Tuesday, May 10, 2022

CAB RANK RULE

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

QUALITIES OF A GOOD TRIAL LAWYER

QUALITIES OF A GOOD TRIAL LAWYER

Definition-

A trial lawyer is an individual of the legal profession who assists his clients to adjudicate their matter before a court of law.

Despite our best efforts it was not possible to get a Black’s Law Dictionary definition. However, the Free Dictionary, whose credibility we are at pains to verify but which verification we are yet to acquire at the moment, offers a definition:

A trial lawyer is a lawyer who specializes in defending clients before a court of law.

It further defines a lawyer as:

“A professional person authorized to practice law; conduct lawsuits or gives legal advice. “

Black’s Law Dictionary defines a lawyer as:

 "A person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law”.

A trial lawyer can therefore be defined as:-

A person learned in the law who practices law and adjudicates their clients’ matters before a court of law.

Qualities

1.     Professionalism-

·       time management

o   A counsel should arrive before the scheduled time in order to save the Court’s time and also because this shows confidence and preparedness.

o   It also passes an image of seriousness with client’s case which may have an impact on the outcome of the case.

o   Time management also involves filing of document in time and bringing in witnesses to Court in time.

·       Maintain the dignity of the profession

o   If judge is already in Court, one should stand, bow respectfully to judge from the doorway before proceeding to seat

o   This is through his conduct and includes observing the decorum that is expected of a legal professional. For example, a trial lawyer should only address the court with permission of court or when required to do so.

o   The dignity of the profession would suggest that the lawyer should observe Court etiquette and act as a professional.

o   Per section 4 of the LSK Act, one of objects for which the Law Society of Kenya is established is to maintain and improve the standards of conduct and learning of the legal profession in Kenya. The LSK has come up with the LSK Digest on Professional Conduct and Etiquette pursuant to this power.

o   Section 81(1) of the LSK Act empowers the council of the society, with the approval of CJ to make rules with regard to the professional practice, conduct and discipline of advocates

·       Should aim to win client’s case but not at all costs.

o   He should always keep in mind that he is not a hired gun and that he owes duties as an officer of the court

o   At the same time, the trial lawyer should zealously prosecute the clients cause but within the bounds of the law, and ethics

 

·       Dress accordingly

o   For example adhere to the Advocates Dress Code released this year.

o   The LSK is mandated under section 4 of the Law Society of Kenya Act as above and this section read together with section 81(1) and section 27 of the LSK Act gives the Society power to make delegated legislation and is the basis on which the LSK makes/made the Advocates dress code revised in January 2013.

 

·       Confidentiality :

o   Information that a trial lawyer obtains about his clients' affairs may be confidential, and must not be used for the benefit of persons not authorized by the client.

o   Its source is a combination of the law of contract and equity arising from the distinctive relationship between lawyer and client.

o    The lawyer is an agent of the client under the law of agency. In contract, the terms encapsulated in the retainer agreement give rise to this duty.

o   Further, equity prohibits unauthorized use or disclosure of confidential information.

o   In Kenya, sections 135, 136 and 137 of the Evidence Act provide protection for information that is made available to a lawyer during the course of interactions with a client. Such information is subject to legal privilege.

o   Rule 20 of the LSK Digest also provides further guidance on the topic with regard to disclosure to the Police and the Tax authorities.

 

2.     Analytical skills and Issue spotting-

·       Ability to identify the issues from the facts

·       Should have practical judgment

o   A trial lawyer should be able to identify the strong points in case along with the weak points.

o   This way, the lawyer will be able to preempt the opposing sides’ arguments and find the most effective ways to deal with them beforehand

·       The trial lawyer should possess the ability to find the law and use appropriate case law after identifying the issues

·       The trial lawyer should exercise diligence and thoroughness when finding case law. A single decided case can make a huge difference in a case and so if the trial lawyer misses that particular case that could have serious ramifications for the client.

·       When analyzing the facts should be able to identify different angles to argue the matter in the court

3.      Excellent Negotiator-

·       A trial lawyer in any situation needs to explore all potential avenues for resolving disputes, including methods which do not involve litigation.

·       The lawyer should have the ability to settle matters out of court such as cash settlements for civil matters and plea bargains for criminal matters.

·       Negotiations should always aim at getting the best result for the client

 

4.      Credibility-

·       A good trial lawyer should first and foremost be honest to his client and then to the opposing counsel

·       Should be honest with the client concerning the case during trial whether positive or negative.

·       On the same note before taking up the case the advocate should be honest about the case to the client on whether their chances of winning.

·       It is the duty of an advocate to be honest to the court as well and thus should not present false documents etc.

·       The trial lawyer should maintain the implicit trust that exists between advocates and the Court.

·       A trial lawyer is not a mere agent because unlike an agent who has no moral and ethical obligations to anyone but his principal, the lawyer has ethical and moral obligations to a multiplicity of stakeholders.

 

5.     Excellent Legal Writing and Legal Research Skills -

·       A good trial lawyer should be have the ability to write creative and persuasive legal arguments

o   Legal writing is not an isolated skill, but an integrated part of the well-recognized task of learning to think like a lawyer and so the good trial lawyer must first and foremost think like a lawyer.

·       The lawyer should be able to draft documents necessary for court litigation.

·       Research skills

o   The lawyer should carry out extensive research into a case before taking it up and at all stages of the litigation thereafter

o   The trial lawyer should possess strong investigative skills

·       The trial lawyer should be organized

o   They should be able to organize the material appropriately

o   They should be able to draft and file the necessary documents in an organized and well thought out manner

6.     Sincerity

·       Should believe, or at least appear to the Court to believe, in the client’s case 100% and defend it with zeal

·       Should be willing to handle clients matters with the attention that the case demands

·       The trial lawyer should be willing to go beyond the instructions issued by the client in a bid to protect the client’s interests

 

7.     Consistency and Reliability-

·       A trial lawyer should build reliability by first always keeping the client up to date with progress of the case

·       They should do so with consistency and develop a relationship of trust with the client

·       It is important for the purposes of building a good reputation for a trial lawyer to avoid dipping his hands into the client’s funds

·       A trial lawyer should always be dependable when conducting his obligations to the client for instance not fail to make an appearance in court

 

8.     Perseverance and Persistence-

·       A good trial lawyer should be able to fight notwithstanding the difficulties experienced in the case

·       He should be willing to follow the client’s matter to its logical conclusion

·       He should be able to handle any bumps on the road

 

9.     Creative

·       Should be able to make compelling arguments in Court both oral and written

·       Should have a command for story telling as Shakespeare said ‘all the world is a stage and we are mere players’

·       Be able to make judge doubt opposing counsel submissions with his sharp thinking and creativity

10.  Confidence

·       The trial lawyer needs to be convincing when presenting matter before the court

·       It is also important that the lawyer is composed when put on the spot

·       The trial lawyer should possess excellent oratory skills-

o   This implies that the lawyer should possess a good command of the official languages: English and Kiswahili

o   The lawyer should also be audible in court

·        

11.  Interpersonal Skills-

·       Should be able to read the psychology of the court as well as that of the client and opposing counsel and act accordingly

·       The trial lawyer should act in a civil manner regardless of the ill feelings that their clients may have towards other people

o   He should be able to disagree without being disagreeable. The lawyer need not result to antagonistic or acrimonious behavior.

o   Whether orally or in writing, vulgar language, disparaging personal remarks or acrimony toward other counsel, parties or witnesses should be avoided at all costs.

o   Lawyers should require that persons under their supervision conduct themselves with courtesy and civility

·       Should be able to relate with other people well so as not to prejudice his client. A trial lawyer who has personal issues with the trial judge for example, puts his client’s case at risk of bias.

 

12.  Communication-

·       Use language that is respectful and that communicates their point effectively.

·       Ability to use plain English effectively when addressing both the client and the Court.

·       Keep the client up to date on the case at all times

·       Good listening skills so that they can be able to get the instructions of the client right

·       Communicate with opposing counsel and inform them of any evidence they have and so on

 

13.   Tenacity-

·       Advocate should not embark on a case unless he is ready to justify it

·       Prepared to defend the action until all proper arguments in favor of it have been exhausted at all court levels permissible under the rules