Duties of an Advocate in Kenya

The starting point in such an endeavour will be to determine the meaning of the word “duty” and how it relates to the work of the advocate in his profession. Black’s law dictionary defines duty as “a legal obligation that is owed or due to another and that needs to be satisfied.”[1] Duty (from “due,” i.e. that which is owing) is a term that conveys a sense of commitment to someone or something. Due to the expansive literature on this subject, we will narrow down on what we thought were the most important duties of an advocate under each of the following respective headings.

1.      DUTY OF THE ADVOCATE TO THE CLIENT

 The definition of the word “client” has elicited a lot of debate. How to demarcate the strict boundaries of the term “client” has not been without controversy.[2] For the purposes of this report, we will confine ourselves to the strict definition provided for in the Advocates Act.”[3] These duties will be determined by the relationship which the advocate has with the client.[4] For this report, we will confine ourselves to the duties which the advocate owes to the person defined as a client in the Advocates Act.

a)      DUTY OF CONFIDENTIALITY

Black’s law dictionary further defines the word “confidential” as “intended to be kept secret” and “entrusted with private or restricted information.”[5] The duty of confidentiality borne by an advocate to his client has long been recognised as a critical feature of the advocate-client relationship.[6] This is demanded as the advocate may not be able to adequately perform his duties if the client is unsure if any information that passes between them will be divulged to outsiders.

The relationship between a lawyer and his client involves the highest degree of personal trust and confidence. The position of an advocate puts him in a confidential position and it imposes a duty on him not to communicate to any third party the information that has been confided to him in his capacity as an advocate.  Due to this relation, the privilege of confidentiality is expressly provided for in the Evidence Act[7] at Section 134 (1).[8]

The section specifically provides that the advocate is not permitted to disclose any communication made between him and the client during the course of the engagement unless it is with the client express permission or there is an exception provided in law to warrant such disclosure.^[9] The duty continues even after the relationship of advocate-client has ceased.[10] 

It is noteworthy that the privilege is that of the client and not the advocate and for that reason, only the client can waive the privilege. The objective of the duty to confidentiality is to ensure that the client can confide completely and without reservation to the advocate. The privilege extends to communication made to the advocate’s interpreters, and the clerks or servants of advocates.[11] However, this privilege is not absolute and it may be overlooked in certain cases.[12]

b)     DUTY TO CHARGE REASONABLE FEES

An advocate must charge a fee consistent with Advocates Act and the Advocates (Remuneration) Order, 2009. Section 45 of the Advocates Act provides that the advocate and his client may fix the amount of the advocate’s remuneration by agreement. Such agreements have to comply the provisions of that section. An advocate must not stipulate a fee contingent on the results of litigation, or agree to share the proceeds of litigation.[13] This is because giving the lawyer an interest in the subject matter of the suit is against professional ethics and violates public policy.

The advocate should not agree or accept his remuneration at less than that provided by the Order.[14] It is a breach of professional etiquette to accept a fee lower than that allowed by the Advocates (Remuneration) Order.  It is also improper to enter into an agreement with a client to charge him lower that what is allowed by the order. Charging less than the prescribed fee is described to be undercutting which is illegal.[15]

c)      DUTY TO COMMUNICATE WITH THE CLIENT

Establishing and maintaining an efficacious and professional relationship with clients is a hallmark of all successful lawyers.[16] This will be determined by the level of communication which the advocate has with his client. An advocate has the duty to adequately communicate with the client on the matter entrusted to the advocate’s conduct. An advocate should explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

At the time of instructions, an advocate should advise a client concerning the advantages and disadvantages of available alternative dispute resolution options to enable the client make informed decisions concerning the representation. In the course of representation, an advocate should keep a client reasonably informed about the status of a matter and promptly comply with requests for information by the client. The client should have sufficient information to make intelligent decisions concerning the objectives of the representation and the means by which they are to be pursued and achieved. Communication is facilitative of competent representation and supportive of continued client trust, confidence and professional relationship. It is critical: failure to uphold this duty is a misconduct inviting penalty upon the advocate concerned.

d)     DUTY TO ACT ON CLIENTS INSTRUCTIONS

The advocate is the representative of his client. Representation by the Advocate depends on instructions. The engagement of an advocate comes to an end when the client becomes unable to give instructions. An advocate acting other than on the instructions of the client commits professional misconduct.

e)       DUTY TO COMPETENTLY REPRESENT THE CLIENT.

A trial advocate should as far as possible and within the bounds of the law, zealously and fearlessly defend the interests of his clients. An advocate shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.[17] The duty of a barrister has been said to be to “promote and protect fearlessly and by all proper and lawful means the best interests” of the client^[18] without regards to the barrister’s self-interest or to any personal consequence.^[19]

The advocate’s duties must be within the bounds of the law, as no professional privilege exists if the actions of the advocate were to help the client in the commission of a criminal act.^[20] The advocate must do so 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. An advocate should never abandon a case on the ground that he has not been paid his fee but as stated above, he must conclude the suit to its finality then sue for his fees.^[21]

2.      THE ADVOCATES OBLIGATIONS TO THE COURT

Section 55 of the Advocates Act mandate that every person who is entitled to act as an advocate shall be an officer of the court. Because of this, the advocate owes a paramount duty to the court, a duty slightly above that owed to the client.[22] Being an officer of the court brings with it a certain mandatory obligation towards the court.[23]  The advocate is expected to conduct himself in a manner befitting the status of an officer of the court. The advocate is supposed to be courteous towards the court, other advocates, witnesses, and parties to the suit.  As an officer of the court one is also expected to assist the court to arrive at a fair and just decision. Due to his position as officer of the court the advocate is under the following duties:

a)      DUTY OF FAIRNESS

An advocate should always conduct himself with fairness when dealing with the court, fellow advocates and members of the public be they clients or witnesses that he meets in court and other people that he may come across. Fairness is a legal requirement provided for in the constitution.[24] It is a legal and constitutional requirement of every criminal and civil trial.[25]  It is something to be expected whenever there is a trial and it is expected of the advocates involved in the litigation.[26] The advocate should also be fair when the other side is not represented by an advocate. In those circumstances, the advocate and the court owe a duty to that person to ensure that no advantage is taken of the party’s lack of knowledge of the law and of procedure.[27]

The duty of fairness requires that the advocate brings to the attention of the court all the authorities relevant to the point at issue whether the cases or the authorities support the advocate’s viewpoint or are against him.

b)     DUTY TO THE LAW

Advocates are an integral part of the administration of justice in a legal system. They must at all times act within the law and uphold the law when engaging in their occupation. Though an advocate has the duty to represent his client zealously to the best of his ability, he should not forget the fact that his loyalty is foremost to the court and to the law.

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.[28] An advocate must also not be a party to litigation. He should not suppress facts or conduct the prosecution that may lead to conviction of the innocent or the miscarriage of justice.

c)      DUTY TO OBEY COURT ORDERS

The advocate must maintain utmost respect for court orders as the dignity of the Court cannot be sacrificed in any circumstances. . Advocates need to avoid issues such as the following:

1. Obtaining and executing decrees without sending the draft to the other side for approval.^[29]
2. Showing the client how to circumvent Court orders and disobey injunctions.^[30]
3. Obtaining ex parté injunctions without full disclosure.^[31]

d)     DUTY NOT TO COMMIT FRAUD ON THE COURT

An advocate should not knowingly fail to disclose a material fact to the court. The advocate must not offer false evidence, regardless of the client's wishes. If the client insists, the advocate must withdraw from representing the client. If false evidence has been offered by the client, the advocate should persuade the client to rectify the situation and should promptly disclose the deception and rectify the situation with the court.

If the advocate is representing an accused who insists on the continued representation from the advocate, the advocate must continue but must conduct the trial within certain parameters. He may not intentionally mislead the court or aver to a statement which he knows to be untrue. He may also not try to impute blame on another who he knows to be innocent.[32]

e)      DUTY TO AVOID TRIAL PUBLICITY (SUB JUDICE)

An advocate should not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication, which will have a substantial likelihood of materially prejudicing an adjudicative proceeding.[33] The goal of the legal system is that each party shall have his or her case, criminal or civil, adjudicated before an impartial tribunal. The rules regarding trial publicity are designed to enhance the likelihood of that occurrence and ensure that the tribunal and its proceedings are as impartial and without prejudice as possible.

f)       DUTY TO EXPEDITE MATTERS

An advocate should make efforts to ensure that he does not waste the courts time through unnecessary proceedings and technicalities. He should always be in court at the appointed time.

An advocate should also aid in speedy decision-making by not subjecting the judge to excessive material or more documents than strictly necessary which do not facilitate decision-making or speedy resolution. Without detracting from his duty to his client, the advocate can and should exercise in the interests of justice as a whole a proper discretion so as not to prolong cases unnecessarily.

g)      DUTY OF RESPECT

An advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be rude  and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities.

3.      DUTY TO COLLEAGUES AND OPPOSING ADVOCATES

a)      DUTY OF COURTESY AND RESPECT

The work of an advocate should be marked with courtesy and respect.  These virtues should categorise the relationship between the advocate and other advocates, be they representing the opposing party or advocates in general. These virtues are said to be an aid in quick and expeditious disposal of matters.

b)     DUTY OF HONESTY AND FAIR DEALING

An advocate should always conduct himself with fairness when dealing with fellow advocates. When the advocate files pleadings in court, fairness requires that the pleadings should be served to the other side and where there is a date fixed for hearing the hearing date must be served to the other side to allow them prepare for hearing.  Where the advocate notices that the pleadings filed by the other side are defective and can be struck out, fairness requires that one tells the other side that their pleadings are hopeless and allow them to amend their pleadings, or introduce triable issues to give them a cause of action, allow them to put their house in order.

c)      DUTY OF COOPERATION

An advocate should cooperate with opposing counsel in order to solve the matter. Through cooperation the advocates can reach an agreement that caters for their clients. This may avoid going through the lengthy and expensive court process.

4.      CONCLUSION

 There are other duties which are congruent to the above which will enable the advocate to adequately and competently carry out his duties as an advocate.[34] However, for the purposes of this report, we have confined ourselves to the above duties as being representative of all that is required of an officer of the court.

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[1] Black’s Law Dictionary (8^th Edition), at p.543.

[2] Lectures by the Professional Ethics Lecturer, Ms Lucy Kambuni at the Kenya School of Law in the Advocates Training Programme for the year 2010/2011 have clearly illustrated this point.  

[3] Section 2 of the Advocates Act. Cap 16 Laws of Kenya provides that: “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.”

[4] Richard Zitrin, Carol M. Langford and Nina W. Tarr (2007) Legal Ethics in the Practice of Law (3^rd Edition) LexisNexis, Nerwak, NJ. Part One: The Lawyer- Client Relationship, pp 35-371.

[5] Black’s Law Dictionary (8^th Edition), at p. 318.

[6] In Rakusen v Ellis, Munday & Clarke (1912) I Ch. 831, where Fletcher Moulton LJ observed that “The duty of confidentiality is particularly onerous in relation to lawyers.”

[7] Chapter 80 of the Laws of Kenya

[8] “No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course 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.”

[9] This was the case in Omari v Hassan (1956) 23 EACA 580. Here, the appellant was convicted of murder. During trial, counsel for the accused informed the Court that the accused person had refused to testify under oath, against his counsel’s advice. The disclosure by the advocate was held, on appeal, to be a breach of professional privilege, and the trial court should not have allowed it to affect its mind in the deliberations.

[10] This is provided for in Section 134 (2) of the Evidence Act, supra note 7.

[11] Section 135 of the Evidence Act, supra note 7.

[12] Section 134 (1) (a) (b) of the Evidence Act, supra note 7, provide that: (a) any communication made in furtherance of any illegal purpose (b) any fact showing  that a crime or fraud has been committed since the commencement of employment of the advocate

[13] Section 46 of the Advocates Act, Cap 16, Laws of Kenya.

[14] Rule 3 of the Advocates (Remuneration) Order, 2009.

[15] Section 36 of the Advocates Act provides that (1) any advocate who holds himself out or allows himself 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 order, under this Act shall be guilty of an offence. (2) No advocate shall charge or accept, otherwise than in part payment, any fee or other consideration in respect of professional business which is less than the remuneration prescribed, by order, under this Act.

[16] Paul T. Hayden (2003) Ethical Lawyering: Legal and Professional Responsibilities in the Practice of Law (American Casebook Series) Thomson West, St. Paul, MN, USA, at p. 187.

[17] Ronald D. Rotunda and John S. Dzienkowski (2006) Professional Responsibility: A Student’s Guide The Center For Professional Responsibility: The American Bar Association, Thomson/West, Thomson West, St. Paul, MN, USA, at p 73.

[18]Halsbury’s Laws of England, Vol. 3(1) (2005 reissue) 3, “Professional Practice and Conduct: Duty to the lay client,” at p. 510,

[19] Rondel v Worsley [1969] 1 AC 191 at p. 227, as per Lord Reid.

[20] Section 134-137, Evidence Act, supra note 7.

[21] J.P. Machira v Abok James Odera [2006] eKLR, as per Angawa J.

[22] This is a settled fact. Debates about the supremacy of the advocate’s duty to the court has been settled upon because the advocate cannot zealously advance his clients interest at the expense of an illegal outcome arising from the proceedings. The primary duty of the court is to dispense justice: the advocate, as an officer of the court is bound to ensure that this happens.

[23] Richard Zitrin, Carol M. Langford and Nina W. Tarr (2007) Legal Ethics in the Practice of Law, supra note 4, Part Two “Balancing the Duty of Advocacy with the Duty to the Legal System,” pp 371- 682.

[24] Section 77 (1) of the Constitution of Kenya provides that: If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

[25] Ibid.

[26] Ibid.

[27] It may be argued that fairness may require that one overlooks certain procedures just to accommodate the un-represented party.

[28] Ronald D. Rotunda and John S. Dzienkowski (2006) Professional Responsibility: A Student’s Guide, supra note 17, at p 675.

[29] This was the case in Mwangi Mbothu v Gachira Waitimu, CA Civil Application No. 23 of 1993.

[30] This was the case in Shuck v Gemer (1846) 2 Ph 113.

[31] This was the case in Tiwi Beach Hotel v Staum (1940) 2 KAR 189.

[32] There is considerable literature on this point. The most famous case of this is the Courvoisier Case. This has been examined extensively by legal practitioners. It is further discussed in Michael Asimow and Richard Weisberg (2006) “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, at SSRN: http://ssrn.com/abstract=948291 (last accessed June 1, 2010).

[33] Mississippi Bar Association (2003) “Duty to Court: Obligation of Good Faith,” http://www.msbar.org/admin/spotimages/134.pdf (last accessed June 2, 2010), at p. 7. “ An extrajudicial statement is substantially likely to materially prejudice adjudication if it relates to either: The identity, expected testimony, character or credibility of a party or witness; The likelihood of an accused's guilty plea or the existence or contents of his confession or admission against interest; A description of potential physical evidence, or a statement as to any examinations or tests which may or may not have been performed; Information which the Advocate knows or should know will be inadmissible and, if disclosed, substantially likely to prejudice an impartial trial; or, Any opinion as to an accused’s guilt or innocence. “

[34] See generally Richard Zitrin, Carol M. Langford and Nina W. Tarr (2007) Legal Ethics in the Practice of Law supra note 4, and Ronald D. Rotunda and John S. Dzienkowski (2006) Professional Responsibility: A Student’s Guide, supra note 17.