Lawyers have a civic duty to uphold the law and passively, to inform the public of the various laws and procedures in the event that you may need legal help. Lawyers also have a statutory privilege to be the only professionals that can offer certain services. Whilst some of the services are common place, there are others that are obscure but the public is in need of them. Unfortunately most of the time, getting that information will come at a cost. This then creates a gap between the expectations, rights provided for by the law and the conduct of civilians, who are in most cases innocently oblivious of what the law provides for them. In this series we try to educate the public on some of the less known legal services offered by lawyers, in case you may have wondered how to get assistance.
1. WATCHING BRIEFS (Criminal Matters)
A watching brief is an instruction given to a lawyer to observe and monitor the arrest and prosecution of an accused person on the report of the complainant. The complainant will be the lawyer's client. In most instances lawyers would represent the accused person as they would be the individual trying to fight for their freedom or to clear their name. A complainant is also ordinarily represented by a prosecutor who is the State lawyer, as all criminal offences are against the State. The machinery of a 'watching brief' adds accountability to the process of arresting an accused person including their prosecuting authorities who are trying to secure a conviction. A lawyer who is instructed to conduct a watching brief has the responsibility to assist the Police Officers with identifying an appropriate charge/offence, properly preparing the charge sheet and state outline, assessing the suitable witnesses and evidentiary documents together with monitoring whether there is any collusion between the accused person (including their relatives) and the police officers. The lawyer also has the additional duty of ensuring that the prosecutor conducts the criminal trial in a professional and astute manner to secure the conviction of the accused person. The benefits of a watching brief include professional counseling for traumatic crimes, restriction of corruption with law enforcement officers and the avoidance of sloppy investigations and prosecution of offences.
2. DUE DILIGENCE ON PROPERTY PURCHASES
Purchasing a high value property is not a simple exercise. This applies particularly to the Zimbabwean market. Fraudsters have now flooded the space of the sale of undeveloped land, houses, commercial buildings, vehicles and other high value property. The advice to be given to the public before parting with your hard earned cash is to engage a legal practitioner who can assess the legality of the transaction and mitigate any risks that may be associated with any transaction. Rampant cases of double sales, sales of non-existent land, sales of stolen vehicles and transactions with individuals without authority to sell are prevalent. The criminal justice system may do little to recover your lost money, and/or opportunity at personal development. It is indeed to be better safe than sorry. For a nominal fee, a lawyer can assess the identity of the seller, the legality of the transaction, a background check with important offices that keep a record of the property i.e. the Deeds Registry Office, the Registrar of Companies Office, The Central Vehicle Registry and the Vehicle Theft Squad department amongst other state departments. Lawyers have the required skill set and training to navigate all these offices including interrogating the individuals you intend to transact with, observing for potential red flag indicators. As If that is not enough, lawyers can also insert certain 'safety' clauses in agreements that act as a last line of defense for the more methodic and calculative fraudsters. These include repossession clauses, reimbursement clauses and specific guarantees.
3. RECEIVING AND ACCOUNTING FOR TRUST FUNDS
In terms of the Legal Practitioners Act, Lawyers are mandated to open a separate current account with a bank that will act as the law firm's trust account. A Trust Account is a heavily regulated account which a law firm uses to hold and keep custody of funds that belong to a third party pending a specific mandate or instruction. A trust account does not necessarily operate as a bank account in the conventional sense but it carries more or less similar features. Being a heavily regulated account, the ethical expectations of a lawyer who holds money in trust on behalf of the client are high. Unauthorized use of trust funds and failure to account for trust funds can get a lawyer de registered from the roll of practicing lawyers including prosecution for a criminal offence. Trust accounts are an efficient tool for receiving funds when you do not have an existing account in the Jurisdiction, i.e. rentals from a property or installments to a purchase price that are made periodically and consistently over a certain period of time. This service is also good for guarding against the misuse of funds pending the completion of a particular transaction. As security for the due payment of a particular service, a party to a contract may nominate a trust account to which funds are paid and only released upon instruction after satisfactory completion of any contractual obligations.
4. CHANGE OF NAME
Have you have wondered whether it was possible to change any portion of your name or you may have thought that you have no choice but to stick to the name on your birth certificate? The answer is that a name change is very much possible and lawyers, specifically those registered as Notary Publics are the only professionals who can carry out such process. The process of a change of name takes place through the preparation of a notarial deed of change of name prepared by the specially skilled lawyers. The proposed new name is also advertised in the public media for informing the public and calling for objections. You can change your name to any name you so desire, provided the name is not morally offensive, receives a valid objection from any member of the public and the intention to change your name is not meant to be deceitful and fraudulent in the pursuance of a criminal motive. Certain names given to us by parents and relatives result in low self-esteem, ridicule from peers, religious intolerance and all these may lead to mental health issues. In the exercise of the freedoms given to us by the constitution, the ability to change one's name is a recognized right which most people are not aware of and more importantly how one can go about it.
Be on the lookout for part 2 of the series where we identify more obscure legal services and the rights and obligations they create on citizens.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.