PROFESSIONAL ETHICS LAW NOTES(Detailed Notes) (ATP 105)

CHAPTER 1

INTRODUCTION TO PROFESSIONAL ETHICS

 

1.1 PHILOSOPHY AND ETHICS

Ethics, also known as moral philosophy is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice, etc.

Etymologically, ethics is the philosophical study of moral values. The study involves systematizing, analyzing, evaluating, applying, defending and recommending concepts of right and wrong behavior. In general terms, morality has to do with the dos and don’ts as expecting of a rational human person. In modern times, Philosophers divide ethical theories into three general subject areas: meta-ethics, normative ethics, and applied ethics.

 

1.1.1 THE PROFESSION

A profession is a vocation requiring advanced education and training.[1] It may also be defined as a learned activity that involves formal training, but within abroad intellectual context.[2]  According to Boone (2001)[3] a Profession is based on, first, philosophy acquired through advanced training. Second, professionals render unique public services which require extensive training. Third, professional work needs thorough preparation because of its unique nature. Fourth, professions are based on specialized skill. Fifth, professional services should be rendered for the benefit of the public.

1.1.2 CHARACTERISTICS OF A PROFESSION

There are a number of corollaries that distinguish a profession from other occupations. Below follows a discussion of each of these corollaries.

a)      Restrictions

Professions impose restrictions in two ways – in terms of entry requirements and in terms of operation of the profession.

 

·         Entry Requirements

Professions impose anti – competitive rules and barriers to entry in order to regulate the number of people joining the profession. Accordingly, a person can only become a member of the profession after having been certified by some established body of the profession.

 

·         Professional Operation

 The profession usually control the conduct of its members in a number of aspects. The argument for this position is that “professions must maintain dignity, and that, advertising and price competition are not conducive for dignity.”[4]

Again, professions prevent unnecessary competition among its members by ensuring that the number of people joining the profession is regulated by having strict entry requirements.

 

b)     Regulation of Performance

Regarding professional regulation and performance, a number of points are worth noting. First, professions offer peer review for the members of the profession. The aim is to evaluate the performance of their members and to instill the accepted code of behaviour in their members at all times and to ensure that the quality of services offered to the public is not compromised.

Second, professions focus on the duty to serve the good of the community as a whole and not just one’s own good or that of one’s clients. This implies the performance of the members of that profession is regulated to factor in this position. Consequently, professionals are supposed to conduct their affairs with decorum at all times and to avoid engaging or doing anything that may bring the name of the profession into disrespect.

Third, professionals are not allowed to engage in unauthorized practice. This does not merely mean that a person is not qualified to practice as a professional. For instance, in Kenya, only certified members of the bar are allowed to practice law. The argument for this is that it is one thing to qualify as a lawyer and yet, another thing to qualify to practice law.[5]

 

Fourth, professional evaluation is, in most cases, based on the standards of malpractice as opposed to negligence[6] so that a professional will only be held liable where he/she conducts himself/herself in manner that is not befitting to that profession. However, in certain instances, a professional may be held liable for negligence where the same is proved against him/her.

Fifth, professions are self regulating so that it is other members of that profession who set professional rules and decides on whether a professional is in error. The essence is that a professional must be judged by an expert in that field and not a lay person. It is argued that the review by experts is an advantage to professionals as there are no swift disciplinary actions taken.

c)      Professional Advancement

The starting point is that professions do not exist for business purposes; they exist to serve the best interest of their clients, therefore, they emphasize on quality.[7] Again, when serving the clients, professionals must always have in mind and avoid engaging in practices that may inflict unnecessary harm to the public because the services the professionals offer aim at benefiting the public as a whole and not mere individuals who pay for those services. This explains why professionals, especially, lawyers have an obligation to always balance the interests of their clients against other competing interests such as the interests of the public and the court. In this regard, where there is a conflict between individual interest and public interest the public interest takes pre-eminence. Again, where there is a conflict between a lawyer’s obligation to the client and a lawyer’ obligation to the court, then the lawyer’s obligation to court will prevail. The reasoning is that professionals are more interested in public service rather than individual self-aggrandizement explains why courts have forced advocates to continue representing their clients even where the client has not paid the advocate.[8]

 

d)     Fiduciary Relationship

Professions emphasize on the fiduciary nature of the relationship the professionals have with their clients. It is argued those professionals are fiduciaries of their clients. For this reason, they are expected to act as trustees for their clients in all circumstances. Accordingly, it behooves a professional to act in utmost good faith and due diligence when dealing with their clients and when handling their clients’ property. Professionals are prohibited from using their client’s information or money or property unfairly. Besides, professional are prohibited from unreasonably overcharging their clients for their services.

 

1.2 ETHICS AND THE LEGAL PROFESSION

“The legal profession has existed for over two thousand years; from the Greek city-states and the Roman Empire to the present day. Legal advocates have played a vital and active role in the formulation and administration of law.  Because of their role in society and their close involvement in the administration of law, lawyers are subject to special standards, regulation, and liability”.[9]

The rules of professional conduct, as we know them today, have a long history that goes back over two centuries. For instance, there was a time when the legal profession was never regulated so that lawyers were solely guided by their moral conscience.[10] However, times have changed and the nature of a lawyer’s work has also changed. The law practice has become more of a business than a profession as it originally used to be. Lawyers can no longer be left to regulate their own conduct by use of common sense as this would lead to absurd consequences. Accordingly, lawyers have to be regulated because they have fiduciary duties to their clients; duties which are more than mere contractual obligations.[11]

 

Many jurisdictions world over regulate the conduct of the legal profession through enactment of relevant statutes and codes of professional conduct and ethics. These codes prescribe what is regarded as ethical and unethical in the practice of law. Regard must be had to the fact that what is unethical according to the standards of the legal profession may not necessarily be what is regarded as unethical in ordinary standards.

 

Legal ethics involves regulation of legal professionals in a manner that conforms to minimum moral standards required by the legal profession.  However, there is a distinction between morality as generally understood and morality as expected of a lawyer and as used in this context. The former denotes the standard of conduct that is generally accepted as right and proper in society. It denotes value that societies consider as virtuous and acceptable. The later however signifies value that diverse societies consider virtuous of a lawyer as a professional.

The society demands exemplary services from lawyers so that a lawyer does not have a carte blanche in the performance of his duties once a brief is accepted.[12]  As a safeguard, the following questions ought to linker in the mind of a lawyer at all times whenever a lawyer engages in a particular act or conduct:

1)      Is the conduct in question prohibited? If yes, what is the penalty?

2)      Doe the conduct in question give rise to ethical or moral concerns?

3)      Does the conduct in question give rise to legal concerns?

4)      How should a lawyer act when confronted with two equally conflicting situations?

5)      Should a lawyer be held liable for acting in a particular manner? How should a lawyer act under such circumstances?

 

1.3 PROFESSIONAL ETHICS AND PROFESSIONAL RESPONSIBILITY

Professional ethics refers to a way of behaviour considered as correct in a particular profession. It is the accepted mode of behaviour of a particular profession. The meaning of professional ethics is almost similar to the meaning of professional etiquette which also is the acceptable code of conduct in a particular profession; the morals of the profession. It deals with reconciling the use of rules to regulate the conduct of Lawyers and the expectation that lawyers will conduct themselves in an acceptable ethical manner.[13]These rules give rise to professional responsibility so that it is expected that lawyers exude confidence to the public by upholding the morals of the profession and to uphold the high level of standards expected of them by the society. Consequently, professional responsibility refers to obligations and mandate relating to or belonging to a profession. It revolves around taking responsibility for the acts and or omissions of members of a profession

 

1.4 THE LEGAL PROFESSION

The practice of law is regarded as one of the oldest professions in the world and its origins are traced back to the Roman Empire Age; in the period before Christ.  At that time, some people in society particularly persons of high social status often persuaded adjudicators in a tribunal to decide a case for somebody i.e. it was common for persons of high social status to speak up on behalf of those not articulate enough.

Law is considered to be one of the learned professions the others being Medicine and the Ministry/priesthood.  Learned professions share common and differentiating characteristics:

1.                  They are learned in the sense that one goes through a period of education, training and apprenticeship before being admitted to engage in the profession; law degree, law schools for bar exams and trained and exposed to the procedures relevant to the profession and the bar exams should expose one to procedure and ethics;

2.                  The prospective professional must first be subjected to a process of testing by persons who are already in practice and they must be certified as minimally competent to practice as professionals.  For advocates the prospective advocate services pupillage under a pupil master who should be an advocate of at least 5 years standing.  This pupil master should subject the pupil to testing.

3.                  Professionals specifically the small class of professions enjoy an advantage in social prestige on account of the following:

(i)                 High Income because lawyers particularly doing well have a high income;

(ii)               On account of assumed wisdom

(iii)             Nature of the work which gives social prestige that other members of society don’t enjoy.

4.                  Professionals enjoy a significant amount of autonomy as a group what is known as professional independence.  This is because only other members of the profession have the intense special learning of the profession.

5.                  Organised groups of members of the profession attempt to exercise relatively rigid control over other group members i.e. they tend to organize themselves into organizations that exert control over members of that organization exercised in terms of a code of ethics

6.                  The profession enjoys a monopolistic control over its own affairs and income but with a measure of state support.  The affairs of the legal profession are largely controlled by the Law Society of Kenya a body created by statutes.  The income of the members if regulated by law there is the Advocates Remuneration Order which is subsidiary legislation made under the Advocates Act which gives guidelines on how lawyers should charge for their services.  The figures stated in the Advocates remuneration order are usually prepared by the Law Society of Kenya and approved by the Chief Justice.

 1.5 THE LAW AS A PROFESSION

What distinguishes professionals today?

• There is a members List of professionals, for example, the Roll of Advocates
• They possess Special Skills
• Professionals are regulated by a Code of Conduct derived from rules of legal ethics.
• Discipline- Professionals have a disciplinary process that is self-governed.
• Professionals are licensed.

 

There are certain features of law practice that make it a profession as distinct from a business or trade. The practice of law has four characteristic features that make it a profession:

The first characteristic is that law is a public calling which entails a duty to serve the good of the community as a whole, and not just one’s own good or that of one’s clients. Anthony Kronman: “In the second chapter of the Wealth of Nations, Adam Smith makes the famous observation that ‘it is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. Smith goes on to explain how each of these, pursuing his business with an eye solely to his own advantage, produces by means of an invisible hand an addition to the public good. With lawyers, it is different. Like the butcher, the brewer, or the baker, the lawyer also expects an income from his work. Like them, the lawyer generally is not motivated by benevolence to do what he does. But in contrast to smith tradesmen, it is a part of the lawyer’s job to be directly concerned with the public good- with:

• the integrity of the legal system,
• with the fairness of its rules and their administration
• With the health and well being of the community that the laws in part establish and in part aspire to create.

We say that every lawyer is an “officer of the court.” What we mean is that lawyers, like judges are bound by their position to look after the soundness of the legal system and must take steps to insure its justice-conscious, direct and deliberate steps, not those indirect and unanticipated ones that lead the butcher and his friends from a preoccupation with their own advantage to the surprising and wholly unintended production of a public good. A lawyer who is doing his job well dwells in the tension between private interest and public good and never overcomes it. He struggles constantly between the duty to serve his client and the equally powerful obligation to serve the good of the law as a whole.

The second characteristic is the non-specialized nature of law practice. The education that lawyers receive reflects this.

 

A Third source of the lawyers professionalism-related to this second one- is the capacity for judgment. The goal of legal education is not to impart a body of technical knowledge but to develop certain general principles or abilities: the ability for example, to see facts clearly, and to grasp the appeal of points of view one doesn’t embrace. The good lawyer- the one who is really skilled at his job- is the lawyers who possesses the full complement of emotional and perceptual and intellectual powers that are needed for good judgment; a lawyer’s most important and valuable trait.

The fourth characteristic concerns time, and the location of law within it. To enter the legal profession is therefore to come into an activity with self-conscious historical depth, to feel that one is entering an activity that has long been under way, and whose fulfillment requires collaboration among many generations. It is to know that one belongs to a tradition. By contrast, in many lines of work- even those with a long history- all that matters is what is happening now, and the temporal horizon of one’s own engagement in the work shrinks down to the point of the present.

1.5.1 THE ROLE OF LAWYERS IN THE SOCIETY

Ray Simon/Murray Schwartz said the following about lawyers in their text Lawyers and the Legal Profession

They warned law students that they are about to enter a profession which is under constant attack.  They said “lawyers are not popular, they are not trusted, and lawyers are not respected.  You are embarking on a career that will lead you to ridicule, criticism and suspicion, your work will seldom be understood or appreciated by your friends, by the public or even by your own clients...”

They go on to say that everywhere you look lawyers are under attack, they are attack in court, you will be under attack in the press, in the business world, and they are attacked in the legislature.  The suggested two cheque system was an attack on lawyers so that the decretal amount could go directly to the client since a lawyer is likely to embezzle client’s money.

Lastly they are also under attack in the political arena.  President Moi was fond of attacking lawyers in public and is credited with a piece of legislation that was trying to do away with lawyers in land transactions (Cap 300).  Charles Dickens whose novels have also savaged the law and lawyers and has never had a kind word for lawyers. Jonathan Swift another writer of the 13^th century described lawyers as a society of men bred up from their youth in the art of proving by words multiplied for the purpose  that white is black and black is white according as they are paid. Benjamin Disraeli is reported as saying that the legal mind consists of illustrating the obvious and explaining the self evident.

 

1.5.2 WHY IS THE IMAGE OF LAWYERS SO BAD?

This has something to do either with the nature of the lawyer’s profession or the workings of the legal profession or it has something to do with impropriety on the part of advocates or both.  This is in the sense that when one is representing a criminal, not many people will understand why one is representing a murderer for example.

According to Lord Simonthe law troubles only those who put themselves in trouble.  Those who are in trouble will seek a lawyer and it is therefore not surprising that a painful prejudice would be created against those who appear to live on other peoples’ misfortunes.  A lawyer’s work is therefore viewed as being rather dirty.

Professor Robson calls it a lawyer’s dilemma; he says that a defeated client would abuse his own attorney for ineptitude and that the advocate for the opponent was deceptive.  His successful antagonist on the other hand would resent having to pay for what he believed in the first place were his rights and he would have a grudge against the advocate for the other side for having subjected him to unnecessary delay and expense.

1.5.3 ROLE OF LAWYERS IN THE SOCIETY IN VIEW OF THE ABOVE

Ethics in the legal profession should be discussed in the context of the lawyers’ role in society - the promotion of social, political, and economic progress. Gone are the days when the role of the lawyer was restricted merely to the traditional duty of being a guardian and watchdog for the protection of the rule of law only. While that role still remains significant and fundamental, the role of the lawyer, especially in a developing country such as Kenya transcends this age-old traditional role. This position was fortified by Lord Denning in Rondel v. Worseley¹⁴ reiterated in Groom v. Crocker.¹⁵

Where he summarised the role/duties of a lawyer as being:-

           i.          Duty to his client

         ii.          Duty to the profession

       iii.          Duty to court, and

       iv.          Duty to himself.

Lawyers certainly believe that they have a role in society but that what they do cannot be seen by the naked eye or what they do is not perceived as being very useful.

Lawyers have a duty and a responsibility to society.  The lawyer’s very existence is service to society.  The principles governing the legal profession require advocates or lawyers to provide service to clients of whatever class.  They have no choice; they are not required to pick and choose clients because everyone is entitled to access to justice.  One may say that a client has a dream and it is the lawyers’ duty to help the client achieve that dream.  The client doesn’t know how to achieve his dream and advocates must help clients do things that they cannot themselves do. 

Our role as lawyers is not limited to what we do for our clients; it extends beyond the lawyer client relationship.  We are expected as lawyers to play a much larger role in society in various transactions.  It is said that American lawyers contributed substantially in the formation of the States of America, they are credited with drafting the Federal and State Constitutions of the United States, which are said to form one of the most complex federal systems of government in the world.

Justice Simmons once remarked that the lawyer must be a teacher of the law and government and that he must furnish the public with leadership in matters of government. Another US Jurist by the name of Arthur Vanderbilt said that in a free society, every lawyer has the responsibility of acting as an intelligent and selfish leader of public opinion. Our training prepares for public service and leadership positions in society.

Lawyers also have a calling to the enforcement of human rights and advocates on admission to the bar take an oath swearing to defend the constitution and the rule of law.  If there is any area where lawyers can be counted as true heroes, it is in the defence of human rights, it is where they speak out for the rights of others and the public in that respect views them as fearless champions of the rights of the individual.  In the words of Lord Atkin, “there is no other profession which has done more in the way of both effort and sacrifice to maintain the supremacy of the law of a over force hand to preserve the safeguards of liberty against any form of invasion whether from the autocracy of a sovereign or from the domination of a class or from the seductions and threats of a crowd.”

The work of a lawyer must therefore include the curbing of abuse and misuse of power and the setting of limits to power.  A lawyer is expected to hold two fundamental beliefs:

1. That all social activity including politics has rules and limits, there is absolutely nothing without limits; and
2. Those lawyers have to participate in remedying injustice and the abuse of power.

The role of lawyers is set out in the objects of the Law Society of Kenya Act at Section 4.  There are several but two are crucial

1. To assist the government and the courts in all matters affecting legislation and administration of justice in Kenya; note that we are talking of all matters affecting legislation and public administration.
2. To protect and assist the public in Kenya in all matters touching or incidental to law.

Separation of Powers

It is argued that the full meaning of separation of powers can be achieved only with the help of lawyers through an independent bar and the judiciary.  The doctrine of separation of power cannot work without assistance of lawyers.  The rule of law requires an independent bar and bench.  With this regard the Constitution of Kenya 2010 adopts the multi-dimensional approach to the organisation of governance by adopting both the horizontal and vertical separation of powers. Under the horizontal separation of powers the Constitution creates three distinct arms of government and thereafter delineates specific powers and functions to each or these arms. For example, the Legislature is created and its functions specified under chapter VIII, the Executive under chapter IX and the judiciary vide chapter X.[14]

Independence of the Bar

·           Advocates are enjoined by their oath to work fairly and without favouring parties in their choice of clients.  They are called upon to work independently.

·           The rule of law requires not only an independent judiciary, but also an independent bar.

·           The bar must be independent from the executive, the judiciary, the client and must be independent from the desire to win at any cost.

An independence of the Bar entails four main things

a)      Independence from the Executive;

b)     Independence from the Judiciary;

c)      Independence from the Client;

d)     Independence from wining at any cost or the temptation to win at all costs.

Independence from the Executive

The advocate must be free as the judges must be free of any suggestion that he/she is dependent upon the executive or compliant with its wishes or unable to resist its demands. The professional requirements of an advocate’s work necessitate those decisions relating to a client’s case must be made in the interests of the client upon the facts and the applicable law.  Such decisions must not be made by reference to the desires of the executive or its directions.

Independence from the Judiciary

It is important that the advocate retains his independence from the expressed or implied suggestions and directions of the court.  The advocate is entitled to take every defense or maintain every position that a client can take or maintain for herself / himself.  It is the advocate’s duty to do so. An advocate should gratefully and gracefully accept such proper suggestions from the court but must always remain conscious that that is not the court’s function, and that the conduct of his client’s case is his sole preserve.  To quote Madan JA:

“The litigant and their professional advisers are the best judge of their affairs.”

An advocate ought to test court suggestions against the following criteria:

    i.               The client’s best interests: Do the court’s suggestions further them?

  ii.               The advocates own professional judgement: How do they compare?

 

Independence from the Client

While strenuously acting in the client’s best interests, advocates must endeavour to remain independent from them. Usually, most clients seek professional advice from an advocate.  However, there are certain clients both corporate and individual, who see the advocate as an employee.  An advocate should be alive to the fact that his legal / professional fees do not buy him (the advocate), they buy his/her best professional judgement and advice and be prepared to even lose the brief.  This is rendered necessary by the fact that the moment an advocate loses his independence to the client, he loses his professionalism.  Accordingly, she/he cannot protect his client’s best interests.

 

Independence from winning at any cost

·           A temptation faced by an advocate through out his career.  This is because its insidious nature attacks both senior and junior counsel.

·           This temptation must be resisted.  It will always lead to a breach of professional rules and etiquette.  It logically defies all other laws as well; i.e. the law of statistics, you cannot win them all; the more one becomes desperate and thus employs desperate means.

 

Summary of the Role of Advocates in Society

The International Commission of Jurists in a Congress held in Rio de Janeiro in 1962 in Brazil defined the role of the lawyer in a changing world as follows:

1.      They stated that the scale and knowledge of lawyers are not to be employed solely for the benefit of clients but should be regarded as held in trust for society – that is why we are saying that the calling of a lawyer is to public service

2.      It is the duty of lawyers in every country both in the conduct of their practice and in public life to help ensure the existence of a responsible legislature.  They should help in ensuring a responsible legislature elected by a public process and an independent judiciary and to be always vigilant in the protection of civil liberties and human rights;

3.      Lawyers should be concerned with the prevalence of poverty, ignorance and inequality in human society and they should take a leading role in providing measures which will help eradicate these evils.  This is of concern to lawyers because so long as these evils prevail in the society human beings cannot fully enjoy their civil rights and liberties;  lawyers are therefore required to engage actively in promotion of legal aid providing services to poor free of charge so that the poor can have access to justice and enjoy their civil rights.

4.      Lawyers should endeavor to promote knowledge of and to inspire the rule of law and an appreciation of all people of their rights under the law.  Therefore the responsibility on the shoulders of lawyers is immense as society expects a lot from lawyers.  This is because lawyers are called to perform higher duties i.e. they have a higher duty than that of ordinary citizens and it is this higher duty which demands a higher degree of personal integrity on the lawyers part and it is failure to attain this high standard of integrity and discipline that exposes lawyers to failure;

 

 1.6 HISTORY OF THE LEGAL PROFESSION IN KENYA

The legal profession was introduced here by colonialism.  It is an English tradition and not indigenous.  In the very early days of colonialism, there were two branches of the legal profession; there was the colonial legal service and the judiciary.  These were the lawyers in public service.  The colonial legal service would refer to the lawyers working in the Crown Law office or the Attorney General’s office and the various registry i.e. Lands Registry.

 

The other branch was the private legal profession and the persons in this branch were individually known as advocates.  The profession in Kenya from the very early days was fused with the advocate performing the duties of both barristers and solicitors it was fused because there were not many lawyers in the market and therefore they were allowed to do both duties.  Entry into the profession required that the advocates basically had to qualify as barristers for admission to practice as advocates they had to qualify as barristers.

The origins of the legal profession in Kenya are traced to the year 1901 when Barristers and Solicitors and pleaders from the Indian High Court were allowed to practice in Kenya.  Disciplinary control over the advocates was exercised at that time by the High Court.  There was not organized body of the advocates at the time and it fell on the high court to control the conduct.  At this time lawyers did not have monopoly of practice.  They were not the only people who could practice law, the senior judge of the High Court could licence other persons of good character to practice, he could licence lay persons who had shown themselves to be of good character to practice.

In 1911 non-lawyers were forbidden from practising in Kenya.  In the same year lawyers from the commonwealth were permitted to practice in Kenya i.e. Lawyers from any commonwealth country. 

The regulation of the legal profession in Kenya by an organized group within the legal profession started with the Mombasa Law Society which was founded in those early years.  The first High Court was established in Mombasa in 1911 and the legal profession really started at Mombasa.  The Mombasa Law Society was a voluntary organization membership was not mandatory.  When Nairobi was established as a centre of commerce and administration and a High Court established here, the lawyers practising in Nairobi formed the Nairobi Law Society which was also a voluntary organization.

 The two societies merged sometime in the 1920s to form the law society of Kenya.  Therefore the LSK was born in 1920s.  Currently membership of the Law Society of Kenya is mandatory.  The Mombasa Law society remained in existence as a voluntary body, the Nairobi Law Society disappeared when LSK was formed but Mombasa Law Society remained in existence as a voluntary body and remains so to this day.  The Mombasa Law Society normally nominates a Mombasa Advocate to sit at the council of the Law Society of Kenya. 

The Advocates Act and the Law Society Act of Kenya were enacted in 1949.  These are the two pieces of legislation for the regulation of the legal profession.  The LSK Act Cap 18 established the existing Law Society of Kenya as an incorporated body and made its membership mandatory.  The two statutes remain in force to date, several amendments have been inserted over the years and the only other statute to be enacted in recent years is the Council for Legal Education Act Cap 16A Laws of Kenya.  The Council for Legal Education mainly addresses the issues relating to pupillage and bar examinations.   The Advocates Act Cap 16 on the other hand deals with among other things qualifications for admission to the bar in Kenya.  The regulation of the legal profession in General in terms of issuance of practising certificates, remuneration of advocates, discipline and related matters.

The Law Society of Kenya Act establishes the Law Society and sets out its objectives and the administration of the society.

1.6.1 DEVELOPMENTS IN THE LEGAL PROFESSION AFTER 1949

In 1949, Acts were passed which placed the organization and control of the legal profession on a new footing. ⁶ The Law Society of Kenya Act⁷ established the existing Law Society as an incorporated body having among its main objects the maintenance and improvement of standards of conduct of the legal profession in Kenya, the representation and protection of, and assistance to members of the profession as regards their conditions of practice and otherwise, and the protection and assistance to members of the public in all matters touching law. The council governing the society was to make rules on a variety of topics, among them the grounds for expulsion from the society. These rules did not have to be approved by any other person or body, any more than did any other actions of the council. This did not perhaps matter too much, for membership of the society remained voluntary, and expulsion there from did not prevent an advocate from continuing to practice.⁹

To remedy the above defect, the Attorney General represented the Advocates Act,¹⁰ in introducing into the legislative council.¹¹ The Act established bodies and conferred powers where none had previously existed as a matter of law. The two important new bodies that were established were the Advocates committee and the Remuneration Committee. Specifically, the Advocates’ committee was given certain responsibilities in the field of discipline.¹² Any one could make a complaint concerning the conduct of an advocate. The complainant and the advocate complained of were heard by the committee, which submitted a report to the court, together with all the evidence, if it considered that there was a prima facie case to answer.¹³

The Law Society of Kenya (LSK) has among its objects the maintenance and improvement of standards of conduct and of the learning of the legal profession in Kenya, assistance to the government and the courts in all matters affecting, inter alia, the administration and practice of the law and protection and assistance of the public in all matters touching, ancillary or incidental to the law. More specifically, unlike during the colonial era when it served the colonial interest, the LSK operates as a democratic institution necessary for the promotion of the rule of law and a buttress of democracy.

 

1.6.2 SUMMARY OF THE HISTORY OF THE LEGAL PROFESSION IN KENYA

3 phases of the development of legal practice

 

1.      Colonial Bar

We inherited two segments i.e. public and private from the colonial era.  The government invested a lot in public bar which was by persons who came from England and the private bar was mainly for people of Indian Descent.

The concerns of the bar at the colonial era were at three levels, the question of their independence at a statutory level, there was no comprehensive statute that regulated the conduct of the bar.  The colonial bar identified with the government of the day and was able to push a lot of benefits which were beneficial to the practice of law. they were able to pursue a legislative framework.

There was a concern to keep the bar European and issues to do with independence of the bar. 

The LSK was concerned with questions of self regulation and by 1952 the LSK was major player in the question of disciplining its members and there was a great desire to ensure that the LSK was a self regulating body.  Compulsory memberships enable LSK to speak with one voice.  The issue of whether compulsory membership is viable is open to debate.  

The downside of the colonial bar support for the government was its support for some of the government’s excesses like the emergency regulations etc.  The LSK was more of a Trade Union organization rather than a body for public service.

2.      Post Independence Bar

The first concern is the question of integration, membership of the LSK and there were not enough lawyers of local extraction.  The entry was through articleship or because you came from England and were therefore allowed to practice.  From 1961 Africans started fighting for a parallel way to enter into the legal profession through university education but the problem was there was not university teaching law in the country. 

The other issue was access to corporate work and at that time the corporations were being Africanized and there was clamour to Africanize the legal profession as well.  Under the colonial bar the LSK did not identify with public interest.  The English lawyers did not want to be seen to be taking a voice against the emerging African States.  Lack of involvement in public interest was a price that the LSK was later to pay.  Upto 1985 or mid eighties, later with the rise of democratisation and all the changes that were happening globally the character of the lawyer in Kenya began to change.   The lawyers of the 80s are marked by the rising clamour for democratisation.  Despite of all the things that happened in 1949 to 1962, there were few structural changes until around the mid eighties.  

The LSK became very divided in the early 90s between those who were pro government and those opposed to it.  This remained the character of the LSK until the multi party elections.  At this point the LSK was in charge of the disciplinary process but at the same time the government started the complaint commission which was a department at the AGs and the government was now beginning to use this commission to reign in lawyers.

 

There was an increase in government bar tensions at this time, the government was always complaining against lawyers and the unfortunate thing was that the bar was not supported by the public. 

 

Lawyers have started involving themselves in issues of public interest and now the profession becomes redefined in terms of its involvement with the public service.

By 2002 the Judiciary was in such disrepute that the average lawyer was asking for a purge of whatever nature.  The process was bungled although the principle was right. Currently the nature of persons who need to enter the bar becomes crucial because of the numbers.  The LSK is not able to handle this and these are just some of the challenges. For every season there were challenges for the LSK to survive in terms of its capacity to thrive in this environment.

CHAPTER TWO

STATUTES IMPACTING ADVOCATES; AN OVERVIEW

2.1THE ADVOCATES ACT [15]

2.1.1 ADMISSION TO THE BAR

Any person whose name is duly entered into the Roll of Advocates is admitted to the bar, so too is any person whose name has been entered into the Roll of Senior Counsel. There are two categories of advocates who are allowed to practice in Kenya. These are the Kenyan trained advocates and foreign advocates.

 

The relevant Sections relating to admission are S. 12 and 13. Section 12 sets out the citizen’s qualification for admission.  The two conditions that have to be satisfied under Section 12 are that the applicant should be a citizen of Kenya Uganda and Tanzania.   The Applicant must satisfy the requirements of Sections 13 of the Advocates Act.

 

Section 13 sets out the professional and academic qualifications for admission to the Kenyan Bar.  The first condition is that the Applicant must have or be eligible for the conferment of a degree in law of a recognized university in Kenya or any university approved by the council for legal education.  This latter provision largely covers institutions awarding law degrees but based outside of Kenya.  Previously council for legal education used to keep a list of approved institutions i.e. institutions whose degrees the council for legal education recognized but this was discontinued sometime back giving a wide discretion to the Council for legal education when it comes to considering the applications of the persons seeking admission to the Bar.  The Council for Legal Education also introduced a requirement under the Council for Legal Education Act, which affects mainly candidates who have obtained law degrees from universities outside Kenya that they must have a B in English.

 

Section 13 is a very controversial provision. Previously the provision was for a certain number of universities in a list and most of the universities were in the Commonwealth jurisdiction. Then the section was amended in 1989-90 giving the Council of Legal Education more discretion to decide on which universities and the provision was made rather general.

 And it presented a problem because some students went overseas and came back with a law degree after only two years (sub-standard?). In the matter of an Application by Rita Biwott HCCA 238 of 1994 (unreported) , Rita Biwott had obtained a lawyer degree after 2 years and the Council of Legal Education was of the opinion that she did not satisfy the condition and she challenged the decision of the council in a judicial review and the court found that she satisfied the requirements of  section 13.

 See also Ochalo Omaro and others, students who had obtained law degrees from different universities in India and they were denied admission to the Kenya School of Law on the basis that though they had a law degree they had not attained the required credits in the English language. And the court found they had satisfied the requirements of section 13 and that the Council did not have any clear criteria when it came to approving foreign institutions.

 

In addition to the Academic qualifications, the candidate must have done pupillage with an Advocate of such class as may be prescribed and received instructions in the proper business practice and employment of an advocate.  Under Section 13 pupillage is for a period which does not exceed one year.  For the time being, candidates are required to serve pupillage with an advocate of not less than 5 years standing.  In addition to pupillage the applicant must also pass such examinations as may be prescribed apart from the examinations passed by the Applicant for the purpose of the law degree.  This requirement deals with the bar examinations, i.e. exams set by the council for legal education.

Section 13(2) empowers the Council for Legal Education to exempt candidates from pupillage and the Bar Examinations.  It is under this provision that we shall be sitting for 6 council for legal education papers.

Section 13(1) (c) makes a person duly qualified for examination if he passes any other qualifications that are acceptable and recognized by the council.  In the past this provision enabled lay magistrates to be admitted as Advocates upon passing the Council for Legal Education qualifying examinations.   Such lay magistrates did not have to do pupillage and they did not have a law degree.  The fact that they had worked for many years as magistrates was seen to be qualification enough.

 

Section 13 (1) (d) provides that candidates from Uganda and Tanzania qualify for admission so long as they are advocates for the time being of the High Court of Uganda or the High Court of Tanzania which means that they don’t have to do the bar exams here and it means that a fresh law graduate from Uganda cannot be admitted in Kenya and has to be admitted in Uganda first similarly to Tanzania Citizen.

 

Section 10 of the Act provides for person who are not advocates but who may be regarded as advocates by virtue of their office. In this category we have officers in the AG’s office, who discharges duties normally done by an advocate. He is an advocate to the extent of his office; he is regarded an advocate for purposes of his office and not otherwise. In this category we also have registrars working in the Lands Office and officers working with a Local Authority such as Town and Municipal clerks, offices ordinarily held by advocates.

 

A.    Advocates of the Commonwealth [Foreign Advocates]

An advocate from any Commonwealth country may be admitted by the Attorney General to practice as such in Kenya as if he/she qualified in Kenya. The qualifications for such advocates to be admitted to practice in Kenya are that they should be practitioners who are entitled to appear before superior courts of a Commonwealth country and should not have been disqualified or suspended from practicing as advocates.[16] However, it is noteworthy that such foreign advocates may only be allowed to practice in Kenya after they have paid the Registrar the prescribed admission fees[17] and they are appearing in court with or have been instructed to appear in court by the officers mentioned under section 10 of the Advocates Act.[18]

Section 11 of the Act provides for the admission of foreign lawyers to practice as advocates in Kenya. They can only be admitted by the A.G at his discretion. In recent times the AG has generally declined to allow foreign lawyers to practice in this country. East African lawyers are not regarded as foreign lawyers.

 

Applications by Matiba and Koigi wa Wamwere; Matiba sought in 1992 to engage a barrister from England to lead his legal team in his election petition against President Moi. The matter went to court and Matiba lost because AG has absolute discretion. Koigi made similar application when he was being tried for treason and the application was refused on similar grounds.

 

Foreign lawyers can only be admitted for a specified suit or matter. They are not admitted to practice generally and once that matter is over they are expected to go back to their own country. They must also be instructed by the AG or the advocate, i.e. they cannot be instructed directly by the client and he or she cannot be allowed to practice unless he appears in court with the instructing advocate. The foreign lawyer is not allowed to file or sign pleadings.

B.     Kenyan Trained Advocates and Admission to the Bar

The rules governing the qualification and admission of advocates of the High Court of Kenya are contained in the Advocates Act. Section 9 of the Act outlines three qualifications that a person must have in order to be qualified as an advocate.  Thus, no person shall be qualified to act as an advocate unless–

1.      he has been admitted as an advocate;

2.      his name is for the time being on the Roll; and

3.      he has in force a practising certificate (Each of these requirements is discussed below)

 

1.      Has been admitted as an advocate [Ss. 12 -15]

Conditions for admission of advocates are provided in section 12 – 15 of the Advocates Act. Section 12 requires that a person must be a Kenyan, Ugandan or Tanzanian Citizen for him/her to be admitted as an advocate subject to section 13. Sections 13 to 15 of the Act give the professional and academic qualifications that a person must have in order to be admitted as an advocate. Thus, once one has qualified for an LLB degree, he/she must sit for and pass all the examinations organized by the CLE after which he/she must have worked as a pupil for not less than 6 months under an advocate of 5 years standing to be trained in the business of being an advocate before being admitted as an advocate of the High Court of Kenya.

Once these conditions have been fulfilled, one may petition the Chief Justice for admission into the Roll of Advocates pursuant to section 15(1) of the Advocates Act. This section provides that;

“Every person who is duly qualified in accordance with this Part may apply for admission as an advocate, and the application shall be made by petition in the prescribed form, verified by oath or statutory declaration addressed to the Chief Justice, and filed with the Registrar together with a notice intimating that the petition has been so filed together with such other documents as may be prescribed and the applicant shall also deliver a copy of the petition and of any document delivered therewith to the secretary of the Council of Legal Education and to the secretary of the Society”.

 

2.      His name is for the time being on the Roll [s. 16]

Once an advocate has been admitted as such, his/her name is entered and maintained in what is called the Roll of Advocates. The Roll of Advocates is a register showing the names of persons who are recognized to practice in Kenya as advocates of the High Court of Kenya. Section 16 of the Advocates Act provides that “[the] Registrar shall keep the Roll of Advocates in accordance with this Act and any directions as to its form and the information to be recorded as the Chief Justice may give, and shall allow any person to inspect the Roll during office hours without payment.” The implication of this provision is that the only conclusive authority that one is recognized as an advocate is the presence of his/her name on the Roll of Advocates. Accordingly, the absence of an advocate’s name on the Roll disqualifies that advocate from practising as such. Again, it is the Roll of Advocates which gives validly to the practising certificate. This means that even where an advocate has a current practicing certificate but his/her name has been struck off the Roll, that practicing certificate will expire automatically. The proviso to section 24 of the Act provides that  ...”where the name of an advocate is removed from or struck off the Roll, the practising certificate (if any) of that advocate shall expire forthwith.”  

 

3.      Has in force a practising certificate[Ss. 21- 30 ]

An advocate must have a current practising certificate in order to be allowed to practice law. This certificate is issued by the Law Society of Kenya on application by an advocate. The rules on practicing certificate are found in sections 21 to 31 of the advocates Act. The absence of a practising certificate disqualifies advocate from signing any legal document or from appearing in any court as an advocate.

 

Section 21 authorizes the Registrar to offer Practising Certificates authorizing advocates named therein to practice as advocates. However, the Registrar can only issue the certificate where an advocate has applied for the same. Accordingly, it is incumbent upon the advocate to have a current practising certificate at all times. Pursuant to section 22 of the Act, it is the responsibility of an individual advocate who meets all the requirements specified in the section[19] to apply for a practising certificate from the Registrar. This means that the statutory declaration must accompany the application for the certificate as well as a copy of the receipt issued to an applicant by the Society upon payment of the necessary dues as provided in the Act. Upon issuance of a practicing certificate, without payment of any other fee, subscription, election, admission or appointment, an advocate becomes a member of the Law Society of Kenya and the Advocates Benevolent Association.[20]

 

A practising certificate takes effect from the day it is issued. Section 24(1) of the Act provides that “every practising certificate shall bear the date of the day on which it is issued and shall have effect from the beginning of that day: Provided that a practising certificate which is issued during the first month of any practising year shall have effect for all purposes from the beginning of that month”.  The implication of this is that a practising certificate cannot have a retrospective application.

 

The Court of Appeal decision in Kenya Power & Lighting Company vs Chris Mahinda T/A Nyeri Trade Centre[21] is relevant. This is a case in which the Respondent filed an appeal against the Applicant. The Applicant, in response, filed the present application seeking the appeal to be struck out as the Notice of Appeal and Memorandum of Appeal had been filed by an advocate who did not have a practicing certificate. The Respondent argued that the advocate had paid for his fees on time and the failure to get the practicing certificate was occasioned by the negligence of the Law Society of Kenya staff.  In allowing the appeal, the court held that the advocate must be one competent to practice under section 9 of the Advocates Act so that in the present case, prior to the date of issue, the advocate did not have in force a practicing certificate and was therefore not qualified to act as an advocate under the Act thereby making the documents he signed incompetent. Further, the court explained that a practicing certificate does not have retrospective effect. Accordingly, if no practicing certificate had been issued when the act was done the advocate was not qualified to do that act at the time he did it.

 

From the above case, it is clear that failure to obtain a practising certificate even where the name of the advocate is on the Roll invalidates all transactions done by that advocate in his/her capacity as an advocate. The reasoning is that failure to obtain practising certificate is a question of law that goes to the very roots of the matter so that the only reasonable thing to do is to invalidate the transaction done by an advocate who does not have a current practising certificate. Such pleadings are incompetent and the provisions of article 159[22] of the Constitution cannot be used as a panacea for admitting pleadings filed by unqualified persons.[23]

 

The validity of a Practising certificate depends on the name of the advocate in question being on the Roll. In other words, a practicing certificate is in force as long as the name of the advocate remains on the Roll. Consequently, a practising certificate shall be deemed not to be in force at any time while an advocate is suspended by virtue of section 27 or by an order under section 60 (4).”[24]   Pursuant to section 27 of the Advocates Act, an advocate’s practising certificate may be suspended when the advocate is suspended by an order of the Disciplinary Committee or by an order of a court of law, or the adjudication in bankruptcy of an advocate. Once an advocate has been suspended, he/ she cease to be an advocate immediately and suspend his/her practising certificate for the time such suspension is in force.

 

 In effect, any person who acts as an advocate without meeting the said conditions will be found liable under the Act. The case in point is Obura Vs Martha Koome[25], in which the Appellant had filed an appeal against the Respondent. It was found that the Memorandum of Appeal filed on 21.06.2000 was signed by one Anthony Khamati, Advocate who did not hold a practicing certificate in the year 2000. The Respondent (as applicant) applied to have the appeal struck out on the ground that it was incompetent having been filed by an unqualified person. The Appellant (as Respondent to the application) contended that the act of an unqualified person ought not to render his acts invalid unless the client was aware of such lack of qualification.

The submission by the Appellant was founded on the common law position. Two issues were considered by the Court, namely, the definition of an advocate, and, the effect of lack of qualification to the acts done by such unqualified person. The court upheld the definition of “an advocate as provided for under section 9 of the Advocates Act. As regards the signing of the Memorandum of Appeal by an advocate who did not have a practicing certificate, the court held that “the provisions of Section 9 (of the Advocates Act) are unambiguous and mandatory and the principles of the common law do not apply as the jurisdiction of the Court of appeal is to be exercised in conformity with the Constitution and subject thereto all other written laws[26] In those circumstances, the memorandum of appeal [was]  incompetent having been signed by an advocate who is not entitled to appear and conduct any matter in (the Court of Appeal) or any other court.”

 

A practising certificate expires after the end of the practicing year and should be renewed immediately. Alternatively, a practising certificate may expire when an advocate’s name has been struck off the Roll.[27]When an advocate’s practising certificate expires, he/she cannot practice law as he/she will not be qualified during the period the certificate is so expired.[28]

 

The Registrar is required to publish the names of those who have renewed their practicing certificates. The published names act as conclusive evidence that the persons so published are qualified to act as advocates. Section 30 of the Act provides in this regard that “any list purporting to be published by authority of the Registrar and to contain the names of advocates who have obtained practising certificates for the current year before the 1st February in that year shall, until the contrary is proved, be evidence that the persons named therein as advocates holding such certificates as aforesaid for the current year are advocates holding such certificates.[29] The absence from any such list of the name of any person shall, until the contrary is proved, be evidence that that person is not qualified to practice as an advocate under a certificate for the current year, but in the case of any such person an extract from the Roll certified as correct by the Registrar shall be evidence of the facts appearing in the extract.[30]

The licensing procedure has the effect of ensuring that lawyers comply with the requirement of the Advocates Act as well as acting as a source of revenue to the government.

2.1.2        PRECEDENCE AND SENIORITY IN THE BAR [S. 20]

The seniority in rank of advocates in Kenya is stipulated in section 20 of the Advocates Act which provides that the Attorney-General, the Solicitor-General, Senior Counsel or Queen’s Counsel according to the date of their appointment as such, the chairman and the vice-chairman (if not a Senior Counsel) of the Society shall, in that order, take precedence of advocates who, inter se, shall take precedence according to the date upon which they signed their names on the Roll. Accordingly, the seniority in advocates depends on the date on which they signed the Roll of Advocates.

 

2.1.3        SENIOR COUNSEL [SS. 17 -18]

Senior counsel is the name given to advocates of a high rank [advocates who have practiced for a long time and distinguished themselves in the legal profession] in Commonwealth countries. It is equivalent to the Queens counsel in England. This title is created under section 17 of the Advocates Act which provides that the President may grant a letter of conferment to any person of irreproachable professional conduct who has rendered exemplary service to the legal and public service in Kenya conferring upon him the rank and dignity of Senior Counsel.[31] In Kenya, the first group of senior counsels was appointed in 2003 by the Kibaki government although the procedure for appointment was still shrouded in unclear circumstances since there were no clear guidelines for appointment.

 

The qualifications for one to be enrolled as a senior counsel are provided in section 17(2) of the Act. Accordingly, one must be enrolled as an advocate of the High Court of not less than fifteen years’ standing or secondly, being a person to whom section 10 applies, he/she must hold, and should have held for a continuous period of not less than fifteen years, one or other of the qualifications specified in section 13 (1).[32] Section 18 of the Act creates a Roll of senior counsels.[33] All advocates with the rank of senior counsel are supposed to sign the Roll in the presence of the Registrar.[34]

 

The practice demands that it is the senior counsel who should introduce other lawyers in court when they are appearing in a matter. Accordingly, it is the senior counsels who lead other junior lawyer in matter before the high Court and the Court of Appeal and they are supposed to receive instructions only from other advocates and not directly from clients.

 

2.1.4        AN ADVOCATE AS AN OFFICER OF COURT [S. 55]

An officer of the court, means any person who has an obligation to promote justice and effective operation of the judicial system, including judges, the attorneys who appear in court, bailiffs, clerks, and other personnel. An advocate is an officer of the court. Section 55 of the Advocates Act stipulates that every advocate and every person otherwise entitled to act as an advocate shall be an officer of the Court and shall be subject to the jurisdiction thereof and, subject to this Act, to the jurisdiction of the Disciplinary Committee.

 

Accordingly, as officers of the court advocates have an absolute ethical duty to tell judges the truth, including avoiding dishonesty or evasion about reasons the attorney or his/her client is not appearing, the location of documents and other matters related to conduct of the courts[35]

Besides, an advocate must act as an officer of the court, respecting the need for truth and truth-seeking within the confines of the adversary system and as an active participant of a system that places justice as a core value.

 

2.1.5        AN ADVOCATE AS A FRIEND OF COURT

An advocate is regarded as a friend of the court [Amicus Curia]. This means that he/she is allowed by the law to address the court at any stage on any matter to which he/she is not a party. The reason why the advocate may address the court is to help the court resolve a matter.

 

2.1.6        AN ADVOCATE AS A COUNSELOR

Judicial officers refer to advocates as counsels. This name originates from the reasoning that advocates usually counsel their clients on legal matters.

 

A.    THE CLIENT [SS. 2, 60A (7)]

The definition of a client can be found in sections 2 and 60A (7) of the Advocates Act. Pursuant to section 2, a client includes any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs.[36] Then section 60A(7) provides that for the purposes of this section, “client”, in relation to any matter in which an advocate or firm of advocates has been instructed, includes any person on whose behalf the person who gave the instructions was acting.

 

CONTINUED...

10.  ADVOCATES AND PROFESSIONAL UNDERTAKINGS

A professional undertaking refers to any unequivocal declaration by a professional [an advocate or a member of the advocate’s staff] in the course of practice to someone who reasonably places reliance on it. An undertaking need not be made in the course of practice where it is made by an advocate himself/ herself. Besides, an undertaking may be made either orally or in writing provided it is unequivocal and unambiguous.

Once an undertaking has been made, it binds an advocate at a personal level and creates obligation which must be upheld by the advocate. Consequently, where an advocate makes an undertaking on behalf of the client, he/she will be bound even where the client later changes her mind. In other words, an advocate cannot, after giving an undertaking that was unambiguous, unequivocal and binding, qualify the same on account of accounting disputes between the parties. This means that an advocate is supposed to act with due diligence and obtain very clear instructions from his/her client before making a professional undertaking on his/her behalf. If he does so without that elementary precaution, then he must take the consequences.

The case in point is Kenya Reinsurance Corporation vs V.E. Muguku Muriu T/A M/S V.E. Muguku Muriu & Company[91] in which the Respondent, an advocate of the court, wrote to the Appellant seeking to know the amount his client owed them in order to prepare a discharge in order to transfer the property to a third party. The appellant wrote to its advocates and copied to the Respondent, stating the entire loan amount. The respondents thereafter wrote to their colleague advocates seeking the title documents on their professional undertaking to redeem the mortgage owing in the Appellant’s advocate. However, a dispute arose between the Respondent’s client and the Appellant over the amount owing and the Respondent tried to escape from the undertaking arguing that it was to be read together with his client’s letter setting out the amounts owing.

 

The court held that having given a solemn professional undertaking to pay a certain sum, an advocate is bound by the same and he cannot resile from them. The Respondent’s advocate undertaking was unambiguous, unequivocal and binding on him. An advocate cannot, after giving such an undertaking, qualify the same on account of accounting disputes between the parties.

 

Two points must be noted in this case. First, when the appellant’s lawyers sent title documents to the Respondent, it was on reliance of his undertaking. It was therefore incumbent on the Respondent to return the documents if his client was disputing the correctness of the amount due under the charge. He however proceeded to register the discharge of charge and transfer the property. Accordingly, the Respondent by attempting to pay the Appellant’s advocates a lower amount was bringing in the dispute between his client and the appellant to qualify his clear undertaking. This is wrong as it would allow advocates to resile from their undertakings. The appellants’ advocates were right in refusing to accept payment of a sum less than the amount covered by the undertaking because if they had done to they ran the risk of tying themselves to it.

 

Second, the Respondent had no locus standi to sue in his own name while claiming damages on behalf of his client. Further the Respondent cannot be heard to claim that the procedure adopted by the appellant was wrong when he entered appearance and filed a defence and counterclaim. 

 

 Rule 46 of the LSK Digest

·           A commitment by an advocate backed by his professional name.

·           Must be clear and unambiguous.

·           It creates a binding agreement and can be enforced against the advocate.

 

It amounts to professional misconduct not to honour an undertaking.  In Walker Kontos Advocates v. S. Mwirigi & Co. Advocates Civil Appeal No.20 of 1997, the respondents had obtained documents of title in respect of a piece of land which was the subject of a change.  They gave an undertaking to secure the discharge upon completion of a transaction involving the subject title.  Thereafter they purported to resile from the undertaking on account of a dispute as to the interest rate applicable.  It was held that the fact that there was a dispute as regards the interest payable on the charge did not of itself entitle the respondents to resile from the solemn undertaking.  The solemn and binding nature of a professional undertaking was reiterated in the case of Kenya Reinsurance Corp. v. V. E. Muguku Muriu t/a Muguku Muriu & Co. Civil Appeal No.48 of 1998 where the advocates in question on facts similar to the ones in the Walker Kontos case sought to qualify their undertaking on account of a dispute between their client and the appellant corporation.  It was held that having given a solemn undertaking to pay a certain sum of money an advocate is bound by the undertaking and cannot resile there from.  The same result was reached in the case of Karsam Lalji Patel v. Peter Kimani Kairu practicing as Kimani Kairu & Co. Advocates Civil Appeal No.135 of 1999.

 

CHAPTER 4

CHAPTER UNQUALIFIED PERSONS ACTING AS ADVOCATES

 

A.    UNQUALIFIED PERSONS ARE NOT ADVOCATES [S. 31]

Qualifications of practising as an advocate have already been discussed in the preceding chapter of this book. At this point, it must be emphasized that the provisions of sections 9-13 of the Advocates Act are absolute so that any person who purports to practice law as an advocate without complying with the said provisions will be held liable for acting as an advocate when unqualified. Section 31(1) of the Act provides that Subject to section 83[1], no unqualified person shall act as an advocate, or as such cause any summons or other process to issue, or institute, carry on or defend any suit or other proceedings in the name of any other person in any court of civil or criminal jurisdiction.[2] Pursuant to this provision, there are three consequences for contravening this subsection. First, it may attract contempt of court proceedings and appropriate punishment against any person who contravenes it. Second, any person who contravenes this provision shall be incapable of maintaining any suit for any costs in respect of anything done by him in the course of so acting. Third, such a person shall be guilty of an offence punishable under section 85 of the Advocate Act.[3]

 

B.     WHEN TO PRACTICE ON OWN BEHALF [SS. 32 - 33]

The advocates Act and the Council of Legal Education Act are very clear on when a newly admitted advocate is allowed to practice on his/her own. Accordingly, even after getting a practice certificate, an advocate is not supposed to engage in practice on his own behalf either full-time or part time unless he has practised in Kenya continuously on a full-time basis for a period of not less than two years after obtaining the first practising certificate in a salaried post either as an employee in the office of the Attorney-General or an organization approved by the Council of Legal Education or of an advocate who has been engaged in continuous full-time private practice on his own behalf in Kenya for a period of not less than five years.[4] The rationale for this requirement is malti-faceted. First, it helps to protect the public from unqualified persons purporting to practice law and second, to protect the professional standards.

 

In Mohammed Ashraf Sadique & another Vs Matthew Oseko T/A Oseko & Co Advocates,[5] the applicants filed various Originating Summons through their advocates, M/s Koceyo & Amadi Advocates. Under the said Originating Summons the applicants required the Respondent, the firm of Oseko & Co Advocates, to deliver a cash account in respect of certain cases in which the firm of Oseko & Company Advocates had represented the applicants after receiving a deposit sum of just over One Million Kenya Shillings from the applicants, so that the balance from the deposit, if any, would be refundable to the applicant. The Respondent filed Grounds of Opposition and a Replying Affidavit in which he raised issues that the Plaintiff’s firm of advocates had no capacity in law to draw and lodge the applications since the advocates did not qualify to practice law on their own as provided for by the mandatory provisions of the Act. The brief factual basis for this objection was that the firm of Koceyo and Amadi Advocates consisted of two partners, Titus Koceyo and Eddie Jatiang’a Amadi. The firm was registered on 13^th July 2006 by both Mr Koceyo and Mr Amadi. Mr Amadi had been engaged as a salaried employee of M/S Oseko & Co Advocates on 1.06.2006 after being admitted to the Role of Advocates on 18.05.2006. Mr Amadi, therefore, began to practice law on his own, although in partnership with Mr Koceyo, barely 43 days after starting his said employment with Oseko & Company Advocates. The primary issue was, therefore whether the conduct of the two advocates was unlawful and contrary to the express provisions of the Advocates Act. On the issues as to when does an advocate qualify to engage in legal practice on his own behalf, the court pronounced itself as follows:

“(Pursuant to Section 32 of the Advocates Act) a new advocate who has for the first time been admitted to the bar and issued with a practicing certificate does not qualify to engage in legal practice on his own behalf whether full time or part time; whether alone or in partnership, unless and until he has, for a continuous period of two years practiced as a salaried employee of a legally qualified person or organization. Such qualified person or organization includes the Attorney General’s office or any other organization approved by the Council of Legal Education. It also includes any advocate who has been engaged in a continuous full time legal practice for a minimum of five years.”

 

Thus, the requirement to serve as a salaried employee by the newly qualified or admitted advocate is mandatory. This means that neither the advocate nor the person or body authorized to give the advocate a practicing certificate to practice full time or part time has discretion to waive or remit the period of two years prescribed. No one has power to reduce the two year period prescribed in the law or alter the nature of it. The period of twenty four months (2 years) may be served from time to time and may also be served under more than one employer. Nonetheless, the cumulative period must add up to 24 months before a certificate of compliance is issuable.

 

C.                CONSEQUENCES FOR ACTING AS ADVOCATE WHEN UNQUALIFIED [SS. 33- 34]

Any unqualified person who willfully pretends to be, or takes or uses any name, title, addition or description implying that he is, qualified or recognized by law as qualified to act as an advocate shall be guilty of an offence.[6]  Again, an unqualified person is prohibited by the law from taking instructions or drawing or preparing any document or instrument and further from accepting, receiving directly or indirectly any fee, gain, or reward for taking of any such instructions.[7] Accordingly, any person who contravenes this requirement shall be guilty of an offence pursuant to section 34(3) of the Act and any money received by an unqualified person in contravention of this section may be recovered by the person by whom the same was paid as a civil debt recoverable summarily.[8]

 

It is noteworthy that sections 33 and 34 apply both to persons who have been admitted as advocates as well as persons who are not qualified as advocates. Are regards persons who are not qualified as advocates [those who have not been admitted to the Roll of Advocates] the position is crystal clear – they are forbidden from practising as advocates.  However, as regards advocates who have been admitted as such but they are disqualified by the fact that they lack a current practising certificate, the position is quite controversial.

 

This position was considered in the case of National Bank of Kenya Ltd vs. Wilson Ndolo Ayah[9] in which the respondent executed a charge over property known as L.R. No 7336/14 situate in Nairobi, in favour of the appellant to secure repayment by Bungu Investments Limited of Kshs 10 million on 23^rd July 1990. The charge was drawn by one V. Nyamodi, advocate who did not hold a current Advocates Practicing Certificate, and was therefore not qualified to draw those documents in view of the provisions of section 34 of the Advocates Act, Cap 16 of the Laws of Kenya. The respondent argued that since the advocated did not have a current practicing certificate, the documents drawn by her were incompetent and that a charge and Deed of Guarantee, both in favour of the appellant, dated 23^rd July 1990 and 17^th October, 1990, respectively were null and void ab initio. The trial court found that at the time the advocate drew the documents she did not have a current practicing certificate and was therefore not qualified to draw those documents in view of the provisions of section 34 of the Advocates Act, Cap 16 of the Laws of Kenya and that the documents were therefore null and void and that the sums of money they purportedly secured were irrecoverable. This position was upheld by the Court of Appeal.

Based on this case, a number of points are worth noting. First, qualifying as an advocate is quite different from qualifying to practice as an advocate. One qualifies as an advocate once his/her name is entered on the Roll of Advocates. However, the fact that an advocate’s name has been entered on the Roll does not entitle that person from practising as an advocate. Section 9 of the Advocates Act is clear that for one to qualify to practice as an advocate, he/she must inter alia have in possession a current practising certificate. The implication of this provision is that a current practising certificate is mandatory and that when read with section 34 of the Act, failure to obtain a current practising certificate goes into the legality of the document that an advocate prepares.

Second, it may be argued that section 34 was intended to protect the public as well as the legal profession and the course of justice. The section protects the public from unqualified persons acting as advocates because public policy demands that people who deal with the public should be appropriately qualified before they can offer services at a fee. Accordingly, courts will always strike out documents prepared by unqualified people although this depends on construction of the relevant statute. In Shaw v Groom[10] the Court of Appeal in England held as per head note (2) where an illegality is committed in the course of performing a legal contract, the test as to the enforceability of the contract is whether on a true consideration of the relevant legislation as a whole Parliament had intended to preclude the plaintiff from enforcing the contract.

 

The Kenyan position is that section 34 of the Advocates Act makes it an offence for an advocate not holding a current practicing certificate preparing or drawing any documents for a client for a fee. The section however remains silent on the validity of such documents.

 

Nevertheless, an analysis of the Advocates Act and the relevant case law seems to reveal that Parliament had intended to preclude the plaintiff from enforcing the documents prepared in contravention of this provision. There are two arguments for this. First, such advocates are punished so that pursuant to section 85 of the Advocates Act. A fine of Kshs.50,000 is provided for acting as an advocate while not holding a practicing certificate.  The advocate is also liable to disciplinary proceedings.  Besides, any money received by an unqualified person in contravention of section 34 of the Advocates Act is recoverable summarily by the person by whom the same was paid, as a civil debt. Second, if on invalidating or striking out of an unqualified advocate’s documents or suits lead to injury to an innocent party, the injured party has a remedy in either in starting the suit afresh or seeking leave to file the process out of time or even seeking exemption from the Limitation of Actions Act to start the suit afresh or as a last resort, the injured party can sue for damages for professional negligence or for any other remedies.

Thus, documents signed by unqualified advocates are incompetent and cannot be relied upon in evidence. This was the position in the case of Geoffrey Orao Obura vs.  Koome[11] in which the Court of Appeal held that a memorandum of appeal signed and filed by an advocate who did not hold a current practicing certificate was incompetent because the advocate was not entitled to sign and file that document. 

The rationale for invalidating documents signed by incompetent advocates was explained in details by the same court in the case of National Bank of Kenya Ltd vs. Wilson Ndolo Ayah.[12] The relevant part of the explanation which is as follows:

“It is public policy that citizens obey the law of the land.  Likewise is good policy that courts enforce the law and avoid perpetuating acts of illegality.  It can only effectively do so if acts done in pursuance of an illegality are deemed as being invalid.  The English courts have distinguished the act by the unqualified advocate, and the position of the innocent party who would stand to suffer if and when the act by that advocate for his benefit is invalidated.  The gravamen of their reasoning is that the client is innocent and should not be made to suffer for acts done contrary to the law without prior notice to him.  There is good sense in that.  However, a statute prohibiting certain acts is meant to protect the public interest.  The invalidating rule is meant for public good, more so in a country as ours, which has a predominantly illiterate or semi illiterate population. There is a need to discourage the commission of such acts.  Allowing such acts to stand is in effect a perpetuation of the illegality.  True, the interests of the innocent party should not be swept under the carpet in appropriate cases. However it should not be lost sight of the fact that the innocent party has remedies against the guilty party to which he may have recourse.  For that reason it should not be argued that invalidating acts done by unqualified advocates will leave them without any assistance of the law.”[13]

It is noteworthy; however, there are a number of circumstances when an unqualified person may also prepare these documents. First, the law allows any public officer to draw or prepare such documents or instruments in the course of his duty. Secondly, any person employed by an advocate and acting within the scope of that employment may draw or prepare them. Third, any person may be employed but merely to engross any such documents or instrument.

 

D.    THE NAME AND ADDRESS OF THE DRAWER OF A DOCUMENT OR AN INSTRUMENT

As a consequence, pursuant to section 35(1) of the Act, every advocate who prepares a document must have their name and address be entered on that document for record purposes.  The section provides in this regard as follows:

 

“35(1) Every person who draws or prepares, or causes to be drawn or prepared, any document or instrument referred to in section 34 (1) shall at the same time endorse or cause to be endorsed thereon his name and address, or the name and address of the firm of which he is a partner and any person omitting so to do shall be guilty of an offence and liable to a fine not exceeding five thousand shillings in the case of an unqualified person or a fine not exceeding five hundred shillings in the case of an advocate:

 

This provision raises two important points. First, that it is an offence punishable by a payment of a fine if an advocate does not to endorse his/her name on the document. Second, it is punishable for unqualified to draw documents under section 34 of the Act.

 

The provision, however, acknowledges circumstances where unqualified persons may also draw such documents. However, where the document or instrument is drawn, prepared or engrossed by a person employed, and whilst acting within the scope of his/her employment, by an advocate or by a firm of advocates, the name and address to be endorsed thereon shall be the name and address of such advocate or firm.[14] This provision seeks to prevent the persons who are employed by advocates such as legal assistants and secretaries from endorsing their names on the documents or instruments when they are not qualified.

 

Another point worth noting is that pursuant to section 35(2) the Registrar recording the documents prepared under section 34(1) is empowered to refuse to accept or recognize any document or instrument referred to in section 34 (1) unless such document or instrument is endorsed in accordance with this section.

 

Accordingly, the overall position is that documents which are drawn in contravention of section 34 and 35 of the Act are invalid and cannot be recognized in law. This position was emphasized in the case of Travel Shoppe Limited vs Indigo Garments EPZ Limited & Others[15] in which the Plaintiff filed a suit against the Defendants. Thereafter it filed the present application seeking to stop the Defendants from selling or transferring assets of the 1^st Defendant. The grounds of the application were that it had a judgment against the 1^st Defendant which remained unsatisfied. It subsequently filed a winding up petition but the 2^nd Defendant was appointed by the 3^rd Defendant pursuant to a debenture. The Applicant argued that the debenture was unlawful as it did not show the advocate who drew it, contrary to section 34 and 35 of the Advocates Act. It also claimed that the receiver manager had thereafter advertised the 1^st Defendant’s property for sale and this will negatively impact its claim. The Defendant argued that Section 34 and 35 of the Advocates had been complied with and the appointment of the receiver manager was therefore valid.

In dismissing the application, the court held that under section 34 of the Advocates Act, any person who draws or prepares a document must indicate that they are the drawers. Failure to do so makes the document invalid. Again, the debenture was between the 1^st Defendant and the 3^rd Defendant. There was therefore no privity of contract with the Plaintiff and it could not bring an action on a document it was not a party to.

CHAPTER 3

CREATION OF ADVOCATE CLIENT RELATIONSHIP

A.    INTRODUCTION

Based on the definition of a client, an advocate –client relationship may be created in a number of ways. First, it may be made between the individual client and the advocate. This occurs where a client [in person] approaches an advocate and enters into an agreement for legal services with the advocate.

 

Second, the relationship may be established between the advocate and the client’s authorized agent, trustee or representative. Consequently, it is not mandatory that the advocate agrees with the client in person; he/she may enter into an advocate client relationship with a duly authorized agent of the client, trustee or a legal representative.

 

Third, the relationship may be created either expressly or by implication. This appears to be the Common law position of the creation of advocate- client relationship. There need be no formality in the creation of the relationship for the advocate to be bound. Accordingly, an advocate would be bound even in circumstances where he /she would otherwise not be bound under normal circumstances. The case of Way vs. Latilla[37] is illustrative on this position. Pursuant to this case, the need there need not be formality in the creation of an advocate client relationship because the same can be created by implication. This position, however, begs the question as to when does the advocate client relationship begin? Supposing as an advocate you meet an accident victim and she asks you of the chances of succeeding in a claim against the driver of the vehicle and you advice her, would she be your client? The position appears to be in the affirmative. However, this depends on whether one is an advocate. If he/she is not an advocate he/she may not be held liable.

 

Again, there are many instances in Kenya when the courts have held that advocates had obligations to act when they did not have to. When holding briefs some courts have ordered advocates to continue with the case even where the advocate says that his/her instructions were merely to seek for an adjournment. This implies that where an advocate instructs another to hold brief for him/her does so as a representative of his/her client so that where the advocate so instructed does so wrongly, he/she may be held liable.[38]

 

Where an armature gives advice as an expert, the law will hold that armature liable for that advice.[39] The rationale for this appears to be that when you are giving advice which is likely to be acted upon by the recipient, you are supposed to exercise due diligence to avoid misrepresentation. You will be held liable if the recipient acts on that advice to his/her detriment. The same position holds for advocates. In this regard, an advocate is obligated to offer correct legal advice to his/ her client so that where he/she offers incorrect advice, he/she will be held liable for the same. However, an advocate may only be sued for negligence where he owes a duty of care to the client. Prove of a duty of care is intertwined with prove of the existence of advocate/client relationship.

 

Fourth, the relationship may be created through retainer agreements or by employment. Retainer agreements occur where a client enters into an agreement to retain an advocate so that the advocate may be available to him/her when the client needs legal services. These agreements will be discussed in details later in this work.

 

Lastly, the relationship may be created between an advocate and any person who pays the advocate fees. The advocate Act acknowledges that a client may include any person who pays the advocate fees.

In conclusion, it is apparent that the definition of a client is very fluid; it could put an advocate in a situation where he/she is liable but with no pay.

 

B.     THE NATURE OF THE ADVOCATE CLIENT RELATIONSHIP

The nature of advocate/ client relationship is multifaceted. It may be categorized into three: as contractual, as fiduciary and as an agency relationship. These relationships are as discussed below.

2)      Contractual Relationship

An advocate agrees to offer legal services to the client through a contract. The contract may either be express or implied depending on the circumstances. However, at some point the contract between the advocate and the client should be made explicit and the must be signed by the client to show the terms as agreed between them. This contract is regulated by the ordinary principles of contract law save that it factors in the fiduciary nature of the advocate- client relationship. In this regard, it is expected that the agreement as to the fees to charge should be reasonable based on the circumstances of the case and should be written and signed.[40] This explains why advocates fees are subjected to taxation before approval. Again, where the client does not know how to read and write, it is incumbent upon the advocate to read to the client the contract and let the client make an informed decision about it.

3)      Fiduciary Relationship

The advocate – client relationship is fiduciary in nature because of the trust the client has in the advocate. The rules of professional conduct and ethics, therefore, prescribe how an advocate should behave under such circumstances. For instance, there are rules on disclosure which prohibits an advocate from disclosing certain communications which are regarded privileged.[41] Again, there are rules which regulate how an advocate is supposed to handle the client money and other properties to the best interest of the client. Rules on conflict of interest prohibit an advocate from engaging in conduct that are likely to create conflict of interest or conduct which is likely to embarrass the process of court and defeat the course of justice. The overriding requirement is that an advocate should always have the client in mind.

 

4)      Agency Relationship

Both universally and as a rule of the thumb, an advocate is an agent to his/her client in all matters, including receipt of money on his/her behalf and signing of contracts. As an agent, an advocate is expected to do all that the client would have done, whether with or without the authority of the client. Again, an advocate is obligated to disclose all the information that may affect the client’s judgment whether the client has asked for and is aware of such information or not.

C.    RIGHTS, OBLIGATIONS AND PRIVILEGES OF THE ADVOCATE

Sources of Ethical Obligations

—  Statutes impacting on the advocate e.g. the Advocates Act, the law society of Kenya act the LSK Digest of Ethics  Public Officers Ethics Act

—  Common Law

—  Codes of conduct and ethics

—  Generally accepted standards of conduct

 

There are a number of obligations of an advocate which flow from the advocate- client relationship. Obligations of an advocate are divided into the following main categories- obligations of an advocate to the client, obligations to himself, obligations third parties and other advocates, obligations to the court and obligations to the country.[42]

All these obligations are sanctified under the Constitution of Kenya, the Advocates Act, the council of legal education Act as well as the Advocates Code of Ethics. The starting point is article 50 of the Constitution of Kenya which provides for a fair hearing in case of an accused person. A fair hearing can only be done when an accused person is well represented either by himself/herself or by an advocate of own choice. Article 50(1) provides in this regard that that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Then pursuant to article 50(2) (g ) and (h), every accused person has the right to a fair trial, which includes the right— to choose, and be represented by, an advocate, and to be informed of this right promptly;  to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly. These constitutional provisions appear to recognize the fact that substantial justice may occur where an accused person is not competently represented by an advocate.

 

An attorney must act as an officer of the court, respecting the need for truth and truth-seeking within the confines of the adversary system and as an active participant of a system that places justice as a core value. Lawyers cannot be hired guns – they cannot be hired to advance a stand just because their client wants them to.

 

1.      THE DUTIES OF AN ADVOCATE TO THE CLIENT

Lord Brougham is quoted as having once said:

“An advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one person in the world – the client and none other. To save the client by all expedient means, to protect the client at all hazards and costs to all others and among others to himself, is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he may bring on any other. Nay, separating even the duties of a patriot from those of an advocate and casting them if need be to the wind, he must go on reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client’s protection.”

 

The above quotation, no doubt, captures the general rule as to an advocate’s duty to his client. Be that as it may, the duty is relative in the sense that such duty is subject to the Advocates Act and other written laws.

Indeed, Lord Chief Justice Cockburn asserted that it is the duty of an advocate “to the utmost of his power to seek to reconcile the interests he is bound to maintain and the duty it is incumbent on him to discharge with the eternal and immutable interests of truth and justice.”

There is no complete codification of obligations of an advocate to clients. Some obligations are imposed by statutes, other imposed by ethics and yet others are merely exercised as a matter of practice and tradition. Besides, the obligations of an advocate are dynamic and not static as they cut across nearly all legal systems. Therefore, two points are worth noting. First, the most important point to an advocate is always to act with caution when in doubt. Second, when looking for the obligations of an advocate to the client, it is always good to look beyond the statute; look at the culture of the profession because the statutes are not exhaustive. Some of the obligations of an advocate include the following.

The case of Norton v Ashburton[43] brings out a principle that the duties owed by an advocate to his client can be seen to be drawn from the duties of an agent to his principal. It applies only to oral and written communication made by the client to the advocate with the intention of seeking legal advice or instituting legal proceedings. An advocate is under a duty to keep all information provided by his client completely confidential.

 

A.    CONFIDENTIALITY

An advocate is obligated to maintain the secrets of the client at all times during the subsistence of the advocate and client relationship and even after the relationship ceases. This duty flows from the fiduciary nature of the relationship which makes all the communications between an advocate and the client privileged thus protected from disclosure unless the client waives that right. This position is premised under sections 134, 135, 136 of the Evidence Act. Accordingly, no advocate shall at any time be permitted unless with his clients express consent to disclose any communication made to him/her in the course of and for the purpose of his employment as and advocate by or on behalf of his client or to state the content and condition of any document with which he has become acquainted in the course of and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment.[44] 

It is noteworthy however that the privilege contemplated in section 134 does not extend to any communication made in the furtherance of any illegal act, and to any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment whether the attention of such advocate was or was not directed to the fact by or on behalf of the client.[45]

The advocate client privilege is so wide that it continues even after the employment of the advocate has ceased and only cease when the client waives the same.[46] Again, this privilege applies to all interpreters, clerks or servants of the advocate as well.[47]  Privilege extends to oral communication and documentary information received from a client in the course of acting for a client and survives the death of a client, so long as there is an issue in which interests are in question.

 

In King Woolen Mills and Another –vs– Kaplan and Stratton Advocates[48] the court held that the fiduciary relationship created by the retainer between client and advocate demands that the knowledge acquired by the advocate while acting for the client be treated as confidential and should not be disclosed to anyone else without that client’s consent.  This principle exists even where an advocate acts for more than one party as a common advocate and continues long after the matter for which the retainer was created has been concluded.

 

Section 137 extends privilege to other parties communicating with Advocates.  The exceptions to privilege are:-

a)         If  there is any fraud or illegality

b)        Where there is a joint retainer

c)         The names of your client, his address or the fact he has sworn an affidavit.

d)        If there is an independent source of information.

e)         Letter before action or communication between co-plaintiffs.

f)         If any advocate’s clerk joins another firm that is acting for an adversary, it is prudent that you stop acting.

The Justification for the advocate client privilege is on the premise on two points: that an accused is entitled to legal counsel without any hindrance, and that the judiciary and the bar should be independent and advocates must be given a free hand to prepare for the case and defend their clients. This is deemed to be an essential ingredient for a fair trial.

 

B.     HONEST AND GOOD FAITH

The advocate is supposed to represent his/her client in honesty and good faith. This is such a wide duty that implies that the advocate should not pursue his/her own interests in the matter but should always have the interest of the client as first priority. Again, the advocate is supposed to inform the client about the progress of the case and other matters that may be relevant to the client. The law prohibits an advocate from engaging in matters or situation that may lead to conflict of interest in the course of representation.

 

C.    EFFECTIVE REPRESENTATION/ ZEALOUS ADVOCACY

An advocate should use all his/he skill to represent the clients competently to the best of his/ her ability. The law presumes that advocates are highly learned people who should use their knowledge for the benefit of the society. Accordingly, there is a heavy duty on the advocate to show his/her competence in the representation of their clients at all times because the advocate- client relationship entrusts the advocate with the rights, liberties, money and the hopes of the client which should be protected at all times. Therefore, the requirement of competent and zealous advocacy happens to be premised on the ground that only qualified people should be allowed to practice law. No armature should be entrusted with such serious interest.

Accordingly, the consequences of incompetence are grave and may lead to payment of fine and even disbarment of the concerned advocate on the worst part. The law allows an aggrieved client to lodge a claim against an incompetent or negligent advocate. However, the question that arises is: Should an advocate represent all the clients who would like to be represented by him? The quick answer is yes. An advocate is not allowed to refuse to represent any client [Including the unpopular ones] because he/she is not associated with the client’s case and he/she should not refuse to take instructions just because of his/ her convictions. The only exceptions where an advocate may disqualify himself/herself are on grounds of incompetence and conflict of interest.

 

D.    FOLLOW THE DIRECTIONS OF THE CLIENT

An advocate is engaged by a client to pursue the interests of his client. He is not employed to promote and pursue and litigate in self-interest with a passion. An advocate should not decide for the client, instead should follow the client’s instructions. However, the advocate must exercise control not to injure other third parties and the legal profession just because he/she is following the instructions of the client. This is because in as much as the advocate represents the client, he/she is also a member of the legal profession an officer of court, to which he/she is also obligated.

Consequently, the advocate should not accept instructions from a client to pursue a matter or to engage in an act or conduct which will breach the code of ethics. Again, it is the advocate who has control of the matters before the court and should not be instructed on what to do before the court of on what defences to plead or on what evidence to tender in court as this would breach the ethical standards required of an advocate.

E.     DUTY TO KEEP CLIENT INFORMED

An advocate must always keep his client informed of any new legislation that may affect his client’s case.  He must not deceive his client nor should he deceive third parties.  While handling a matter for a client, he should not disclose any details of the matter to a third party even if he is related to the client. Under Rule 4 of the 1998 Advocates (Practice) Rules, where an advocate acts in a suit on the instructions of a client, the advocate must furnish the client with filed copies of all pleadings in the suit bearing the stamp of the registry of the court in which the suit was filed.

 

F.     DUTY TO DISCLOSE PROFIT

An advocate while acting must always disclose all financial benefits to his client.  The duty to disclose profit arises from the agency relationship between an advocate and his client that demands, inter alia, good faith and transparency. In United Insurance Co. Ltd –vs– Dorcas Amungain[49], Alnashir Visram stated that an advocate is the agent of his client.  Their relationship is governed by the retainer which is the contract that determines their rights and liabilities subject to terms which the law will infer in the particular circumstances.  The authority of an advocate to act for his client will therefore arise from the retainer.  The conduct of the advocate under the retainer will also be governed by the Advocates Act. In Kenya Bus Services Ltd –vs– Susan Muteti[50] the court stated that generally an advocate is authorised to act as his client’s agent in all matters not falling within an exception which may reasonably be expected to arise for decision in the course of the proceedings.

 

G.    DUTY TO DISCLOSE CONFLICT OF INTEREST

An advocate should not act in a matter where he is likely to be called as a witness. An advocate must ensure that there’s no conflict of interest and there is no likelihood of such a conflict arising subsequently during the trial process. In King Woolen Mills and Another –vs– Kaplan and Stratton Advocates[51], the respondent firm of advocates had acted in a mortgage transaction for the lenders during the negotiations and the preparation of the loan agreement and security documents.  Thereafter, the firm had acted as the common advocate for both the lender and the borrower.  The firm had prepared the loan agreement, the guarantee, the debenture and the legal charge on behalf of both parties and also furnished the requisite legal opinion

Subsequently, the borrower had defaulted on repayment and had questioned the validity of the security documents. Subsequently, the firm had purported to enforce the said security and the appellant sought a grant of injunction to stop the firm.  The Court of Appeal held that since the firm was aware that there was likely to arise a conflict between the lender and the borrower, and since having acted for both parties they were in a position to be privy to information pertaining to the appellant’s case, they would not purport to enforce the said securities to the prejudice of the appellants.

 

H.    DUTY OF DUE CARE AND DILIGENCE

A lawyer owes a duty of care to the client as a result of the professional relationship between them in which the lawyer is expected to act professional and not negligently.

Lord Denning MR in Abraham –vs– Justsun[52] stated:

“[It is an] advocate’s duty to take any point which he believes to be fairly arguable on behalf of his client.  An advocate is not to usurp the province of the judge.  He is not to determine what shall be the effect of legal argument.  He is not guilty of misconduct simply because he takes a point which the tribunal holds to be bad.  He only becomes guilty of misconduct if he is dishonest.  That is, if he knowingly takes a bad point and thereby deceives the court.”

The Act recognizes that an advocate may be liable to his clients for negligence. Section 46 of the Advocates Act states that “……..Nothing in this Act shall give validity to- …….(b) Any agreement relieving any advocate from responsibility for professional negligence or any other responsibility to which he would otherwise be subject as an advocate.’’

 

In Ross –vs– Caunters[53], it was held that lawyers owe a duty of care both to their clients and to third parties who suffer loss or damage. In that case, the lawyers failed to prevent a beneficiary from attesting the will. In Gran Gelato Ltd –vs– Richcliff (Group) Ltd[54]  which involved a solicitor’s replies to preliminary enquiries in a conveyancing transaction, the court stated a solicitor owes a professional duty of care to the client and no-one else. He is subject to professional rules and standards, and owes duties to the court as one of its officers.

The ruling in Flavio Rodrigues –vs– Apollo Insurance[55] suggests that it can amount to professional negligence when a lawyer fails to turn up in court.

The holding in Hedley Byrne –vs– Heller & Partners[56] suggests that an advocate who gives out professional advice aware that the person to whom the advice is given would be relying thereon could not argue that because there was not contract for the service, he could not be held liable. In that case, the court found that there was a special relationship between an advocate and a client that gave rise to a duty of care.

 

2.      THE DUTIES OF ADVOCATES TO THE PUBLIC

The duties of an advocate are not limited to the client; they also extent to the third parties and the public at large. This is because an advocate is first a citizen before he/she became an advocate. It is therefore only prudent that the advocate should be made obligated to the public as well. Some of the obligations of an advocate to the public include the following.

a.                    An advocate has a responsibility to prevent unnecessary harm to third parties and the general public. In this regard, an advocate should not participate to perpetuate conduct which may be prejudicial to innocent third parties. This means that the advocate has a right to refuse to take instructions from clients which are likely to lead to unnecessary harm to the public.

b.                  An advocate has a responsibility to promote a just and effective legal system. In this regard, an advocate should be interested in the pursuit of truth and veracity and not victory as the ultimate goal. This obligation calls for respect of the core values such as honesty, fairness and good faith which form the foundation of a justice system.

c.                   An advocate should help to develop a wide range of appropriate dispute resolution processes that can respond to particular individual and societal interests at stake. It should be emphasized at this stage that dispute resolution is not all about going to court. Best solutions are sometimes made through the use of Alternative Dispute Resolution [ADR] processes. It is for this reason that the Constitution and the Civil procedure Act and rules emphasize on the use of ADR techniques where appropriate.[57]

d.                  Affordable and convenient access to justice. This obligates an advocate not to charge exorbitant prices for their legal services. However, in an effort to make legal services affordable, an advocate is not supposed to charge less than the amount prescribed in the Advocates (Remuneration) Order.

 

When Sir Udo Udoma in Sewava vs. Uganda[58] remarked that “Bearing in mind that the appellant was not defended by counsel which unhappily cast an extra burden on the magistrate to do his best to afford assistance on legal points to the appellant…” he was recognizing the fact that advocates have a duty to use their knowledge to help those who may not be well versed in the law. Lawyers have an obligation to work outside the context of representing clients to improve, reform, and maintain the framework of justice. Robert W. Gordon in Why Lawyers Can’t Just Be Hired Guns equates clients to fish thus: Think of lawyers as having the job of taking care of fish. As lawyers, we have to feed the fish. But the fish, as they feed, also pollute the tank. It is not enough to feed the fish. We also have to help change the water.

 

3.      DUTY TO THE OPPOSITE PARTY

Mentioning of authorities to be used in court

Advocates should inform their opponent on the authorities they intend to use so as to as to prevent the court from being misled by failure to cite the relevant cases. If an advocate omits a relevant case or provision or makes an incorrect reference to it, it is the duty of the other advocate to draw attention to it even if it assists the other side. Advocates should also bring procedural irregularities before the court during the hearing and not reserve these matters to be raised on appeal.

 

  Duty not to unnecessarily embarrass an opponent

This is a matter of professional courtesy. Embarrassing an opponent not only undermines the reputation of the advocate but also that of the legal profession. Lawyers should strive to maintain the honour and dignity of the legal profession.

 Duty to show courtesy and respect towards colleagues

Opponents are entitled to respect and courtesy in court and outside court. This in turn helps them gain the other parties respect and advances the cause of their clients and their own careers. Lawyers who treat their opponents rudely are unlikely to gain their respect and can not be expected to be treated politely.

Duty not to inconvenience or harass opponents

It would be unprofessional to deliberately harass or inconvenience opposing counsel. There should exist courtesy between opposing counsel this enables them to relate well in the case proceedings .For example, by delaying service of notice to inconvenience opponent giving them little or no time to work on their preparation.

Duty, when prosecuting to provide evidence assisting the defence

All prosecuting lawyers are required to ensure that all relevant evidence is either presented by the prosecution or made available to the defence. This duty applies only to the prosecution and the defence is exempted this is because the prosecution usually has the burden of proving a case.

 

Duty to avoid Personality Conflicts

Trial lawyers should always remember that the clients are the litigants and the lawyers should therefore be impartial and keep their personal feeling aside.

Duty to obtain the consent of opponents before presenting new materials to the court

Opponents consent should be acquired when presenting new and relevant evidence to the court. This is usually information that is likely to influence the judgment of the court in the matter. This generally follows the principle that advocates are agent of the court and help it come to the truth.

CONTINUATION NOTES HERE PART 5

 

DUTIES TO THE COURT

A.    OVERRIDING DUTY TO THE INTEREST OF JUSTICE

In Aaron Gitonga Ringera & 3 Others –vs– Paul K. Muite & 10 0thers[59] J.W Mwera, J stated that an advocate has the duty to the court that supersedes the one that he owes to the client and where a client instructs an advocate to do that which will compromise the advocate’s duty to the court, then the advocate should be better off declining to execute such instructions. Further, an advocate has a duty to be courteous in his interaction with other officers of the court – judges, magistrates, and fellow counsel.  

 

An advocate, as an officer of the court by oath and by law, has an overriding duty to the court to act with independence in the interests of justice; he must not deceive or knowingly or recklessly mislead the court.

An advocate must not compromise his professional standards in order to please his client, the court or a third party.

 

An advocate must never assert as true that which is not true nor attempt to substantiate a fraud; if a client makes a confession to a lawyer before a trial he should withdraw. When an advocate holds himself out as a ‘hired gun’, he goes against the fundamentals of fairness because there will be many instances in which the interests of fairness will best be served by the victory of the opponent. The advocate is not to employ shrewdness at the expense of truth.

 

Allied to an advocate’s duty not to assert a perjury or a fraud is the duty not to assist in any dishonorable or improper way, both in and out of court. If a client instructs an advocate to act in a manner that would be contrary to the advocate’s duty to the court, then the advocate must advise the client that it is his duty to act in compliance with his duty to the court.  If the client refuses to allow the advocate to do so, the advocate should withdraw from the case.

 

Lord Reid in Rondel –vs– Worsley[60] noted that in addition to the duty owed to his client, [an advocate] owes an overriding duty to the court, to the standards of his profession, and to the public which may, and often does, lead to a conflict with his client’s wishes or with what the client thinks are his personal interests.

 

B.     DUTY TO CORRECT THE COURT

It is a duty of an advocate to draw to the attention of the court any errors as to the commencement date of recent relevant legislation, sentencing power of the court e.t.c. In R –vs– Clarke ( R.W.W.)[61], Lawton LJ stated:

“We judge that counsel as a matter of professional duty to the court, and in the case of defending counsel to their client, should always before starting a criminal case satisfy themselves as to what the maximum sentence is.”

 

C.    DUTY OF DISCLOSURE

Advocates have a duty to disclose the law and not to mislead as to facts or conceal from courts facts which ought to be brought to the attention of the court or knowingly permit a client to attempt to deceive the court. The duty of disclosure arises from “public policy” requirement that was established in 1791 in the case of Fell –vs– Brown[62]  and followed in the Rondel –vs– Worsely[63].  This duty is so essential that Smith L.J in Vernon –vs– Bosley[64] opined that in a case where a client refuses disclosure, a counsel should consider withdrawing.

 

An advocate must withdraw from the case if the client instructs him not to disclose a relevant non-privileged document or not to draw an adverse authority to the attention of the court because the advocate is under a duty to the court to ensure that proper disclosure is made and that the court is aware of all relevant authorities, even if they do not support that advocate’s argument. In Re G Mayor Cooke[65] it was stated that evidence that is before court should be drawn to judge’s attention notwithstanding that it might be adverse to counsel’s case. Boulton, commenting on this issue in his book[66], states that “as regards a point of law, counsel is called upon to put before the court any relevant binding decision which is immediately in point, whether it be for or against his contention.” However, this general duty of disclosure is subject to qualifications in that while lawyers are obliged to act honestly in all positive statements they make in court-room, they are not ordinarily required to disclose the identity of an adverse witness to the other side. The duty of disclosure might appear to conflict with the duty of confidentiality owed to client; the position is set clear in R –vs– Derby[67] where the House of Lords held that duty of confidentiality to client is paramount when it arises by reason of legal professional privilege.

 

As Lord Taylor of Gosforth C.J puts it, once the privilege is established a lawyer’s mouth is “shut for ever”. This is justified on public interest ground that communication between clients and lawyers should be uninhibited. However, public interest basis can be criticized as it can be argued that as the very basis of the privilege is public interest a balancing exercise is essential, as public interest by its very nature is not immutable. This duty of disclosure calls for a lawyer to know the law, prepare the case & advise the judge.

 

D.    DUTY NOT TO PROLONG CASES

An advocate is under a duty not to prolong cases unnecessarily. In Ashmore –vs– Corporation of Lloyd’s[68]  Lord Templeman said:

“The parties and particularly their legal advisers in any litigation are under a duty to cooperate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case. It is the duty of the counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner.  In nearly all cases the correct procedure works perfectly well.  But there has been a tendency in some cases for legal advisers, pressed by their clients, to make every point conceivable and inconceivable without judgment or discrimination.”

 

Lawyers have duty to present the issues in a case as clearly as possible and to avoid waste of time, prolixity and repetition.This duty will be breached when lawyers fail to observe the usual courtesies. Lawyers should not use rules as weapon to punish other lawyers with whom they have a grudge. There is growing perception that lawyers should be required to cooperate for purposes of reducing unnecessary disputes, so it is a theme of the “Access to Justice Final Report” that where the parties do not cooperate not only are they likely to incur costs which are unnecessary but the litigation process is likely to be drawn out and the courts task more difficult.

Indeed in the USA, it has been suggested that there should be means to “punish parties who frustrate the process by failing to act cooperatively.” The administration of justice should not be frustrated by lawyers advancing unreasonable or hopeless arguments, the paramount duty to court is to advance only points that are arguable.

In R –vs–  Wilson and Grimwade[69]  it was said that part of the responsibility of all counsel in any trial, criminal or civil, is to cooperate with the court and each other so far as is necessary to ensure that the system of justice is not betrayed. If the present system of litigation is to survive, it demands no less.

E.     DUTY NOT TO ABUSE THE COURT PROCESS

The integrity of judicial process requires lawyers to desist from making allegations or bringing proceedings for ulterior purposes; that is, not to settle scores. A lawyer should not take a matter to gratify the client’s own malice for to do so, he will be acting improperly.[70]  Once lawyers give undertakings as officers of court, they are expected to abide by them. An undertaking which is not honoured may result to process of court being abused; furthermore, courts should have confidence that lawyers, as officers of the court, will honour their undertakings.[71] In addition, an advocate must comply with any orders that the Court may give.

F.     DUTY TO THE HISTORY AND TRADITION OF THE LEGAL PROFESSION

Because we ourselves have been successors to those who came before us in the profession, and because we use their efforts in our daily work, and because the law outlives each one of us, and because we follow one another, in thousands, lawyers are part of a tradition. The advocate must emulate only those actions that will bring justice in the present and the future.

Okech Owiti writes in The Lawyer in Society[72] that an advocate “…must…know which laws have been passed and which institutions have been established; their objectives and whether they do achieve, or are capable of achieving, the declared goals. He must be able to analyse them in their historical and contemporary contexts, relate them to practical problems in order to solve the same, and identify attendant loopholes, vacua or weaknesses and suggest possible solutions.”

The Goldenberg scandal, for example, holds several lessons for the advocate. The responsible advocate is the one who will campaign for greater vigilance on the part of the Central Bank of Kenya to ensure that money is not borrowed without collateral; that the monetary authority maximizes on its supervisory role to ensure that banking institutions are not used to siphon Government funds and that innocent depositors do not find their monies lost in such scams. 

Another case in point is the issue of land in Kenya. When we have periodic interethnic conflicts concerning land, it is the duty of the advocate to interpret the law in the most equitable and judicious manner and go about advocating for reform in situations where justice is absent. The advocate must not in this case render his service on the basis of political persuasion or tribe but be directed by what is morally and legally acceptable.

 

5.      LAWYER’S DUTY TO THE LEGAL PROFESSION

A.    DUTY AGAINST PROFESSIONAL MISCONDUCT

Professional misconduct refers to the breach of rules set up in the Advocates Act.  The following amount to professional misconduct, and are therefore proscribed by the Advocates Act:

(i)                 under section 35, drawing or preparing documents or instruments and not endorsing your name thereon;

In Jambo Biscuit –vs– Barclays Bank[73] the words “drawn by” were not inserted by the advocates when the document was drawn.

(ii)               under section 36, “undercutting”;

(iii)             under section 37, sharing of profits with unqualified person(s);

(iv)             under section 38, “touting”;

(v)               under section 41(1), employing a person who has been struck off from the roll; and

(vi)             Under section 42, non-disclosure by people who are disqualified to act as Advocates.

 

Case law abounds on the subject of professional misconduct. We choose to use only three cases here below to illustrate how courts have generally frowned upon attempts by advocates to disregard professional etiquette in the course of their professional duties.

In Re A Solicitor[74] and Re Lydell[75], the House of Lords held that a solicitor who carried on the practice of undisclosed profit sharing with another who presented conflicting interest was guilty of professional misconduct.

In Allison –vs– Gen Med. Council[76], it was held that if a man in the pursuit of his profession has done something with regard to it which will be regarded as disgraceful or dishonorable to his professional brethren and to his good repute and competence, then it is open to say that he has been guilty of misconduct in a professional respect.

 

B.     DUTY AGAINST UNPROFESSIONAL CONDUCT

It is a lawyer’s duty to the legal profession that he should not engage in unprofessional conduct.  Tom Ojienda defines “unprofessional conduct” as including the breach of good manners in practice. He gives the following examples as amounting to unprofessional conduct:

(i)                 Chewing gum in court;

(ii)               Attending court while drunk;

(iii)             Running a brothel or living from the earnings of prostitution;

(iv)             Bad language –  where an advocate cannot express himself properly in English;

(v)               Insults to the public; and

(vi)             Incompetent representation by an advocate.

 

6.      LAWYER’S DUTY TO HIMSELF

A.    DUTY TO HONOUR PROFESSIONAL UNDERTAKING

An advocate’s undertaking is the bedrock of the system of the transfer of property and conveyancing in society. It shows how much society trusts the undertaking given by an advocate. It is a serious pledge within the profession. It is not lightly given. But once given, it cannot be breached. Its breach is policed by the court and by statute[77]. Pheroze Nowrojee says that “an advocate’s word is his bond.”

 

An advocate must only give a professional undertaking upon instructions from his client and when he is certain that the funds forming the basis of the undertaking have been deposited with him. In Kenya Reinsurance Corporation –vs– V. E. Muguku Muriu & Company[78]  the court held that having given a solemn professional undertaking to pay a certain sum of money, an advocate is bound and cannot resile there from. The court further stated that a careful advocate would obtain very clear instructions from his client before giving a professional undertaking on his behalf.

 

In Karsam Lalji Patel –vs– Kimani & Co. Advocates[79], the court compelled the advocates to honour their professional undertaking which they had issued to the purchaser in the subject matter of the case.

 

B.     DUTY TO ACT REASONABLY, MORALLY AND HONORABLY

Ken J. Crispin in Ethics and the Adversary System[80]  opines that in asserting their clients’ autonomy, lawyers must not sacrifice their own. Their representative role may make it appropriate for them to take steps on behalf of a client that they would not take on their own behalf. However, it will never be appropriate for a lawyer to embrace a standard which involves abdicating their own responsibility as a moral human being.

In Allison –vs– Gen Med. Council[81], it was held that if a man in the pursuit of his profession has done something with regard to it, which will be regarded as disgraceful or dishonorable to his professional brethren and to his good repute and competence, then, it is open to say that he has been guilty of misconduct in a professional respect.

CONTINUATION NOTES HERE PART 6

 

 7.      CONFLICTING OBLIGATIONS

Subjectively, there seems to be a conflict in the obligations of an advocate to the various stake holders- the client, the court and the public and the advocate him/herself. An advocate is supposed to effectively and zealously represent his/her client. At the same time, he/she is supposed to be a good officer of the court. Yet again, the advocate has an obligation not to hurt innocent third parties in the course of representing the client. Still, the advocate has a competing self interest of winning the case, in order to build his/her professional name, attract many clients and lead a good life befitting to the legal profession.

 

The conflict notwithstanding, it must be emphasized that the fact that an advocate is a representative of the client does not mean that he/she should represent the client to the exclusion of all other stakeholders. Good practice is to let the client know this fact at the earliest possible opportunity that the lawyer has other obligations as well. Again, the fact that an advocate is an officer of court does not mean that his/her obligation to court should always be upheld over and above his/her obligations to other stakeholders. Yet again, an advocate’s obligation to third parties should not affect the way he/she represents his/her client- the advocate works for the client and not third parties. Yet still, the advocate has a life to live which must also be comfortable- a life of a lawyer. But how should advocates balance these conflicting interests? The answers lie in the codes of ethical conduct. Most codes of ethical conduct usually apply to advocates in any setting. The implication of this is that the codes apply to an advocate in his/ her practice setting. A state counsel for example cannot blame her superior for any unethical conduct.

 

Besides, the obligations of the advocate are not prioritized by these codes so that all the stakeholders have a legitimate interest in the advocate upholding their obligations to them. Consequently, all the advocates, no matter what area of law they practice in, have a responsibility that goes beyond merely advocating for one of the stake holders. Consider the following scenarios. First, suppose a court compels an advocate to breach the obligation of confidentiality, should the advocates blame the court? The answer is NO. It is important to let the court know that you owe an obligation of confidentiality to the client. Second, suppose the client compels an advocate to hide the truth or to hide an authority that may assist the adverse side, should the advocate do so? The answer is NO. The advocate should never attempt to hide the truth from the court. Third, suppose you an advocate’s financial position tempts him/her to use all unethical means in order to get money or to win at all costs what should the advocate do? The answer is he/she should behave professionally and ethically in all circumstances. This happens to be the position in all circumstances.

 

In conclusion, the legal profession places an advocate in a very tough ethical and professional situation. All these difficult ethical and professional problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living[82] in an environment which makes it very hard for the advocate to remain ethical and professional and yet earn a decent living. Much is left to be desired.

 

CONFLICT OF INTEREST TO THE COURT AND THE CLIENT

Where Advocates are faced with a conflict of interest between the duty towards their client and that of the court, the advocate should remember that under section 55 of the Advocates Act they are officers of the court, a duty which takes precedence[83] requiring an advocate to only advance the interest of his client to the extent that is it is consistent with their function as an officer of the court. If a client discloses anything that conflicts this duty, preventing his advocate from mounting an effective defence, it could be said that the laws of ethics would in that case penalize the client for such a disclosure.

 

The South Africa General Council of the Bar Uniform Rules 4.11 which are useful guidelines for lawyers states that in such situation the advocate should explain to the client that he will be willingly for the client only if:

1. The advocate may not in the proceedings assert that which he knows to be untrue, nor may he attempt to substantiate untruth.
2. The advocate may appropriately argue that the evidence offered by the prosecution is insufficient to support conviction and may take advantage of any legal matter which might relieve the accused of criminal liability.
3. The advocate may not set up an affirmative case which he or she knows to be inconsistent with the confession.

 

Therefore, in the scenario given, where Feldman introduced evidence of the victim’s parents having a ‘swinging lifestyle’ thus inferring opportunity for a guest at one of the parties to commit the crime, he was in breach of his duty to the court by making assertions which he knew to be untrue. One could argue that in doing so though arguably ethical as provided above in the Michigan case, Feldman wrongly prioritized his duty to his client over his duty to the court.[84] This would be the case with regard to the introduction of expert testimony which he knew to be false.

However, where the advocate discovers an illegality or irregularity that has long passed, non-disclosure of such information would not amount to breach of duty unless such illegality would render his client completely disreputable and dishonest.

 

Thus in relation to the David Westerfield case, an advocate has the option to withdraw from representing his client as long as he is doing so bona fide. If an advocate feels like he wants to withdraw then he should seek leave of court and abide by the rules of withdrawal. This is also an aspect of an advocate’s duty as an officer of the court. This case is supported by Kenya Commercial Bank v Specialized engineering Co. Ltd {1982} KLR 485

 

In the judgment of the case of Republic vs. Chomondeley, it was held that the accused was guilty of the lesser charge of manslaughter. He had been charged with murder of one Robert Njoya. The accused admitted having shot the accused but he had no intentions to shoot. He was guilty as far as the common man is concerned but in the eyes of the law, he was not guilty of murder but of manslaughter as he did not have the intention to kill. The judge in his judgment stressed the facts of the case that the conduct of the accused after the shooting clearly showed that he had no intention to kill. The accused covered the wound with his handkerchief, gave directions for the accused to be taken to hospital and later on paid the hospital bill. He later on recorded a statement at the police station. Thus the charge of murder was reduced to manslaughter.

Therefore, guilt may not even be factual as shown above, it may be legal. Factually the accused above shot and killed Mr Njoya. Legally however, his defence counsel argued there was no intent and the prosecution could not prove beyond reasonable doubt that it was murder. The parties to the weighing scale of justice should perform their duty and no party should purport to perform the part of the other.

 

POPULAR CULTURE

When the Lawyer Knows the Client is Guilty: David Mellinkoff's 'The Conscience of a Lawyer', Legal Ethics, Literature, and Popular Culture UCLA School of Law Research Paper No. 06-44 Cardozo Legal Studies Research Paper No. 181

Popular culture is what people actually believe. In a legal sense the public believe that a good lawyer is the one who ensures that the public interest prevails over that of his client and that the guilty people don’t get acquitted. The idea here is that people’s opinion is that lawyers should be held responsible for assisting such clients whom they know to be guilty.  If judged according to popular culture Feldman would have been required to lead the court in finding justice by disclosing all material facts he knows about Westerfield leading to his conviction. This is due to the system of morality that places a higher value upon one’s moral rectitude with respect to lying, than upon the preservation of an innocent person’s life.

 

This is how the public perceive advocates who defend criminals who have committed heinous crimes, such as murder. The public perception is that the guilty shall be convicted and the innocent be acquitted. The old English case of Courvoisier captures how the public perceive lawyers who defend clients who are guilty, and the advocate has knowledge of the client’s guilt. In that case the client confessed his guilt and insisted that the lawyer should represent him. The lawyer did not decline but instead he continued inferring that other people had committed the crime. In the end his client was convicted and word got out that he was the murderer. There was a public outcry and the press sensationalized the story which greatly affected the reputation of the lawyer involved in the case. He was criticized for his aggressive defence. This was due to the fact that he knew his client was guilty but still he insisted on making assertions which he knew to be untrue.

 

In the common law jurisprudential system, the judge is the pivot that weighs the scale of justice between the prosecution and the defence to ensure fairness and justice.  The justice system is in such a way that the judge should deliver the verdict on the accused, the advocates work is to prepare the defence and to bring out the guilt of the accused.

Divided loyalty-Lord Hoffman in Arthur J.S Hall and Co. v. Simons

·         Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means.

·         They also owe a duty to the court and the administration of justice.

·         They may not mislead the court or allow the judge to take what they know to be a bad point in their favor.

·         They must cite all relevant law, whether for or against their case.

·         They may not make imputations of dishonesty unless they have been given the information to support them.

·         They should not waste time on irrelevancies even if the client thinks that they are important.

·         Sometimes the performance of these duties to the court may annoy the client.

·         So, it was said, the possibility of a claim for negligence might inhibit the lawyer from acting in accordance with his overriding duty to the court.

·         That would be prejudicial to the administration of justice.

THE ‘CAB RANK RULE’ –PER LORD HOFFMAN (IBID)

 It is a valuable professional ethic of the English bar that a barrister may not refuse to act for a client on the ground that he disapproves of him or his case.

 Every barrister not otherwise engaged is available for hire by any client willing and able to pay the appropriate fee.

This rule protects barristers against being criticized for giving their services to a client with a bad reputation and enables unpopular causes to obtain representation in court

8.      CONFLICT OF INTERESTS

An advocate must remain independent in judgement, loyal and objective at all material times during the subsistence of a client- advocate relationship. This independence and objectivity are needed in order for an advocate to discharge his/her duties well for the interest of justice. This independence is multi-faceted: independence from the client, from the court from the public, from the third parties and from winning at all costs. Rules of professional ethics, therefore, require an advocate to decline instructions where there is a possibility of this independence being interfered with.

The implication is that even though is not allowed to refuse to take instructions from a client, the law allows him/her to decline the instructions on the basis of conflict of interests for this would cause embarrassment to the court. An advocate should not accept a brief where the possibility of embarrassment is high; where there appears to be real mischief and if taking the instructions will prejudice the course of justice. In this regard, the lawyer should only take such representation where the client consents which must be confirmed in writing.[85]

Where a conflict of interest is discovered in the course of representation, the advocate must withdraw from the representation unless he/she has obtained the informed consent of the client.[86] This means that the client must be fully aware of the circumstances surrounding the case and appreciate how his/her interest would have been affected had the advocate failed to disqualify himself. For the purposes of the client having a clear knowledge of the circumstances of the case, the rules of professional conduct obligates an advocate to disclose to his/her client any conflict of interests in any matter that affect the client either directly or indirectly. The conflict could arise during litigation or non- litigation. Failure to inform the client about the impending conflict of interest may lead to disciplinary consequences being taken against the advocate apart from casting doubts into the moral and ethical probity of the concerned advocate.

The case of King Woolen Mills & Anor vs. Kaplan & Stratton Advocates illustrates a scenario where the Defendant acted for both the borrower and the lender in a borrowing transaction and a conflict of interest was created as information that was privileged was disclosed to an adversarial party being represented by the same advocate. In the above-stated case, court stated:

“…. once a retainer is established, the general principle is that an advocate should not accept instructions to act…where there is a conflict of interest…”

 

The information acquired which is confidential by reason of a fiduciary relationship between the opponent client and the common advocate will place the former client at a disadvantage or worse still the privileged information may be used against the client.

The cardinal principle is to ensure that the client can confide completely and without reservation in his advocate and the privilege extends to communications made to the advocate‟s agents and counsel where the advocate acts as a solicitor. Rule 20 of the Law Society of Kenya Digest of Professional Conduct and Etiquette provides for the privilege of the client and that it is only subject to waiving by the client himself and not by the advocate. Representation of two clients with conflicting interests results to a prejudice on the client.

RULES GOVERNING CONFLICT OF INTEREST

(i)     An advocate should not accept instructions to act for two or more clients where there is a conflict or likelihood of a conflict between the interests of those clients whether the client is a personal client or a client of the firm or association. An advocate should not accept a brief without the consent of his client when there is a possible or real conflict of interests with a client represented by a partner in the same firm.

(ii)   If an advocate has acquired relevant knowledge concerning a former client during the course of acting for that client, the advocate must not accept instructions to act against the client.

(iii) An advocate must not continue to act for two or more clients where a conflict of interest exists between those clients.

(iv) An advocate must not act where his or her interests conflict with the interests of a client.

(v)   An advocate should seek a specific waiver before acting for clients with a common interest if he reasonably believes that he can represent each of them without adversely affecting the other.

(vi) An advocate who holds a power of attorney from a client must not use that power to gain a benefit which, if acting as a professional adviser to that client, he or she would not be prepared to allow to an independent third party.

a)      Except as provided in paragraph (ii), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:  the representation of one client will be directly adverse to another client; or 

b)      There is a significant risk that the representation of one or more clients will be materially limited by the lawyer's

 

Appearance before relatives:

Relatives who are on the benches, i.e. Judges or Magistrates:  It is not considered improper for an advocate to appear before his relatives, there is nothing wrong with someone appearing before their kin.  It’s up to an advocate to disqualify themselves if they feel they cannot perform.  If an advocate finds that in some proceedings that the advocate in the opposite side is a relative, there is still nothing wrong with appearing in that matter.

Pecuniary Interest: It is undesirable for an advocate to appear in a matter in which he is himself financially interested.  If the Defendant for example is ones debtor and a client instructs one to sue the defendant, the advocate should decline because they have a pecuniary interest in the matter.

 

HOW CAN YOU DETERMINE IF THERE IS CONFLICT OF INTEREST

You have to determine whether the instructions received by an advocate create an impression in the mind of the public that the advocate is acting unfairly or using his office for undue benefit of the client (or himself). A lawyer who has formerly represented a client in a matter shall NOT thereafter represent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interest of the former client. A former client must give informed consent, confirmed in writing

In Central Bank of Kenya v Uhuru Highway Development and Kamlesh Pattni [87]  the issue of conflict of interest arose whereby the firm of Oraro & Rachier Advocates had acted for Central Bank in the preparation of a charge over L.R. No. 209/9514 with the Defendants. The firm and particularly George Oraro Esquire (Counsel) had then purported to act for the Defendants when question of the validity of this charge arose. The issue in contention was that Counsel had acted for both parties in the preparation of the Charge and he may not act for one against the other as this was in breach of Counsel’s duty in acting for both in the same transaction and therefore violating the principles laid out in King Woolen Mills Ltd and Anor v. Kaplan & Stratton Advocates. The second issue was the fact that Counsel was in breach of Rule 9 of the Advocates (Practice) Rules which bars an advocate from acting in a matter where he may be called to give evidence whether verbal or by affidavit

 

 In allowing the appeal, the court held that by Counsel acting for the Defendant, then he would consciously, unconsciously or inadvertently use confidential information obtained during the preparation of the charge.

 

In the case of National Bank of Kenya v Kipkoech Korat and Another[88] the court held that in the case of Rule 9 of the Advocates (Practice) Rules an advocate may be barred  from acting in a matter where he may be called to give evidence whether verbal or by affidavit. However the court held that this did not disqualify the whole firm of advocates from acting on a particular matter.

In H.F. Fire Africa v A.M.F. Ghareib.[89] Ghareib made an application that the firm of Omar K. Amin Advocates, and particularly Salah Amin Esquire (Counsel) should cease acting as advocates for the Plaintiffs. The reason was that the firm had acted in mediation and resolved a dispute between one of the Plaintiffs and Ghareib. However the court held that this did not cause or prohibit the firm or counsel from acting on behalf of the Plaintiffs in the original action and the court held that there was no conflict of interest.

In Charles Gitonga Kariuki v Akuisi Farmers Limited[90] the court held that the fact that an advocate had acted for a litigant did not per se bar the advocate from acting in other matters. The court required that any party alleging conflict of interest was to provide evidence showing how and where the conflict arose.

 

DUTIES OF ADVOCATE TO HIS FORMER CLIENT

a.       A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

b.      A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client;

a.       whose interests are materially adverse to that person; and

b.      About whom the lawyer had acquired information that is material to the matter; unless the former client gives informed consent, confirmed in writing.

c.       A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

a.       use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

b.      reveal information relating to the representation except as these Rules would permit or require with respect to a client.

 

If these duties cannot be adhered to then the firm of Advocates and/ or their agents should withdraw from acting in the matter. Failure to do the same, a formal application may be made by the adverse party for the disqualification of the firm as witnessed in the case of Carnevali Fausto & another vs. Gianluigi Luigi & 2 others. A general exception to the rules would be once the advocate seeks informed consent of both concerned parties. If there is any likelihood of success on the same then the advocate on record should reasonably foresee or believe that there is no likelihood of prejudice that may be occasioned or detrimental to the adverse party’s case. This is clearly reflected in the case of Prince Jefri & Bolkiah Vs KPMG16, the judgment stresses that where a person is acting as a fiduciary, he can’t act for two clients with conflicting interests without their informed consent.

 

9.      TRIAL ADVOCATE’S DUTY TO WITNESSES

A witness is someone who has firsthand knowledge about a crime or dramatic event through their senses (e.g. seeing, hearing, smelling, touching), and can help certify important considerations to the crime or event. In R (on the application of Kelly) v Warley Magistrates Court (the Law Society intervening)Lord Justice Laws stated:

‘… It is clear that litigation privilege attaches to the identity and other details of witnesses intended to be called in adversarial litigation, civil or criminal, whether or not their identity is the fruit of legal advice.’

1.      Duty of Courtesy

As a general rule, trial lawyers should as far as possible, be courteous to witnesses at all times. Witnesses must be treated with courtesy and respect as they are doing a public duty by coming to Court. It’s more likely that counsel will get the information that he or she requires from a witness if a polite and cooperative relationship is developed with the witness concerned. An argumentative attitude is likely to elicit much less information and to irritate the court. An advocate has a duty to ensure that evidence in support of their client’s case is presented to the best possible effect and that witnesses, especially vulnerable ones, are put at ease and understand what is expected of them

 

2.      Duty not to harass witnesses

Advocates should refrain from harassing or badgering witnesses. Such conduct will not ensure cooperation from the witness and will also irritate the court. Additionally, few witnesses are likely to be badgered into making admissions that they do not make. It is better to expose inconsistencies in a witness’ evidence through polite carefully structured questions.

On television, lawyers go up and lean on the witness stand, or point their finger, or yell at the witness.  This is not allowed.  The rules of courtroom decorum require that advocates stay seated at counsel table unless they are walking an exhibit up to the witness. They should be addressed as Ms. or Mr. and should be treated with respect because the judge will require it, and will not appreciate an advocate who yells at a witness.

 

3.      Duty During Cross Examination Not to make unsubstantiated remarks on the character of a witness

 Questions which affect the credibility of a witness by attacking his or her character but are not otherwise relevant to the inquiry should not be put unless the advocate has reasonable grounds for believing that the imputations conveyed are well founded or true.

 It is also the duty of an advocate to guard against being made the channel for questions which are only intended to assault or annoy the witness. An Advocate should always treat adverse witnesses with fairness and due consideration, and he should never minister to the malevolence of prejudices of a client in the trail or conduct of a case.

The client has no right to demand that his Advocate shall abuse the opposite party or indulge in offensive arguments

 

4.      Duty during Cross Examination not to Keep Defamatory Statements within Qualified Privilege.

An advocate is not an amanuensis or spokesperson for a client who wishes to place irrelevant or unsupported and scandalous material on public record under cover of privilege. For this reason, no issue should be submitted merely because of a client’s desire to raise it. To this end no allegation of moral or legal turpitude against a witness should be made without a prima facie case being disclosed by the facts and no such allegation should be made in the hearing against any person without evidence to support it. There may be a relevant issue the raising of which would reflect adversely upon the client’s reputation, in which case counsel may decline to plead the issue without specific instructions to do so.

 

An advocate may not give information derogatory to the witness or make statements that are offensive or disparaging to the witness, unless such information or statements are necessary for the proceedings or otherwise for a due protection of the client´s interests. The client cannot be made the keeper of the Advocate’s conscience in a professional matter.

As per Snyman vs. Azo 1974 (1 SA 808 T) “No cross examiner is entitled to insult a witness or to treat him in a manner in which these witnesses were treated without there being a very good reason for it.”

On the other hand, there can be no refusal to submit an issue, however unpalatable or unpopular, which will, if the issue is resolved in the client’s favour, advance the client’s cause.

 

5.      Duty not to wantonly or recklessly accuse the witness of a crime

An advocate defending a client on a criminal charge is not entitled to wantonly or recklessly attribute to another person the crime with which his or her client is charged. The advocate may not do so unless the facts or circumstances given in the evidence or rational inferences drawn from them raise at least a reasonable suspicion that the crime may have been committed by the person to whom the guilt is so imputed.  Improper speech is not excusable on the ground that it is what the client would say if speaking in his own behalf.

 

6.      Duty not to interview witnesses who have been sworn in

It is generally undesirable to interview any witness after he or she has been sworn in or has made solemn declaration to tell the truth. It is also improper to interview a witness who is under cross examination unless circumstances make such an interview necessary. If such a circumstance exists, the lawyer should inform his or her opponent before doing so. If the opponent objects, the court should be asked for permission. Generally, it is considered improper for an advocate who called a witness to communicate with that witness without leave of the court while such witness is under cross-examination.

An advocate may properly seek information from any potential witness but should disclose his interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way. Regardless of whether a witness has been produced by the opposing party, an advocate may in advance make contact with the witness in order to discover what information the witness is able to provide. There is no rule that a defence advocate cannot interview a witness that may be called for the other party.

 

7.      Duty to consult one’s witnesses before trial.

All advocates should consult with their witnesses before trial to prepare them for the ordeal of testifying in court. It is helpful to explain to the witness the procedure concerning examination in chief, cross examination and re examination as well as how they should dress for court and address the court. The lawyer should also take them through the evidence. Morris suggests that lawyers should prepare the witnesses for cross examination as follows;

“It is permissible to prepare the witness in the general sense for cross examination somewhat in the following terms: “listen to the question before you answer, if you don’t understand it, say so. If you don’t know any answer, don’t guess; just say that you don’t know. Don’t worry about what the man has in mind when he asks his questions. Just give a direct answer. Answer as shortly as possible and don’t make speeches.”

It can be very difficult dealing with witnesses without crossing the line from the legitimate assistance in helping a witness to prepare to the improper coaching of a witness in what to say. Improper witness training may lead to an honest witness feeling influenced to alter their evidence in support of a particular set of facts and a dishonest witness rapidly calculating how his evidence may be improved.

Familiarisation could and should include:

·         Explaining court procedure;

·         How to dress for court.

·         Advising witnesses to give their evidence slowly and address the judge or magistrate;

·         Letting the witness know that it is vital to make it clear if they don’t know the answer to a question or didn’t understand it;

·         It is also possible to provide expert guidance to expert witnesses who were to give evidence of a technical nature to resist the pressure to go further in evidence than their specific expertise.

 CONTINUATION NOTES HERE PART 7

 

CHAPTER 5

REMUNERATION OF ADVOCATES

A.        Advocate Fees

Advocates, like any other professional, are paid for their professional services. There are four ways through which advocates get paid. First, they are paid an hourly fee based on the time they spend in doing an activity. This time is normally multiplied by an hourly rate. Second, they are paid a flat fee. Third, they are paid a contingent fee when they get a favourable outcome. Fourth, they are paid a proportional fee which is computed as a percentage of the value of a given transaction.[16]

Lawyers charge their fees  in most cases based on the contract they enter into with their clients so that all of the above fees may feature in what a lawyer finally gets. However, sometimes that fees that the lawyers charge are regulated by the ethical principles and rules. A lawyer is not allowed, for instance, to charge below a particular scale. The implication of this is that the fees charged by the lawyer must be reasonable- must neither be illegal nor unconscionable.

 

B.        FACTOR THAT DETERMINE THE FEES CHARGED

Three points must be considered in determining whether the fees charged are reasonable and unconscionable[17], viz;

1)      Whether the client made an informed decision in entering into the contract.

2)      Whether the fees charged are within the acceptable range charged in transactions of similar nature.

3)      Whether the circumstances have changed since the making of the contract that have made the contract unreasonable.

Advocates are supposed to take their bill of costs for taxation in court. The rationale for this is to protect the clients especially those who are unsophisticated in matters of a lawyer’s compensation, when a lawyer has overcharged.[18] This arises because clients do not know how the layers charge and they cannot effectively bargain at an arm’s length with the lawyers.[19]

 

A.    FEE AGREEMENTS AND CONFLICT OF INTERESTS

It is noteworthy that an advocate must be paid his/her professional fees whether or not he/she obtains a favourable outcome. But this does not relieve an advocate from his/her obligation to their clients. Again, an advocate should avoid as much as possible instances where his/her personal interests will conflict with the client’s interests. This is always the case with fee agreements where a layer’s interests conflict with those of the client.

Fee agreements are not illegal and are common in the system because they do not raise serious professional issues.  However, it is proper practice to have such agreements in writing so that there is no misunderstanding between the lawyer and the client.[20]  All the costs that t he client will incur must be explained to the client in a letter during the engagement of the lawyer.

B.     REMUNERATION AGREEMENTS [S. 45]

Pursuant to section 45 an advocate may exercise three options in charging fees.[21] He may either use the Advocates Remuneration Order in charging or he may enter into an agreement with the client as to cost as or he may charge ex gratia. Where he enters into an agreement with the client as to costs, such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf. Section 45(2) allows a client who is not satisfied with the agreement on the fees to have the agreement set aside or be varied or challenged within one year[22] from the date of its making or three months after demand is made in writing by the advocate on the grounds that it is harsh and unconscionable, exorbitant or unreasonable.[23] When this agreement is challenged, the court in which this challenge is brought may order any of the following four-

(a)   that the agreement be upheld; or

(b)   that the agreement be varied by substituting for the amount of the remuneration fixed by the agreement such amount as the Court may deem just; or

(c)    that the agreement be set aside; or

(d)    that the costs in question be taxed by the Registrar; and

(e)    that the costs of the application be paid by such party as it thinks fit.

 

Where an advocate dies or becomes incapable of acting after having performed part of the business to which the agreement relates or if the client changes the advocate even when the agreement continues to subsist, any party to that agreement, or their legal representative may apply to a judge in chambers pursuant to section 45(2) to have the agreement set aside or be varied.[24] Where a client changes an advocate, this will be considered as breach of the agreement and the advocate shall be entitled to a full recovery of the legal fees as it had been agreed. However, the advocate will not recover the full legal fees where the court is of the opinion that there has been default, negligence, improper delay or other conduct on the part of the advocate affording to the client reasonable ground for changing his/her advocate

 

Where there is agreement on costs pursuant to section 45, the issues of taxation does not arise[25] and the costs cannot be subjected to section 48 of the Act.[26] However, a party claiming that there was an agreement pursuant to section 45(6) must produce evidence of the same. Again, a party contesting the quantum of fees charged under section 45 can do so by lodging an appeal to the High Court and no other. If he/she is not satisfied by the decision of the court, he may appeal to the court of appeal. An illustrative case on this point is the case of Ochieng Onyango Kibet & Ohaga vs Adopt a Light Limited[27] in which the Applicants filed a Bill of Costs against the Respondents, their former client. However, the Client filed a preliminary objection arguing that under section 45(6) of the Advocates Act, taxation cannot proceed where there is an agreement on costs between the advocate and the client. The taxing master however dismissed the objection on the grounds that the agreement of fees was not produced. The client then filed the present application seeking a hearing of its objection to the taxing master’s decision. The advocates however opposed the application on the grounds that there was no valid reference as the client could only approach the High Court after the taxation and decision of the taxing officer had been made. The client however stated that there as there was no procedure to appeal a decision under section 45(6) of the Act the court’s inherent jurisdiction would be utilized

 

In dismissing the appeal, the court raised four important points. First, that since section 45(6) does not state that it can be entertained by the Deputy Registrar, the section can only be entertained by the High Court. The client therefore chose the wrong forum to present its application. However, since there is presently a valid Ruling by the Deputy Registrar, the decision stands until it is appealed or set aside. Second, since no taxation had been undertaken the client had no right to invoke paragraph 11(1) of the Advocates (remuneration) Order. However, the use of that paragraph was not fatal. Third, the client’s application was not seeking an application but for the court to hear its objection to the taxation as if it is a court of first instance. However, the only way for the client to challenge the decision was by way of appeal to the High Court. Fourth, the client had also failed to attach a copy of the taxing master’s decision.

However, there are some agreements between the lawyer and the clients are prohibited by the law. This is the position under section 46 of the advocates Act as explained below.

  

C.    INVALID AGREEMENTS ACT [S. 46]

An advocate must not be a party to any agreement that is seen as breaching the rules of professional ethics and responsibility. For this reason, section 46 of the Advocates Act invalidates the following types of agreements-

a)      Any purchase by an advocate of the interest, or any part of the interest, of his client in any suit or other contentious proceeding.

b)      Any agreement relieving any advocate from responsibility for professional negligence or any other responsibility to which he would otherwise be subject as an advocate.

c)      Any agreement by which an advocate retained or employed to prosecute or defend any suit or other contentious proceeding stipulates for payment only in the event of success in such suit or proceeding or that the advocate shall be remunerated at different rates according to the success or failure thereof.

d)     Any agreement by which an advocate agrees to accept, in respect of professional business, any fee or other consideration which shall be less than the remuneration prescribed by any order under section 44 in respect of that business or more than twenty-five per centum of the general damages recovered less the party and party costs as taxed or agreed.

e)      Any disposition, contract, settlement, conveyance, delivery, dealing or transfer which is, under the law relating to bankruptcy, invalid against a trustee or creditor in any bankruptcy or composition.

 

D.    THE (ADVOCATES) REMUNERATION ORDER [SS.44, 48]

1. INTRODUCTION

The fees the advocates charge are regulated by the provisions of the Advocates Act as well as the remuneration Order. The remuneration order is made by the chief Justice on the recommendations of the Law Society of Kenya. [28] The order is divided into two main parts - the rules and the schedules. The rules prescribe how charging is to be done while the schedules show the scales for different types of businesses.

 

2. OBJECTIVES OF THE REMUNERATION ORDER

The order has a number of objectives as follows. First, it seeks to protect to protect the public from exploitation by advocates by controlling the fees the advocates charge. Second, prevents the advocates from engaging in professional malpractices such as undercutting and unfair competition. Third, it seeks to make legal services affordable to the public. Fourth, it seeks to remunerate advocates in order to enable them lead a good life as expected of the profession.

 

3. MATTERS CONSIDERED IN THE REMUNERATION ORDER

Pursuant to section 44 of the Advocates Act, after considering the recommendation of the Council of the Society, the Chief justice may by order, prescribe and regulate in such manner as he thinks fit the remuneration of advocates in respect of all professional business, whether contentious or non-contentious. The order that the Chief justice make under this section may take into account the following five matters.[29] First, the position of the party for whom the advocate is concerned in the business, that is, whether as vendor or purchaser, lessor or lessee, mortgagor or mortgagee, and the like. Second, the place where, and the circumstances in which, the business or any part thereof is transacted. Third, the amount of the capital money or rent to which the business relates. Fourth, the skill, labour and responsibility involved therein on the part of the advocate. Fifth, the number and importance of the documents prepared or perused, without regard to length.[30]

 

4. DIVISION OF THE REMUNERATION ORDER

Remuneration is divided into two parts: the rules part and the schedules as explained below.

 

1.      The Rules 1 - 79]

The rules section contains provisions on how advocates of the High Court  are supposed to charge their fees in contentious and non contentious business in High court, , in subordinate courts (other than Muslim courts),in a Tribunal appointed under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act and in a Tribunal established under the Rent Restriction Act.[31]  It also contains guidelines how the bills of costs are to be drafted by advocates, how the assessment of the fees should be done by the magistrate courts and how taxation of the bills should be done by the taxing officer. Additionally, it contains provisions on how advocates can recover their fees from clients who do not want to pay and the procedures of appeal in the High Court and the Court of Appeal.

 

The Remuneration order only gives the minimum amount that an advocate is allowed to charge. Rule 3 of the Order prohibits an advocate from agreeing to remuneration that is below the scale provided in the Order. Therefore, an advocate is allowed to charge any amount above the minimum provided it is not too exorbitant and subject to the agreement of the client. Again, the amount charged depends on the complexity of the case in question and varies from advocate to advocate. Rule 4(1) provide in this regard that where any business requires and receives exceptional dispatch, or, at the request of the client, is attended to outside normal business hours the advocate shall be entitled to receive and shall be allowed such additional remuneration as is appropriate in the circumstances. The circumstances that may warrant an additional fee are provided for in rule 5(2). Thus, in assessing such special fee regard may be had to the following four.

 

a)      the place at or the circumstances in which the business or part thereof is transacted;

b)      the nature and extent of the pecuniary or other interest involved;

c)      the labour and responsibility entailed; and

d)     the number, complexity and importance of the documents prepared or examined.

 

The business of advocacy is divided into two major categories- contentious business and non- contentious business as explained below.

 

Contentious Business and Non-Contentious Business

Contentious business" means any business done by an advocate in any court, civil or military, or relating to proceedings instituted or intended to be instituted in any such court or any statutory tribunal or before any arbitrator or panel of arbitrators.[32] The rules regarding contentious business are provided in part III of the Remuneration Order [rules 49 - 79] 

Non-contentious business" on the other hand means any business done by an advocate other than contentious business.[33] The rules regarding non- contentious business are provided for in rules Part II of the remuneration Order [Rules 18- 48]

 

2.      Schedules Showing Scales of Fees

The order has ten schedules with each schedule providing for scales for specific business as follows.

a.      Conveyancing, Companies and Intellectual Property [Schedules 1-4]

Schedule 1 deals with conveyancing matters.  This schedule is divided into four scales. The first scale is divided into two parts. The first part deals with matters regarding sales and purchases affecting land registered in any registry. The second part relates to fees on mortgages and charges affecting land registered in any registry. The second scale is a scale of charges relating to memoranda of equitable mortgages by deposit of documents or charges by the deposit of title. The third scale deals with charges relating to debentures. The fourth scale is a scale of negotiating commissions deals with on sale and mortgages.

Schedule 2 is a scale for charges for preparation of leases, agreements for lease and tenancies at a rack rent.

Schedule 3 gives the charges for formation and incorporation of companies.

Schedule 4 gives a scale for charges for all matters relating to trademarks, copyrights and patents.

 

2. Matters Not Provided for [Schedule 5]

This schedule provides for all matters in respect of the business the remuneration is not otherwise prescribed or which has been the subject of an election under paragraph 22 of the Order. This schedule allows the advocate to enter into a fee agreement with the client on legal fees. There are two ways through which the fees may be charged under this schedule- on an hourly rate basis or on an alternative assessment basis.

 

1. An Hourly rate basis

Pursuant to paragraph 2 of schedule 5, an advocate may charge his/her fees at such hourly rate as may be agreed with the client from time to time.

 

2. Alternative method of Assessment

The advocate is allowed to charge instruction fees, drafting of documents etc, attendance of court, time engaged, correspondence, drafting of opinions, debt collection, drafting of documents under the Chattels Transfer Act including all the necessary and proper searches, affidavits, stamping and registration of documents.

The Remuneration order does not give the scales for criminal matter although criminal cases are charged under schedule 5.[34]

 

3. Party and Party Costs and Advocate Client Costs [schedules 6- 10]

Schedules 6 to 10 deal with how to determine party and party costs as well as advocate client costs before the courts and other tribunals.

1. Party and Party Costs

These are cost between the successful party and the losing party to litigation. They include costs which a court may require the losing party to pay the winning party but exclude the advocate’s fees. The rationale for payment of the party and party costs rises from the rules of indemnity so that the losing party should indemnify the winning party by paying all their legal costs they incurred as a result of the case.

 

 However, the award of party and party costs is not an absolute right as this depends on the discretion of the presiding officer of the court. Accordingly, in determining whether to award the costs and the quantity of costs to award, the presiding officer considers what will be in the best interest of the winning party as far as the circumstances of the case are concerned. As regards the circumstances of the case, the court considers whether such costs are necessary or proper. Where the court is of the opinion that such costs are neither necessary nor proper in the attainment of justice, it may order that no costs be paid. Another fact the court considers in determining the party and party costs is whether the party used the most economical alternative. In this regard, a cost will be disallowed where a party used an uneconomical alternative as per the circumstances of the case.

 

In Kenya, an advocate is supposed to draw a bill of costs which is then carefully assessed and taxed by the taxing Master who in this case is the Registrar of the High Court of Kenya. Determination of the costs is done on the basis of the relevant scale as per the remuneration Order regard being had to the special circumstances of the case. Accordingly, the advocate is supposed to give itemized details of each cost together with evidence as appropriate.

 

Schedule 6 deals with costs of proceedings in the High Court. This schedule is divided into two parts. The first part covers party and party costs. These include fees for getting up or preparing for trial, fees for getting up an appeal, costs for drawing of documents, costs for making copies of documents, attendance of courts, perusal of documents, service of documents, making plans and models, costs for making translations, costs for execution proceedings, costs for objections for execution proceedings, fees allowable on certificate of costs under paragraph 68A.

2. Advocate Client Costs

These refer to the costs that a client agrees to pay an advocate for legal representation. Advocate Client Costs Are covered under second part of schedules 6- to. As regards these costs, the Order gives three ways of calculating these costs; Thus, the minimum fees shall be any of the following.

a.       Party and party costs increased by one half or;

b.      The fees ordered by the court increased by one half

c.       The fees agreed by the parties under paragraph 57 of the Order[35] increased by one half, as the case may be, such increase to include all the proper attendances on the client and all necessary correspondences.

 

Schedule 7 provides for costs for services in respect of matters before subordinate courts.  This schedule also deals with party and party costs as well as advocate client costs.

Schedule 8 provides for matters before tribunals under the Landlord and tenant (Shops, Hotels and Catering Establishments) Act.

Schedule 9 provides for matters in tribunals under the Rent Restrictions Actor any legislation amending or replacing the same.

Schedule 10 deals with probate and administration matters

 

E.     RETAINER AGREEMENTS

1. Introduction

A retainer or engagement fee is a fixed amount of money that a client agrees to pay in order to secure the services of a lawyer.[36] It is a separate a non- refundable payment by a client to a lawyer simply to guarantee that the lawyer will be available to perform services if asked.[37] A retainer fee does not include the fees paid for the actual work done by the lawyer. This means that an extra fee must be paid where extra work is involved, such as the case going to court.

The amount of retainer to charge depends on the prevailing circumstances. However, even under such circumstances, the fee should be within reasonable limits. Some lawyers have had to charge very high costs as retainer fees until the courts have had to reduce the fees basing on the justifications for such fees. Whether a retainer fee is justifiable depends on the inconveniences that a lawyer goes through in being available when needed by the client and the inconveniences the lawyer faces in turning away other clients in order to work for the client.[38] Again, the reasonableness of the retainer fees depends on the type of the client and their experience in paying such retainers. In this regard, if a client is experienced in paying such retainers and has the ability to carefully negotiate at an arm’s length with the lawyer, then such retainers will be held as reasonable. On the other hand, if the client does not have enough experience in paying retainers and the lawyer is seen to have overcharged, that retainer may be considered as unreasonable.

A retainer ensures that a client has the services of a lawyer anytime the client wants.

2. Modes and Duration and Termination of Retainer

There are five widely used forms of retainers- the general or traditional retainer, the special or specific retainer, the non-refundable retainer, the security retainer, and "the hybrid retainer.

A specific retainer subsists for a specific reason, such as to carry out a particular litigation. Where this is the case, the duration of the retainer will depend on the duration that specific activity takes to be completed.

 A general retainer on the other hand is only intended to secure the services of an advocate to offer the client legal services when needed in the ordinary non- contentious business. Under such circumstances, the retainer will run indefinitely and the advocate may need to ask payment from time to time from the client.  A general retainer ends when either party gives a notice for termination to the other party.[39]

A retainer is often paid in a single, lump sum, or on an ongoing basis (typically monthly or quarterly.[40]

The parties to a retainer agreement may agree as to the duration of the agreement. However, it should be pointed out that the duration of the retainer depends on the existence of the advocate- client relationship. Where the advocate - client relationship still subsists, the advocate is obligated to discharge his/her duties to the client failure of which may constitute professional negligence. Again, the retainer may be terminated by the operation of the law such as where the contract has become illegal or where one of the parties to the agreement dies among others.

Where the advocate has concluded the business he/she was retained to perform, he/she should communicate this information to the client both orally and in writing. The communication should clearly indicate that the advocate is no longer obligated for that client. The reason for this explanation is to avoid any confusion that may arise.

 

F.     AUTHORITY ON FEES AND RECOVERY OF FEES BY THE ADVOCATE

[Lien and interest and Taxation– ss. 44, 49, 50, 51, 52 and Rules 6, 11 1nd 12 of the Remuneration Order]

Disputes between lawyers and clients about fees are very common. Clients in most cases dispute the fees charged by their advocates on the basis of unreasonableness and excessiveness. Sometimes these disputes end up in court for determination. In order to minimize this problem, the Advocates Act gives an advocate authority on the legal fees for the services rendered.

 

Consequently, an advocate may take from the client security for payment of any remuneration to be ascertained by taxation or otherwise. Again, an advocate is allowed to charge interest on his/her fee after the deadline for which the client was to pay has passed.[41] Rule 6 of the Advocates (Remuneration) Order stipulates in this connection that an advocate may accept from his client and a client may give to his advocate security for the amount to become due to the advocate for remuneration and disbursements in business to be transacted or being transacted by him and for interest on such amount,[42] but that interest is not to commence until the amount due is ascertained either by agreement or taxation. It should be noted that taxation of bills of costs of advocates in respect of non-contentious business is, subject to section 45, be regulated by the Order.[43] However, if after taxation a party is uncomfortable with the taxed fees, ruler 11 and 12 of the order allow an aggrieved party to lodge an appeal from the taxation of the registrar to a judge by chamber summons. Again, if a party is not satisfied by the decision of the judge, he/she can appeal, with the leave of the judge, to the court of appeal.

 

G.    ENFORCING FEE AGREEMENTS [SS. 51, 52]

Each party bears its advocates fees regardless of whether the advocate wins or loses the case. A client is supposed to pay his/her advocate as they have agreed in the contract. However, sometimes the client may fail to pay because of various reasons. When this happens, two options will be open to the lawyer. First, enforcing the fee agreement through a lien, and second, enforcing the agreement by suing the client for recovery of the fees. The lien can either be a charging lien or the retaining lien. A charging lien allows a lawyer to claim against the proceeds of the settlement or a judgment in the amount of unpaid fees.[44] A retaining lien on the other hand allows the lawyer to retain the client’ documents prepared by the lawyer until the fees are paid.[45]

 

If the advocate opts to sue the client for the recovery of the fees, he/she should first send a fee note to the client.  If the client contests the fee note, the advocate should file an advocate-client bill of costs. This should set out all the services rendered to that client. This bill should be filed in the high court, which is then taxed by the taxing master who is in most cases the Registrar of the High Court. Section 49(a) of the Act provides in this regard that no judgment shall be entered for the plaintiff, except by consent, until the costs have been taxed and certified by the taxing officer. The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.[46]

 

If the client refuses to pay even after taxation, the advocate should file a suit for recovery the fees. He may then file the bill of costs in the same court but as a different suit. It is noteworthy that the client may file a suit to challenge the claim by the advocate. Where this happens, the advocate may file a fully itemized bill of costs showing each item which may then taxed by the court before the hearing of the suit.[47]

 

It should however be noted at this point that an advocate should only sue if the client has refused to pay after the case has been finalized or after the payment has become due but the client has defaulted in payment. The case in point is P. Machira v Abok James Odera[48] in which the court observed that it is a duty for an advocate to defend his client to the conclusion of the suit even if that client fails to pay his fee.  Once a suit is concluded an advocate is permitted to sue for his fees. Accordingly, an advocate should never abandon a case on the grounds that he had not been paid his fee but as stated above must conclude the suit to its finality then sue for his fees. 

 

J. CLIENT’S PROPERTY AND CLIENT’S MONEY

S.2 of the Advocates Act defines a client as anyone who is about to employ or retain an advocate or anyone who has retained or employed an advocate. A client is also defined as anyone who is liable to pay any advocate costs.

The conduct of advocates with respect to client property and client money is governed by rules made by the L.S.K. Council pursuant to S.83 of the Advocates Act1.  The Chief Justice must approve these rules before they attain validity.

Four categories of rules have been made by the L.S.K. council pursuant to the powers conferred by S.83

  i.               Advocates (Practice) Rules

ii.               Advocates (Accounts) Rules

iii.               Advocates (Deposit) (Interest) Rules

iv.               Advocates (Accountant Certificate Rules.

 

The definition of an advocate subsumes a partnership.  Accordingly, a breach of the said rules by a partner amounts to a breach by all partners.  A breach renders an advocate liable to face Disciplinary proceedings and the consequential effects.

 

CLIENT MONEY

Rule 2 of the Advocates (Accounts) Rules defines “client money” as any money held or received by an advocate on account of a person for whom the advocate is acting (client).

·           Such money could be received as fees, or disbursements yet to be earned or incurred as expenses (legal)

·           An advocate can also receive and hold client money as any agent, trustee or bailee, stakeholder or in any other capacity.

 

The general principle is that any client money must be paid into the client account without delay.

·           Pursuant to R.5 of the 1998 Advocates (Practice) Rules, any money payable to a client who is sui juris shall be released to the client not later than 21 days from the date on which the proceeds are actually paid into the Advocate’s Client Account.

 

CLIENT ACCOUNT

R.2 of the Advocates (Accounts) Rules defines a client account as a current or deposit Account at a bank or a building society / financial institution as defined in the banking Act, in the name of the advocate but in the title of which the word “client” or “trust” appears.

 

CLIENT PROPERTY

·           In most cases apart from criminal law cases, where there is an advocate – client relationship, the question of client property will always arise.

·           In dealing with client money and property, an advocate is usually in the position of a trustee and is accordingly required to carry out the duties of a trustee.

 

THE ADVOCATES (ACCOUNTS) RULES

As noted, r.2 defines “client money”, “client account” and “an advocate” for the purposes of the rules.

·           R.3 thereof, an advocate is required to keep one or more client accounts.

·           R.4 requires an advocate to pay into the client account any client money held or received by him without delay.

·           R.5 allows an advocate to pay into the client account any trust money and any money belonging to the advocate for the purpose of maintaining the account etc.

·           R.6 requires that any money paid into the client account which is not client’s money to be paid out as soon as possible.

·           R.7 categorically prohibits payment of any other money being client’s money into the client account.

·           R.9 allows an advocate to withdraw money properly required for payment of clients any money that he is transferring to another client account and any money properly required for payment of a debt due to the advocate from the client.

·           R.9 also requires that any cheque drawn upon a client account to bear on its face the word “client account” or “trust account”.

·           R.10 categorically prohibits any withdrawals from client account of any sum in excess of amount held by the advocate to the order of the client.

 

BOOKS OF ACCOUNTS

Pursuant to R.13, every advocate is strictly required to keep at all times, properly written up, such books of accounts as may be necessary to show; 

           i.               Every receipt of him by client’s money for each separate client.

         ii.               Every payment by him from clients accounts for each separate client.

       iii.               The amount held by him for the time being in a client account for each separate client.

       iv.               The moneys expended by him for the costs charged by him to each separate client.

Such books may be;

·           Cash books or

·           Ledger books

 

And must be supplemented by records showing the particulars of all Bill of Costs delivered by the advocate to his clients,; distinguishing between profits, costs and disbursements. Pursuant to R.14, the books of accounts must be preserved for not less than 6 years from the date of the last entry.

 

Under the 1998 Advocates (Practice) Rules R.5 thereof, any money payable by an advocate to a client who is sui juris shall be paid to the client not later than 21 working days from the date on which the proceeds are actually paid / credited into the advocate’s client account.

 

Under R.6 thereof, where an advocate has reached a settlement involving the payment of money as damages on behalf of a minor, for whom he acts, he is required to apply to the court for approval of the settlement of the money within 15 days.

 

THE ADVOCATES (DEPOSIT INTEREST) RULES

R.2 thereof provides that an advocate is not liable by virtue of the relation between an advocate and a client for interest received by the advocate on moneys deposited in a client for interest received by the advocate on moneys deposited in a client account being moneys received or held on account of his clients generally.

 

However under R.3, an advocate is required to take instructions from a client with respect to the investment of any client money held or received by him and likely to be held by him for a length of time with regard to which the money ought  to earn interest.

 

Under r.4, where the money is deposited in a separate designated account in the name of the advocate or his firm in the title of which the word “client” appears, the advocate would be liable to account to the client for interest.

 

THE ADVOCATES (ACCOUNTANTS CERTIFICATE) RULES

Under R.3, thereof, an advocate is required to deliver once every year to the L.S.K. Council a certificate signed by the accountant who is duly qualified.

 

In giving and / or signing the said certificate the accountant is required to satisfy himself that the Advocates (Accounts) rules have been complied with.  In doing this, the accountant is not required to do more than:

a)         Make a general examination of the Bank Pass Books and statements.

b)        Make a general examination of the books of Accounts kept by the advocate.

c)         Ascertain that the client account is kept.

d)        Examine the liabilities of the advocate to his clients and the balance standing to the credit of the client account.

 

Pursuant to R.7 certain advocates may be exempted from delivering an accountants certificate i.e.

a)         Those who hold their first practicing certificate.

b)        Those who hold after having ceased to hold a current practicing certificate for 12 months, hold their next practicing certificate.

c)         Those who have not practiced law on their own account either alone or in a partnership.

d)        Those who have not at any time received or held clients money.

Under R.12, if any advocate fails to comply with the Advocates (Accountants Certificate) Rules, a complaint in respect of such failure may be made by or on behalf of the council to the disciplinary committee.

 

OFFICE ACCOUNT

It is advisable that an advocate maintain a distinct office account from which the day to day office running expenses may be met i.e. wages, rent, etc.

When it comes to money, (client money), the rules have been overtaken by events.  It is not only cash money, client money must be taken to be inclusive of cheques endorsed.

 

PROFIT COSTS

To an advocate, profit costs arise from the surplus over all disbursements and charges.

 

PARTY AND PARTY COSTS

These are created by the Remuneration Order and arise as follows; when plaintiff A sues B and succeeds B is required to reimburse the plaintiff his legal costs.  In this regard, A is entitled to recover from B all disbursements and a certain amount of legal fees paid. In the high court, one is allowed to recover 1/3 of the fees paid and in the subordinate court ½ of the fees paid.

 

TAXATION

This is a procedure by which Registrar of the High Court or a magistrate in the lower courts (The Taxing Master) assesses the costs of an advocate in any matter once the plaintiff’s advocate has been successful.

The advocate prepares a bill of costs in date sequence and files it in court supported by the relevant documents i.e. decree, judgement, receipts etc.

Once taxed, the bill of costs cannot be appealed against on facts i.e. if one is questioning the figures, unless one is appealing on a matter of law.

The registrar of the high court or the taxing master in the subordinate courts, in making his decision on taxation, is taken to be exercising judicial discretion. 

 CHAPTER 6

PROFESSIONAL CONDUCT AND ETIQUETTE

A.    Introduction

Professional misconduct refers to the breaking of those rules governing the practice of Advocates under Cap 16 Laws of Kenya and for which Advocates can be penalized. From Stroud’s Judicial Dictionary, misconduct amounts to any conduct for which punishment may be prescribed.  In Re A Solicitor 1 and Re Lydell2, the House of Lords held that the solicitor who carried on the practice of undisclosed profit sharing with another who presented conflicting interest was guilty of professional misconduct.

 

Other jurisdictions have defined professional misconduct not merely as an act of commission but of omission too.  In the Scotland’s Law Agent Act of 1873, a Law Agent who stood aside while a conspiracy to defeat the end of justice was being carried out in his own office was guilty of misconduct.  Professional misconduct raises an inference of legal turpitude as opposed to unprofessional conduct, which raises an inference of moral turpitude or fraud or dishonesty.

In Allison v. Gen Med. Council3, it was held that if a man in the pursuit of his profession has done something with regard to it, which will be regarded as disgraceful or dishonorable to his professional brethren and to his good repute and competence then, it is open to say that he has been guilty of misconduct in a professional respect.

 

While professional misconduct consists of express breach of rules contained in the Advocates Act as well as the Law Society digest of professional conduct and etiquette, unprofessional conduct may be defined to include the breach of good manners in practice. Such examples of unprofessional conduct will include:-

a.       Chewing gum in Court.

b.      Attending Court while drunk.

c.       Running a brothel or living from the earnings of prostitution.

d.      It may also include bad language where an Advocate cannot express himself properly in English.

e.       Insults to the public.

f.       Incompetent representation by an Advocate.

 

PROFESSIONAL MISCONDUCT

Professional misconduct refers to the breach of rules set up in the Advocates Act and for which punishment is provided.  The profession ought to be manned by persons of integrity and high sense of responsibility, free from financial problems and anxiety.  This is because the legal profession has a sense of public service and the sense of service overrides financial consideration. It thus follows that where an advocate conducts themselves in a manner contrary to the accepted code of conduct, that advocate will be guilty of professional misconduct. Again, an advocate is prohibited, whether in public or private, from engaging in activities that are not befitting to the legal profession such as corruption, rudeness, and disorderliness among others, what may otherwise be referred to as unprofessional conducts. Unprofessional conduct on the part of an advocate may not lead to disciplinary action against the advocate.

The penalty for professional misconduct is found in Section 60(4) of the Advocates Act, which provides that an Advocate is guilty of professional misconduct, may be:-

a)         Admonished

b)        Suspended from practice for a period not exceeding 5 years.

c)         His name struck off the roll.

d)        May pay a fine not exceeding Kshs. 100,000/=

e)         Ordered to pay to the aggrieved person compensation or reimbursement not exceeding five million (5,000,000/=) shillings.

f)         Be subjected to such of the above combination as the disciplinary committee deems fit.

 

Note: the fine was initially Kshs. 50,000/= but was enhanced vide Act No. 2 of 2002, which also introduced paragraph (e).

Where an advocate engages in professional misconduct or unprofessional conduct, the public or any aggrieved party or institution, may complain against acts or omissions of an advocate which may be seen as offensive to the legal profession.

Part VIII of the Advocates Act [ss.36 - 43] and has various provisions on professional misconduct. The Act outlines the various conducts which are not befitting to a member of the legal profession. Parts X and XI then prescribe the procedure for raising and dealing with complaints against advocates. This chapter, however, is devoted to discussing matters which constitute professional misconduct and unprofessional conduct. Matters of complaints procedures and disciplinary processes will be discussed in later chapters.

 

B.     Failure to Endorse the Name of an Advocate on an Instrument [s. 35]

It is an offence for the advocate not to endorse his/her name on a document. All the documents mentioned in section 34 of the Advocates Act must be endorsed with the name and address of the advocate or the firm in which it was prepared. The Act penalizes failure to endorse the name and address of the person who drew or caused to be drawn on the document. Accordingly, any person omitting so to do shall be guilty of an offence and liable to a fine not exceeding five thousand shillings in the case of an unqualified person or a fine not exceeding five hundred shillings in the case of an advocate.[49] However, in the case of any document or instrument drawn, prepared or engrossed by a person employed, and whilst acting within the scope of his employment, by an advocate or by a firm of advocates, the name and address to be endorsed thereon shall be the name and address of such advocate or firm.[50]

 

The mischief for punishing the omission of an advocate’s name on an instrument seems to emanate from the principles of due diligence as well as protection of the legal profession from quacks who masquerade as advocates when they are not. As regards due diligence, an advocate as a member of the legal profession must at all times conduct themselves with due diligence since their acts or omissions have a direct effect on the rights and liberties of the public.

 

C.    Prohibition against Undercutting [s. 36]

Undercutting refers to charging for legal services at a scale lower than the scale prescribed under the Advocates remuneration order.[51] Undercutting is considered as a violation of the rules of professional ethics and it is therefore punishable under the Advocates Act. Accordingly, any advocate who holds himself out or allows himself/ herself to be held out, directly or indirectly and whether or not by name, as being prepared to do professional business at less than the remuneration prescribed, by the Advocates remuneration order shall be guilty of an offence.[52] The rationale for this provision is that advocates are supposed to attract work not because of their low charges but because of the quality of legal services that they provide. Accordingly, the prohibition against undercutting is intended to ensure that the standards of legal services do not deteriorate.

An advocate should not hold himself/herself out or allow himself/herself to be held out directly or indirectly and whether or not by name as being prepared to do professional business at less than the scales laid down by the Advocates (Remuneration) Order for the time being in force.[53] The rationale for undercutting was discussed in the case of Ahmednasir Abdikadir & Co Advocates vs National Bank of Kenya Ltd, in the following words:

“If advocates comply with the provisions of the Advocates Act, which prohibit […] undercutting on legal fees […] the dignity of the profession would be upheld. I say so not because the advocates would be compelled to charge fees in compliance with the prescribed remuneration, and thus earn more, but more so because any client who had to pay such fees would be entitled to demand appropriate services from the advocates. The standards of practice would then become the sole measure of the fees which any particular advocate could charge, over and above the prescribed minimum rates. Nobody would then be able to attract work on the basis of undercutting, for a client who opts for such fees would also be aware that he too cannot seek to enforce an agreement founded on, or otherwise tainted, with illegality or immorality.”

 

Accordingly, an agreement between a client and an advocate where the advocate agrees to undercut is illegal ab initio. Again, the law holds an advocate to such agreements as guiltier than the client since the advocate is deemed to be more knowledgeable on the law than the client. To sum up, section 36(1) of the Advocates Act appears to outlaw undercutting. The provision then pegs the definition of what may be deemed to be undercutting, to that which is prescribed in the Advocates (Remuneration) Order. That order, then, expressly, authorizes advocates to negotiate with clients, any fee which is in excess of what is prescribed in the Order.

D.    Prohibition against Sharing Profits [s. 37]

It is an offence for an advocate to share his profits for any professional business, whether contentious or non contentious, with any person who is not a dully qualified legal practitioner.[54] The proceeds of the legal work of an advocate should only benefit the advocate in question, save as provided in the Act.

 

The circumstances where an advocate may share his /her profits are outlined under the proviso to section 37 of the advocates Act as well as rule 4 of the Advocates Practice Rules. The proviso to section 37 of the Act allows sharing of profits when an advocate is paying any bonus to any of his employees, being a bonus based or calculated on the advocate’s total earnings or profits in respect of any period.[55] The proviso to rule 4 of Advocates Practice Rules allow an advocate to share profits under two circumstances. First, when the advocate is paying an annuity or other sum out of profits to a retired partner. Second, an advocate who has agreed in consideration of a salary to do the legal work of an employer who is not an advocate may agree with such employer to set off his profit costs received in respect of contentious business from the opponents of such employer or the costs paid to him as the advocate for employer by third parties in respect of non-contentious business against the salary so paid or payable to him, and the reasonable office expenses incurred by such employer in connexion with such advocate (and to the extent of such salary and expenses).

 

E.     Prohibition against Advertising and Touting [s. 38]

Advocates are not allowed to directly or indirectly advertise their services and or fees. But look at Article 46 of the Constitution (1) Consumers have the right (a) to goods and services of reasonable quality; (b) to the information necessary for them to gain full benefit from goods and services; (c) to the protection of their health, safety, and economic interests; and (d) to compensation for loss or injury arising from defects in goods or services. (2) Parliament shall enact legislation to provide for consumer protection and for fair, honest and decent advertising. (3) This Article applies to goods and services offered by public entities or private persons.

As regards touting for clients, the Advocates Act prohibits such conduct. Accordingly, pursuant to section 38 of the Act, an unqualified person who procures or attempts to procure the employment of an advocate in consideration of a benefit to himself/herself, in any suit or matter or solicit from an advocate any payment or advantage in consideration of such employment shall be deemed to be a tout.[56] It should be noted that this provision does not aim at individual advocates but it aims at individuals who are employed by advocates to tout and solicit for clients.

Rule 2 of the Advocates Practise Rule deals with touting and advertising – advocates should not advertise their services but look at the Constitution Article 46(3).[57] This rule is inconsistent with the Constitution hence not applicable look at the case of George Okenyo and Marcus Ndegwa vs. AG and others.

 

F.     Acting as an Agent for Unqualified Person [ss. 39 - 40]

 As an advocate the law prohibits you from acting as an agent in any suit or otherwise. Section 39 of the Advocates Act provides in this regard that any advocate who acts as agent in any suit, or in any matter in bankruptcy, for any unqualified person, or permits his name, or that of any firm of which he is a partner, to be made use of in any such suit or matter, upon the account or for the profit of any unqualified person or who does any other act enabling an unqualified person to appear, act or practise in any respect as an advocate in such suit or matter, or who in any way assists any unqualified person in any cause or matter in which he knows that such person is contravening or intends to contravene this Act, shall be guilty of an offence. Accordingly, arrangements where an advocate appears on record but the profits go to an unqualified person are illegal and an advocate found to be a party to such arrangements is guilty for an offence.

 

G.    Employment of Persons Struck off the Roll or Suspended [ss. 41 - 42]

The general rule is that an advocate is prohibited from employing a person whose name has been struck out of the Roll of Advocates. However, an advocate may employ persons who have been so struck off the Roll only with the written permission of the Council of the society. Again, such persons may only be employed where they were struck off the Roll by their own application. Again, it is a defence for an advocate to plead that he/she did not know that the person he/she employed had been struck off the Roll of Advocates.[58] Prove is a matter of fact and may differ from case to case.

The Council may grant the permission to an advocate to employ a person that is so struck off the Roll but subject to certain conditions as the council may deem fit. Sometimes the advocate may be aggrieved by the conditions granted by the council or by the refusal of the council to grant such permission. Where this occurs, section 41(2) of the Advocates Act allows the aggrieved advocate to appeal to the chief Justice who may confirm the refusal, or may, in lieu of the Council, grant such permission for such period and subject to such conditions as he thinks fit. If any advocate acts in contravention of this section or of the conditions subject to which any permission has been given there under he shall be liable for professional misconduct proceedings under section 60 of the Act.

 

Any person who has been struck off the Roll other than by his own application is not recognized as an advocate and must not accept any employment by an advocate without informing the advocate that he is so disqualified. Section 42(1) of the Act provides in this connection that”

 

“42. (1) Any person who, whilst he is disqualified from practising as an advocate by reason of the fact that he has been struck off the Roll, otherwise than at his own request, or is suspended from practising as an advocate, seeks or accepts employment by an advocate in connection with the advocate’s practice without previously informing him that he is so disqualified as aforesaid shall be guilty of an offence and liable to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding two years, or to both.”

 

H.    Advocates employed by Non Legal Employers

It is not wrong for an advocate to work for a non- legal employer for a fixed salary[59] and for a legal purpose, provided the following conditions are satisfied. First, the employer should allow the advocate to take instructions from other clients as well. Second, such an advocate must ensure that his employer does not, directly nor indirectly advertise his/her services, and in particular does not recommend him/her to fellow-employees.[60] In case of any recommendation, the advocate must satisfy himself that the recommendation was made only at the express request of the intending client, and that he must explain that the employee is free to instruct any advocate of his choice or such advocate whom he may wish to instruct. Accordingly, an advocate has an obligation to satisfy that there was no advertisement before accepting clients to whom he/she has been recommended.[61] Third, an employed advocate should not allow his/her employer to receive any part of any profit costs he/she may earn acting for clients other than the employer.[62] However, pursuant to proviso (ii) of rule 4 of the

 Advocates (Practice) Rules, an advocate may use any part of the payment received from other clients to set off reasonable expenses.[63] Fourth, pursuant to rule 5 of the Advocates Practice Rules, no advocate employed by an unqualified person is supposed to draw documents or render other legal service to his employer for which fees are charged directly or indirectly by his employer to any other person and retained by that employer. Fifth, an employed advocate who is also a Commissioner for Oaths cannot administer an oath when he/she has drawn the document for the employer.[64] It is also improper for such an advocate to administer an oath to any official of his employer in respect of that official’s duties.[65]

 

I.       STANDARDS OF CONDUCT

Professional Ethics is concerned with balancing the official ideology and goals of the legal profession and the personal ambitions and aspirations of the individual members of the legal profession.  Very often the interests of the individual members conflict with the ideology of the profession.  Most people get into the profession to make money so how do they balance this with the ideology of the profession which may be an obstacle to these aspirations.  It is a need to strike a proper balance that makes it necessary to establish a code of ethics and standards of conduct and the disciplinary procedures to supervise the conduct of members in order to avoid a departure from the declared ideology.

 

Professional conduct refers to the conduct, character and behaviour befitting members of the profession i.e. conduct which reflects the very dignity and integrity of the profession.  Most of the rules of conduct are based on common sense and elementary principles of honesty and decency.  Conduct which goes against these rules is either professional misconduct or unprofessional conduct. 

 

Professional misconduct amounts to a disciplinary offence and is the more serious of the two and amounts into drastic action being taken against the offending advocate.  Conduct such as embezzling client’s money or failing to file court papers after being instructed.  Offences which are likely to lead to the advocate being struck from the roll, suspended from the role or fined.  Professional misconduct includes professional incompetence which is detrimental to the administration of justice and which tends to bring the profession into disrepute.

 

Unprofessional conduct is of a lesser effect and does not amount to a disciplinary offence yet it is conduct which is not approved and which is considered reprehensible.  Punishment for this if at all is generally mild and in some cases there is no punishment at all.  It covers among other things breach of etiquette is basically the breach of good manners like failing to inform a client the progress of this matter falls into this category, being rude to fellow counsel is a breach of etiquette and is unprofessional conduct.  It also covers conduct outside the profession for example it is reprehensible for advocates to keep the company of prostitutes for example or to engage in business which are not considered to be morally acceptable.  The argument or rationale is that the profession must be manned by people whose integrity is beyond reproach.

For the purpose of discussing these rules of professional conduct, they are split into a number of categories:

Advocates obligations to clients

Obligations to other advocates

Obligations to court

 

J.      OBLIGATIONS TO THE CLIENT

COMPETENCE

The objective of requiring this qualification is so as to ensure the persons admitted to the bar are academically qualified to deal with the rigours of law practice, but it does not only cover academic qualifications but goes beyond this.  One may be academically qualified but be incompetent in other respect like lack of time to devote to a client’s case resulting in substandard service to the client.  There are certain rules which are intended to avoid such an eventuality.  An advocate who is duly qualified academically and professionally and who holds himself as ready to practice is entitled to practice so long as he is not employed in another full-time occupation other than practice.  Engagement in other full-time occupations is destructive and it compromises on the advocate’s competence.

 

As a general rule a practising advocate should not carry on any other profession or business or be an active partner in or as a salaried official or servant in connection with any other profession or business.   One may not work in a financial business earning a salary or other payments.  It is permissible to be an ordinary director of a company of good standing carrying on business which is free from anything derogatory.  He should however be a Managing or Executive director of any such business as this is a full time job that robs him of time to handle clients’ affairs.  He may be chairman of a public or private company provided his duties are not of an executive nature. 

An advocate should not act directly or indirectly as any of the following;

Professional accountant; an actuary, an engineer, a surgeon, insurance broker, architect , estate agent, auctioneer, scientific consultant, land agent and an employee of any person acting in those capacities.

He should not be

1)                  Practising Doctor

2)                  Officer of Regular Army

3)                  Full-time civil servant

4)                  Legal Adviser to a company at a salary; or

5)                  Secretary to an incorporated society of professional persons at a salary.

 

The client expects that the advocate is going to handle his matter with diligence, what rules exist to guide the advocates on this issue?

In litigious matters or contentious matters the advocates should always know from the client’s instructions the court or tribunal to which the claim or action should be filed.  Whether High Court, Magistrates Court or tribunal.  They should therefore know the jurisdiction of the relevant courts whether the jurisdiction is pecuniary territorial or substantive.  Where a matter is filed before the wrong court of tribunal it is liable to be thrown out and it is a risk that the advocate faces.  This has got its own consequences.  The court may hold the advocate personally liable to pay the cost of the suit.  There is also the possibility that the case could be time barred by the time it is filed in the proper court, an advocate is likely to waste a lot of time if they file in the wrong court and expose themselves to a suit in professional negligence.

 

Please note that it is the duty of the advocate to advice clients on the cause of action i.e. does the client have a cause of action and the course that the case should take thereafter.  If there is a cause of action, then what steps ought to be taken in the matter, an advocate should advice the client.

 

K.    OBLIGATIONS IN CRIMINAL MATTERS (clients)

In criminal cases the first thing that an advocate should do upon being instructed is to secure a copy of the charge sheet immediately whether from the prosecution or from the court.  The charge sheet is the basis of the charge against an accused person and one can only get details of the offence ones client is said to have committed only after reading the charge sheet.  Very often the client does not know what the charge is.  Where possible the advocate should obtain copies of statements from the witnesses.  These are ordinarily supplied where an accused is charged with murder but in other cases one has to apply for copies of the statements. Where the case is founded on documentary proof it is wise to ask the prosecution to provide copies which should assist one in determining the sort of defence to adopt and should also assist in preparing for cross-examination of the witnesses.

 

The advocate has a duty to study the charge sheet and ensure that it meets the requirements of the law in particular the Criminal Procedure Code.  If there are technicalities that render the charge a nullity, an advocate has a duty to raise the issue with the court.   Where the offence is bailable the advocate has responsibility of asking for bail on behalf of his client.  Normally the court would admit the accused to bail as a matter of course but where there is opposition to the release of the client on bail, there is a duty to prepare adequately to oppose an objection to bail by the opposition, particularly one needs to prepare objection to bail where the prosecution are opposing on the grounds that investigations are incomplete or where the objection is that the accused is likely to interfere with witnesses.  The prosecution should swear an affidavit detailing how the accused is likely to interfere with witnesses.

 

When it comes to taking hearing dates there is an obligation that the dates be taken carefully so as to avoid a clash with the hearings of other matters.  The advocate has an obligation to take a clear hearing date when there are no other matters that may cause him to adjourn the matter especially where the accused is in custody or is unable to raise bail.  The court may in certain cases decline to grant an adjournment.

 

It is important for the advocates to receive in advance full instructions from his client, get the client story from the client, if he is in custody, go to the remand hole and sit with him and record his story or ask him if he is literate to tell his story in writing.  Seek any clarification you need before the matter comes up for hearing.  It is important for the advocate to take statements from the accused persons witnesses if the accused intends to call witnesses.

  This would assist the advocate to adequately prepare for the cross examination of the prosecution witnesses otherwise if one does not meet the client in advance one will have no material to use during cross-examination.  It also helps the advocate to determine the accused’s defence that one should put up and also the course of examination or conduct to be adopted.  Generally it will also assist the advocate to properly advise ones client.

An advocate should try as much as possible to ensure that the court records his submissions and the evidence given by the witnesses.  Some Magistrates can be very arrogant and one has to be very clever on how to approach them to make them record, a polite way of putting it to ensure they record.

In respect to mitigation, an advocate should prepare adequately and in advance, prepare for the mitigation as well as prepare the client.  Mitigation is after conviction but one must prepare the client before the verdict is out even where one feels the client will be acquitted.  An advocate must prepare the accused for any eventuality.  One must remember that mitigation will always assist the court in deciding on the proper sentence.

L.     OBLIGATIONS IN CIVIL MATTERS

Same principles will apply in civil matters, the requirement to take adequate instructions to draft proper and exhaustive pleadings that cover all aspects of the client’s case and helps one to strategise when one is fully in the picture.  It is important to take instructions in writing and write down everything that the client says.  In addition an advocate must study the client’s file and master the facts.  It should also help the advocate in putting questions to any witness if one knows their story well. 

 

The advocate should also be familiar with all the relevant statutory provisions.  If it is land dispute and it is registered under LRA 27, 28, 30, 143 that one is sure they are on safe ground.  A lot of preliminary provisions that are raised are from the provisions and an advocate has to be familiar with them to be able to deal with them.

One must know all the relevant case law which has been decided on the issue one is arguing in court.  One must be familiar with legal principles, read widely, do appropriate research and be familiar with case law.  Identify the central issues in every case; the issues raised determined evidence to be adduced and the witnesses to be called.  If the advocate is relying on case law, he should serve copies of a list of the authorities on the other party at least a day before the hearing.  This is a statutory requirement for matters before the High Court and the Court of Appeal and it is not required in lower court although one is requested to make the list available although there is no requirement.  Where the authority is not reported, the practice is that one should make a copy and avail it to the other side, if it is reported the assumption is that the other side will take the trouble to go to the library and make their own copies.

 

Advocates are advised to try and reconcile the parties before going to court, to try and reach a settlement before going to court.  The work of an advocate is not to foment quarrels but to prevent them.  The court should ideally be a last resort.  Generally the advocate should advice the client adequately on the cause of action, whether the matter can be settled out of court encourage it, a good settlement is better than a bad judgment.

 

There should be thorough preparation when the matter has to go for hearing both on the law and the facts.   Sit with the client’s witnesses early enough to guide them but one should not coach them.  It is up to the advocate to decide the techniques of examining the witnesses based on the facts that are disclosed to one.

 

M.   OBLIGATIONS IN APPEALS

With respect to Appeals, Counsel should ensure that appeals are launched in time.  For criminal cases it is 14 days and for civil cases it is 28 days and this should be properly done in accordance with the rules. 

 

An advocate should not unduly identify with a client’s thoughts i.e. don’t get personally involved with a client, one should always be professional. The client should always treat you as an advocate, never as a friend or comrade.  In negotiating, it is useful for counsel to know his opponent, what sort of persons they are if they are obstinate and difficult it helps one prepare.  One should also know the parameters of the client’s case and one must master their brief so that they can address any issue arising from the client’s case.

 

Generally the advocate should adopt an agreeable personality.  This is very useful in negotiations; emphasis is on honesty and reliability.

 

N.    SUMMARY OF OBLIGATIONS

The advocate should do the following in summary:

(i)                 Take instructions after giving client an appointment, set aside sufficient time to see the client an advocate should not be too restrictive with time, give clients sufficient time;

(ii)               Take instructions in writing – this is important for verification purposes and if need be ask the client to endorse or to sign the notes;

(iii)             Any attendance to or with client whether in court, office on phone, in the streets should be noted on the file, this is important for case history and for costing and billing purposes.  Some clients never give full instructions but piecemeal and it is important to note down everything whenever they call;

(iv)             Get the names of the client’s witnesses, their addresses, take down their testimony and get them to endorse it;

(v)               Where one is required to give a legal opinion, one should do so in writing being as clear as possible in the opinion one gives, it is always advisable to give your opinion to your client before any step is taken and make sure that the opinion is endorsed by the client before one takes action.  This ensures that one is on the safe side;

(vi)             Keep the relationship purely professional;

(vii)           Carry out instructions to the letter and where in doubt consult the client;

(viii)         Keep the client informed of the progress.  This helps in cultivating confidence;

(ix)             In drafting documents and pleadings be meticulous and scrupulous and ensure that the documents correspond with client’s instructions and are in conformity with the requirements of the relevant law.  Where amendments are necessary, consult the client;

(x)               Be familiar with the relevant law, persons involved i.e. judicial officers, advocates on the other side.  If the advocate on the other side likes to adjourn matters, then you have to be careful with that advocate.  In addition to the people be familiar with the judicial infrastructure i.e. when the file is listed and it is not in court one should know where to go to sort this out, know the culture of a particular court i.e. when they begin their hearings, it is important so that one does not waste time;

(xi)             Use modern technology in your office, clients are most probably using technology so it does not make sense it you are not and they wont know how to instruct you and use of modern technology saves time and leaves you time to apply yourself to the law and attend to your clients needs;

(xii)           Attend Court as required or as expected of an officer of the court.  Do not be late and do not absent yourself.  Convention requires that if one is going to be later they should inform the court, call the magistrate and say you will be late; if you cannot attend to the matter at all and you know this in advance, take it out of the cause list and talk to the advocate in the opposition;  where the matter is dismissed because you are not there, you may expose your client to hardship and the client can sue you for professional negligence;

(xiii)         Do not deceive your client, it is professional misconduct to lie to ones client and the reasons why advocates lie is because of failure to act diligently and due to indolence;

(xiv)         The advocate’s members of staff should act as per the rule, cover your staff, the employees should not act in breach of these rules otherwise the advocate will be vicariously liable.

 

O.    THE ADVOCATES PRACTICE RULES

These rules (subsidiary Legislation under the Advocates Act) govern the advocate’s practice in general and breach of these rules constitutes professional misconduct.

Rule 2

This rule deals with touting and advertising – advocates should not advertise their services but look at the Constitution Article 46(3).[66] This rule is inconsistent with the Constitution hence not applicable look at the case of George Okenyo and Marclus Ndegwa Njiru vs. AG and 2 others.[67]

Rule 3

Undercutting section 36

Rule 4

Sharing Profits with unqualified persons; section 37

Rule 5

Being employed by an unqualified person; section 39

Rule 6

Prohibits Partnerships between advocates and persons who are not advocates e.g. a personal injury claims advocates and a doctor etc

 

Rule 7

Deals with change of advocates and states that an advocate must not act in a matter in which he knows that another advocate had been acting previously.  If he must he should obtain the other advocate’s consent.  This is intended to protect the previous advocate in cases where his fees are not fully settled.

 

Rule 8

Deals with situations whereby, an advocate seeks advice from a colleague in respect of a certain matter.  The advocate seeking advice is personally liable to the other advocate and the cost should not be passed to the client.  If the client directly seeks the advice of another advocate without informing his lawyer, the advocate has the option of withdrawing from the matter.  Where an advocate engages a senior without the client’s consent, he should be responsible for settling the senior’s fees.  Where the senior is appointed with the consent of the client the client pays a consolidated fee where the senior or leader is entitled to two thirds of the consolidated fee.

Rule 9

An advocate should not appear in a matter where he is likely to be called as a witness.

 

Rule 10

Advocate must not coach or call coached witnesses.

 

Rule 11

An advocate should not allow himself to be described in any other manner other than advocate.  He may described as a Commissioner of Oaths if he is one or a Notary Public if he is one.

 

Rule 12

An advocate should not practice in a name which is either not his own or that of a past or present member of the firm.

Rule 13

It is not permissible in a demand note or letter to demand in addition your legal fees for sending out the demand.

Rule 14

The Law Society of Kenya has the power to waive these rules in any particular manner.

 

P.     DISPUTE RESOLUTION

The L.S.K. has always played a fundamental role in policing the discipline and professional conduct of its members. Ever since their emergence; they (law societies) in most commonwealth countries have always been self – managing.  Principally, this means that the profession itself has always been responsible for disciplining its members.

THE CURRENT MECHANISM UNDER THE ADVOCATES ACT

·           Provided for under parts X and XI  of the Advocates Act

·           Part X makes provisions for the establishment of the Complaints Commission.

·           Part XI makes provisions pertaining to discipline and consequences of breach.  Principally, it outlines the substantive provisions.

COMPLAINTS COMMISSION

The Complaints Commission is established pursuant to S.53 of the Advocates Act

·           It is comprised of such commissioners (or commissioner) as shall be appointed by the president.

·           Its principal purpose is to enquire into complaints against any advocate or firm of advocates or any member or employees thereof.

·           If a single commissioner is appointed, it must be a person who is qualified to be appointed as a High Court judge.

·           If more than one commissioner is appointed, it has to have one such, person as a member (the commission).

·           Pursuant to S.53 (3), the commission is empowered to require any person whom it considers necessary for the performance of its duties to assist it. Section 53(3A) makes it an offence for any person to, without a lawful excuse fail or refuse to assist the commission when required to do so.

Powers of the Commission when Dispensing Its Duties[68]

               i.               If in its view there is no substance in the complaint, it can reject it forthwith.

             ii.               If in its view there is substance in the complaint, it can refer the matter to the Disciplinary Committee, but only if the complaint reveals a Disciplinary offence.

           iii.               If in its view there is substance but it does not amount to a Disciplinary Offence, it can notify the advocate concerned and call upon him to respond within a reasonable period specified.

           iv.               If the reasonable period specified in Para. (iii) Above expires, the commission is entitled to investigate the matter.  In this regard, the commission may:-

a)         Call witnesses.

b)        Require production of documents.

c)         Examine witnesses on oath.

d)        Take any step generally it may consider proper.

e)         After Hearing of any submissions from either party may make an order or award in accordance with S.53 as it deems fit, just and proper.

v.               If it appears to the commission that though there is substance in the complaint but it discloses no Disciplinary Offence, which can be addressed by the Disciplinary Committee, and the Commission is further of the view that it cannot competently deal with the matter, and that the proper remedy is only available in the courts it shall so advise the complainant.

The Commission is also empowered to:

a)         In all cases which do not appear to the Commission to be of serious or aggravated nature, the commission shall endeavour to promote reconciliation and to facilitate an amicable settlement between the parties to the complaint.

b)        Award the complainant reimbursement of expenses not exceeding Kshs.100, 000/= if the commissioner considers that the complainant has suffered loss/damage by reason of the advocate’s conduct.  However the conduct in question should not amount to a Disciplinary Offence.

c)         To issue a warrant for the levy of the amount of any sum ordered to be paid by virtue of S.53 on the immovable property and movable property of the person/firm by whom the compensation is ordered to be paid by distress and sale under warrant.

 

By a myriad of amendments, further changes were introduced to attempt to enhance the efficiency of the disciplinary process under the Advocates Act. Under the new subsection (6A) where the Commission makes an order of reimbursement the same shall be registered with the High Court and becomes enforceable through ordinary legal execution process.  Additionally, subsection (6B) empowers the Commission to order the surrender of client’s funds and property in the possession of an advocate but which is not disputed by the advocate. The Commission while empowered to investigate the accounts of an advocate against whom a complaint is made may also require such advocate to prepare a detailed fee note in a matter in which a complaint has been made against him.

 

Pursuant to section 53(6C) an advocate against whom an order is made under this section and who has not appealed against such order under section 62 may apply to the Disciplinary Committee for a review of the Order. Pursuant to section 53(6E) The Commission may investigate the accounts of an advocate against whom a complaint has been made and for that purpose may order such advocate to produce all relevant books and documents to the Commission or to an accountant engaged before the Commission in that behalf.

Pursuant to Section 53(8) any party who is aggrieved by a decision or order of the Commission is at liberty to appeal to the High Court.  The decision of the High Court in such appeal shall be final.

Pursuant to S.53A, the President is empowered to determine the remuneration of the commissioners by whichever way, which shall be paid out of moneys provided by parliament.

Under S.54, the Attorney General is empowered to appoint /provide any other officers the commission may require.

The rules and procedure to be adopted by the Commission in the discharge of its rules shall be made by the Attorney General pursuant to S.54 (3).

DISCIPLINARY COMMITTEE

Established pursuant to the provisions of S.57 of the Advocates Act2

It is comprised of;

(a) The Attorney-General;

(b) The Solicitor-General or a person deputed by the Attorney-General; and

(c) six advocates (other than the chairman, vice-chairman or secretary of the Society), of not less than ten years standing, one of whom shall be an advocate who does not ordinarily practise in Nairobi, all of whom shall be elected and shall hold office for three years and be eligible for re-election.

 

Pursuant to S.55, all advocates and every other person entitled to act as an advocate shall be an officer of the court and shall be subject to the jurisdiction of the Disciplinary Committee.

 

Under S.56, the powers of the Chief Justice and of any of the Judges of the court to deal with misconduct/and/ or offences by an advocate cannot be superseded, lessened or interfered with, even by the activities of the Complaints Commission or of the Disciplinary Committee.

 

Pursuant to S.58, the committee may act as a tribunal of either 3 or 5 members and may require the chairman or vice chairman of the society or both to sit as an additional member(s) for the purpose of any complaint where on grounds of availability/ convenience, a tribunal would not otherwise be available.

 

The Attorney General/Solicitor General chairs the committee and presides over all meetings.  Alternatively in the absence of either of them, a person deputed by the A.G. under S.57 (1) (b) shall be the chairman of that meeting.

 

In the alternative, the tribunal is entitled to appoint a chairman from the members present if the A.G., the S.G. or the deputed person is absent.

 

Pursuant to S.58 (5), all proceedings before the committee shall be deemed for the purposes of chapter XI of the Penal Code, Cap 63, to be judicial proceedings and for purposes of the Evidence Act Cap 80, to be legal proceedings. (Chapter XI Cap 63 deals with offences relating to the administration of justice which essentially means acts or omissions tending to sabotage the process of judicial tribunals, courts and offices. Under such circumstances, the disciplinary Committee is elevated to a level of a court and the rules of evidence under Cap 80 apply in it as well.

 

Under S.58 (6) the committee is empowered to make its own rules of procedure for determining and hearing of any applications and complaints.

 

S.60 thereof makes provisions pertaining to complaints against advocates.

·           Such a complaint must be for professional misconduct, which expression is said to include disgraceful or dishonourable conduct incompatible with the status of an advocate.

·           Any person is allowed to make a complaint against an advocate to the committee.

·           Such a complaint must be made by way of an affidavit by the complainant setting out the allegations of professional misconduct.

·           The complaint must be accompanied by such fee as may be prescribed by rules made pursuant to S.58 (6).

 

Where a complaint is referred to the committee by the commission, the committee must:

1. Give the advocate an opportunity to appear before it.
2. Furnish the advocate with a copy of the complaint and any supporting evidence.
3. Give him an opportunity to inspect any relevant documents at least 7 days before the hearing date.

 

If the complaint does not disclose any prima facie case of professional misconduct, the committee is empowered to discuss the complaint at any stage of the proceedings. Further, after hearing the complaint, the committee may also hear the concerned advocate and may after considering any adduced evidence; the committee may dismiss the complaint.

 

However, if a case of professional misconduct is established, the committee may:

i)Admonish the advocate.

ii) Suspend the advocate for a term not exceeding 5years.

iii) Strike his name off the roll of advocates.

iv) Levy a fine not exceeding Kshs.1, 000,000/= or such a combination of the above orders.

v) Order that such advocate pays to the aggrieved person compensation or reimbursement not exceeding five million shillings. The fine was enhances from Kshs. 50,000/= vide Act No. 2 of 2002, which also introduced the fifth option.

 

Pursuant to S.60 (5) the committee may make orders as to the payment of costs, witness expenses and the committee’s expenses.

Seemingly, a person may complain to the Committee on account of costs in which case the Committee may upon request of the complainant order such advocate to prepare a fee note out of which it may make a decision on the appropriate fee chargeable and where the advocate has filed a bill of costs, the Committee may want for it to be taxed.

 Eventually, the Committee is empowered to make orders regulating the costs claimed and fees payable to an advocate in the same way as a taxing officer of the Court is allowed to. Where such an order is made, it becomes enforceable as a decree of the Court,, provided no appeal has been filed against it under section 62(1).

The amendments additionally seek to clothe the Disciplinary Committee with power to levy enhanced penalties and carry out its functions with more efficiency.

 

Section 60A is a new section that sets out the procedure for the hearing of complaints. It has the power to determine whether or not the services of an advocate to a client are reasonably proper and on that basis recommended the amount of fees that the advocate would be entitled to. Thus the Committee may ;

a)      Determine costs payable,

b)      Direct the advocate or firm of advocates to rectify a mistake in favour of a client at their own expense,

c)      Take such other action as may be in the client’s interest.

Under S.60 (12), the committee may make any orders as to levying of the amount ordered to be paid on any property of the advocate by distress and sale under warrant.

Pursuant to S.62, any advocate who is aggrieved by an order of the committee may appeal against it to the High Court within 14 days.

·           Both the advocate and the council may make submissions during the hearing of the appeal.

·           An appeal cannot operate as a stay or a suspension of any order appealed against.

·           Under S.64, the court may:

a)         Remit the matter to the committee for reconsideration.

b)        Confirm, set aside, or vary any order of the committee or substitute therefore such order as it deems fit.

c)         Make any order as to costs or otherwise in relation to the appeal.

 

The powers of the High Court must, pursuant to S.65, be exercised by two judges in the least.

Under S.67, any advocate aggrieved by the decision of the High Court may appeal to the Court of Appeal though the appeal shall not operate as stay or suspension of the court orders.

 

Saving

S.68 of the Advocates Act describes a final order of the Disciplinary Committee.  It is an order which:-

a)         Has not been the subject of any appeal

b)        Though appealed against to the High Court, no appeal has been preferred thereafter to the Court of Appeal.

Under S.69 (1) the L.S.K. must be informed of any ongoing disciplinary proceedings against an advocate.  Further, the final order of the committee must be published in the Kenya Gazette (69(2)). However, publication in the Kenya Gazette may not reach a wider audience and as such, At No. 2 of 2002 has added a provision that allows the LSK to publish a similar notice in at least one daily newspaper of national circulation. This is done with a view to inform the public of the fact that an advocate has been struck off the roll; and the consequential effects thereof.

Restoration to the Roll

Prior to the amendments, any advocate who has been struck off the Roll could be restored by the Chief Justice in his own discretion either on his own motion or upon recommendation of the committee. However, under the new section 71, this function is exercised by the Chief Justice only upon the recommendation of the Disciplinary Committee.

Usually, the council has a right of audience in these proceedings, and it usually consults the Disciplinary Committee i.e. to ensure that it has no objections.

The struck off advocate’s behaviour (during the time his name is not on the roll ) will usually play a crucial role on the determination of the question as to whether the advocate should be restored i.e. in case of theft, has there been any form of Restitution?

All the same, once one has been struck off the roll, the chances of one being restored to the roll even after 5 years are virtually nil. However, the Chief Justice is empowered pursuant to S.71 to restore or reinstate the struck off advocate but only upon the recommendation of the committee. Now while provision is made for advertisement of the advocate whose name has been struck off, no corresponding publicity is envisioned for one who has restored to the Roll.

Q.    LIMITATIONS

1.         The members of both the Complaints Commission and the Disciplinary Committee are appointed by the President.

Naturally, they are likely to owe allegiance to the one who has appointed them (their benefactor).

Accordingly, they may also be biased towards the will and whims of the government.  This state of affairs renders the autonomy and independence of these two bodies questionable.

It is also beyond doubt that they may be used as a tool against anti – establishment lawyers.

2.         Delay: the proceedings of both the commission and the committee take far too long.

There is an obvious need for the establishment of other such like bodies in the provinces.

3.         Complexity:  the process is quite complicated, thus for the complainants who do not understand the law, those who cannot afford to hire an advocate to represent them (assuming there are any who are willing) may find themselves unable to comprehend / nor follow the proceedings.

There’s need to make the procedure less onerous.

4.         Others: the commission and the committee are clearly not well structured and staffed.  Further, the committee does not sit on a permanent basis, accordingly causing a backlog of undetermined complaints.

 

While the new amendments set out to increase efficiency in the advocates disciplinary process, criticisms have been leveled against them on the ground that they have given too much power to the complaints commission at the expense of the disciplinary committee and even the courts. They have been said to infringe the independence of the bar in various ways. It is said that the new role and powers of the commission are contradictory to its role of investigation, conciliation and amicable resolution of disputes. It usurps certain of the functions of the disciplinary committee such as making decisions on past incidences of professional misconduct. As regards the disciplinary committee, the introduction of non-lawyers into the body negates the principal that professionals should be self-regulating. The power of both these bodies to assess fees payable to an advocate has the effect of interfering with the advocate/client relationship.

Caution:

Being struck off is the ultimate penalty, and is quite a harsh penalty for the advocate concerned.  Thus it is imperative that the committee should tread with care when contemplating striking off advocates.

Further, where an advocate has misapplied and/or converted client money or property, striking off of the concerned advocate is clearly not a remedy for the unfortunate client.  The committee should be empowered to order Restitution.

R.    ASSESSING THE NEED FOR THE COMMISSION AND THE COMMITTEE

Why is it necessary to have rules of discipline and bodies to enforce them?

                    i.               In order to uphold the standards of professional conduct.

                  ii.               To ensure uniformity both in standards as well as performance.

                iii.               In order to maintain public confidence in the profession and public goodwill.

                iv.               In order to correct and control cases of misconduct and bad performance.

                  v.               To act as a deterrent.

                vi.               To foster and enhance the pursuit of high quality standards of performance by advocates.

              vii.               To comply with statutory requirements.

            viii.               To assist the court in maintaining order and discipline amongst its officers.

                ix.               In order to focus the profession to pursue perfection, or something close to it.

Observation:

Currently, the profession is reeling from an endemic onslaught of public outcry and vicious accusations. Principally, the dissatisfaction of the public with the profession is due to the emergence of a breed of young lawyers who deserve to be labeled as “sharks”.

They have no remorse, no qualms and they discarded professional ethics and responsibility rules a long time ago. Their trail is littered with devastated clients, a trail evidenced by the recent A.K.I – L.S.K. controversy.

Unless something is done urgently to curb this malaise, the future of the Kenyan legal profession is quite bleak.

The sentiments of Kuloba J. in Apollo Insurance Co. v. Muthanwa & Co. Advocates succinctly outline just how far the legal profession has degenerated in terms of discipline and conduct.

“to – day, the hungry and unscrupulous advocates are not “few”; they are not merely “hungry and unscrupulous”, they triple satanic depravity [sic] with wicked greed and ever increasing ethical decadence.  Their number grows by the day, the few occasions of “serious abuse” now comes with cruel ravishment.  The wrongs done are in a litany which stretches like Banquo’s line of Kings, to the crack of doom”.

Clearly, a beautiful summary of the sorry state of affairs with regard to the discipline of advocates in Kenya.

S.      PROPOSALS FOR REFORM

In the year 2000 the Attorney General published statute law (Miscellaneous amendments) bill in which a wide variety of changes were proposed on the arena of discipline of advocates.  More stringent measures to curls indiscipline were proposed.  However on 25^th June, 2001, the Statute Law (Miscellaneous Amendments) Bill 2001 was published but ideally with similar proposals.  Generally the proposed amendment seeks to give more powers to the complaints commission and the disciplinary committee in a way in which some have criticised as being intrusive in the independence of the legal profession.  See for example Ojienda T. O. in his paper “Exploring New Horizons in Managing Complaints against Advocates, Towards a Review of the Existing Regime of Law”.  Presented at a workshop on Honesty and Excellence in the Provision of Legal Services, 14 – 15^th May, 2001, Whitesands Hotel Mombasa.

 

THE END