INTRODUCTION
1.1
THE CAB RANK RULE:
The role of a lawyer in the
dispensation of justice is of paramount importance. The cab rank rule dictates
that an advocate has a duty to provide legal representation, where workload and
expertise permit.[1]
A lawyer has the duty to accept any work in a field in which he professes
himself competent to practice, at a court which he normally appears, and at
usual rates.[2]
It stems from the legal principle of
the presumption of innocence and the right to legal representation, rights of
which are reiterated in Article 50[3]
of the Constitution. In the absence of such a rule, it might be difficult
for an unpopular person to get legal representation. In Powell v Alabama[4],
nine illiterate black men were charged with the offence of rape of two white
girls. A judge appointed an advocate from the bar to represent the accused but
he took up the case with reluctance and did not give the accused time to
prepare for their case. The accused were convicted and on appeal the Supreme
Court quashed their conviction on the grounds
that they did not have adequate time to prepare for their defense. (For
instance in Kenya, Philip Onyancha, a serial killer was shunned by lawyers who
did not want to represent him. Paul Muite, Senior Counsel was criticized by
members of the public when he took up the matter.)
The supreme court of India in A.S
Mohamed Rafi v State of Tamil Nadu Rep.By Hom Dept & Others[5],
went further to say that the cab rank rule is the cornerstone of the legal
profession, and where an advocate because of his moral convictions or personal
beliefs refuses to take a brief, he is stepping into the role of a judge.[6]
Every person, ‘no matter however wicked, depraved, vile, degenerate,
perverted, loathsome, execrable, viscous, or repulsive he may be regarded as
society has a right to be defended in a court of law and correspondingly it is
the duty of the lawyer to defend him.’[7]
It should be noted therefore that
legal representation does not mean that an advocate has endorsed the actions of
his client. A lawyer does not need to feel “personally committed” to her
client’s case to be able to provide legal services.[8]
RELEVANCE OF THE CAB RANK RULE:
The rule plays a pivotal role in the
administration of justice from an early stage Lord Irvine was able to identify
that,
“The Cab rank rule is one of the
glories of the bar. It underscores that every member of the bar is obliged,
without fear or favor, to represent clients who offer themselves regardless of
how unpopular they may be in the community or elsewhere”
The cab rank rule is important
because
i.
It ensures that even the most unpopular and
anti-social are entitled to effective and independent legal representation by a
lawyer.
ii.
The rule operates in the public interest and in the
interest of justice.
iii.
It protects lawyers who takes on unpopular cases and
reassures the public that they are entitled to representation even if their
case is controversial in nature.
iv.
The rule seems to reinforce the idea that clients
rather than lawyers are “in charge” in the relationship and not unrelated to
discourage in various ways the entrepreneurial approach to legal practice so
typical of the legal system.
Like
most legal rules however, it is subject to exceptions which will be discussed
below:
·
A lawyer may refuse to take a case where he feels he lacks the
sufficient experience or competence to handle the matter.
·
If having regard to his other professional commitments he will not have
time to take the brief.
· Where a
situation of conflict of interest would arise.
· If he is not
going to be properly paid or paid at all.
· If the work
involved is more than a lawyer would undertake in a year.
· Where the
potential liability for professional negligence in respect of the case would
exceed the level of professional indemnity which is reasonably available in the
market for him to accept.
2.
THE KENYAN POSITION ON THE CAB RANK RULE:
The cab-rank
rule is not well developed and entrenched in the Kenyan legal system. This is
partly because most Kenyan lawyers are jacks of all trades and a master of none
i.e. they pursue all types of cases and do not specialize.[9]
That said there are some general requirements by the Law Society of Kenya
regarding professional work.
a)
As soon as is practical, after receipt of instructions,
a lawyer should satisfy himself that there is any reason why he ought not to
accept it.
b)
A lawyer is not considered to have accepted client’s
instructions unless he has had opportunity to consider it and has expressly
accepted it.
Generally, a lawyer should exercise
due diligence and avoid engaging in conduct which is:
Ø Dishonest or
otherwise illegal;
Ø prejudicial
to the administration of justice; or
Ø Likely to
diminish public confidence in the legal profession.
Professor Tom Ojienda in “Professional
Ethics: A Kenyan perspective” expounds on the cab rank rule, he states
that an advocate is largely obliged to take instructions from any client, he
should not discriminate on age, color, creed, gender……[10]
He goes further to say that an advocate may decline instructions where,
i.
He does not have enough time.
ii.
Where there is conflict of interest.
iii.
His client wants to take certain action purely to
injure someone else.
iv.
The instructions given are not clear.
v.
A client does not want to pay fees.
We
shall turn our focus specifically the matter of conflict of interest.
3.
CONFLICT OF INTEREST:
Conflict of interest is, as
aforementioned, an exception to the cab rank rule. The concept of conflict of
interest stems from the general assertion that no man can serve two servants. A
conflict of interest arises where a lawyer has a private or personal interest
in a matter sufficient to at least appear to influence the objective of his
duties.[11]Thus
where there is a conflict of interest a lawyer has competing interests or
loyalties that are or potentially adverse with each other and may cloud his
objectivity.[12]
The international Bar Association has codified the principle in the 1988
International Code of Ethics stating that:
‘Lawyers should never represent
conflicting interests in litigation. In non-litigation matters, lawyers should
do so only after having disclosed all conflicts or possible conflicts of
interest to all parties. This rule also applies to lawyers in a firm.’ [13]
Where a lawyer is convinced that
conflict of interest arises or is likely to arise, he should disqualify
himself, similarly where a lawyer is convinced that a conflict of interest
would arise on the part of counsel on the other side, he should make an
application to the court to have that counsel disqualified.[14]
4.
BROAD CATEGORIES WHERE CONFLICT OF INTEREST MAY ARISE
Conflict
of interest generally arises in four ways,
i.
Where a lawyers personal interests and the interests
of a client are in conflict:
A lawyer
should avoid taking a brief where his personal interests would be in
competition with that of his client. For example where litigations involve
close relatives of the lawyer. The emotional attachment and the personal
interest of the advocate would almost certainly cloud objectivity. Similarly,
it would be imprudent for a lawyer to have a sexual relationship with his
client; such a relationship will almost always affect the rational thinking of
an advocate. Another example would be where an advocate enters into business
transactions with a client or where a lawyer is a director in a company, such
an advocate cannot accept a brief to represent that same company. Electoral
Commission of Kenya Blasto[15],
in this particular case the chairman of the Electrol Commission of Kenya, who
was also an advocate of the High Court, was barred from representing ECK in a
suit. It was held there would be a conflict of interests as this could
embarrass the case at a later stage.
ii.
Where a lawyer is representing two clients
simultaneously:
Where an
advocate is representing two advocates simultaneously, conflict of interest
might arise and especially, but not exclusively, in matters of litigation. This
may occur when an advocate in furthering the case of one client, would be
likely to reveal information which would hurt the case of the other client. For
example, in land matters a lawyer should refrain from acting for both a vendor
and purchaser in the case of a sale, or mortgagor/charger and mortgagee/charge
in the case of a mortgage/charge. King Woolen Mills v Kaplan and Stratton
Advocates.[16]
This is because the nature of relationship between a client and an advocate
is essentially fiduciary. This position is reiterated in the Advocate
Practicing Rules of 1966.
A broader
perspective of this is in the case of a law firm. A conflict of interest may
arise where one advocate in the same firm represents an opposing party in a
case where a member of the same firm is representing the other.
iii. In cases of Successive Representation:
This occurs
when an advocate loyalty to a present client is in conflict with his loyalty to
a former client. An advocate may be disqualified where there is likely to be a
breach of confidential information especially where the interests of the former
and current client are adverse or have the potential to be. In Simba
Hills Farm Limited v Sultan Hasham Llaji & 5 others:[17]
An application was made for the disqualification of barring advocates from
conducting that suit on the ground that the advocate for the plaintiff had
previously acted for the 3rd and 4th defendants in a
previous suit. The court rightly held that there was a conflict of interest and
the firm could not continue to act for the plaintiff as it was possible that as
former counsel for the said defendants, he could have come across information
that would be prejudicial to the defendants.
iv.
Where the lawyer owes a duty to a third party:
Where a
lawyer owes a duty to a third party and the rights of those third parties are
adverse to those of a lawyer’s client, it would be imperative for a lawyer to
disqualify himself. It would also be a valid ground for advocate on the opposing
side to apply for disqualification. In Francis Mugo &
22 others v James Bress Muthee & 3 others,[18]
the firm was disqualified from conducting the suit because the defendant had
intended to call an advocate from that firm as a witness. Rule 9 of the
Advocate Practicing Rules states that where an advocate believes that he will
be called as a witness in a matter he should not appear before a court
presiding over the same matter.
Similarly in Delphis
Bank Limited v Channah Singh Chatthe and 6 others[19]
The court held that “The right to legal representation or advocate
particularly in civil suit may be put to serious test if there is a conflict of
interest which may endanger the equally hallowed principle of confidentiality
in advocate-client fiduciary relationships or where the advocate would double
up as a witness. There is otherwise no general rule that an advocate cannot act
for one party in a matter and then and act for opposing party in subsequent
litigation. The test (emphasis not mine) which has been laid down in
authorities is whether real mischief or real prejudice will in all human
probability result.”
5.
CONFLICT
OF INTEREST IN DEPTH
I.
Advocates Practicing Rules 1996
Highlights
some of the cases when an advocate may not represent a client in a suit.
According to the rules an advocate cannot represent a client in relation to
transactions relating to land where:
i.
In case of a sale, for both the vendor
and the purchaser.
ii.
In case of a lease, for both the
lessor and the lessee.
iii. In case of a mortgage/charge, for both the mortgagor/chargor and the mortgagee/chargee.
II.
Litigations involving relatives such
as a husband and wife in a divorce case or also in a case involving a close
family member.
III.
Simultaneous representation:
Which is when one advocate represents two clients who are
adversaries in a case.
IV.
An advocate representing two clients
in different cases and arguing a legal position in one case that might
potentially have negative consequences in the other clients’ case pending in
court.
V.
Successive representation:
Occurs
when an advocate represents a client in a matter which may be adverse to a
former client. An advocate may be disqualified when there is evidence of
likelihood of breach of confidential information. This would occur especially
where the interests of the former and the current client are really and truly
adverse in nature and if the past and the current matters are closely related
in some way.
In Simba Hills Farm Limited v Sultan Hasham
Llaji & 5 others:
An application was made for the disqualification of barring
advocates from conducting that suit on the ground that the advocate for the
plaintiff had previously acted for the 3rd and 4th
defendants in a previous suit. The court rightly held that there was a conflict
of interest and the firm could not continue to act for the plaintiff as it was
possible that as former counsel for the said defendants, he could have come
across information that would be prejudicial to the defendants.
King Woolen Mills v Kaplan and Stratton Advocates.
Held:
the fiduciary relationship created by the retainer between the 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 the clients consent. That fiduciary relationship exists even after
conclusion of the matter for which the retainer was created.
In
that case, the court disqualified the firm of advocates from continuing to act
against its former client.
See also Francis Mugo & 22 others vs. James
Bress Muthee & 3 others (2005) eKLR
VI.
Expected witness:
Where
an advocate maybe called as a witness in a case, the he cannot act for that
client in the same matter. This is done so as to protect the interest of the
client because of the probability that the testimony could harm his clients
case.
Francis Mugo & 22 others vs. James
Bress Muthee & 3 others (2005) eKLR
The firm was disqualified from conducting the suit
because the defendant had intended to call an advocate from that firm as a
witness.
Rule 9 of the Advocate Practicing Rules states that
where an advocate believes that he will be called as a witness in a matter he
should not appear before a court presiding over the same matter.
Delphis Bank Limited v Channah Singh Chatthe and 6
others
The court held that “The right to legal
representation or advocate particularly in civil suit may be put to serious
test if there is a conflict of interest which may endanger the equally hallowed
principle of confidentiality in advocate-client fiduciary relationships or
where the advocate would double up as a witness. There is otherwise no general
rule that an advocate cannot act for one party in a matter and then and act for
opposing party in subsequent litigation. The test (emphasis not mine)
which has been laid down in authorities is whether real mischief or real
prejudice will in all human probability result.”
VII.
Advocate enters into business with a client.
E.g your client selling you his piece of land.
VIII.
Law firm conflicts:
Law
firms or other advocates with the same firm can also have conflict of
interests. For example where an attorney in the same firm represents an
opposing party in a case where a member of the firm is representing the other.
IX.
An advocate representing a client in a
civil dispute while accepting fees from litigants who have opposing point of
views.
X.
In the case of an advocate should not
accept instructions to act for the company.
XI.
In the case where an advocate who is a
member of a county government executive committee to act for a client who is
against the county government.
Further
a minister cannot act on behalf of a ministry or the government. An advocate
who is a commissioner of any commission or a member of any tribunal may not
appear in court on behalf of the same commission/tribunal.
Electoral
Commission of Kenya Blasto
In this
particular case the chairman of the Electrol Commission of Kenya (the late
Samuel Kivuitu), who was also an advocate of the High Court, was barred from
representing ECK in a suit. It was held there would be a conflict of interests
as this could embarrass the case at a later stage.
6.
Disqualification:
The proper way
of applying for a disqualification is through a notice of motion. One may
contrast the case of Strathmore Research and Consulting Centre v Paul
Maina Gacaria [20]
where counsel applied for a disqualification of the opposing counsel
rightly through a notice of motion with Charles Gitonga Kariuki v Akulei
Farmers Company Limited[21]
where counsel brought a similar application through a preliminary
objection. The objection was thrown out
on the obvious fact that a preliminary objection can only be brought on a point
of law.
The onus is on the person alleging conflict of interest as held in the Gitonga case supra. An applicant is required to establish and present the court with evidence that would persuade the court to reach a conclusion that there could be a conflict of interest. Further in Kiambu Service Store v Mbu-i-Kamiti Farmers & 3 others,[22] it was held that the court should be told the truth and be acquainted with the relevant facts that would lead to a conflict of interest.
7.
Appraisal of the concept of Conflict
of Interest:
The right to legal representation is a right protected by the Constitution,[23] and every person is entitled to it. Even where a party alleges conflict of interest the onus lies on them to prove it and they should even go further to prove that real prejudice may be caused. It therefore remains that there is no general duty for an advocate not to act because there may be conflict of interest.[24]
[1] ‘Standing for Justice:
The Lawyers role in the Client Selection Process ‘Earl A Chernieck and Shelby Z
C Austin.
[2] http://en.wikipedia.org/wiki/Cab-rank_rule.
[3] Article 50 (2)a, provides
for the presumption of innocence, article 2(g) provides for the right to choose
and be represented by an advocate, and
to be informed of this right promptly. Similarly, article 2(h) provides the
right to be provided with an advocate by the State and at state expense, if
substantial injustice would otherwise result, and to be informed of this right
promptly.
[4] 287 US 45 1932
[5] Criminal Appeal No.2310 of
2010.
[6] Ibid.
[7] Ibid.
[8] Rondell v Worsely [1967]3
ALL ER 993 at 1029; Stropincky v Nathonson 19M.D.L.R
[9] ‘Professional Ethics: A
Kenyan Perspective ‘ Professor Tom Ojienda and Katarina Juma.
[10] Ibid., Note 9.
[11] ‘Lawyers conflict of
interest’ Ramone Mullerat.
[12] Ibid., Note 9.
[13] Rule 16 of the 1988
International Code of Ethics.
[14] Application made through
Notice of Motion.
[15] Civil Appeal No. 71 of
1988
[16] (1994)EA 244 at 250
[17] (2006) eKLR
[18] (2005) eKLR
[19] Civil Appeal 136/2005
[20] 2012 eKLR
[21] 2007 eKLR
[22] Civil Suit 546/1998
[23] Ibid.,n3
[24] Ibid.,9
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