel Atti on the ground that representation of plaintiff is against the professional ethics of the Bar because he handled the case when he was a judge. The District Judge rejected the objection and hence this application for revision was submitted by advocates for applicant and defendant against the rejection.

It is quite obvious that advocate for plaintiff dealt with the suit in the first stage of the proceedings and hence did not make any order or decision touching the merits of the suit. Indeed by allowing the petition he impliedly decided that there is a cause of action but this decision does not affect the merits of the case.

I have examined the Sudanese precedents but to the best of my know ledge I could not find a precedent dealing with this situation. There is nothing relevant in the English cases apparently because a judge can never join the Bar. The Canadian Bar legal etiquette which is derived to a great extent from the English practice does not also help us in this connection (see Legal Etiquette by Bigelow (1955) Indeed in the Sudan the Bar Admission Committee has wide powers under the Advocates Ordinance, s. 17 (b), to make regulations dealing with the legal ethics of the profession. There are no such regulations and hence I have no alternative other than applying the Civil Justice Ordinance, s. 9. I shall therefore venture to apply the principles of equity, justice and good conscience.

Now the question is whether to allow a practice to be established which permits a judge who handled a particular suit to represent one of the parties to that suit after quitting the Bench and joining the Bar. This question is purely an ethical question. It is related to the behaviour of lawyers and how it ought to be in certain circumstances. The consideration here is not the personal behaviour of the advocate or judge as such but the behaviour as it ought to be and which should conform to certain ethical values which are highly esteemed and held to be sacred by the legal profession. One of those ethical values translated into legal terms is the principle that justice should be seen done. If there is any doubt or suspicion that justice is not being done the professional ethics should rigorously prohibit the coming into existence of the situation that may give rise to such doubt or suspicion. Hence an advocate who represents a party to a particular civil suit and subsequently becomes a judge should be and is pr from deciding that suit.

I think the present situation which is the converse of the above illustration should be governed by ethical considerations. In a situation where a former judge who has previously handled a civil suit and subsequently becomes an advocate in the same suit, there is a probability that doubts and suspicions that justice is not being done may be apprehended by the opposite party. For example, a party may doubt that the former position and relations of the advocate may affect the just decision of the suit or that the advocate on examining the record, the statements and demeanour of the parties has actually prejudged the case. If the judge who intends to be an advocate has really prejudged the case, this will pave the way for that kind of judge, however meagre that probability is, who putting in mind the Idea of quitting the Bench and joining the Bar to hunt those

litigants who come to his court and convince them, of the great prospects of success of their cases and eventually persuade them to brief him. If we allow this course, people with unscrupulous methods will practice their methods which will undermine the reputation and integrity of the legal profession. Hence the code of professional ethics should prohibit any kind of corrupt behaviour and should guard strictly against the apprehension of any doubts or suspicions in respect of the administration of justice by any party to a suit.

I, therefore, hold the general rule to be that a judge who subsequently becomes an advocate should be precluded from representing a party to a suit which he has already handled as a judge.

But, should we allow exceptions or limitations to this rule? The formidable difficulty will be how ‘can we draw the limits and boundaries and define the exceptions. If we limit the general rule to the situations where the judge has made a judgment or any order touching the merits of the case this will still leave the loopholes or probabilities that have been discussed above. Indeed the behaviour of advocate Omer Abdel Atti as town by the record is irreproachable and he did not make any order dealing with the merits of the suit. But as said before an ethical rule Ø not deal with a specific factual situation, it lays down the behaviour that ought to be’ by lawyers in order to make people and litigants certain that justice is being done.

In conclusion the application for revision is allowed with costs and thc order oi. the District Judge dated July 6, 1965, is hereby reversed. Plaintiff should therefore brief a counsel other than advocate Omer Abdel Atti.