Litigation in Ghana no longer ends when the judge rises. In politically significant, criminal and other high-profile cases, a second hearing frequently begins outside the courtroom.
Lawyers emerge from the court building and speak to television cameras. They explain what happened, interpret the evidence, criticise an opposing argument, announce their next procedural move and sometimes pronounce confifidently on how the case ought to end. The same commentary subsequently appears on radio, Facebook, X, Instagram, TikTok, Snapchat and WhatsApp. This practice is so rife that one can only imagine the public outrage if a lawyer in a high-profile case refuses to speak to the numerous reporters camped outside the law courts.
Almost every lawyer in Ghana knows that it is a misconduct for Lawyers to advertise their services. Some Lawyers believe that granting interviews to the press whilst conducting high profile cases could serve as some sort of subtle advertisement for them. Members of the general public would get to know them and the popularity gained could propel their legal careers to greater heights.
Lawyers making out of court statements has become so normal that many lawyers and members of the public may be surprised to learn that the professional rules appear to prohibit it almost entirely. Rule 8 (1) of the Code of Ethics of the Ghana Bar Association states that “A practising lawyer commits misconduct if he gives any interview to a representative of the press on any matter on which he is or has been engaged as counsel.”
This rule does not permit lawyers who are members of the Ghana Bar Association to grant any interview whatsoever to the press in any matter they are or have been engaged as counsel.
Rule 38 of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 (L.I. 2423 applies to a lawyer who is participating, or has participated, in the investigation or litigation of a matter still pending before a court. Such a lawyer, the Rule says, “shall not make an out of Court statement or grant an interview to the media on the matter.” The language is striking.
It does not merely prohibit statements likely to interfere with a fair trial. It does not prohibit only comments on disputed evidence, witness credibility or the guilt of an accused person. It does not distinguish between a lengthy television interview and a brief social-media post. It contains no exception for information already contained in the public record, no right to correct materially false publicity and no express allowance for a neutral procedural update.
Read literally, Rule 38 of L.I.2423 is a near-total prohibition.
The uncomfortable question is therefore unavoidable: is Rule 38 a genuine rule of professional conduct, or has it become a ceremonial prohibition that is remembered only when convenient?Why Rule 38 exists
The principle behind the Rule is defensible. A lawyer is not an ordinary commentator. Counsel has access to a client, witnesses, evidence, confifidential instructions etc. The public is also likely to attach greater credibility to a lawyer’s account because the lawyer is perceived as speaking with professional knowledge of the case. Extrajudicial commentary may therefore create several dangers.
First, it may prejudice the fair administration of justice. A lawyer may introduce allegations that have not been tested in court, present inadmissible material as established fact or encourage the public to decide the dispute before the judge does. This poses a significant risk as it can erode public confidence in the judiciary, particularly among those without the legal expertise who may not understand the reasoning behind an unfavourable judgment.
Second, it may undermine the presumption of innocence. In criminal cases, repeated public declarations about an accused person’s supposed guilt, motives or character can inflict reputational punishment long before any conviction.
Third, it may a[ect witnesses. A witness who hears counsel’s public account of the evidence may consciously or unconsciously adjust his or her own recollection. Public commentary may also intimidate witnesses or expose them to political and social pressure.
Fourth, it may undermine the client’s interests. A lawyer attempting to win the public relations contest may disclose litigation strategy, confidential information or the existence of negotiations that should have remained private.
Finally, the practice encourages the transformation of litigation into political theatre. The court becomes only one arena; radio, television and social media become another. The danger is that the party with the loudest lawyer, the largest media platform or the most politically attractive narrative gains an advantage unrelated to the legal merits.
Rule 38 of L.I.2423 therefore pursues an important objective. It sits alongside other provisions requiring lawyers to protect the integrity of the administration of justice. Rule 89 of L.I. 2423 expressly provides that violating the professional-conduct rules constitutes professional misconduct. The Rules also treat conduct prejudicial to the administration of justice as misconduct in its own right. The problem is not the purpose of Rule 38. The problem is the growing distance between its absolute language and professional reality.
A rule wider than the mischief it seeks to prevent
Rule 38 does not ask whether the statement was capable of prejudicing the proceedings. The mere making of an out of court statement “on the matter” appears sufficient. Consider how far that formulation reaches. A lawyer who tells journalists that a case has been adjourned may fall within it. A lawyer who confifirms that an application has been fifiled may fall within it. A lawyer who denies a false report that the client has confessed or o[ered a plea bargain may fall within it. A lawyer who posts a photograph from a court building with a caption referring to the pending case may fall within it. A former lawyer in the matter remains covered because the Rule extends to a lawyer who “has participated.” The provision is also technologically dated despite being enacted in 2020. An “interview to the media” plainly covers television, radio and newspapers. But the preceding expression, an “out of Court statement, is broad enough to capture posts on X, Facebook, LinkedIn, Instagram, TikTok, Snapchat and WhatsApp. A disappearing Snapchat story may reach fewer people than a television interview, but it is still a public statement about the pending case.
The platform should make no difference to the ethical analysis.There is also a notable contrast within L.I. 2423 itself. Rule 40, dealing specififically with prosecutors, adopts a more calibrated approach. It recognises that a prosecutor may need to make statements informing the public about the nature and extent of prosecutorial action for legitimate law-enforcement purposes. A typical example of this can be seen in the Deputy Attorney General’s regular posts on the social media platform ‘X’ updating the general public on the prosecution of several high-profile cases.
Rule 40 particularly cautions against comments substantially likely to heighten public condemnation of an accused person. Rule 38, by comparison, gives the ordinary participating lawyer no equivalent public-information exception and no prejudice threshold.
It is difficult to justify an ethical framework under which a prosecutor has an express, carefully limited ability to inform the public, while defence or civil counsel is apparently prohibited from confirming even basic procedural information.
The election-petition warning
During the 2020 presidential election petition, the Supreme Court expressly cautioned a member of former President Akufo-Addo’s legal team about post hearing media interviews.
The Court referred directly to Rule 38 and said it was uncomfortable with counsel granting interviews outside the courtroom. The then Chief Justice advised that another person who was not participating in the case could speak instead. Counsel accepted the Court’s advice.
This obviously does not mean that other lawyers in the law firm of a lawyer that is prosecuting that matter can grant interviews outside the courtroom. A tactic employed by some lawyers in a bid to circumvent Rule 38.
The intervention by the former Chief Justice is important for two reasons.
First, it confirms that Rule 38 is not merely concerned with statements that are actually contemptuous. The Court treated post-hearing interviews themselves as potentially contrary to the professional rule.
Second, the Court’s proposed solution highlights an oddity. A lawyer formally participating in the case could not address the press, but another lawyer or spokesperson who had not participated might convey substantially the same message. If the real concern is prejudice to the proceedings, the effect of the statement ought to matter as much as the professional identity of the person delivering it.There are sensible reasons to regulate participating counsel more strictly; counsel possesses inside information and speaks with the implied authority of the legal team.
Nevertheless, a rule that can be avoided simply by appointing a media spokesperson does not fully address the wider problem of trials being conducted in the press.
The election-petition intervention also raises a further question. If the Supreme Court could identify the conduct and refer expressly to Rule 38, why do similar interviews remain a common feature of high-profifile litigation? A judicial warning in one prominent case is not a substitute for a coherent and consistently applied disciplinary policy.
The Wontumi proceedings and the persistence of trial commentary
Recent proceedings involving Bernard Antwi Boasiako, popularly known as Chairman Wontumi, illustrate how deeply media commentary has become embedded in Ghanaian litigation. In June 2026, while the Akonta Mining criminal proceedings remained before the High Court, counsel seeking to withdraw from the case gave a radio interview explaining his withdrawal and expressing disappointment with what he described as the court’s “attitude, record, and determination” in handling the proceedings. The case was still pending and later adjourned for written submissions and judgment. Earlier in the same prosecution, counsel publicly denied reports concerning a possible plea arrangement and discussed the defence team’s position and intended strategy while the case remained ongoing. These references are not intended to pronounce any individual lawyer guilty of professional misconduct. That is a matter for the competent disciplinary body after due process.
They do, however, demonstrate the central problem. Under the literal wording of Rule 38, the relevant question is not whether counsel’s comments were malicious, inaccurate or substantially prejudicial.
The question is simply whether a lawyer who had participated in a pending matter made an out of court statement or granted an interview “on the matter.” If that is the proper interpretation, the potential application of the Rule is obvious. The same issue arises repeatedly in election petitions, constitutional cases, criminal prosecutions and politically sensitive civil disputes. Lawyers explain interlocutory decisions, challenge the prosecution’s motives, defend the integrity of their clients, criticise investigative bodies and predict what will happen at the next hearing. The apparent normalisation of the practice does not amend the Rule. A legal obligation does not disappear merely because breaches become frequent.
What persistent non-compliance does achieve, however, is to weaken respect for the regulatory system.
The junior-lawyer problem
Selective enforcement is especially damaging in a profession founded upon hierarchy and precedent. Imagine a junior lawyer posting on social media that he has sued a named company for a client and that the company has invited them to discuss settlement. Even without disclosing the settlement figure, the lawyer has publicly identified the opponent, announced the existence of the litigation and disclosed a development in the negotiations.
The post may raise separate questions of client confifidentiality under Rule 19. It may also amount to an out of court statement concerning pending litigation under Rule 38. Would that junior lawyer receive the same indulgence routinely extended to senior counsel who discuss high-profifile cases on radio and television? The issue is not that senior lawyers should automatically be punished. It is that professional rules must be applied without regard to status, political inflfluence, years at the Bar or media prominence. A rule that descends heavily upon an inexperienced lawyer but becomes invisible when senior counsel approaches the microphone is not professional regulation. It is hierarchy disguised as ethics. Even the perception of selective enforcement is corrosive. Junior lawyers learn professional standards principally from the conduct tolerated in senior practitioners. When senior lawyers repeatedly comment on pending cases without visible consequences, the practical lesson is that Rule 38 is optional. The profession cannot credibly demand restraint from younger lawyers while treating public commentary by established practitioners as an accepted part of litigation strategy.
Should Rule 38 simply be repealed?
There is an understandable temptation to say yes. A law routinely disregarded, inconsistently invoked and rarely enforced risks becoming worse than no law at all. It invites arbitrary enforcement. Almost any participating lawyer who comments publicly can be accused of breaching it, yet only a small and potentially selective number may ever face scrutiny. The breadth of Rule 38 may itself contribute to the non-compliance. Rules that prohibit too much are often enforced too little. Regulators hesitate to apply them literally because literal application would capture harmless conduct together with genuinely dangerous trial publicity.
Nevertheless, in my opinion, a complete repeal would be the wrong response. Ghana does not need unrestricted trial by media. Lawyers should not be permitted to pronounce on an accused person’s guilt, attack witnesses, disclose inadmissible evidence, reveal confifidential negotiations, intimidate opponents or seek to pressure the court through orchestrated publicity. The better solution is to replace the absolute prohibition with a rule targeted at the actual risk.
Enforcement must also be credible
The General Legal Council should issue formal guidance explaining Rule 38’s application to traditional media and social media. The guidance should include practical examples distinguishing a permissible procedural update from impermissible commentary.
Complaints should be assessed by reference to objective criteria, not the identity or seniority of the lawyer. A fifirst minor breach may justify advice or a warning. Repeated, deliberate or seriously prejudicial conduct may justify disciplinary proceedings. Context and actual risk should inform sanction. At present, there is no readily accessible body of jurisprudence explaining how Rule 38 is applied. Lawyers are left with an absolute statutory sentence, occasional judicial warnings and a professional culture that often points in the opposite direction. Transparent decisions would provide guidance, promote consistency and demonstrate that the Rule applies equally to junior and senior lawyers.
Conclusion
Rule 38 reflflects an important idea: cases should be tried before courts, not before microphones, social-media followers or partisan audiences. But the present formulation is too absolute, too uncertain and too disconnected from contemporary legal practice. Its widespread apparent disregard has created a dangerous choice. We may either continue pretending that the Rule is being observed, invoke it selectively against convenient targets or reform it into a provision capable of commanding genuine respect.
Most importantly, the legal profession must decide whether Rule 38 binds every lawyer or only those without the influence, seniority or confidence to ignore it.
Authors: Nana Kwabena Anin-Yeboah, Esq. & Alex Dodoo, Esq.
