Learned friend: Why the legal profession stands out

Saturday September 11 2021
Legal pic

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By Tichawana Nyahuma

It is thought that the concept of being employed - and being in a hierarchical structure with a certain line of reporting - is alien to a real profession. Accordingly, doubts have arisen as to whether bankers, members of the armed forces, accountants, auditors, nurses, teachers and engineers may be defined as “professionals” more particularly because there is little, if any, scope for individual enterprise.

According to the popular website Wikipedia, “a profession is a vocation founded upon specialised educational training, the purpose of which is to supply disinterested objective counsel and service to others, for a direct and definite compensation, wholly apart from expectation of other business gain”. In addition to possessing specialised educational training, a profession is also governed by a self-regulating body.

Based upon the above definition, it then becomes doubtful that anybody who is trained in a certain trade or calling may be said to belong to a profession. It seems that professionals or professions are only lawyers and doctors in private practice because apart from possessing certain specialised training, they are also governed by the strict rules of conduct imposed by the relevant self-governing body and that they operate as individuals with virtually nobody to report to. They are individually liable for the consequences of their actions. Further, once they are done with the client or patient’s case, as the case may be, that will be the end of the relationship. The lawyer or the doctor attends to the client/patient’s matter completely without the expectation that the same person will return in future with some more “business”. In fact, it would be an act of misconduct for the doctor or the lawyer after concluding /treating the client or patient’s case, to make any insinuations indicating that the client or person should return tomorrow with a new case or ailment.

Vocations such as those carried out by drivers, geologists, pilots, marketers, builders, so called professional sports personalities like lawn tennis star Serena Williams or soccer maestro Cristiano Ronaldo and the like, are probably not “professionals” in the true sense of the word because either they work under the direct control of their superiors or they are paid wages and in addition, where they offer advice, they do so with the hope that the customer will sometime in the future, return with some more business. By this, I do not - not even for one crazy moment - seek to belittle those in other trades that seemingly fall outside “professions”.

I now zero in on the legal profession for that is where the writer belongs. In particular, I wish to answer, the often asked question why lawyers, judges and magistrates refer to themselves as “learned”. It has been said that by calling themselves as such, lawyers, judges and magistrates somehow, place themselves at places that are loftier than other “professionals”. They see themselves as being superior and look down upon the other “professions” as inferior and unimportant.

To start with, the term “learned friend” is only a courteous way of addressing a fellow lawyer in court. It is particularly apt when used in those circumstances when one lawyer is not in agreement with the submissions made by his adversary. One might also say the term is used to embellish, if you want, criticism of the other lawyer so as to enable the proper resolution of the matter before the court.

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Away from court decorum, lawyers are unlike any other professionals you can think of on planet earth. Lawyers, judges and magistrates are not like doctors, nurses, architects, accountants and any other so called “professionals”. This is because they are expected to know everything under the sun. It may be said that doctors know everything about the human body and medicine, accountants know everything about accounting, engineers know all about their particular fields of trade, and so on and so forth. The situation is somewhat different with lawyers. At law school, aspiring lawyers are taught how to understand and interpret the law. By the time they finish the course, they will know how to understand the client’s case, where to locate the applicable law and how to interpret and apply that law. That is why in court, a lawyer is able to question and cross question a witness who is a ‘professional” in his own trade to the extent that the witness will end up agreeing with the lawyer that what he, the witness, thought was a certain state of affairs was in fact not so.

One cannot speak to an accountant if he has a headache and neither can an engineer consult an auditor if he wants to know how best to get his product onto the market. Equally, if a shop owner wants to know if he is making profit, he has to liaise with his accountant.

If a cattle rancher wants to ensure that his animals do not contract foot and mouth, he has to see a veterinary doctor. If you wish to move your goods from one location to another, you have to call a logistics practitioner and so on. But all these “professionals” if they have a legal problem arising out of their chosen vocations, they will all line up at the lawyer’s door and each and every one of them will be ably attended by the very same lawyer.

Equally, all magistrates and judges from Magistrates Courts and High Courts have sat over and entertained all sorts of cases from commercial law, labour law, criminal law, family law, international law and any other matter that has been brought there before them.

It is that ability, uniqueness and or exclusivity to understand everything under the sun in so far as the legal colour of the matters is concerned that those in the legal profession are capable of that makes them qualify to be called or to call themselves “learned”. Those in all other “professions” may be said to be “educated” but certainly, they are not “learned”. No offence intended and I am certain, none taken.