Definition
and Origin
Advocates have a general duty to accept clients, a duty
commonly known as the cab rank rule[1]. The cab rank rule is a
common law principle which places a professional obligation on advocates to
provide legal representation for a client regardless of any personal feelings
of said advocate about the client’s chances of success, about the client as a
person, or about the facts of the case. For instance, in Lord Balmerino v Forrester,[2] an
advocate refusing to act against a Lord of Session without a lawful excuse was
compelled under pain of deprivation. In this case, Lord of Balmerino pursued
Forrester for reduction of certain tacks. Mr. Henry Balfour, appearing for the
Defendant, refused to take up
his cause unless he had the agreement of John Russell, who refused to serve
against Lord President. When the matter was reported to the Lords, they
ordained him to serve the party under the pain of deprivation. This is because,
‘an advocate was treated as being 'sworn to serve all the King's lieges
truly’.
The name was coined by Lord Macmillan and he used the words
‘on cab rank for hire’ to mean that an advocate is obliged to accept a brief
unless he or she has some good reason for refusing to do so. It is derived from
the concept of taxis waiting in a taxi rank for potential clients. Basically, a
cabbie cannot turn away a fare-paying passenger (subject to limited
exceptions). The analogy, however, should not be extended too far. Certain
aspects of the taxi rank do not apply, such as the aspect that one should take
the first taxi in the rank. A client can choose whomever they wish to represent
them, and the advocate is obliged to accept the brief (again, subject to
limited exceptions).
Though the origins of the name may seem fairly recent, the
principle has its roots within the legal system from as early as 1532 from the
Scottish courts.[3] In the UK,
the earliest mention of the same can be seen as early as 17th Century, when
John Cook, the Solicitor General at the time, was commanded to prosecute
Charles I for war crimes. .With the return of the monarch in 1660, Cook was
prosecuted for having indicted the King. Despite arguing duty to accept brief
accompanied by an appropriate fee, he was found guilty and hanged. Though the
Cab Rank rule may not have had the best start in the UK, since then the rule
has been referred to by many courts and subsequently codified in one form or
another within the UK and many other jurisdictions. This rule ensures that the
right to legal representation of all defendants is realised.[4] This is because the
rule, with a few exceptions, prevents advocates from refusing instructions for
reasons of their conscience not permitting them to represent clients in a
particular matter.[5]
Application in the UK and Other
Foreign Jurisdictions
In the United Kingdom, the rule is
laid out at rC29 of the Bar Standards Board Handbook which provides that a
self-employed barrister who, instructed by a professional client, receives instructions which are appropriate taking into account the
barrister's experience, seniority and field of practice must accept the
instructions irrespective of:
(i) The identity of the
client;
(ii) The nature of the case
to which the instructions relate;
(iii) Whether the client is
paying privately or is publicly funded; and
(iv) Any belief or opinion which the
barrister may have formed as to the character, reputation, cause, conduct,
guilt or innocence of the client.[6]
In R v Ulcay,[7]
the court stated that counsel could neither choose their clients nor refuse
to accept instructions on the basis of the nature of the charge or the
character and reputation of the accused person.
The
cab rank rule is applicable in the Australian Legal
System. The Australian Law Society Rule at paragraph 102 states that
it is an offense for an advocate to decline to take instructions from a client
where such instructions require him/her to take action that is in his/her area
of expertise. A violation of this rule may lead to a withdrawal of the
advocate’s practicing certificate.
Application in Kenya
The
cab rank rule is applicable in Kenya’s legal system. Even
though there is no written law specifically using the terms cab rank rule, the
rule is applicable as reflected in the following written laws:
I.
The right to access
justice for all under Article 48 of the Constitution of Kenya, 2010 is a
bedrock of the application of the cab rank rule;
II.
Article 50 of the
Constitution provides the right to legal representation for arrested
persons so that arrested persons are entitled to an
advocate of their choice;
III.
Rule 6 of The Law Society of Kenya’s Code
of Standards of Professional Practice and Ethical Conduct provides for when
the cab rank rule may be waived, specifically providing for conflict of
interest.
Advantages/Arguments for using the Cab
Rank Rule
1.
The cab rank rule promotes access to justice to all, even those that are unpopular or
are perceived to be reprehensible. It ensures that all are on an equal footing
in court since everyone not only gets legal representation, but legal
representation of their choice.
2.
Cab rank rule provides
advocates with a justification for the defence of
certain individuals which would otherwise lead to
public reprimand and social stigma. Since the principle makes it an obligation
to represent a client irrespective of the nature of
their case or their personal beliefs, one cannot be blamed representing,
for instance, drug barons.
3.
There is a criticism of
the rule claiming that even one accused of committing the most detestable of
crimes is able to secure legal representation. There is
some truth to this since a high profile case will most definitely attract
lawyers seeking to create a name for themselves in the profession. However,
this is only applicable in high profile cases. It does not cater for low level
criminals who also need to be defended and who would otherwise have a
hard time finding an advocate to represent them were it not for the cab rank
rule.
4.
In a similar vein, even
in high profile cases with lawyers eager to represent, publicity-hungry lawyer
are not always the best option. That is why the rules major purpose is not
simply to get representation, but representation of your choice.
Disadvantages
1.
Given the fact that the
principle is an obligation, lawyers should ideally not suffer from public
condemnation for representation of their clients despite the nature of the
case. Whereas this may not be an issue in jurisdictions such as the United
Kingdom where the principle is known widely by members of the public and press,
it is largely unknown in Kenya.
2.
There are no mechanisms
in place to ensure compliance.
3.
An advocate that has
been obliged to represent is unlikely to do so to the best of their
ability.
An advocate may refuse a brief where there
are special circumstances which justify his/her refusal to accept a particular
brief. These are circumstances in which advocates consider themselves not
competent to take on a case for any number of good reasons including the
following:
1.
Conflict of Interest.
A conflicting interest is an interest which gives rise to substantial risk that
the advocate’s representation of the client would be materially and adversely
affected by the advocate’s own interests or by the advocate’s duties to another
current client or to a former client or to a third person[8],
or, as defined by Virginia P. Shirvington is ‘the result of the act of a
practitioner’s intent to serve two or more interests which cannot be satisfied
consistently, or an attempt to honor two duties which cannot be honored
consistently as it would be detrimental to the fiduciary duty to the client or
former clients’[9]. Conflict of interest may arise in:
(a)
Simultaneous representation
– an advocate cannot represent two clients who are adversaries in a case. In
some matters, however, an advocate may be acting for both parties involved e.g.
conveyancing. The parties in such a case should have been informed that the
advocate might not be able to give all the information relevant to the matter
and they should have given their consent. In King Woolen Mills &
Another v. Kaplan & Stratton Advocates[10],
it was held,
“…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
applies equally where an advocate acts for two or more clients in the same
transaction or subject matter because the retainer is specific between the
individual client and the common advocate… Any knowledge received from each
client and their common advocate, although the common advocate acting for two
or more clients will be able to complete the transaction speedily and save the
clients expense by engaging one common advocate.”
(b)
Issue conflict –
this is a situation where an advocate is representing two clients in two
different cases. However, he is urging a common legal position for both the
cases and if this issue is determined in one of the cases, it will have
negative consequences for the other case. This conflict usually arises where
the cases are being heard by the same court or by courts where one’s decision
will set a precedent for the other.
(c)
Successive representation – this occurs
in instances where an advocate is representing a client which may adversely
affect a former client in terms of confidentiality. Advocate-client
confidentiality is infinite and does not end with the court case. The
Court of Appeal in England in Re – a firm of Solicitors[11] observed
that there was no general rule that a firm of solicitors who had acted for a
former client could never thereafter act for another client against the former
client but held that a firm of solicitors would not be permitted to act
for existing client against a former client if a reasonable man with knowledge
of the facts would reasonably anticipate that there was a danger of information
gained while acting for the former client being used against him or there was
some degree of likelihood of mischief in confidential information imparted by
the former client being used for the benefit of the former client.
Also see Simba Hills Farm Ltd v Sultan Hasham Lalji & 5 Others[12]
(d)
Expected witness
– Rule 8 of the Advocates (Practice) Rules[13]
provides that an advocate should not appear in a matter before a court or
tribunal in which matter he may be called as a witness and be required to give
evidence, whether verbally or by declaration or by affidavit. In Uhuru
Highway Development & others v Central Bank of Kenya & 2 others[14],
the Plaintiff applied by Notice of Motion that the firm of Oraro and Company
Advocates, and in particular, Mr. George Oraro, the leading partner in the
firm, be restrained from acting for the 1st and 2nd defendants
in the suit the contention being that the said Advocate had acted for both
parties in the preparation of a charge that was a substantial matter in the
suit and that by acting for the 1st and 2nd defendants
he would be acting contrary to law. The said Advocate contended that the
plaintiffs were not his clients and he could not therefore be held to have
been in breach of a duty as a solicitor to his client and argued further that the
fees paid to him were by way of enforcement of a provision made in the charge
and not because the plaintiffs were his clients. The trial Judge agreed
with the Advocate and dismissed the application. It was held on appeal
that the question whether the plaintiffs were counsels' clients could be
discerned from a careful consideration of the correspondence on record and in
particular a fee note and notice of taxation served by him and the conclusion
would be that the relationship was that of advocate and client. It was
further held that the counsel being the author of the charge may know much more
behind the charge than was apparent and was bound to use such knowledge against
the Plaintiffs, his former clients. The Court further held that the role
of the counsel in bringing about the 1st and 2nd plaintiffs
to execute the charge may in the premises lead him into consciously or
unconsciously or even inadvertently using the confidential information acquired
during the charge and this would lead to prejudice.
Instances of where conflict of interest may
arise in relation to an office or appointment that an advocate holds:
●
Where an advocate is a
company director, he should not accept instructions to act for the company;
●
Judges cum advocates and
commissioners of various tribunals should decline cases in which they are
likely to adjudicate.
2.
An advocate should not
act in respect of any such claim for any client introduced to him by such a
person or organization whose business or any part of whose business is to make,
support or prosecute claims as a result of death or personal injury, including
claims under the Workmen’s Compensation Act (Cap. 236). In such circumstances
that such person or organization solicits or receives any payment, gift or
benefit in respect of such claims. This
is provided for in Rule 5(1) of the Advocates (Practice) Rules.
3.
An advocate may not act
for a client in a matter in which he knows or has reason to believe that
another advocate is already acting for that particular client unless:
(i)
The other advocate has
given his consent;
(ii)
The other advocate has
refused to act further;
(iii)
The client has withdrawn
instructions from that other advocate upon proper notice to him.
This
is provided for in Rule 6 of the Advocates (Practice) Rules.
4.
The advocate may have
been consulted by the other side.
5.
The taking of the case
will interfere with some office that the advocate holds or in his duties as an
advocate e.g. the advocate may be a commissioner of a tribunal which has
jurisdiction to hear the case.
6.
The advocate lacks the
necessary expertise or experience to conduct the case competently on behalf of
the client.
7.
The advocate has too
busy a schedule and can foresee that he or she will not be able to conduct the
case effectively.
8.
The advocate may have
confidential information about the other side.
9.
The client cannot afford
the fee or the advocate has been offered two or more briefs and one of the
briefs has a lesser fee. The advocate may refuse the brief with the lesser fee.
10. The client wants to pursue the case just so as to injure the other
party.
11. The client is not giving clear instructions.
3. Circumstances under which the
trial lawyer can apply for opposing counsel to be barred from a case
A trial lawyer can apply to have the
opposing counsel barred from acting for a party in the proceedings. There are
circumstances that can cause one to be barred in such circumstances. These
include;
●
Conflict of interest
●
Breach of the duty of
confidentiality
●
Uncooperative and
incompetent conduct
●
Hostility from the
opposing counsel
●
Where the opposing
advocate is a potential witness to the case
I.
Conflict of
interest
A trial lawyer generally
owes a fiduciary duty to their client. They ought, at all times, to avoid
conflicts between the duty to their clients and their personal interests[15]. Conflict of interest occurs
when a trial lawyer either has an interest in the outcome of the case he is
involved in or his representation of a party to the proceedings which would
hinder the administration of justice to the other party.
In Kenya,
the Constitution provides for access to justice as well and the right to legal
representation under Article 48 and Article 50 [g] respectively[16].
However a trial lawyer in ensuring the dispensation of justice is
required to steer away from matters where they have conflicting interests.
Clause 96
Part VI of The Law Society of Kenya Code
of Standards, 2016 defines conflict
of interest as ‘an interest which gives rise to a
substantial risk that an advocates representation to the client will be
materially and adversely affected by the advocate’s own interest or by the advocate’s duties to another
current client former client or third person’[17] .
When the
opposing counsel is in serious conflict of interest, it is the duty of the
trial lawyer to move for disqualification. It is also important to note that
some motions to disqualify the opposing counsel may be nothing but tactics to
delay the proceedings or to remove the opposing counsel, not because of the
purported conflict of interest, but because the opposing counsel is quite
competent. In such cases, a motion to disqualify is at least prima facie
unethical.
During
the analysis of a conflict of interest situation, it is important to ask and
seek to find out[18]:
1. What relations of the opposing counsel give rise to the conflict of
interest; and
2. Who stands to be harmed by that conflict of interest
The
instances of Conflict of Interest are as follows:
A. The Substantial Relationship Test
A court
may disqualify an opposing counsel when the trial lawyer can prove that the
subject matter of a case bears a ‘Substantial Relationship’ to a
matter in which the opposing counsel previously applied or represented the
presently adverse party. A ‘substantial relationship’ is a
relationship where the possibility that the counsel obtained confidential
information from the former client is highly likely[19]. The cited justification on this
would be the protection of client confidences, which in turn would preserve
trust in the counsel and further free communication between the client and the
counsel.
When this
relationship exists, the court will irrebuttably presume that the opposing
counsel received confidential information relevant to the present case from the
opponent's client.
The Law
Society of Kenya Code of Standards further states situations where conflict of
interest may arise[20], an advocate is obliged to avoid
these situations when accepting instructions from a client. They include:
a) Where the interests of one client are adversely affecting the
interest of another client being represented by the advocate
b) Where the nature of the representation that a client seeks will
materially limit the advocates responsibility to another client, former client
or third party.
c) Where there is a possibility of an unintended or intended spill of
information obtained previously from a current or former client[21].
In Ruksen
v. Ellis, the court dismissed the application to restrain the
opposing advocate, from acting against a former client in a subsequent matter
because there was no proof of conflict of interest, and no privileged
information[22].
B. Vicarious Disqualification
Disqualification
is termed vicarious when a court disqualifies an opposing counsel because he or
she was a member of a firm that previously represented the adverse party or a
court disqualifies a firm because one of its counsels represented the adverse
party. The chief justification for this is that lawyers in the same firm have
strong professional, pecuniary and personal reasons for talking to each other
about cases. The trial lawyer has to prove this to the court in regards to the
opposing counsel. Laskey Bros. of West Virginia, Inc. v. Warner Bros. Pictures[23] based vicarious
disqualification on an irrebuttable presumption of transfer of information from
the counsel to the firm of which he or she is then a member. Further, that if a
vicariously disqualified partner leaves the firm and joins another, the
presumption is rebuttable, and his or her new partners will not necessarily be
disqualified. “They need to show that the disqualified partner’s knowledge was
imputed, not actual”.
However,
the standing on the above case was rejected by the case of Silver Chrysler
Plymouth v. Chrysler Motors Corp.[24]
The Court declined to disqualify a lawyer who, as a young associate with
another firm, had played a minor role in the tainting litigation. The court
rejected the Laskey doctrine of irrubuttably imputed knowledge
within the firm by refusing to impute to the lawyer his former colleagues’
knowledge. “The law must reject defendants’ or opponent trial lawyer's
suggestion that for purposes of disqualification, in an organization as large
as Kelley Drye, every associate is charged with the knowledge of the confidences
of every lawyer in the firm”.
In affirming, Silver Chrysler,
two reasons for limiting vicarious disqualification were emphasized:
1. The right to counsel of one’s choice; and
2. The importance of retaining mobility for lawyers whose careers start
in large firms.
In Kenya, there is the
case of H.F. Fire Africa Ltd vs. AMR Gharieb[25], where an application was brought by way of
Notice of Motion dated 27.05.2005 by the 1st and 2nd Plaintiffs who sought
orders in this cause that:
1.
Saleh El-Din and/or the firm of Omar K. Amin
& Co. Advocates be disqualified from acting for/or representing the
Plaintiff and the 1st Defendant in the counterclaim, H.F. Fire Africa Limited,
the 2nd Defendant in the counterclaim Hesham Fouad El-Sayed and the 3rd
Defendant in the counterclaim, H.F. Fire International Limited.
2.
The costs of this application be awarded to the
Defendant and the 1st and 2nd Plaintiffs in the counterclaim.
The application was
supported by the affidavit of AMR GHARIB sworn on 27.05.2004 and the grounds
that::
a)
Salah El-Din Amin and or partners in the firm of
Omar K. Amin & Company Advocates are potential witnesses in these
proceedings and
b)
There is a conflict of interest in Salah El-Din
Amin and/or Omar K. Amin & Company Advocates acting against the Defendant
the 1st Plaintiff in the counterclaim.
The sole ground for this
case was that the said Salah El-Din Amin was a “potential
witness” in these proceedings and that by reason thereof there is a conflict of
interest”.
The reason why there is a
conflict of interest is because the said Salah El-Din Amin, and/or his firm
Omar K. Amin & Co. Advocates mediated in and resolved a dispute between AMR
GHARIB and the second defendant in the counterclaim Mr. Hesham Fouad El-Sayed
where the advocate company drew up a Memorandum of Agreement with matters
agreed upon by AMR Gharib and Mr. Hesham set out. That the signature of the
said Agreement was witnessed by Salah El-Din Amin and the first agreement was
first drawn by the firm of Omar K. Amin & Co. Advocates.
It further states that the
said Salah El-Din Amin became a director of the Plaintiff Company or the 1st
Defendant in the counterclaim by virtue of a Power of Attorney dated 30.06.2003
donated to him by Mr. Hesham, the 2nd Defendant in the counterclaim.
The Deponent concluded
that the firm of Omar K. Amin & Co. Advocates and/or Saleh El-Din Amin,
were intrinsically involved with the Plaintiff, and that having mediated
between him and the 2nd Defendant in the counterclaim are potential witnesses
in these proceedings and should consequently be disqualified from acting for
either of the parties.
The sitting judge for this
case Judge Anyara Emukule, in his ruling ruled that no injunction can issue
against either Salah El-Din Amin & Company Advocates from acting for the
Plaintiff herein as the Plaintiff and two other persons as defendants in the
counterclaim. The Notice of Motion was dismissed with costs.
In another case Jackson K. Kivinda v United Insurance Co. Ltd [2005] eKLR,
the applicant sought, inter alia, the setting aside of consent
judgments on grounds of fraud on the defendant. The applicant claimed that the
advocate for the plaintiff was acting at the same time as counsel for the
defendant, resulting in a conflict of interest.
The basis of this claim
was that the partners in the firm representing the plaintiff were former
employees in the firm on record for the defendant, and that consent judgment
was recorded after the plaintiff’s advocate came on record. The consequence was
that both parties were represented by the same advocate at the time the
judgment was entered.
The applicant’s claim
failed. The court records showed that the plaintiff’s advocate came on record
after judgment had already been recorded.
Also in British
American Investments Company Kenya Limited vs Njomaitha Investments Limited and
Gichuki King'ara & Co. Advocates (1st and 2nd Defendant respextively), The
2nd Defendant made a Notice of Motion application dated 20th January 2012, that
the firm of Walker Kontos Advocates be restrained from representing the
plaintiff in this suit.
The firm of Walker Kontos
Advocates acted for the plaintiff in the negotiation, verification and
witnessing of a sale agreement dated 12th August 2011 between the plaintiff and
the 1st defendant over the 1st defendant’s parcel of land in Thika. The
agreement was witnessed by one Peter Muhiu, an advocate in the aforesaid firm
of advocates.
That the 2nd Defendant and
the said firm of advocates exchanged numerous correspondence as a result of
which the said firm was privy to confidential information passing between
parties. That it was reasonable to expect that an advocate from the said firm
would be called as witness to testify on the validity of the agreement entered
into between the plaintiff and the 1st defendant which direct conflict of
interest would be greatly prejudicial to the defendants.
The court found that the
prayer sought by the 2nd Defendant to restrain the firm by way of an injunction
order would not obtain in a matter such as this as it would not fall within the
realm of matters which a court can Grant an injunction. The test application
was the case of Giella vs Cassman Brown, where
it was said that,
“An applicant must show a
prima facie case with a probability of Success at the trial, that an interlocutory injunction will not be
granted unless the applicant might otherwise suffer irreparable loss that
cannot be compensated by way of damages and that if the court was in doubt,
then it ought to grant the interlocutory injunction on a balance of convenience
will not be applicable or relevant in the circumstances of the case herein”.
The court did not find
merit in this case to disqualify the firm and dismissed the case. The proof was
not sufficient and there was no enough evidence to show that an irreparable
loss or harm that could be caused to the defendants.
C. The opposing counsel in other roles
This can
also be referred to as protection of the client. The roles can be as follows:
●
The opposing
counsel as a witness
Clause 95
Part VI of the code provides that ‘an advocate shall not advice or represent
both sides of a dispute and shall not act or continue to act in a matter where
there is a possibility of a conflict of interest arising, not unless such
advocate makes disclosure to both sides of dispute and they in unison, consent
to it’[26].
An
opposing counsel cannot testify to a matter in dispute between parties in
litigation and still fulfilling his or her function as an advocate. This
impairs his credibility as witness and diminishes his effectiveness as
advocate. The only exceptions are as follows[27]:
1. If the testimony will relate solely to an uncontested matter.
2. If the testimony will relate solely to a matter of formality and
there is no reason to believe that substantial evidence will be offered in
opposition to the testimony.
3. If the testimony will relate solely to the nature and value of legal
services rendered in the case by the lawyer or his or her firm to the client.
4. As to any matter, if refusal would work as a substantial hardship on
the client because of the distinctive value of the lawyer or his for as counsel
in the particular case.
●
The lawyer as
Administrator or Guardian
A lawyer
who holds Office as a fiduciary, such as an executor, administrator or Guardian
Ad litem, may encounter a Conflict of Interest. For example, an attorney
executor may be in a potential conflict of interest situation if he is also an
attorney for the estate.
●
The lawyer as a
Public Official
A lawyer
serving as a Public Official is required to avoid a conflict between the duty
he or she owes to the public and his or her own interest or that of a client.
A trial
lawyer is required to make a disclosure whenever they realize a conflict of
interest. Failure to make such disclosure amounts to professional misconduct[28]. The advocate is required by the
code of ethics not to take up instructions against his client or former client
on the same matter that he is acting or acted before, unless the matters are
substantially unrelated and thus don’t raise issues of conflict.
4. Other ways in which one can apply
for an opposing counsel to be barred other than Conflict of Interest
II.
Breach of the
duty of confidentiality
An
advocate owes a client the duty of confidentiality. Clause 106 of Part VII of
the Code[29] provides that an unauthorized
disclosure of information or advice exchanged between client and advocate and
which is deemed to be privileged amounts to professional misconduct. Lawyer client
relationship continues even after the original instructions have been completed[30], an Advocate is barred from
using privileged information obtained from a former client without the
authority of the said client.
Going
against this rule amounts to breach of retainer, regardless of whether the
retainer was terminated. The test of the right to legal representation and duty
of confidentiality was tested in Delphis Bank V Chatte Channan Sigh and
others[31] where it was stated that where
client and counsel confidentiality is at risk and where counsels are potential
witnesses in a matter, then counsels of the same firm are barred from acting
for parties to a suit separately[32].
In Kings
Woolen Mills Limited V Kaplan and Stratton Advocates, the
dispute was based on the validity of security documents prepared by Kaplan
Advocates. An application was made to have the respondent barred from acting.
The aspect of confidentiality was put to test by court based on the facts in
question. The court realized the aspect of retainer on this matter and agreed
that there existed the duty of confidentiality even after the conclusion of the
matter. The application succeeded and Kaplan and Stratton advocates were barred
from acting. Similarly, in Uhuru
Highway Development Limited V Central Bank Limited, the court was presented
with evidence that counsel had used confidential information to make the
parties sign a charge, and was in a position of conflict as a potential witness
to the case. Counsel was barred from acting[33]
Exemptions
to the duty of confidentiality:
1. Consent. Where the client
consents to the release of such information, counsel may release the
information
2. Where the advocate uses the privileged information in defense of his
own interest or the professions interest. Clause 123 of Part 7 of the code of
conducts provides that disclosure may also be justified in order to
establish or collect a fee or to defend any allegation of professional
misconduct but only to the extent necessary[34]. There are instances where the
duty to defend the nobility of the profession and integrity of counsel when in
question is key. In Parry Jones V Law Society[35] a solicitor sought to
prevent the law society from gaining access to documents which his clients
could assert legal professional privilege to the court of appeal dismissed his
claim. Lord Denning held that “the law society statutory powers of
regulation overrode any privilege or confidence that might otherwise subsist
between a solicitor and client”[36]
3. Children. Essex county council v republic[37] it was held that the court when
considering the welfare of the child had power to override legal professional
privilege.
4. Where counsel is compelled by a court of law (subpoena)
5. Where the information is public knowledge.
6. Where counsel is deemed to have employed the use of Chinese walls to
prevent disclosure of privileged information, and where there is no confirmed
risk of disclosure of such information, they may be allowed to represent their
client. In miscellaneous application 59 of 2003, advocate withdrew from
the applicants matter due to a merger
between their firm and that of Harrison Hamilton and Matthews (HHM)
applicant was of the view that HHM also withdraws from acting for his opponent
as the merger could lead to spill of confidential information which could be
useful to the opponent to his detriment, the respondent filled an
affidavit to assure the court that they
had put in measures to ensure that information would only remain with advocate handling that matter, and averred
further that there was no evidence that
the duty of confidentiality owed to the applicant had been breached. The
application was dismissed.
III. Uncooperative and incompetent conduct
An
advocate may be barred from actin when he engages in professional misconduct
that may lead to his suspension from practice and in extreme cases being struck
out of the roll of advocates. Most cases occur in relations to client account.
Section 80 of the Advocates Act contain a provision for betrayal of trust, that
‘any person entrusted with responsibility of client’s money in his capacity
as an advocate with instructions to handle the money or valuables in connection
with his duty and fails to do so commits an offence’[38].
In New South Wales v Harvey 1976 NSWLR 15, Defendant was a
solicitor at a legal practice and associate at three businesses, he failed to
act transparently and misdirected his clients into lending money into the
businesses to fund high risk investments. At times he secretly operated
clients’ accounts and made such lending without informing the clients pronto.
The investments collapsed and clients monies were lost, a successive appeal was made on grounds of professional
misconduct on his part seeking him not only be barred from acting for client
but to be stuck of the roll of solicitors.
NB. Once
a party has sufficient reasons to warrant an opposing advocate barred from
acting, the make the application by filing the notice
of motion, with a supporting affidavit
Advocates
should strive to serve the public, as the profession requires us to. However,
when doing so they need to be wary of situations where such a duty may be
compromised by other prevailing factors. Thus a balance needs to be struck so
that the integrity of the profession is upheld.
[1] Maree Quinlivan, The Cab Rank Rule: A Reappraisal of
the Duty to Accept Clients, 28 Victoria U. Wellington L. Rev. 113 (1998).
[3] Mark Humphries, Legal ethics, past and present – part
two, 30 November 2009. Available at < https://www.lawgazette.co.uk/analysis/legal-ethics-past-and-present--part-two/53308.article >
[8] Provision 96, Chapter 6, Part IV, Law Society of
Kenya’s Code of Standards of Professional Practice and Ethical Conduct, June
2016.
[15] www.paclii.org/journals/fJSP/.../8.shml THE IMPORTANCE OF ETHICS AND THE APPLICATION OF
ETHICAL PRINCIPLES TO THE LEGAL PROFESSION
[17] Law society of Kenya, code of standards of
professional practice and ethical
conduct, June 2016
[18] Liebman, ‘The changing law of disqualification: The role of
Presumption and Policy, 73 Nw. U.L. Rev. 996 (1979)
[20] Law society of Kenya, code of standards of
professional practice and ethical conduct, June 2016, 4(clause 95)
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