MOI UNIVERSITY FACULTY OF LAW PROFESSIONAL ETHICS AND PROFESSIONAL RESPONSIBILITY CHAPTER ONE INTRODUCTION Professional Ethics govern the conduct of advocates. A: WHO IS AN ADVOCAE ADVOCAE An advocate is de!ned in Section " of the Advocates Act #ursuant to Act No.$% No.$% of $&%& as' an( #erson )hose na*e is dul( entered u#on the +oll of Advocates or u#on the +oll of Advocates and having the ran, of Senior Counsel and for #ur#oses of #art I- of the Act' includes a #erson *entioned in section $. Part I- of the Advocates Act deals )ith the issue of re*uneration of Advocates. Section $ of the Advocates Act #rovides that as long as a #erson holds holds /uali!catio /uali!cations ns s#eci!ed in Section Section $0 of the Act 1Ca# $23' $23' then such a #erson *a( 4e entitled in connection )ith his duties to act as an advocate and shall not 4e dee*ed to 4e an un/uali!ed #erson. his #rovision covers: 5 a3 An o6icer o6icer in the Attorn Attorne( e( 7eneral8s 7eneral8s o6ice. o6ice. 43 he Princi#al Princi#al +egistrar +egistrar of itles itles and an( other other +egistrar +egistrar of itles. itles. c3 An( #erson #erson holding holding o6ice in a local local authorit( authorit( esta4lished esta4lished under under the $ 9ocal 7overn*ent Act he de!nition of an Advocate includes a Senior Counsel *erel( 4ecause of the int introduction of Section $ of Act No. No. $% of $&%& of an a##oi ##oint nt*e *ent nt 4( the Pres Presid iden entt of an( an( #ers #erson on of irre irre#r #roa oach cha4 a4le le #rofess #rofession ional al conduc conduct' t' )ho has render rendered ed e;e*#l e;e*#lar( ar( service services s in
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he he ran, ran,in ing g of Seni Senior or Coun Counsel sel has has its its root roots s in the the En Engl glis ish h Prac Practi tice ce )here ?arristers )ho have e;hi4ited outstanding #rofessional conduct conferred conferred )ith the the honour of the the title of @ueen8s @ueen8s Counsel. A @ueen8s Counsel is referred to as a @C.
B. QU QUALIF ALIFICA ICATION TIONS S Prior to the co*ing into force of the Act $% of $&%&' the Advocates Act #rovided a di6erent *ode of /uali!cation for advocates. Act $% of $&%& clearl clearl( ( de!nes de!nes an advoca advocate te as a #erson #erson holdin holding g /uali! /uali!cat cation ions s under under section $0 of the Advocates Act. Section $0 #rovides that a #erson shall 4e /uali!ed to 4e an advocate if he has #assed e;a*inations of an( recognied Bniversit( in
The Council o Le!"l E#uc"$ion
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In accordance )ith section 01$3 of the Council of 9egal Education Act' the the Coun Counci cill of 9ega 9egall Educ Educat atio ion n 1C9E 1C9E33 is co*# co*#os osed ed of the the follo follo)i )ing ng #ersons:5 1a3the Chief ustice )ho is also the Chair*an 143one udge of the Court of A##eal to 4e a##ointed 4( the Chief ustice 1c3 One udge of the High Court to 4e a##ointed 4( the Chief ustice 1d3he Attorne( 7eneral or his re#resentative 1e3 Five Advocates no*inated 4( the Council of the 9a) Societ( of
O%&ec$' "n# Pu()o'e o $he Council hese are enu*erat enu*erated ed in section section 2 of the Act. he general general o4ect o4ect and #ur#ose of the Council ho)ever is stated to 4e the e;ercise of general su#ervision and control over legal education in
organising and conducting courses of instruction for the ac/uisition of legal ,no)ledge' #rofessional s,ills and e;#erience Page 0 of $$>
4( #erson see,ing ad*ission to the +oll of Advocates in
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e*#o)ers' the Council to *a,e regulations for the #ur#oses of giving e6ect to the #rovisions of the Act and in #articular' the regulations *a(:5 1a3Ga,e #rovision regarding the engage*ent and training of #u#ils 4( advocates and their res#ective' conduct duties and res#onsi4ilities. res#onsi4ilities . 143Ga,e di6erent #rovisions for di6erent circu*stances. 1c3 Authorie the charging 4( the Council of fees 1d3Ga,e #rovision for the esta4lish*ent of training institutions 4( the Council 1e3Prescri4e the re/uire*ents for the a)ard of di#lo*as' certi!cates and other acade*ic a)ards of the Council. 1f3 1f3 Prov Provid ide e for for the the desc descri ri#t #tio ion n of di#l di#lo* o*as as'' cert certi! i!ca cate tes s and and othe otherr acade*ic a)ards of the Council. 1g3Provide 1g3Provide for the settle settle*en *entt of the ter*s and conditio conditions ns of servic service e incl includi uding ng the the a##o a##oin int* t*en entt dis*i dis*iss ssal al'' re*u re*une nera rati tion on and and reti retiri ring ng 4ene!ts of the nu*4ers of sta6 of the Council and 1h3Prescri4e an(thing )hich *a( 4e #rescri4ed under the Act. Clearl( the #o)ers of the Council are fairl( )ide as is indeed attested 4( the vague vague )ording of the the #rovisions #rovisions of the Act. he Council Council can even *a,e *a,e rules rules i*#osin i*#osing g o4liga o4ligatio tions ns on *e*4er *e*4ers s of the legal legal #rofes #rofession sion )ith a vie) to i*#roving standards e.g. the #rovisions of section $> are fairl( )ide as to e*#o)er the council to re/uire co*#ulsor( continued legal education of #ractising advocates and other legal #rofessionals. he Council *a( reco**end the i*#osition of a legal education lev( on an( or all services rendered 4( advocates. So far as accounta4ilit( is concerned' the Act *a,es #rovision for the #re#aration of annual esti*ates of revenue and e;#enditure as )ell as for ,ee#ing of #ro#er 4oo,s and records re cords of account of the inco*e' assets and e;#enditure of the Council. After satisf(ing the /uali!cations as to the ad*ission as an Advocate' Section & of the Advocates Act #rovides that an Advocate shall /uali!ed if:5 a3 He has has 4een 4een ad*itt ad*itted ed as as an Advoca Advocate. te. 43 He has has his his na*e na*e ente entered red into into the the roll. roll. c3 He has has in force force a Practicing Practicing Certi!cate Certi!cate and an Annual 9icense. 9icense. Such certi!cate shall 4e dee*ed not to 4e in force if the Advocate is sus#end sus#ended ed 4( the disci# disci#lin linar( ar( co**it co**ittee tee or the court court )here )here the Advocate is adudicated 4an,ru#t. It is therefore onl( after an Advocate has a Certi!cate' that he can 4e allo)ed to #ractice as an Advocate.
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Prior to Act $% of $&%&' articled cler,s )ere ad*itted as Advocates. hese hese )ere )ere #eo#le #eo#le )ho after after #assin #assing g their their For* Four E;a*in E;a*inati ations ons )ent straight to the School of 9a) for = to (ears after )hich the( /uali!ed as Advocates. After that' their na*es )ere entered into the roll and the( #racticed. his *ode of /uali!cation is no) defunct and ever( #ros#ective advocate *ust no) undergo universit( training. An Advocate )hose na*e has not 4een entered into the roll and has not ta,e ta,en n out out a Prac Practi tici cing ng Cert Certi! i!ca cate te is not not an Advo Advoca cate te and and can can 4e disci#lined for #racticing )ithout a Certi!cate. In Republic v. Theuri' Theuri' the accused )as charged )ith the o6ence of #racticing la) )hile not an Advocate. he case against against the accused )as esta4lished on the 4asis that he got #o)ers of attorne( fro* litigants and #ur#orted to act as an Advocate. He )as found guilt( of an o6ence under Section 00 of the Advocates Act and sentenced to serve " (ears in ail.
C. ORI*IN ORI*IN OF ETIQU ETIQUET ETTE TE he source of the rules of Professional Eti/uette and Conduct' )ere self i*#osed 4( the 4ar in England )a( 4ac, in the 2 th centur( and )ere develo#ed as good *anners a*ong gentle*en. his )as to correct the i*4alance i*4alance in relation to the #rofession #rofession and the client. he( )ere *eant to sto# a4use hence the esta4lish*ent of code of conduct. he legal #rofession in
D. CHARACTERISTICS CHARACTERISTICS OF AN ADVOCA ADVOCATE TE Signing g the roll: his his 4asicall 4asicall( ( signi!es signi!es the entr( entr( into the legal legal +. Signin #rofession under Section & 1a3 and 143.
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Having ng s#ec s#ecia iall s,il s,ills ls that that the the #u4l #u4lic ic need needs s and and agai agains nstt )h )hic ich h ,. Havi inco*#eten inco*#etence ce is tested. An Advocate Advocate *ust 4e a4le a4le to #resent the the client8s case in court and *ust have the sense of #u4lic service as o##osed o##osed to #rivate #rivate service. service. In England' England' Advocate Advocates s never received received re*uneration. Gust 4e )illing )illing to serve serve the #u4lic #u4lic at large. large. he need need for legal legal -. Gust re#r re#rese esent ntat atio ion n is seen seen in the the Prov Provisi ision on of Advo Advoca cate tes s to #erso #ersons ns facing the death sentence in cases of *urder' ro44er( )ith violence and treason. he state #rovides re#resentation and a #erson is li,el( to 4e or has 4een sentenced to hang. he 4lac, ro4e of Advocates has a #ouch at the 4ac, for receiving a to,en )hen Advocates #erfor* their their dut(. dut(.
. An Advocate *ust voluntaril( su4*it hi*self to the Code of Conduct governing Advocates. /. An Advocate *ust co*#l( )ith the rules of eti/uette and *ust have #ersonal res#onsi4ilit( to all he serves and lia4ilit( to all his clients. E. OB0ECTS OB0ECTS OF THE LE*AL LE*AL PROFESS PROFESSION ION $. o *aint aintai ain n a for* for* of condu onduc ct in )hich hich the clie client nt8s 8s inte intere rest st is #ara*ount. ". o al)a(s al)a(s hones honestl( tl( serve serve clie clients nts and and courts courts.. 0. Honest( Honest( to #rofessi #rofessional onal colleag colleagues' ues' es#ecial es#eciall( l( in undert underta,ing a,ings s as this this *a( even 4ring !nancial loss. >. o #resent #resent (ourself (ourself in a #articul #articular ar *anner *anner and al)a(s al)a(s 4e #ro#erl #ro#erl( ( dressed. =. o control control condu conduct ct and and 4ehavi 4ehaviour our of Advoc Advocate ates. s.
F. THE ADVOC ADVOCA ATE AND THE THE CLIENT CLIENT he he Advo Advoca cate te *ust *ust deal deal )i )ith th his his clie client nt )i )ith th ut*o ut*ost st hone honest st( ( and and fran,ness. fran,ness. No untrue untrue re#resentation re#resentation should should 4e *ade to the client client nor should an( fact 4e ,e#t a)a( fro* the client. In deal dealin ing g )i )ith th trus trustt and and lega legaci cies es'' an Advo Advoca cate te is re/u re/uir ired ed to 4e e;tre*el( careful' he *ust a##l( *onies for s#eci!c #ur#oses and *ust 4e #rudent )hen dealing )ith his client. A client is de!ned under the Advocates Act' to include as an( #erson )ho as a #rinci#al or on 4ehalf of another' or a trustee or #ersonal re#resentative or in an( other ca#acit( has #o)er e;#ress or i*#lied to Page of $$>
retain or e*#lo(s and retains or e*#lo( or is a4out to retain or e*#lo( an Advo Advoca cate te'' unde underr an( an( #ers #erson on )h )ho o is or *a( *a( 4e lia4 lia4le le to #a( #a( an Advocate an( costs. Contentious 4usiness refers to 4usiness done 4( an Advocate in court relating to #roceedings or an( tri4unal or a #anel. Non Non cont ontenti entiou ous s 4usine siness ss ref refers ers to an( an( 4usi 4usine ness ss )h )hic ich h is not not contentious.
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CHAPTER TWO1 THE ESSENTIALS OF ADVOCACY ADVOCACY ADVOCACY his is the science of #leading #leading the cause of another another.. Advocac( is hence acting for a #erson' hence one need not assu*e:5 a3 hat hat the #erson #erson8s 8s cause cause is that of the the re#rese re#resente nted. d. One needs needs to 4e 4road *inded and e*otional senti*ents held 4( the other. other. 43 he #leading )as su# su##osed sed to ta,e #lace 4efore a legal or a legiti*ate 4od(. c3 he advocat advocate e is e;clusiv e;clusivel( el( de#endent de#endent in so holdin holding g hi*self hi*self out as an advocate. When (ou are #leading the the cause of another' another' (ou need not #lead in the client8s client8s favour. favour. One school of thought thought sustains that (ou should #lead (our client8s case in his or her o)n interest to the 4est of (our a4ilit(.
QUALITY a3 Persuasiveness ersuasiveness (ou have have to 4e a4le a4le to *ove *ove 4( argu*ent argu*ent a 4od( of of #ersons to 4e a4le to acce#t )hatever cause (ou are #leading' so that hat (ou (ou shou should ld have have the a4ili 4ilitt( to #ers #ersu uade ade and and devel evelo# o# a techni/ue. techni/ue. here is la) and fact rule rule of a techni/ue techni/ue of #ersuasion. Kou Kou *ust learn to thin, on (our feet. 43 It8s It8s essenti essential al to co** co**and and hu*a hu*an n #s(cho #s(cholog log( (. his his is necessa necessar( r( to understand #eo#le and their )a( of thin,ing . c3 So*eti*es So*eti*es the a4ilit a4ilit( ( to 4e #atien #atientt #a(s. #a(s. If (ou (ou are are #atient #atient'' (ou )ill learn )hat *a,es the #erson #erson tic,. Kour instinct also to 4e loved and ad*ire ad*ired d for )hat (ou (ou do is i*#ortant i*#ortant.. here8s here8s also also the hu*an hu*an desire for do*ination. ∗
In order to 4e #ersuasive it8s necessar( to ,ee# in chec, all these' since since if (ou are not' then it8s it8s not ver( ver( right. right. Al)a(s Al)a(s as, (oursel (ourself f )hether the fact that (ou disli,ed a *e*4er of the 4ench *eans (ou didn8t li,e his o#inion. d3 Hu*ilit( Hu*ilit( (ou *ust 4e hu*4le. hu*4le. When dealing dealing )ith *e*4ers *e*4ers of of the the 4ench' one ought to ,no)' these #eo#le are ust li,e (ourself hence one ought to 4e in the loo, out. e3 Conf Confro ront ntat atio ion n avoi avoid d conf confro ront ntin ing g a udg udge. e. his his *ight *ight 4e ver( ver( devastating and *ight turn hi* against (ou.
David Napley: Napley: the Art Art of Persuasion
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+elia4 +elia4ili ilit( t( (ou (ou shoul should d 4e a4le a4le to to ventur venture e an air air of relia4 relia4ili ilit( t(.. It8s It8s 4( sho) sho)in ing g that that (ou (ou ,n ,no) o) )h )hat at (ou (ou are are tal, tal,in ing g a4ou a4outt and and its its reliance. g3 Aggress Aggression ion one ought ought to have have a certain certain a*ount a*ount of aggre aggressio ssion n 4ut alongsi alongside de this' this' there there *ust 4e #oliten #oliteness. ess. +e*ain +e*ain !r* 4ut 4ut ver( fran, in )hat (ou are #leading. h3 Punc Puncttuali ualitt( these hese have have 4een een ,n ,no) o)n n to 4e a *ao *aorr facto actorr in advocac(. i3 Ange Angerr this ought ought not to 4e dis#la dis#la(e (ed d 4( advo advoca cate tes s in advoc advocac ac( (. Anger is a )a( of detracting (ou. Avoid angering other #eo#le. 3 O4ectivit( one should al)a(s 4e o4ective. he advocate' should not 4e /uic, to #ass udge*ent or conde*n in *ost of the heated e;changes' an advocate advocate should ,ee# his *outh shut. shut. One should 4e ver( careful to oin an argu*entative discussion. ,3 Identi Identi!ca !catio tion n avoid avoid identi identif(i f(ing ng )ith )ith (our (our clien client. t. Identi Identif( f( )ith )ith his case as (ou #lead it in the tri4unal 4ut ensure that (ou don8t *a,e the client8s case. l3 Negot Negotia iati tion on ,no ,no) ) (our (our case case ver( ver( )el )elll )h )hen en (ou (ou go go to cou court rt.. It hel#s a great deal if (ou ,no) (our o##onent8s #osition. *3 Kou should not not 4e dog*atic dog*atic 4e e;i4le e;i4le to co*e out )ith )ith the 4est 4est deal. n3 Sett Settle le*e *ent nt its its a#t a#t to develo develo# # an incli inclina nati tion on to as, as, the the clie client nts s to sett settle le out out of cour court. t. 9iti 9itiga gati tion on for for the the #ur# #ur#os ose e ther thereo eoff is an e;#ensive e;#ensive e;ercise e;ercise in ter*s of *one( *one( and ti*e. ?ad settle*ent settle*ent is often 4etter than a good udge*ent. o3 +elationshi shi# relationshi# )ith a client *ust 4e carefull( ll( cultivated cultivated.. A client as as de!ned in S." S." of the Advocates Advocates Act Act is ver( !ne. !ne. A #rof #rofess essio iona nall *ust *ust 4e alert alert )hen )hen dealin dealing g )i )ith th clien clients ts 4ecause it8s so de!nite that he8ll de#end on (ou for a nu*4er of consultations. See Groom v. Crocker $ #3 Instruction Instructions s unless unless an advocat advocate e is o4liged o4liged to instruction instructions s fro* an( an( client client'' (ou need not refuse refuse on accou account nt of colour colour'' ethnic ethnic origin origin'' creed' se;' race. race. Ho)ever' Ho)ever' decline instruction instruction if:5 $. Kou don8t don8t )ant )ant to ta,e ta,e that that ,ind ,ind of )or, )or,.. ". Kou don don8t 8t hav have e enou enough gh ti* ti*e. e. 0. here here is #erso #ersona nall int inter erest est.. >. Kou hav have e #rev #revio iousl usl( ( acte acted. d. =. Kou are a ri4unal ri4unal or a Co**issioner Co**issioner and the the case case is tria4le tria4le 4( these tri4unals. 2. Kou are #ract #ractici icing ng in #artner #artnershi# shi# and and (our #artne #artnerr is li,el( li,el( to 4e called as a )itness in that case. . Kour our clie client nt )ant )ants s (ou (ou to ta,e ta,e a cert certai ain n acti action on #urel #urel( ( to inure so*e4od( else. %. he instruc instructio tions ns given given are not not clea clearr. &. A clie client nt doe does s not not )ant )ant to to #a( #a( fees. fees. 1
(193! 2 A"" #$%$ 39&$
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In'$ In'$(u (uc$ c$io ion' n' 'hou 'houl# l# %e )( )(e ee( e("% "%l2 l2 $"3e $"3en n #o4n #o4n in 4(i$ 4(i$in in!. !. I$ 'houl# %e #one 5e(2 cle"(l2 "n# e6h"u'$i5el2 "n# " clien$ 'houl# 'i!n "$ $he en# o in'$(uc$ion'. in'$(uc$ion'. /3 Inter# Inter#osin osing g this this should should not 4e done 4et)e 4et)een en client client and and the udge. udge. When giving o#inions to client' do so reasona4l(' in ti*e and in )riting. r3 Do not degr degrade ade (ours (ourself elf as a #rofe #rofessio ssional nal ust ust to 4ene! 4ene!tt a client. client. s3 +e#l( +e#l( to to corres corres#on #onden dence ce #ro* #ro*#tl #tl( (. t3 Pleadings Pleadings and docu*ents docu*ents should 4e drafted drafted *eticu *eticulousl( lousl(.. u3 If in dou4t as, 9a) 9a) Societ Societ( ( of
to the state to the court to the client to hi*self
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CHAPTER THREE THE ADVOCATE;S BRIEFS Once an Advocate has 4een retained in a *atter' he shall re*ain on record until he )ithdra)s fro* acting. In cri*inal *atters *atters once an Advocate has 4een retained retained and on record' he 4eco*es an o6icer of the Court and cannot si*#l( disagree )ith his client and refuse to go to to court. A #rudent Advocate *ust thus ,no) the e;tent of his instructions and con!ne it to a s#eci!c li*4' for e;a*#le' )hen onl( a##l(ing for 4ail. When (ou fall out of favour )ith a client' (ou *ust for*all( )ithdra) fro* acting for the client and the court *ust give give an Orde Orderr to ena4l ena4le e (ou (ou sto# acti acting ng.. he he 4asi 4asis s of sanct sanctit it( ( of instructions is that' an Advocate o)es a dut( to the court and his client and his o4ligation to his client *ust 4e assu*ed to #ersist as long as he is on record. In civil *atters a client can )ithdra) instructions fro* an Advocate and if he )ithdra)s instructions' he *ust !le a Notice of Intention to Act in Person under under Order 0 +ule & of the Civil Procedu Procedure re +ules 1CP+3. 1CP+3. hat notice *ust s#ecif( his address of service and *ust 4e served u#on the Advocate for the o##onent and his o)n Advocate. Bnder Order 0 +ule $$ of the CP+' an Advocate )ho has acted for a #art( in a *atter' *a( 4e re#laced )here he has died' 4eco*e 4an,ru#t or cannot 4e found or has failed to ta,e out a Practicing Certi!cate or has 4een 4een struc, struc, o6 the +oll +oll of Advoca Advocates tes.. A #art( #art( *a( also a##l( a##l( to court 4( su**ons that such Advocate has ceased to 4e an Advocate. Order 0 +ule $" CP+ allo)s allo)s an Advocate Advocate to !le a for*al for*al a##lication a##lication to cease fro* acting 4ut such a##lication *ust 4e served u#on the #art( under Order 0 +ule $"1$3 and 4efore the court grants the Order it *ust 4e satis!ed that the Advocate has served the #art( through his last ,no)n address. he Order rder of Withd ithdra ra)a )all unde underr Order rder 0 +ule ule $"10 $"1033 a6ec a6ects ts the relationshi# 4et)een the Advocate and his client since he no longer acts on his 4ehalf. In *atri*onial *atters' an Advocate re*ains on record until he for*all( )ithdra)s. )ithdra)s. Once an Advocat Advocate e ta,es a 4rief' 4rief' he is the custodian custodian of his client client8s 8s rights rights and )hilst )hilst so acting acting'' he *ust *ust al)a(s al)a(s avail hi*self hi*self in court. Page $" of $$>
An advocate *ust onl( give a #rofessional underta,ing u#on instructions fro* his client and )hen he is certain that the funds for*ing the 4asis of the underta,in underta,ing g have 4een de#osited de#osited )ith hi*. It is other)ise ris,( ris,( to give an underta,ing )ithout ,no)ing the source of funds. An Advocate *ust al)a(s ,ee# his client infor*ed of an( ne) legislation that that *a( a6ect his client client8s 8s case. He *ust not deceive deceive his client client nor should he deceive deceive third #arties. While handling a *atter for a client' he should not disclose an( details of the *atter to a third #art( even if he is related to the client. An Advocate should never ta,e advantage of his client for !nancial gain and if he gets a #o)er of attorne(' it should 4e used for s#eci!c the #ur#ose for )hich it8s given. An Advocate )hile acting *ust al)a(s disclose all !nancial 4ene!ts to his client. Once acting for the client' client' an Advocate Advocate is res#onsi4le for the conduct conduct and *isconduct *isconduct of the su4ordinate su4ordinate sta6 in his o6ice' ho)ever ho)ever ina# ina##r #ro# o#ri riat ate' e' and and shou should ld an( an( *is *isco cond nduc uctt occu occurr in the the o6ic o6ice e the the Advocate is res#onsi4le. An( underta,ing 4( a #artner in a la) !r* 4inds all the #artners irres#ectiv irres#ective e of )hich )hich #artner #artner gives it. it. In the case case of Kingwoolen of Kingwoolen Mills ! Ltd. v. Kaplan & Stratton dvocates the Court of A##eal held that' an Advocate should not act in a *atter )here he has #reviousl( acted for his client8s o##onent. Where a #artner or an Advocate #racticing alone dies' there no dou4t arises arises a co*#li co*#licat cation ion in ter*s ter*s of ad*ini ad*inistr strati ation on of estate estate'' since since the Advocate8s #ractice' for*s #art of his estate. An Advocate8s estate )ill thus thus 4e govern governed ed in accorda accordance nce )ith )ith his )ill u#on death. death. he 9a) 9a) Societ( of
C$A$ No$55 of 1993'
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transa transacti ctions ons in the t)o 4an, 4an, accoun accounts ts until until advised advised other)ise other)ise 4( it. Ho)e Ho)eve verr' the the advo advoca cate tes s of the the dece deceas ased ed8s 8s estat estate8s e8s ad*i ad*ini nist stra rato tors rs argu argued ed to the the e6ec e6ectt that that the the ad*i ad*ini nist stra rato tors rs and and not not 9S< 9S< had had the the legiti*ate right to o#erate o#erate the t)o accounts. accounts. It )as argued on 4ehalf of the 9S< that since the deceased )as a *e*4er of the 9S< at the ti*e of his death' the A*ended +egulations a##lied to hi* and conse/uentl( the the Chai Chair* r*an an of the the 9S< 9S< )as )as e*#o e*#o)e )ere red d to a##o a##oin intt one one or t) t)o o ad*inistrators to *anage his legal !r* for #ur#oses of )inding it u#' that the +egulations o#erated retroactivel( and that the deceased8s la) !r* 4eing 4eing a s#ecia s#ecialis lised ed o#erat o#eration ion needed needed a /uali! /uali!ed ed and #ract #ractisin ising g advocate to *anage and )ind u#. he ad*inistrators of the deceased8s estate ho)ever contended that the la) a##lica4le to the deceased8s estate including his la) !r* )as the 9a) of Successi Succession on Act. heref herefore ore to the e;tent e;tent that the +egulat +egulation ions s *ade #rovision for the ad*inistration of #art of the deceased8s estate 4( #eo#le other than those a##ointed under the 9a) of Succession Act the for*er )ere inconsistent )ith the latter and hence void to that e;tent. It )as also conten contended ded that that since since the +egulati +egulations ons had not e;#res e;#ressl( sl( #rovided for retros#ective a##lication then the( did not a##l( to the deceased8s estate as the( )ere #ro*ulgated after the deceased8s death. he he tria triall udg udge e had had inde indeed ed agre agreed ed )i )ith th the the 9S<8 9S<8s s argu argu*en *ents ts and and #roceeded to *a,e orders a##ointing no*inees to *anage the said 4an, accounts and render an account to the ad*inistrators. he ad*inistra ad*inistrators tors a##ealed a##ealed and succeeded succeeded in their argu*ents argu*ents.. he Court of A##eal discounted the argu*ent that the #rovisions regarding the #ractice of advocates a##lied even to their estates after their death. he court )as of the vie) that u#on the death of an advocate then #ractice regulations ceased to a##l( to hi* and his #ractice. So )hat )hat ha## ha##en ens s to clien client8 t8s s fund funds s Do the( the( 4eco 4eco*e *e #art #art of the advocate8s estate so that there can 4e *anaged 4( his ad*inistrators Or if the advocate had died testate )ould it 4e rational to argue that such such fund funds s )ere )ere free free esta estate te ca#a ca#a4l 4le e of 4ein 4eing g )i )ill lled ed a)a( a)a( to an( an( intended intended 4ene!ciar( 4ene!ciar(.. he court )as of the vie) that o6ice o6ice and client funds )ere #art of the estate of a deceased advocate and hence ca#a4le of 4eing )illed a)a( in other )ords' that the fact that clients funds are trus trustt fund funds s did did not not #rec #reclu lude de the* the* fro* fro* 4ein 4eing g dee* dee*ed ed as the the free free #ro#ert( of the advocate )hich )ould 4e legall( co*#etent to freel( dis#ose dis#ose of in his ca#acit( ca#acit( as an advocat advocate. e. he court )ent )ent further further and declared that the o4ects of the 9S< do not include the *anage*ent and )ind )i ndin ing g u# of la) la) !r*s !r*s of dece deceas ased ed advo advoca cate tes. s. he he cour courtt even even inti*ated that either the Pu4lic rustee or even Chiefs or Su4 Chiefs or ad*inistrative o6icers could *anage clients8 funds.
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What the learned udges suggest is that an advocate in the course of his #ractice is not a*ena4le to the controlling *andate of the 9S< so far as the clients clients account is concerned. concerned. ?ut that )ould )ould destro( the s#irit s#irit and intend intend*en *entt of the rules and regulatio regulations ns that that govern govern the #ract #ractice ice of advocac(. advocac(. he overall *andate of the the 9S< is to regulate the the conduct of its *e*4ers and this includes their conduct as regards client8s *one(. So that the #rotection of client8s funds naturall( e;tends as a dut( of the 9S< 9S< even even after after the deat death h of the advoc advocat ate. e. he he 9S<8 9S<8s s *and *andat ate e is over overri ridi ding ng and cove covers rs even even the the #rot #rotec ecti tion on of client client8s 8s.. hat hat is )h )h( ( advocates )ill 4e su4ected to the disci#linar( #rocess in case of an( acts that *a( 4e construed as 4eing inconsistent )ith the interests of the client. Surel( that #rotection #rotection cannot 4e said to cease cease as soon as the advocate dies. Ho)ever' Ho)ever' the la) after after the Ma$well the Ma$well %mbogo case %mbogo case see*s to 4e that an advocate can )ill a)a( client8s funds since the( are #art of his free free estate. estate. here here does not see* to 4e an( #rotect #rotection ion to a client client )hose *one( *a( fall in the hands of fraudulent ad*inistrators. Where an e;ecutor is no*inated and )here he is an Advocate' then the !r* *a( run even after the death of the Advocate if he ta,es over the #ractice. He *a( also 4e lia4le to #a( o6 lia4ilities and give clients ti*e to engage other Advocates. B#on #on deat eath of an Advoc dvocat ate' e' a clie client nt ough oughtt to have have a choi choice ce of re#resentation.
THE PAUPER BRIEF SCHEME An Advocate )ill al)a(s act u#on #ro#er instructions and no dou4t instru instructi ctions ons include include #a(*ent #a(*ent.. his his re/uir re/uire*e e*ent nt is /uali! /uali!ed ed 4( the nature of #u4lic service of the Advocate that re/uires hi* to handle 4riefs for #ersons facing death sentence. Section 1"a3 e*4odies the #resu*#tion of innocence of ever( #erson and allo)s such a #erson re#resentation 4efore he can 4e found guilt(. The )"u)e( %(ie 'che:e (eco!ni
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In ci5il :"$$e('9 " )e('on :"2 'ue "' " )"u)e( un#e( O(#e( -, "n# 'uch 'ui$' :u'$ %e in'$i$u$e# in forma pauperis. Ever( a##l Ever( a##lic icat atio ion n to sue sue as a #au# #au#er er shal shalll cont contai ain n all all #art #artic icul ular ars s re/uired in a #laint together )ith a state*ent that a #au#er cannot #a( the #rescri4ed fee. he #erson *ust #resent to court court hi*self' hi*self' unless he is e;e*#ted fro* a##earing under Section %" of Ca# "$ and *a( 4e e;a*ined 4( the court 4efore his a##lication is allo)ed. Once the a##lication is allo)ed' the suit *a( #roceed as a nor*al suit. A #art( *a( 4e de#au#erised if he is guilt( of ve;atious or i*#ro#er conduct' he has *eans or )here so*eone has o4tained interest in the suit. Where he is de#au#eri de#au#erised' sed' he *a( 4e 4e ordered to #a( #a( court fees fees under Order 0" +ule $ and $$.
THE DOC= BRIEF In certain urisdictions' Advocates are instructed 4( the accused #ersons u#on u#on arrest and and arraign* arraign*ent ent in court. court. he accuse accused d is at the ti*e ti*e of instruction at the doc, 4ut there are dut( solicitors )ho ta,e details of such accused #ersons and see, re#resentation )hile the accused is in the the doc, doc,'' this this is refe referr rred ed to as a Doc, Doc, ?rief ?rief.. hou hough gh it ha## ha##en ens s in
PRIVILE*E AND CONFIDENTIALITY Priv Privil ileg ege e and and Con! Con!de dent ntia ialit lit( ( refe refers rs to the the fact fact that that the the tran transa sact ctio ion n 4et)een Advocates and their client should not 4e disclosed to an( #art( and to the fact fact even in court. court. Such *atters *atters should should not 4e disclosed disclosed if the( the( have co*e co*e to the ,no)le ,no)ledg dge e of the Advoc Advocat ate e and and clie client nt.. he he reason )h( this #rinci#le is attached to the AdvocateLclient relationshi# is to give the client con!dence to disclose ever(thing to the Advocate )ith )i thou outt fear fear that there there )o )oul uld d 4e 4etra( 4etra(al al.. It ena4le ena4les s the the clie client nt to co**unicate fran,l( and it ena4les the Advocate to advice the client fran,l(.
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his #rivilege e;ists )hether litigation is in e;istence or not' 4ut does not e;tend e;tend to third #arties. #arties. If there is a dis#ute dis#ute )hether the #rivilege #rivilege e;ist a udicial o6icer )ould *a,e a ruling on the docu*ent. Privil Privilege ege e;tend e;tends s to oral oral co**un co**unica icatio tion n fro* fro* client client'' docu*e docu*enta ntar( r('' infor*ation received fro* a client in the course of acting for a client. An( ,no)ledge or fact derived fro* such co**unication is also #rivileged. #rivileged. For #rivilege #rivilege to e;ist' it is not necessar( necessar( that a client client *ust have have #aid #aid fees. It does not a##l( a##l( to an( co**uni co**unicat cation ion 4et)een 4et)een the Advocate and Client 4efore he 4eco*es a client. It lasts forever and survives the death of a client' so long as there is an issue in )hich interests are in /uestion. An( co**unication in a letter is not #rivileged unless it is *ar,ed JWithout JWithout Preudice8 Preudice8.. his *eans' *eans' the receiving receiving #erson cannot cannot use the letter to the the detri*ent of the client unless unless )ith his #er*ission. his rule )as devised to 4e a##lied to corres#ondence or oral co**unications and is intended to 4e a4le to facilitate negotiations or settle*ent of a dis#ute. dis#ute. So that to 4e full( #rotected' #rotected' JWithout JWithout Preudice8 Preudice8 )ill a##l( to all co**unications 4eing used during negotiations. Once an agree*ent is reached' there is a contract and the #rivilege ceases. he client can )aive this #rivilege e;#ressl( or 4( i*#lication or 4( conduct. Bnder Section $0>' Ca# %' no Advocate shall 4e #er*itted to disclose an( co**unication co**unication 4et)een hi*self and his client' )hich is #rivileged. #rivileged. As long as the co**unication does not reveal the furtherance of an( ille illega gall #ur# #ur#os ose e or sho) sho) an( an( cri* cri*e e or frau fraud' d' such such #rot #rotec ecti tion on shall shall continue continue even after after the e*#lo(*ent e*#lo(*ent of the the Advocate Advocate has ceased. ceased. his #rovision is e;tended to cler,s' inter#reters or servants of Advocates. Bnde Bnderr Sect Sectio ion n $02' $02' Ca# Ca# %' %' an( an( evide evidenc nce e in res#e res#ect ct of an( an( *att *atter er #rivileged shall 4e inad*issi4le unless the Advocate cross e;a*ines the )itness under Section $021"3. Sectio Section n $0 e;tend e;tends s #rivil #rivilege ege to other other #artie #arties s co**un co**unica icatin ting g )it )ith h Advocates. he e;ce#tions to #rivilege are:5 a3 If there there is an( fraud fraud or illega illegalit lit( ( 43 Wher Where e there there is a oi oint nt ret retai aine nerr c3 he he na*es na*es of (our clie client nt'' his addre address ss or the fact fact he has has s)orn s)orn an a6idavit. d3 If there there is an inde inde#en #enden dentt source source of infor infor*at *ation. ion. e3 9etter 9etter 4efore 4efore action action or co**unic co**unication ation 4et)een 4et)een co5#lai co5#lainti6s. nti6s.
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If an( an( advo advoca catte8s e8s cler, ler, oin oins s anot anothe herr !r* !r* that that is act acting ing for for an adversar(' adversar(' it is #rudent that (ou sto# acting.
PUBLIC LAW INSTITUTE his his institu institutio tion n )as esta4l esta4lishe ished d as a result result of consul consultat tation ion 4et)ee 4et)een n N.C.C.<. and 9.S.<. It is a 4od( li*ited 4( guarantee guarantee and it is a consu*er #rotection #rotection 4od(. 4od(. It )as originall( founded 4( 9.S.<.' 9.S.<.' N.C.C.<. N.C.C.<. and other other donors. It engages in #u4l #u4lic ic inte intere rest st liti litiga gati tion on.. It e*#l e*#lo( o(s s advo advoca cate tes s thou though gh thei theirr instructions are on a pro bono 4asis. bono 4asis.
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CHAPTER FOUR PROFESSIONAL CONDUCT AND ETIQUETTE Professional *isconduct refers to the 4rea,ing of those rules governing the #ractice of Advocates under Ca# $2 9a)s of
Che) Che)in ing g gu* gu* in Cour Court. t. Atten Attendin ding g Cour Courtt )hil )hile e drun drun,. ,. +unning +unning a 4rothel 4rothel or living fro* the earning earnings s of #rostitutio #rostitution. n. It *a( also also include include 4ad languag language e )here an Advoca Advocate te cannot cannot e;#res e;#ress s hi*self #ro#erl( in English. e3 Insu Insult lts s to the the #u4 #u4li lic. c. f3 Inco*# Inco*#ete etent nt re#r re#resen esentat tation ion 4( an Advoca Advocate. te.
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93 " 3 )19*1+ 1,- 1. 3 (19&! 1 /- .5* 2
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PROFESSIONAL MISCONDUCT Prof Profess essio iona nall *isc *iscon ondu duct ct refe refers rs to the the 4rea 4reach ch of rule rules s set u# in the the Advocates Act and for )hich #unish*ent is #rovided. he #rofession ough oughtt to 4e *an *anned ned 4( #erso ersons ns of int integri egritt( and and high high sen sense of res#onsi4ilit(' res#onsi4ilit(' free fro* !nancial #ro4le*s and an;iet(. an;iet(. his is 4ecause the the lega legall #rof #rofess essio ion n has has a sense sense of #u4l #u4lic ic servi service ce and and the the sense sense of service overrides !nancial consideration. he #enalt( for #rofessional *isconduct is found in Section 21>3 of the Advocates Act' )hich #rovides that an Advocate is guilt( of #rofessional *isconduct' *a( 4e:5 a3 43 c3 d3 e3
Ad*onished Sus#ended Sus#ended fro* fro* #ractic #ractice e for a #eriod not e;ceedin e;ceeding g = (ears. (ears. His His na* na*e e stru struc, c, o6 the the rol roll. l. Ga( #a( a !ne not e;ce e;ceedi eding ng
He"(in! o Co:)l"in$' Act " of "" introduced a ne) section' 2A' )hich *a,es #rovisions on the hearing of co*#laints 4( Di'ci)lin"(2 Co::i$$ee. Su4section $ thereof states that' the #o)ers conferred on the Co**ittee *a( 4e e;ercised on the hearing of an( a##lication *ade to the Co**ittee: 1a3Bnder the Act or on 4ehalf of the Council' 143?( the co*#laints Co**ission under the Act' 1c3 Bnder the Act' 4( or on 4ehalf of an( #erson. Once an Advocate is struc, o6 the roll' he *a( a##eal under Section 2"1$3 2"1$3 of Ca# Ca# $2 4ut 4ut such such a##e a##eal al shal shalll not not o#era o#erate te as a sta( sta( unde underr Section 2"103. An Advocate )hose na*e has 4een struc, out' *a( 4e restored to the roll after a##l(ing to the Chief ustice. he rules regarding #rofessional *isconduct are carried on Section 0$ to Section >0 of Ca# $2' )hich for*s #art of the Advocates Act. Section 0$ deals )ith un/uali!ed #ersons )ho have not 4een licensed and #ur#orts to act as an Advocate under Section 0$1"31c3' the( are guilt( of an o6ence. Such a #erson also co**its conte*#t of court. Page " of $$>
Section Section 0" #rovides #rovides that an Advocate Advocate shall not #ractice #ractice alone unless he has has 4een 4een e*#l e*#lo( o(ed ed for for " (ear (ears s 4( the the Atto Attorn rne( e( 7ener 7eneral al or anot anothe herr Advocate )ith not less than = (ears in #ractice. his ca*e into o#eration in anuar( ". Section 00 *a,es it an o6ence for an( #erson to )illfull( #retend to 4e an advocate or i*#l(ing that he is so /uali!ed although it does not set out the #enalt( thereof. Sectio Section n 0> deals deals )it )ith h un/ual un/uali!e i!ed d #ersons #ersons #re#ar #re#aring ing docu*e docu*ents nts li,e li,e conve(ancing' for*ing a co*#an(' Agree*ents' 9etters of Ad*inistration or an( docu*ent for )hich a fee is #rescri4ed under s. >>. E;e*#tions are ho)ever seeated in the case of #u4lic o6icers having such docu*ents in the course of their dut(' advocates e*#lo(ees acting as such such and and #ers #erson ons s e*#o e*#o(e (ed d *ere *erelt lt to engr engros oss s an( an( docu docu*e *ent nt or instru*ent. Su4section " thereof *a,es it an o6ence to do an(thing contrar( to su4section $. Section 0= deals )ith dra)ing' #re#aring docu*ents or instru*ents and creates an o6ence )here the #erson dra)ing the sa*e does not endorse his na*e thereto. Section 02 deals )ith undercutting. Section 0 deals )ith sharing of #ro!ts. Section 0% deals )ith touting and #rovides that the Chief ustice *a( 4( orde orderr e;cl e;clud ude e a #ers #erson on acti acting ng as a tout tout fro* fro* e*#l e*#lo( o(*e *ent nt 4( an advocate. Section 0& deals )ith agenc( in *atters of 4an,ru#tc( or for un/uali!ed #ersons. Section >' #rovides that costs cannot 4e recovered in a *atter )here un/uali!ed #erson has acted. Section >$1$3 #rovides that it is an o6ence to e*#lo( a #erson )ho has 4een struc, o6 fro* the roll. Section >"' #rovides for disclosure 4( #eo#le )ho are dis/uali!ed to act as Advocates. Section >0 deals )ith o6ences 4( cor#orate 4odies.
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CHAPTER FIVE THE ADVOCATE AND THE TRIAL PROCESS During this stage L #rocess' the Advocate is *ore than ever 4ound 4( the duties and o4ligations of an Advocate as enunciated 4( 9ord Denning in Rondel v. (orsele' $ and su4se/u su4se/uent entl( l( restate restated d in Groom v. Crocker ". Accordingl(' Accordingl(' it is true to assert that the said duties re*ain as an undercurrent during the entire #rocess. ADVOCACY ADVOCACY Princi#all( Princi#all('' this is the art L science of #leading #leading for another8s cause. cause. In #artic #articula ularr' it is a##lie a##lied d )hile )hile the advoca advocate te is #leadi #leading ng for the client 4efore a legal foru* i.e. Courts L ri4unal e.t.c. ESSENTIAL QUALITIES >DURIN* THE PROCESS? he science of Advocac( de*ands the follo)ing ingredients: i3 Pe('u"'i5ene'' •
•
•
his is the a4ilit( to *ove 4( argu*ent a 4od( of #ersons to such an e;tent as to 4e a4le to acce#t the cause for )hich an advocate is #leading. As a techni/ue' it is not inherent. It is a #roduct or function of e;#erience and is onl( ac/uired 4( those )ho are ,een to develo# it. It de*ands that one 4e a4le to understand those 4efore )ho* he L she is #leading the the client8s cause. Accordingl(' Accordingl(' one *ust endeavour to co**a o**and nd a dee# ee# #erc #erce# e#ttion ion and and a##re ##rec ciati iation on of Hu*an u*an Ps(cholog( and the )a( of thin,ing of those 4efore )ho* one is #leading his cause.
ii3 P"$ience his a /ualit( )hich #a(s. Princi#all(' Princi#all(' it is essential 4ecause 4ecause it ena4les an advocate to have a chance of learning )hat *a,es the o##osing side or o##onents and the court tic,. tic,. One *ust not onl( develo# the virtue virtue of #atience' 4ut *ust also develo# his L her instincts. iii3 Decenc2 An advocate *ust 4e a decent #erson. One *ust do)n#la( the hu*an desire to do*inate. do*inate. ?eing do*ineerin do*ineering g or do*inating do*inating )ill al)a(s al)a(s )or, to)ards to)ards one8s detri*en detri*ent. t. If one does not not li,e a *e*4er *e*4er of the 4ench' 4ench' one *ust ensure ensure that it is is not his Lher o#inions o#inions that he he L she disli,es. disli,es. It *ust *ust not not 4e evid eviden ent. t. What Whatev ever er thei theirr cadr cadre e or /ual /uali! i!ca cati tion ons' s' an
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0upra )193+ 2$ A"" #$%$ 39&
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advocate *ust 4e careful not to *a,e the 4ench *e*4ers feel li,e a 4unch of ignorants. iv3 Hu:ili$2 An advocate *ust 4e hu*4le and courteous )hile in court es#eciall( )hen dealing )ith *e*4ers of the 4ench and fello) counsel. v3 No con(on$"$ion Confrontation )ith *e*4ers of the 4ench' even )hen the( are clearl( on the the )rong )rong neve neverr #a(s. #a(s. It *ust *ust 4e avo avoid ided ed.. Conf Confro ront ntat atio ion n can actuall( do a lot of har* not onl( to the cause of the client' 4ut also to the Advocate. vi3 Co:)e$ence @ Reli"%ili$2 An advocate *ust 4e #rofessionall( co*#etent during the trial. He *ust ,no) or 4e fa*iliar fa*iliar )ith )ith the trial #rocess. #rocess. He *ust 4e con!dent con!dent and and *ust conve( an air of relia4ilit(. relia4ilit(. vii3 A))e"("nce his *atters *atters /uite *uch. *uch. Not onl( *ust an Advocat Advocate e 4e co*#etent' co*#etent' he *ust also also a##ear to 4e so. so. An Advocate Advocate *ust 4e ,e*#t' ,e*#t' )ell )ell groo*ed and *ust a##ear a##ear in court in a decent dress. Custo*ar( #ractice dictates dictates that an Advocate 4e dressed in dar, dar, conservative colours. Where court eti/uette de*ands' he *ust a##ear in court dressed in the correct ro4es other)ise he )ill not get the audience he see,s. viii3 A!!(e''ion "n# "n# $en"ci$2 An advocate *ust 4e aggressive and tenacious in !ghting for his client8s cause )hile )hile in court. court. He L she *ust not 4e read( read( to give u# at an( sign of inti*id inti*idati ation. on. Ho)eve Ho)everr' these these t)o *ust 4e te*#er te*#ered ed 4( co**on co**on sense and #oliteness. #oliteness. One *ust ,no) ,no) the frontiers frontiers i.e. )hen to shut u# and sit do)n. i;3
Punc$u"li$2 Advocac( de*ands that one 4e the e#ito*e of #unctualit(. #unctualit(. Whic Whiche heve verr #ane #anell 4efo 4efore re )h )hic ich h an advo advoca cate te is #ros #rosec ecut utin ing g his his cause' he *ust ensure that he does not alienate its *e*4ers 4( 4eing late.
;3 O$he(' Other /ualities that *a( increasingl( assist an advocate during the trial #rocess are: • •
O4ectivit( Invention
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All this /ualities a*ount to truis*s )ithout an honest sincere desire to do the ut*ost 4est for one8s client. Ho)ever' Ho)ever' for #ur#oses of o4ectivit(' o4ectivit(' (ou *ust ensure that (our client8s cause does not 4eco*e (ours. his )ill ensure ensure that (ou do not identif identif( ( )ith the cause cause of (our client. client. his )ill ensure that e*otions and other e;traneous senti*ents do not cloud (our udge*ent. It should should 4e noted that that these /uali /ualitie ties s are not inherent. inherent. #roduct of e;#erience in advocac(.
he( he( are a
TRIAL PREPARATION PREPARATION •
•
•
i. ii. ii. iii. iii. iv. iv.
he *ost i*#ortant #art of the case. Often tedious. Ho)ever' Ho)ever' if it is not done ade/uatel(' ade/uatel(' a good' )inning case can easil( 4e lost. rial #re#aration should 4egin i**ediatel( one gets the 4rief i.e. u#on receiving instructions to re#resent a #articular client. Princi#all( it entails: Colle Collect ctin ing g and and coll collat atin ing g all the the rele releva vant nt fac facts ts #er #erta tain inin ing g to a cas case. e. +esea +esearc rchi hing ng )i )ith th res#e res#ect ct to all all the the a##l a##lic ica4 a4le le la) la). Draf Drafti ting ng and and #re# #re#ar arat atio ion n of all all relev relevan antt legal legal doc docu* u*en enta tati tion on.. Organ rgani iat atio ion n of all all rele releva vant nt evid eviden enc ce i.e. i.e. docu* ocu*en ents ts'' e;hi e;hi4i 4itts' )itnesses etc.
In regard of the facts' an advocate should utilie the #rovisions of Order -' of the Ci5il and the the Ci5il P(oce P(oce#u( #u(e e Rule' Rule'99 Ci5il Ci5il P(oce P(oce#u( #u(e e Ac$ - and #rovisions of the E5i#ence Ac$ ' in so far as #roduction of docu*ents is concerned. In a nutshell' these #rovisions #ertain to: Production of docu*ents • Interrogatories. • Ad*ission of facts. • 3
Cap 1* Cap *
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• •
+e/uest for further and 4etter #articulars. Discover(.
Btilied #ro#erl(' the a4ove #rocedures can su6ice to ensure that an Advocate is )ell versed )ith the relevant facts of a case.
O$he( "c$o(' •
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All the relevant evidence *ust 4e organied in the order in )hich the advocate e;#ects to introduce it. All )itnesses *ust 4e a)are that the( )ill 4e e;#ected to testif( in court. he Advocate *ust *ust ensure that the( the( are )ell #re#ared ?ut he L she *ust not coach the*. It *a( 4e a good idea to #re#are the follo)ing docu*ents: a 3 r ia l ? ?rrief. ef. 43 rial Ga Ganual
"? T(i"l (i"l B(ie (ie his )ould contain: i. A sh short s sttate*ent o off th the fa facts. ii. An( conten contentio tions ns of of the the clie client nt i.e. i.e. #erta #ertaini ining ng to to inno innocen cence ce or or lia4 lia4ili ilit( t(.. iii. iii. A *e*o *e*ora rand ndu* u* of the the a##l a##lic ica4 a4le le la) la).
Me(i$' A trial 4rief )ould: i. Hel# in in or organiing th the !l !le. ii. ii. Enha En hanc nce e one8 one8s s s#ee s#eed d in reca recall llin ing g the the rele releva vant nt fact facts s and and a##li a##lica ca4l 4le e la). iii. iii. I*#r I*#ress ess the the ud udge ge or cour courtt )i )ith th one8 one8s s #re# #re#ar arat atio ion. n. iv. Enhance an advocate8s chances of ade/uatel( dealing )ith #reli*inar( o4ections on #oints of la). la).
%? T(i"l (i"l M"nu M"nu"l "l his could' for instance' contain: i. ii. ii. iii. iii. iv. iv.
A s(n s(no# o#si sis s of of the the o#en o#enin ing g st state* ate*en ent. t. A list list of )itn )itnes esse ses s and a corr corres es#o #ond ndin ing g list list of the the su4e su4ect ct *att *atter er of their testi*on(. A lis listt o off /ue /uest stio ions ns for each ach )it )itne ness ss.. A list list of doc docu*en u*entts to 4e int introdu roduc ced then then and and )h )hen en to int introd roduce uce the*. Page "= of $$>
v. v.
he su4ect areas to 4e covered during direct and cross e;a*ination of )itnesses. H(#othetical /uestions to 4e as,ed or #ro#osed to e;#ert )itnesses. A #lace to list ideas )hich occur during trial and )hich one *a( )ish to incor#orate into his closing state*ent. A list of e;hi4its to 4e adduced as evidence. Co#i Co#ies es of of docu docu*e *ent nts s )hic )hich h the the cour courtt *a( *a( need need i.e i.e.. auth author orit itie ies. s.
vi. vii. viii. i;. i;.
As a !nal consideration' one *ust ensure that the( are conversant )ith the court roo*s' #ersonnel and court #rocedure 4efore trial.
P(oce#u(e • •
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Introduce (ourself and o##onent to the court. ell a #lain' short or 4rief stor( to the court stating the essentials of (our client8s case. ?asicall(' ?asicall(' an advocate is re/uired to give the court a 4rief' concise and accurate su**ar( of facts of the case )ithout argu*ent or co**ent. Inessential and irrelevant co**ents should 4e 4e avoided. avoided. he( *a( give give the o##onent o##onent an o##ortu o##ortunit( nit( to score thus occurren occurrencing cing tre*endous tre*endous har*. har*. An advocate advocate *ust ta,e care not to *ista,e his case. Care should 4e ta,en to secure the attention of the court at the initial initial stages. Again' Again' care *ust 4e ta,en ta,en not to loose the interest interest of the court. One *ust 4e 4e 4rief and to the #oint.
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An o##ortunit( to dis#la( the attractiveness of one8s case and to dis#la( the unattractiveness of the o##onent8s case. An o##ortunit( to ,noc, o6 the visi4le #ro#s of the o##onents case. An o##ortunit( to #re#are the court for the )ea,est #arts of the o##onent8s case.
E'$"%li'hin! E'$"%li'hin! c"'e •
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his stage 4egins at the initial stages of 4ringing a case to the attention of the court 1Drafting and Filing of Docu*ents3. hus an advocate *ust ensure that the docu*ents !led in court i.e. #lai #laint nts s etc. etc. are are *ast *aster erfu full ll( ( draf drafte ted' d' in acco accord rdan ance ce )i )ith th the the #rescri4ed #rocedure. he( *ust 4e accurate' accurate' 4rief and concise. In drafting' an advocate 4esides ,no)ing the #rescri4ed for*s of docu*ents docu*ents *ust also also e*#lo( e*#lo( a heft( dose dose of co**on sense. sense. Such docu*ents *ust cover an( eventualit(. eventualit(. In introducing his evidence' an advocate *ust ensure he introduces the evidence in an orderl( *anner' *anner' #refera4l(' #refera4l(' in the order set out in Page "2 of $$>
his o#ening o#ening state*ent state*ent to the the court. court. Disarra(ed Disarra(ed evidence evidence can do do a lot of har*' including *a,ing the court to lose focus.
DIRECT EAMINATION *ene("l )(inci)le' •
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Do not lead the the )itness )itness e;ce#t on undis#ute undis#uted d *atters. *atters. 9eading 9eading a )itness alludes to /uestions fra*ed in a *anner that allo)s the )itness to understand fro* the /uestions the*selves )hat ans)ers he8s re/uired to give. Do not #ut /uestions to the )itness' )hich contain the evidence (ou 1advocate3 )ant to esta4lish instead of eliciting it 1the evidence3 fro* the )itness.
Wh2 no$ le"#in! le"#in! ue'$ion' ue'$ion' he( do tre*endous har* L da*age 4(: a3 Destro Destro(in (ing g the the realit realit( ( of the the evid evidenc ence. e. 43 Preventing Preventing the charac character ter of of the the )itness )itness fro* fro* e*ergin e*erging. g. c3 Destro Destro(in (ing g the relia4il relia4ilit( it( of the evidenc evidence e 4( suggestin suggesting g the ans)er ans)er to 4e given 4( the )itness. d3 Casting Casting a shado) shado) of sus#icion sus#icion on the the i*#artialit i*#artialit( ( of the e;a*iner e;a*iner.. e3 +educi +educing ng the valu value e of evidenc evidence e general generall( l(.. f3 7ivi 7iving ng the the o##o o##one nent nt a cha chanc nce e to o4ec o4ect. t. •
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Instead of leading /uestions' the )itness ought to 4e guided gentl(. An advocate should endeavor to have the )itness res#onsivel( res#ond to the /uestions he as,s 1as in a nor*al conversation3 An advocate should
a3 Contr ontrol ol the )i )ittness ness 4ut 4ut not not tig tightl( htl( reig reign n hi* so as to ro4 his his evidence of an( character. 43 r( to have have the direct direct co**un co**unica icatio tion n in the for* of a s#ontan s#ontaneou eous s conversation 4et)een the 1hi*self3 e;a*iner and the )itness. c3 Not assu* assu*e e that that the the )itness )itness )ill )ill hel# hel# hi* in in the #roc #rocess. ess. d3 Have Have *e*ori *e*orie ed d the the orde orderr of evide evidenc nce e he )ant )ants s to elici elicitt fro* fro* the )itness to avoid confusing 4oth the court and the )itness. e3 Bse direct direct e;a*in e;a*ination ation to to #in#oint #in#oint the the )ea,nesses )ea,nesses in in the o##onent8s o##onent8s case to do)n#la( the strengths in the sa*e case and to highlight the strengths of his L client8s case. f3 Prese Present nt the the )itnes )itness s in a *ost favo favour ura4 a4le le *anne *annerr to the court court i.e. i.e. )ell ,e#t and )ell groo*ed. g3 Not engage engage in histrionics histrionics during Direct Direct E;a*inat E;a*ination. ion. Page " of $$>
Si*# Si*#l( l( tell tell (our (our stor stor( ( and and sit sit do)n. do)n. It ought ought to 4e note noted d that that the *anner of conducting a Direct E;a*ination can )in or lose los e a case.
CROSS EAMINATION EAMINATION *ene("l )(inci)le' "i:'9 )u()o'e' "n# o%&ec$i5e' B"'ic *o"l' o C(o'' E6":in"$ion $. o fortif( or corro4orate favora4le testi*on(. testi*on(. ". o discredit or cast dou4t on the veracit( of adverse testi*on(' not onl( onl( the the test testi* i*on on( ( of the the )i )itn tnes ess s on the the stan stand d 4ut 4ut othe otherr adve advers rse e )itnesses as )ell. 0. o test the credi4ilit( of testi*on(. >. o i*#each the co*#etence of the )itness. )itness . =. o o de*onstrate the *otives or #artisanshi# of the )itness. 2. o secure favora4le ad*issions and facts. . o o4tain *aterials for closing argu*ent. Ai:' • •
Wea,en o##onent8s case Esta4lish facts favouring (our o)n case.
Pu()o'e' Cross5e;a*ination )ea,ens the o##onent8s case 4( a3 Disc Discred redit itin ing g the the )itne )itnesse sses. s. 43 Discre Discredit diting ing the the evidenc evidence e or reducin reducing g its value. value. c3 Discre Discredit diting ing and reduci reducing ng the relia4i relia4ilit lit( ( of 4oth 4oth the )itness )itness and the evidence. Accordingl(' Accordingl(' cross e;a*ination is a #o)erful tool for the #ur#ose of testing the veracit( of a )itness and the accurac( and co*#leteness of his 1)itness8s3 stor( L evidence. here are no hard and and fast rules in cross5e;a* cross5e;a*inati ination. on. One rises to the occa occasio sion n de#e de#end ndin ing g on the the surro surroun undi ding ng fact factor ors s or circ circu* u*st stan ance ces. s. Ho)e Ho)eve verr' cros cross5e s5e;a ;a*i *ina nati tion on ough oughtt to 4e done done )i )ith th due due cour courte tes( s('' decenc(' decenc(' restraint and consideration consideration 4eing accorded to the )itness. An advocate *ust 4e considerate and and *ust not 4ull( the )itness. )itness. his *a( cause the court to dra) )rong conclusions thus occurencing inustice. A )itness *ust 4e accorded a fair o##ortunit( to res#ond to /uestions. Further' Further' an advocate should:
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Not as, an( /uestions unless he L she has a good idea )hat the ans)er is li,el( to 4e. Bse clear si*#le English' easil( understood 4( the court and 4( the )itness. Not confuse the )itness 4( voicing his o#inions on the )itness8s ans)ers. ?e 4rief' concise and to the #oint.
Confrontation )ith a vie) to get the )itness to ad*it a #articular set of unfavoura4le facts. Insinuation Pro4ing Bnder*ining
Whatever one does' an advocate *ust NO during cross e;a*ination a3 Allo Allo) ) a )i )itn tness ess to e;#oun e;#ound d and and clar clarif if( ( on eviden evidence ce given given duri during ng direct e;a*ination. 43 E;#ress ess shoc, or get visi isi4l( *oved 4( ans)er s)ers s given 4( the )itnesses. c3 Allo) Allo) a )itn )itness ess to to get the 4est 4est of of hi* L her. her. •
Wh"$e5e( Wh"$e5e( :"2 %e '"i# o $he $echniue' $echniue' o c(o'' e6":in"$ion9 e6":in"$ion9 "n "#5oc"$e 'houl# "l4"2' en#e"5ou( $o $ie #o4n $he 4i$ne'' $o " )"($icul"( 'e$ o "c$' $hen "#:ini'$e( " cou) #e !("ce "$ 'o:e Furt rther her'' an advoc advocat ate e shou should ld 4e guided guided'' in his cross cross l"$e( l"$e( '$"!e. '$"!e. Fu e;a*ination 4( a heft( dose of co**on sense. B"'ic $echniue' o C(o'' E6":in"$ion $. ?e #re#ared #re#ared:: . 9ist 9isten en to the the ans) ans)er ers. s. =.
%. Plan Plan so*e so*e sur#ri sur#rises ses for the )it )itness ness.. &. 9a( the the groun ground)o d)or, r, for for (our (our closing closing argu argu*en *ent. t. $. As, for facts' facts' not evaluations. evaluations. $$. Sta( in control control of the )itness. )itness. $". End )ith )ith triu*#h. triu*#h.
Pi$"ll' $o A5oi# in C(o'' E6":in"$ion $. Never as, as, a /uestio /uestion n to )hich )hich (ou (ou do not not ,no) ,no) the ans)er. ans)er. ". Do not re#ea re#eatt )h )hat at )as cover covered ed on dire direct ct unles unless s (ou (ou sus# sus#ec ectt a *e*oried stor( and )ant to 4egin 4( as,ing the )itness to retell the stor(. stor(. 0. Do not cross cross e;a*i e;a*ine ne on *inor *inor *atter *atters s unless unless (ou are are reasona reasona4l( 4l( certain of success. >. Don8t as, /uestions a4out e;act ti*es' s#eed' distances' *easure*ents' etc. =. Don8t get 4aited 4( (our o##onent 4e)are of the o4vious /uestions o*itted 4( o##osing counsel during direct e;a*ination. 2. Don8t Don8t as, as, the the right right /uest /uestion ion at at th the e )rong )rong ti*e. ti*e. . Don8t Don8t over over e;a* e;a*ine ine or or harass harass the )it )itnes ness. s. %. Don8t Don8t o#en o#en the door door to ruino ruinous us redirec redirectt e;a*ina e;a*inatio tion. n. &. Don8t Don8t 4e argu*en argu*entat tative' ive' lose lose (our te*#er te*#er'' or allo) the )itne )itness ss to control (our actions. $. Don8t allo) the )itness to to e;#lain ans)ers. ans)ers.
The A($ o Succe''ul C(o'' E6":in"$ion A. Reui(e:en$' o " *oo# C(o'' E6":ine( $. echnic echnical al *aster *aster( ( of the legal legal funda funda*en *ental tals. s. ". E6ec E6ecti tive ve use of disc discov over er( ( and and ade/ ade/ua uate te #re# #re#ar arat atio ion n to #rev #reven entt 4eing sur#rised 4( o##osing counsel at trial. a3
d3 Inco Incons nsist isten enci cies es in the testi testi*o *on( n( of the the )i )itn tness ess that that (ou )ant to e;#loit and highlight for the ur(. ur(. e3 H(#o H(#oth thet etic ical al /ues /uesti tion ons s alte alteri ring ng fact facts s set set fort forth h in an( an( h(#o h( #oth thet etic ical al that that *a( *a( 4e o6ere o6ered d 4( o##o o##osi sing ng coun counse sell during direct e;a*ination. >. A tactful tactful a##roach a##roach )ith the )itness. )itness. =. +es#ect +es#ect for for the the ur(8s ur(8s intelli intelligence gence.. 2. A #leasa #leasant nt de*ea de*eanor nor.. . he a4ilit( a4ilit( to to *a,e *a,e co*#le; co*#le; *atter *atter si*#le. %. 9ogica 9ogicall ur( ur( argu argu*en *ents. ts. &. Con! Con!de denc nce. e. $. $. E; E;#e #eri rien enc ce. ?. E8ec$i5e E8ec$i5e T2)e' T2)e' o De:on'$( De:on'$("$i5 "$i5e e E5i#ence E5i#ence $o U'e on C(o'' E6":in"$ion $. En Enla larg rged ed #hot #hotog ogra ra#h #hs s of: of: a3 43 c3 d3 e3 f3
Ph(s Ph(sic ical al evi evide denc nce e Char Charts ts and and diag diagra ra*s *s Phot Photos os and and sur surve ve(s (s +e#orts Portion ortions s of de#o de#osit sition ions s or tria triall testi* testi*on( on( Porti ortion ons s of lea learn rned ed tre treat atis ises es
". ran rans# s#ar aren enc cies. ies. 0. hree hree 5 di*e di*ensi nsion onal al *ode *odels ls of the inst instru ru*e *ent ntal alit it( ( that that caused caused the loss. >. a#es a#es and and *ovi *ovies es.. =. - ra(s. 2. ?lac,4 ?lac,4oar oard d ust re*e re*e*4e *4err to #reser #reserve ve the the record recordQQ . Dra) Dra)in ing g #ad #ad and and *ar *ar,e ,ers rs.. C. Hel)ul M"$e(i"l' $o U'e in $he C(o'' E6":in"$ion o "n E6)e($ Wi$ne'' $. ?a ?ac, c,gr grou ound nd info infor* r*at ation ion:: a3 Con!r* o4 res#o s#onsi4ilities and reason sons for leaving e*#lo(*ent )ith #revious e*#lo(ers. 43 Cont Contac actt educ educat atio iona nall inst instit itut utio ion n to veri veriff( attend tendan ance ce'' degrees a)arded' and honors received. c3 +ele +eleva vanc nce e of ac/u ac/uir ired ed tech techni nica call ,n ,no) o)le ledg dge e 1i.e 1i.e.. has has the the e;#ert attended se*inars in recent *onths so as to ena4le hi* to re*ain Mon to# of his !eld Page 0$ of $$>
". he o#inion o#inions s of other attorne(s attorne(s )ho )ho have have faced faced this e;#ert. e;#ert. 0. he o#in o#inion ion of of other other e;#e e;#erts rts in in the sa*e sa*e !eld !eld.. >. ran ransc scri ri#t #ts s of #revio #revious us testi* testi*on on( ( 4( this this e;#e e;#ert rt at a de#o de#osi siti tion on or trial. =. echnic echnical al refere reference nce *ateria *aterials. ls. 2. De*o De*ons nstr trat ativ ive e evid eviden ence ce.. . MVain MVain /uesti /uestions ons 1i.e.: MAs Chief Chief Engineer Engineer'' )ould )ould (ou sa(R.3 D. A(e"' $o con'i#e( con'i#e( E6)lo(in! E6)lo(in! 4i$h E"ch Wi$ne'' Wi$ne'' Du(in! C(o'' C(o'' E6":in"$ion $. Perce erce#t #tio ion ns. ". +ecol ecolle lec ctions ions.. 0. Interest. >. ?ias. =. Preudice. 2. Character. . Gotive. %. Prior Prior Inconsi Inconsiste stent nt State* State*ent ents. s. &. @ual @uali! i!ca cati tion ons s and 4ac,g 4ac,gro roun und. d. $. An(thing An(thing )hich )ould discredit discredit or i*#each the )itness and aid (our case.
S)ec S)eci" i"ll P(o% P(o%le le:' :' Enco Encoun un$e $e(e (e# # When When C(o' C(o'' ' E6": E6":in inin in! ! "n E6)e($ Wi$ne'' A. M"3in! $he O))o'in! P"($2;' E6)e($ You(' $. r( to Di*inish Credi4ilit( a3 As, /uestions that *a,e the )itness a##ear to 4e a M#rofessional )itness including )hether the )itness *a,es a #ractice of testif(ing for either #lainti6s or defendants. 43 E;#loi E;#loitt the co**unit co**unit( ( attitude attitude that that an(thin an(thing g can 4e 4ought 4ought )hich *a( 4e the o#inion of several urors. c3 In/u In/uir ire e a4ou a4outt the e;# e;#ert8 ert8s s #rev #revio ious us invo involv lve* e*en entt in the litigation s(ste*. d3 he e;#ert ert8s usual fee' nu*4er of court a##earances' es' contac contacts ts )it )ith h 4ar organi organiat ation ions' s' tal,s tal,s 4efore 4efore such such grou#s grou#s'' and and natu nature re of his his e*#l e*#lo( o(*e *ent nt all all #rov #rovid ide e fert fertil ile e !eld !eld for for in/uir(. e3 Never Never refresh refresh an e;#e e;#ert8 rt8s s recolle recollecti ction. on. ". r( r( to to S Sec ecur ure e Ad* Ad*is issio sions ns
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a3 As, /uest /uestion ions s that see, see, to e;tract e;tract conce concessio ssions ns or ad*issi ad*issions ons that su##ort (our theor( of the case. 43 +efocus the attention of the ur( to the si*#le' understanda4le' )inna4le theor( of the case. c3 Bse lead leading ing /ues /uestio tions ns that that re/ui re/uire re 4rief 4rief ans)e ans)ers. rs. d3 +eta +etain in cont contro rol. l. e3 +efer +efer to technic technical al referen reference ce *ateria *aterials ls that are are recogni recognied ed as authoritative in the )itness8 !eld of e;#ertise. f3 High Highli ligh ghtt cont contra radi dict ctio ions ns in the the docu docu*e *ent nts' s' #hot #hotog ogra ra#h #hs s or testi*on( #rovided 4( the e;#ert. g3 +evi +evie) e) an( docu* docu*en ents ts refer referred red to 4( the the e;#e e;#ert rt durin during g his his e*#lo(*ent in the case. h3 he he use of tests tests and and e;#e e;#eri ri*en *ents ts condu conduct cted ed durin during g cross cross e;a*ination. i3 O4ta O4tain in #rior #rior )riti )riting ngs s and testi testi*o *on( n( 4( the the e;#ert e;#ert use the* the* to contradict his #resent #rese nt testi*on(. testi*on(. 0. Do not not atte*# atte*#tt to to discredi discreditt a credi4le credi4le e;#ert e;#ert )itness. )itness. a3 Do not cross cross e;a* e;a*in ine e a credi4 credi4le le )itne )itness ss 4ecau 4ecause se the ur( ur( )ill e;#ect it. 43 As, As, non non cont contro rove vers rsia iall /ues /uesti tion ons s such such as )h )ho o as,e as,ed d the the e;#ert to 4e a )itness' and )ith )ho* the )itness s#o,e a4out the case. c3 Bse the #lainti68s 68s e;#ert ert )itness to o4tain testi sti*on( favora4le to (our theor( of the case.
C(o'' E6":in"$ion "' "n I:)e"ch:en$ Tool Gost fre/uent grounds for i*#each*ent: $. #rio #riorr incons inconsist isten entt state state*e *ent nts. s. ". #ers #erson onal al or !nan !nanci cial al 4ias. 4ias. 0. i*#eac i*#each*e h*ent nt )ith )ith *edi *edical cal test tests s or ourn ournal. al. >. i*#each*ent i*#each*ent 4ased on de!cien de!ciencies cies in *edical *edical #erfor*anc #erfor*ance. e. =. inade/ inade/uat uate e found foundati ation: on: o#inio o#inion n 4ased 4ased u#on u#on inco* inco*#le #lete te hist histor( or( or erroneous facts' 2. refuting refuting i*#lic i*#lication ation of no inur( inur( fro* negative negative #h(sical #h(sical !ndings. !ndings. . othe otherr grou ground nds s incl includ ude: e: a3 he he )i )itn tness ess is rela relati ting ng onl( su4ec su4ecti tive ve o#in o#inio ions ns on )hich )hich there can 4e legiti*ate di6erences of *edical o#inion. 43 he sta state of *edical art is such that *edicine8s 4est #rocedures still do not reall( #rove an(thing certainl( the( can8t dis#rove so*ething. c3 he he )i )itn tnes esses ses88 *edi *edica call o#in o#inio ions ns are not not )arr )arran ante ted d 4( the Mfacts. Page 00 of $$>
d3 he he doct doctor or8s 8s *edi *edica call reco record rds s have have 4een 4een alte altere red' d' forg forged ed'' deleted' added to or destro(ed or e3 he doct doctor or is #reudi #reudiced ced again against st the cross cross e;a*ine e;a*iner8s r8s side side of the case 1#articularl( true in *edical *al#ractice cases3.
RE EAMINATION EAMINATION
Should 4e underta,en #rinci#all( )ith a vie) to *itigate the da*age done during cross e;a*ination. Should Should not 4e a re#rod re#roduct uction ion L re#la( re#la( of the direct e;a*inat e;a*ination ion.. Should 4e con!ned to issues arising out of cross e;a*ination onl(. onl(. Could 4e utilied to highlight the strong #oints of an advocate8s case' #rovided the( have 4een touched on during the cross e;a*ination
*ene("l Techniue' $. +efocu +efocus s the udge8 udge8s s attent attention ion to (our (our theor( theor( of of the case. case. ". Per*it the )itness )itness to e;#lain e;#lain confusi confusing ng ans)ers ans)ers given given during during cross e;a*ination or #ossi4le discre#ancies in #revious testi*on(. testi*on(. 0. +einf einfor orce ce the the #osi #ositi tive ve as#e as#ec cts of the dire direc ct test testi* i*on on( ( of eac each )itness. >. As, As, /uic /uic, , #ace #aced' d' shor shortt ans) ans)er er /ues /uesti tion ons' s' )h )hic ich h si*# si*#li lif( f( and and clarif( the *aor #oints (ou )ish )is h to *a,e )ith each )itness. =. En End d )ith )ith a Mcl Mclin inch cher er /ue /uest stio ion. n.
CLOSIN* SPEECH
Should 4e a 4rief' concise and accurate su**ar( of the facts' the la) la) 1a## 1a##li lica ca4l 4le3 e3'' thei theirr inte interr rrel elat atio ions nshi hi#' #' i.e. i.e. the the fact facts s #rov #roved ed ade/uatel( L to the court8s satisfaction. Princi#all(' sho should 4e a su**ar( of one8s e8s case' (et again highlighting the strong #oints of (our case and the )ea, #oints of (our o##onent8s case. Should do)n#la( the )ea, #oints of (our case )hile highlighting the )ea, #oints of the o##onent8s case.
SAVIN* When engaged 4( a client' an advocate8s dut( to the client includes: i. Acti Acting ng )it )ith h all all due due cour courte tes( s( to to the the cour courtt and and not not 4ein 4eing g 4ell 4ellig iger erent ent.. ii. ii. ?ein ?eing g fear fearle less ss and and cour courte teou ous s and and u#ho u#hold ldin ing g (our (our clie client nt8s 8s inter interes ests ts )hatever the cost to (ourself. iii. iii. Ga,i Ga,ing ng eve ever( r( hon honest est ende endeav avou ourr to suc succe ceed ed on on 4eha 4ehalf lf of of (our (our cli clien ent. t. iv. Putting ever( fair argu*ent that has ca#acit( to advance (our client8s cause )ithout *isleading the court.
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As an o6icer to the court' an advocate is re/uired to cite all the relevant la) )hether in the client8s favour or not. In this regard' the advocate8s dut( )ill 4e li*ited to distinguishing • the client8s cause L case. An advocate' )hen #leading to urge the court to ado#t the vie) that • the client8s contentions are correct. Accordingl(' Accordingl(' it is clear that an advocate8s role is si*#l( to advocate the client8s cause and NO deter*ine the correctness of the client8s case.
CRIMINAL MATTERS MATTERS In cri*inal *atters' the advocate should have regard to the follo)ing *atters: •
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He shou should ld not not attr attri4 i4ut ute e the the o6en o6ence ce to othe otherr #ers #erson ons s )i )ith thou outt su4stantiation. He should not device for the client a false line of defence. He should not device the defence of ali4i if it does not e;ist. Whe(e " clien$ h"' cone''e# hi' !uil$9 "n# 4he(e $he con cone'' e''iion i' le!i le!i$i $i: :"$e9 he :u'$ #ecl #ecliine $o $"3e $he in'$(uc$ion' in'$(uc$ion' $o #een# unle''
"? The clien$ clien$ h"' h"' onl2 onl2 in'$(u in'$(uc$e# c$e# hi: hi: $o :i$i! :i$i!"$e. "$e. %? The clien$ clien$ h"' h"' in'$(uc$ in'$(uc$e# e# hi: $o $o )le" %"(!" %"(!"in. in. •
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Where an accused #erson has *ade his confession during the course of #roceedings the advocate should re*e*4er that the accused is #resu*ed innocent till #roven guilt(. guilt(. Further' in defending an accused )ho has confessed' an advocate should should refrain refrain fro* connivin conniving g to su4stant su4stantiat iate e fraud. fraud. He *ust not assert untrue state*ents L facts. Ho)ever' Ho)ever' an advocate advocate *a(: i. ii. iii. iii. iv. iv.
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Chall hallen enge ge the court ourts s ur uris isd dict iction ion Challenge the charge Chall hallen enge ge the evid eviden enc ce av availa aila4l 4le e Chal Challe leng nge e the the cour courtt )her )here e it is a## a##ar aren entt that that the the ud udge ge *a( *a( 4e 4iased.
It is i*#ortant to advice a client )hen ta,ing instructions )hether or not he should #lead guilt( and if in dou4t' to advice hi* not to #lead guilt(. If at the stage of ta,ing #leas an advocate is in dou4t )hether to advice the client to #lead guilt( or not' he should as, to see the Gagistrate in cha*4ers 4efore #roceedings co**ence. his )a(' )a(' it is #ossi4le to discuss dis cuss the #lea )ith the udge and the #rosecutor. #rosecutor. Page 0= of $$>
Once on the record' an advocate should never a4andon his client' even during *entions.
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If he *ust 4e a4sent' a4sent' he *ust get the leave of the court !rst or get so*eone to hold his 4rief. It is generall( inadvisa4le to re#resent t)o ointl( accused #ersons unless the advocate is sure that there can 4e no conict of interests.
CRIMINAL MATTERS1 CROSS EAMINATION Duri During ng cross cross e;a* e;a*in inat atio ion' n' one one *ust *ust 4e caref careful ul not not to dest destro ro( ( the the defence case 4( #utting certain /uestions to the )itnesses. Kou Kou *ust 4e careful )ith )hatever /uestions (ou #ut to the • #rosecution )itnesses. Bnless (ou ,no) the ans)er to the /uestion' avoid it. • Avoid character attac,s during cross e;a*ination of #rosecution • )itnesses unless the( are a4solutel( necessar(. necessar(. PROSECUTORS hough acting as a counsel for the state' one re*ains to 4e an o6icer of the court. Accordingl(' Accordingl(' #rosecutors are 4ound 4( their dut( to the court ust as other advocates. Prosec Prosecuto utors rs *ust *ust have have the follo) follo)ing ing issues issues in *ind *ind during during the trial trial #rocess. a3 he( he( *ust *ust not not shut shut out an( an( evid eviden ence ce favo favour ura4 a4le le to the the accu accuse sed d #erson. %? The2 The2 :u'$ :u'$ no$ no$ "#") "#")$$ "n "$$i$u "$$i$u#e #e 4hic 4hich h (eu (eui( i(e' e' $h"$ $h"$ $he2 $he2 o%$"in " con5ic$ion "$ "ll co'$'. c3 After After convicti conviction on the the #rosecutio #rosecution n has no right right of of audience audience..
DEFENCE COUNSEL •
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here here 4eing 4eing no #leadi #leadings' ngs' a defenc defence e counse counsell in cri*in cri*inal al *atter *atters s cannot ,no) the #rosecution8s case in detail. Accordingl(' Accordingl(' it is i*#ossi4le to #re#are for cross e;a*ination of #rosecution #rosecution )itnesses )itnesses in advance. advance. Such can can onl( 4e done after after the #rosecution has !nished its e;a*ination in chief' during )hich the defence counsel *ust develo# the for* of his cross e;a*ination. his re/uires an advocate advocate 4e ver( ,een. It is also i*#erative that he he 4e #resent. Once Once a clie client nt is conv convic icte ted' d' the the role role of the the advo advoca cate te is li*i li*ite ted d to addressing the court in *itigation of sentence. Care should 4e ta,en not to guarantee ac/uittals to accused clients. Bnles Bnless s an advo advoca cate te can can su4st su4stan anti tiat ate e alle allega gati tion ons s *ade *ade agai agains nstt a #rosecution #rosecution )itness' )itness' he should should not *a,e the*. the*. It is advisa4le advisa4le that Page 02 of $$>
instead instead of *a,ing *a,ing allega allegatio tions ns the advoca advocate te should should sugges suggestt to the )itness rather than #utting it as a fact.
P(i5ile!e S.+-
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An advocate has a dut( of con!dence to his client. Whatever discussions have trans#ired 4et)een an advocate and his • client during the conference' cannot 4e disclosed )ithout the client8s consent. Ho)ever' the doctrine of client #rivilege can 4e de#arted fro* on • certain cases i.e. i. o reve reveal al an an ill illeg egal al int inten enti tion on on the the #ar #artt o off the the cli clien ent. t. ii. ii. Where here the the clie client nt has has conse onsen nted. ted.
Conclu'ion B#on B#on receivi receiving ng his instruc instructio tions' ns' the advoca advocate te has total total contro controll and res#onsi4ilit( over the conduct of #roceedings. Accordingl(' Accordingl(' it is u#to the advocate to ensure that he dis#enses his roles or duti duties es as ensh enshri rine ned d 4( 9ord 9ord Denn Dennin ing g in Rondel v. (orsele' and ensure that his client' the accused' gets ustice.
,. CIVI CIVIL L MA MATTERS TERS +ule " of the Advocates 1#ractice3 +ules #rohi4its advocates fro* acting for an( clients )ithout instructions. he role of the advocate during the trial #rocess is /uite e;tensive. He *ust ensure that the *atter is dul( listed for hearing and *ust • e;#lain to the client the necessit( necess it( of attending court. He *ust fa*iliarie hi*self )ith court #rocedure in 4oth su#erior • and inferior inferior courts. For instance' instance' )hen' a##earing a##earing 4efore 4efore the High Court he *ust 4e ro44ed 1though not )hen a##earing in cha*4ers3 He *ust ascertain the /uestion of urisdiction' 4oth *onetar( and • geogra#hical 4efore the #roceedings co**ence. He *ust ensure that there8s no conict of interest and there is no • li,eli li,elihood hood of such such a conic conictt arisin arising g su4se/u su4se/uent entl( l( during during the trial trial #rocess. For inst instan ance ce'' )h )hen en acti acting ng for for t) t)o o #art #artie ies s in a oin ointt vent ventur ure' e' an advocate is strictl( re/uired to ensure that there is no conict of interest. his vie) has 4een 4een restated 4( the court in the case of King King 2 woolen Mills and another v. v. Kaplan and Stratton dvocates
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Cap * Civ$ App$ No$5593
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In this case'
Other duties of an advocate during the trial #rocess include: Bnde Bnderr +.> +.> of the the $&&% $&&% Advo Advoca cate tes s 1#ra 1#ract ctic ice3 e3 +ule +ules s )h )her ere e an • advocate acts in a suit on the instructions of a client' the advocate *ust furnish the client )ith !led co#ies of all #leadings in the suit 4earing the sta*# of the registr( of the court in )hich the suit )as !led. Bnder +.$0' such advocate shall not enter into an( arrange*ents • to receive a contingenc( fee in res#ect of the said #roceedings. he advocate is also re/uired to !le a list of authorities he intends • to rel( on 4efore the trial #roceedings co**ence. he advocate is also re/uired to a##l( for the relevant )itnesses • to 4e su**oned in ti*e so that the trial is not held u#. In case of hostile )itnesses' the advocate is re/uired to a##l( to • the court to have the said )itness declared a hostile )itness. If the court grants the a##lication' the advocate should #roceed to cross e;a*ine the said )itness.
I:)e"ch:en$ o 4i$ne''e' •
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An advocate is dut( 4ound to ensure that the court gets onl( the truth during during the #roceedings. #roceedings. It is onl( a court court that has 4een 4een truthfull( truthfull( *ade a)are of the facts surrounding a dis#ute that can render a ust and fair decision. An advocate can i*#each a )itness )ho is *isleading the court 4(: Page 0% of $$>
i. ii. ii. iii. iii.
Provi roving ng that hat the the )i )ittness ness is is unr unrel elia ia4l 4le. e. Provi roving ng that hat the the )i )ittness ness is a lia liarr. Prov Provin ing g that that the the )itne )itness ss has has forgo forgott tten en the the relev relevan antt facts facts is *ista,en or 4iased.
In$e(locu$o(2 A))lic"$ion' An advocate is 4ound 4( his dut( to do the 4est for his client. Accordingl(' Accordingl(' he *ust 4e conversant )ith the *anner or #rocedure for *a,ing *a,ing interl interlocu ocutor tor( ( a##li a##licat cation ions s )here )here the need need arises arises during during the conduct of #roceedings it *ust not 4e gain said' the( *a( shorten the #roceedings.
A))e"l' Wher Where e it 4eco 4eco*e *es s a##a a##are rent nt that that an infe inferio riorr cour courtt has has rend rendere ered d a decision that is contrar( to the la)' the advocate is 4ound to advise the client to a##eal against the said decision. Thi' Thi' (eui( (eui(e: e:en en$$ "(i'e "(i'e' ' (o: (o: $he #u$2 o $he $he "#5oc" "#5oc"$e $e $o $he hi!he( c"u'e o $(u$h "n# &u'$ice. At the conclusion of the trial #rocess an advocate *ust advise the client on the decision rendered 4( the court. Where the decision is contrar( to the laid do)n relevant la)' he *ust • advice the client to a##eal or to a##l( for revie). revie). Where the decision is ust and fair he :u'$ e6$("c$ " #ec(ee "n# • ini$i"$e e6ecu$ion #roceedings on 4ehalf of the client )here the udge*ent de4tor fails to honour the ter*s of udg*ent. During the trial an advocate is re/uired to o4e( all court orders. his • is so )hether the advocate regards the said orders to 4e invalid as )as held held in aron Ringera and others v. )aul Muite and others 9 the res#ondents had 4een found res#onsi4le for diso4e(ing court orders. heir asser sserttions that the orders ers )ere ere illegal' ultr ultra a vire vires s' or unconstitut unconstitutional ional )ere disregarded disregarded as the court held that an order of the court *ust 4e o4e(ed )hether the su4ect of its coercion 4elieves in its #ro#rie #ro#riet( t( or not. If a #art( has has a grieva grievance nce again against st a courts courts order' he is at li4ert( to a##l( to court to either var( or discharge the sa*e. ?efore ?efore then' a #art( #art( has no o#tion 4ut 4ut to o4e( orders orders issued 4( the court of )hich he is a)are. Failure to co*#l( )ith a court order a*ounts to court conte*#t. • An advocate should not' during the trial #rocess' 4e #art( to • dece dece#t #tio ion n or frau fraud d i.e. i.e. he shou should ld not not cond condon one e 4( an( an( )i )itn tnes ess s 1)hether his )itness or o##onents3
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CHAPTER SI1 BRIEFS9 PLEADIN*S AND CONFERENCE +. CONFERENCE Are discussions )ith clients' )itnesses or an( other #art( in the course of carr(ing out duties as an advocate. his his ter* ter* enco enco*# *#as asse ses s 4oth 4oth cont conten enti tiou ous s and and non5 non5co cont nten enti tiou ous s *atters in )hich one is engaged to act as an advocate.
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N.?. Pursuant to S." of the Advocates Act$ Con$e Con$en$ n$iou iou' ' :"$$e :"$$e(' (' "(e "(e #e7ne #e7ne# # "' G"n2 G"n2 %u'in %u'ine'' e'' #one #one %2 "n "#5o "#5oc" c"$e $e in cou( cou($$ o( (el" (el"$i $in! n! $o )( )(oc ocee ee#i #in! n!' ' in'$ in'$i$ i$u$ u$e# e# o( in$e in$en# n#e# e# $o %e in'$ in'$i$ i$u$ u$e# e# in "n2 "n2 'uch 'uch cou( cou($$ o( "n2 "n2 '$"$ '$"$u$ u$o( o(2 2 $(i%un"l o( %eo(e "n2 "(%i$("$o(.
Non con$en$iou' :"$$e(' "(e )(inci)"ll2 "n2 %u'ine'' #one %2 "n "#5oc"$e 4hich i' no$ con$en$iou' i.e. )(ocee#in!' no$ %eo(e "n2 cou($ @ $(i%un"l o( "(%i$("$o(. ,. PLEADIN*S •
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Are generall( docu*ents #re#ared 4( an advocate and )hich are su4se/uentl( !led in court. he contents' nature and for* of #leadings are governed 4( the #rovisions of the Civil Procedure Act" in #articular' the rules *ade thereunder. Order VI of the Civil Procedure +ules *a,es #rovisions #ertaining to #leadings generall(. Pleadings *ust 4e carefull( drafted.
,.+SETTLIN* OF PLEADIN*S •
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Geans #re#aring and a##roving #leadings that are going to 4e and are su4se/uentl( !led in court as re#resenting (our client8s case. Once an advocate has dra)n #leadings he L she is 4ound to settle the*. B#on B#on set settling ling and and sig signing ning #lea #lead dings ings'' an advoc dvocat ate e is und under res#onsi4ilit res#onsi4ilit( ( to the court and to the client for for the*. Accordingl Accordingl( (' (ou can onl( sign #leadings )hen (ou are not in an( dou4t )hatsoever.
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S"lien$ o%'e(5"$ion' •
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Kou Kou cannot #lead an( allegations not su##orted 4( facts laid 4efore (ou 4( the client. Kou Kou cannot #lead an( fraud unless the client has #rovided clear evidence and facts to esta4lish a #ri*a facie case. If (ou *ust #lead a ti*e 4arred #laint' (ou *ust ta,e instructions to a##l( for an e;tension of ti*e. Do not #lead unenforcea4le clai*s i.e. ga*4ling' 4etting etc. In drafting #leadings' (ou *ust su4scri4e to the rules laid out in the Civi Civill Proc Proced edur ure e Act Act0 #ert #ertai aini ning ng to #lea #leadi ding ngs s gene genera rall ll( ( and and to #leadings in s#eci!c cases.
SAVIN* With res#ect to conferences' the follo)ing o4servations are salient. •
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Ensure that secretaries' tele#hone etc do not continuousl( distur4 (ou. Other #arties should not 4e #riv( to the discussions 4et)een (ou and the client. +ecords should 4e ,e#t of the discussions and ti*e ta,en 4( the conference. If (ou are attending )itnesses' do not attend the* at the sa*e ti*e. Further' Further' it is advisa4le that (ou ,ee# records or ta,e *inutes.
-. BRIEFS An advocate is 4ound to acce#t an( 4rief in the court in )hich he #rofesses to #ractice la) at a #ro#er ti*e. Ho)ever' Ho)ever' there are e;ce#tions to this general rule. ECEPTIONS a3 When When there there is a conic conictt of inter interest est'' (ou (ou cann cannot ot acce# acce#tt the the 4rie 4rieff. Even )here there are chances that a conict of interest is li,el( to arise' (ou cannot acce#t the 4rief. 43 If the the client client cannot cannot a6ord to #a( #a( (our (our #rofessional #rofessional fees. c3 If the 4rief re/uires re/uires (ou to to ta,e #art in the furtheranc furtherance e of an illegal illegal act. d3 If (ou (ou do do not not do such such )o )or, r,.. e3 If (ou (ou are are li,el li,el( ( to 4e 4e calle called d as a )it )itness ness..
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Bnless in the clearest of cases' an advocate should not decline to ta,e a 4rie 4rieff. Such Such refusa refusall a*oun a*ounts ts to unde under* r*in inin ing g the rule rule of la). la). For instance' (ou can not decline a 4rief on grounds of se;' tri4e' race' etc. for (ou )ill 4e #er#etrating discri*ination' )hich is #rohi4ited.
WA WATCHIN* BRIEF BRIEF Princi Princi#al #all( l('' )atchi )atching ng 4rief 4rief entail entails s 4eing 4eing #resent #resent during during an( udici udicial al #roceedings )ith a vie) to ensure or satisf( (ourself 1on 4ehalf of (our client3 that the said #roceedings are in accordance )ith the laid do)n la) and #rocedure. When )atching 4rief an advocate: • •
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Has no right of audience Is li*ited to chec,ing )hat the #rosecution adduces as evidence inclusive of )hich #arties are called as )itnesses. Can re/uest to consult )ith the *agistrate and the #rosecution in cha*4ers in case of an( a##arent ano*alies.
R"$ion"le •
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A client *a( instruct (ou to )atch 4rief )ith a vie) to #re#are for su4se/uent civil action. A client *a( also instruct (ou to )atch 4rief *ainl( for #s(chological satisfaction that the la) is 4eing follo)ed.
HOLDIN* BRIEF •
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Wher Where e a fell fello) o) advo advoca cate te inst instru ruct cts s (ou (ou to ta,e ta,e his his #lac #lace e duri during ng #roceedings due to his ina4ilit( to 4e #resent in court. It is of a te*#orar( nature' not continuous. Kou Kou *ust' )hen instructed to hold 4rief' #eruse the !le )ith a vie) to fa*iliariing (ourself )ith its contents. his is /uite i*#ortant ust in case the court orders (ou to #roceed )hen )hen not satis!e satis!ed d )it )ith h the reasons reasons advanc advanced ed for the advoca advocate8 te8s s a4sence.
DEVILIN* •
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An advocate *ust not #ass a 4rief to another advocate )ithout e;#ress instructions fro* the client. he he cons consen entt of the the clie client nt *ust *ust 4e sough soughtt and and given given !rst !rst 4efo 4efore re #assing the 4rief.
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An advocate *ust not delegate the settling of #leadings si*ilarl( )ithou )it houtt the client client8s 8s consent. consent. his his is i*#ortan i*#ortantt 4ecause 4ecause the other advocate advocate settling the #leadings #leadings *a( not understand understand )hat one had in *ind. It *a( thus cause #reudice to the client.
TA=IN* INSTRUCTIONS It is advisa4le to ta,e the follo)ing records )hen ta,ing instructions: a3 43 c3 d3 e3
Date on on )hich )hich the the instructio instructions ns are 4eing ta,en ta,en 1and 1and of course ti*e3. Na*e of of ca case. se. Na*e Na*e and and add addres ress s of clie client nt.. Plac Place e and and date date of hear hearin ing g Fees agree agreed d to 4e #aid #aid or or *ode of of chargi charging ng fees. fees.
CONFLICT OF INTERESTS As alread( noted' it is *ot advisa4le for an advocate to ta,e a 4rief )hen there8s a conict of interest or )hen it is a##arent that a conict of interest is li,el( to arise 1during the #roceedings3. Where during #roceedings a conict of interests arises' the advocate should )ithdra) )ithdra) fro* fro* acting. acting. His !duciar( !duciar( dut( to the the client re/uires re/uires hi* to )ithdra). It is in fact' fact' *andator *andator( ( that that an advocate advocate *ust not act in a *atter *atter in )hic )h ich h a con conic ictt of inte intere rest st e;is e;ists ts.. his his vie) vie) rece receiv ived ed udi udici cial al endorse*ent endorse*ent in the case of King of King (oolen Mills Ltd and nor v. v. Kaplan & > Stratton dvocates )here the court e;#licitl( o4served MR. once a retainer is esta4lished' the general #rinci#le is that an advocate should not accept instructions to act*where there is a con+ict o" interestR interestR Instances in )hich a conict of interest *a( arise are: a3 In case case of an advoca advocate te )ho is a Co*# Co*#an an( ( Direct Director or:: such such advoc advocat ate e should not acce#t instructions to act for the co*#an(. co*#an(. 43 In the the case case of an advo advoca cate te )ho )ho are coun counci cilo lors rs.. he( he( shou should ld not not acce#t instructions to act for the ur4an council. c3 Co** Co**is issi sion ons s of Ass Assi ie: e: hese are #racticing advocates )ho also serve as udges. • he( he( are are a##o a##oin inte ted d #urs #ursua uant nt to the the #rov #rovis isio ions ns of the the = Co**issioners of Assie Act. &
Civil$ App$ No$ 5593 Cap 12
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?ecaus ?ecause e the( the( are also #racti #racticin cing g advoca advocates tes'' the( the( should should al)a al)a(s (s decl declin ine e 4rie 4riefs fs for for )h )hic ich h the( the( are are li,e li,el( l( to sit sit as udges. he( *ust 4e ver( careful to ensure ens ure that there is no conict 4et)een their )or, as advocates and their role as udges.
d3 Ge*4er Ge*4ers s of #arlia #arlia*en *entt )ho are also #racti #racticin cing g advocate advocates s *ust not acce#t re)ards fro* their constituents for )hat the( have done for the* in their ca#acit( as advocates. e3 Ar4itrator Ar4itrators: s: )here an advoca advocate te is serving as an an ar4itrat ar4itrator or'' he cannot cannot advise an( of the #arties. f3 Kou canno cannott a##ear a##ear 4efor 4efore e a court court or tri4u tri4una nall )h )hic ich h is #res #resid ided ed 4( (our relative and it is inadvisa4le to act for (our relatives unless in routine *atters.
SAVIN* Pursu Pursuan antt to +ule +ule II of the the Advo Advoca cate tes s 1Pra 1Pract ctic icin ing3 g3 +ule +ules s 1$&&% 1$&&%33 an advocate cannot in relation to transactions relating to land' act: 5 i. In the the cas case e of a sale sale'' for for 4oth 4oth the the ven vendo dorr and and the the #ur #urch chas aser er.. ii. ii. In the the cas case e of a lea lease se'' for for 4ot 4oth h the the less lessor or and and less lessee ee.. iii. iii. In the the cas case e of a *ort *ortga gage ge or or a cha charg rge' e' for for 4ot 4oth h the the *ort *ortga gage gee e or for for 4oth chargor and chargee. +ef . King (oolen (oolen Mills Ltd v. v. Kaplan and Stratton dvocate. Where the court held that it )as inadvisa4le for an advocate to act for 4oth 4orro)er and lender due to the #ossi4ilit( of a conict of interest arising later.
Te'$ o( " conic$ o in$e(e'$ The ue'$ion $o %e "'3e# "n# "n'4e(e# in 4he$he( $he in'$(uc$ion' (ecei5e# %2 "n "#5oc"$e c(e"$e "n i:)(e''ion in $he :in# o $he )u%lic $h"$ $he "#5oc"$e i' "c$in! un"i(l2 o( u'in! hi' o8ice o( un#ue %ene7$ o $he clien$ >o( hi:'el?. Rel"$ion'hi) 4i$h o$he( "#5oc"$e' Four guidin guiding g #rinci #rinci#le #les s govern govern the relati relations onshi# hi# of an advoca advocate te )it )ith h other advocates. i. i i.
iii. iii.
?e cour courte teou ous s to to oth other er advo advoca cate tes s at at all all ti*e ti*es. s. Accord res# res#e ect to all all th tho ose )h )ho are are sen senior to (ou (ou. Seni eniorit( it( is deter*ined on the 4asis of )hen one signed the roll of advocates. An( advocate )ho has signed the roll 4efore (ou is senior. senior. Seni Seniori orit( t( o off an adv advoc ocat ate e *a( *a( also also 4e 4e dete deter* r*in ined ed 4( 4( their their o6i o6ice ces s i.e. i.e. the A.7.' the Solicitor 7eneral' @ueen8s Counsel 1@C3' Chair*an of
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iv. iv.
the the 9a) 9a) Soci Societ et( ( and and Vice Vice Chai Chair* r*an an 1rega 1regard rdle less ss of the the da( da( the( the( signed the roll of advocates3 Advoc Advocat ates es are are all all *e*4 *e*4er ers s of the the sa*e sa*e #ro #rofe fessi ssion on and and are are re/ re/ui uire red d to *aintain the good i*age of the #rofession. #rofes sion.
ADVOCA ADVOCATES TES AND OFFICE OFFICE MANA*EMENT MANA*EMENT It is i*#ortant that an advocate 4e conversant )ith the #rovisions #rovis ions of: he 9a) Societ( Digest • he Advocates 1Practice3 +ules. • he Advocates 1Accounts3 +ules. • he Advocates 1De#osit Interest3 +ules. • he Digest' unli,e the rules *ade under the Advocates Act' is *ore e;i4le. In case of a conict 4et)een the the Digest and the the said rules' one should consult the 9.S.<. Advocates o6ices are covered 4( the digest )hich has no s#eci!c restrictions. Ho)ever' it is )orth noting the follo)ing #rovisions: 5 a3 +.2 +.2 allo allo)s )s advo advoca cate tes s to esta4l esta4lish ish o6ice o6ices s and and 4ran 4ranch ch o6ices o6ices )h )hic ich h *ust 4e under e6ective control 4( the advocate and should not 4e the source of touting. 43 Where Where an advoca advocate te shares shares an o6ice o6ice it is i*#ro i*#ro#er #er to share share an o6ice o6ice )ith an un/uali!ed #erson. Bnder +.& thereof' ever( advocate or !r* of advocate is re/uired to #aint or a6i; his na*e or its na*e outside of ever( o6ice or #lace of 4usiness. Bnder +.$ thereof' a )ritten notice shall 4e delivered to the registrar and to the secretar( of the societ( )ithin one *onth of a3 An advoc advocate ate chan changin ging g his na*e na*e or the the !r*8s !r*8s na*e na*e.. 43 An advoc advocate ate or or !r* chang changing ing its its #ostal #ostal addre address. ss. c3 An advo advocat cate e settin setting g u# his o)n #racti #ractice. ce. d3 An advoc advocat ate e or !r* !r* ceas ceasin ing g to #ract #ractic ice e or to e;is e;istt )h )het ethe herr 4( o#eration of la) or 4( act of its #artners.
FIRM NAME his is covered 4( +.0$ of the Digest as )ell as Advocates 1Practice3 +ules 1rules $$ and $"3. It is #rohi4ited to #ractice in a na*e other than (our o)n or that of a • #ast or #resent #artner. If a #artner is a##ointed a udge' the other #artners are allo)ed to go • on retaining his na*e as a !r* na*e.
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It is advisa4le to register the !r* na*e #ursuant to the #rovisions of the +egistration of ?usiness Na*es Act.
Pursuant to +.$" of the $&&% Advocates 1Practice3 +ules' it is #rohi4ited for a !r* of advocates or an( advocates to allo) the !r* na*e to 4e used used on an( an( docu docu*e *ent nt or lett letter er not not dra) dra)n n 4( the the !r* !r* or 4( the the advocate.
COMMISSIONER FOR OATHS Pursu Pursuan antt to the the Oath Oaths s and and St Stat atut utor or( ( Decl Declar arat atio ions ns Act' Act' Ca# Ca# $=' $=' S." thereof thereof'' the Chief Chief ustic ustice e *a( 4( co**is co**issio sion n a##oin a##ointt an( #ract #ractici icing ng advocate to 4e a co**issioner for oaths. For one to 4e eligi4le for a##oint*ent' one is re/uired to have #racticed for at least three (ears as an advocate 1rule "3. B#on B#on a##o a##oin int* t*en ent' t' an advo advoca cate te *a( *a( 4( virt virtue ue of his his co** co**is issi sion on ad*inister an( oath or ta,e an( a6idavit for the #ur#ose of an( *atter. *atter. he co**ission *a( 4e revo,ed 4( the Chief ustice for *isconduct of the advocate.
No$"(ie' )u%lic Bnde Bnderr the the Notar Notaries ies Pu4l Pu4lic ic Act Act2 S." ther thereof eof'' the the Chie Chieff ust ustic ice e *a( *a( a##oint an( advocate to #erfor* )ithin
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Co((e')on#ence •
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It is i*#erative that an advocate res#onds to corres#ondence 4( the 9.S.<. and the client )ithout undue dela(. dela(. he follo)ing is a list of #riorities #ursuant to )hich res#onse to corres#ondence *ust 4e underta,en $. Corres#ondence fro* the Co*#laints Co**ission. ". Fello ello) ) Advo Advoca cate tes. s. 0. Clients. >. +est.
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9.S.<.
es#eciall(
the
Failu ailure re to res# res#on ond d to co** co**un unic icat atio ion n fro* fro* the the Co*# Co*#la lain ints ts Co**ission a*ounts to #rofessional *isconduct. Co**on sense dictates dictates that corres#ondenc corres#ondence e fro* clients should 4e res#onded to )ithout an( dela(. dela(.
,. Le$$e( He"#' •
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+." ." of the 9.S.< .S.<.. Dige Digest st *a,es a,es #rov #rovis isio ions ns #ert ertaini aining ng to letterheads. It should 4e designed )ell for the #ur#oses of i*#ressing the #u4lic 1clients3. he Digest does not allo) advocates to include an e*4le* on the letterhead. letterhead. Ho)ever Ho)ever (our na*e na*e and those those of an( #artners #artners and assoc associa iate tes s *a( *a( 4e incl includ uded ed'' toge togeth ther er )i )ith th an( an( #rof #rofess essio iona nall /uali!cations relevant to #ractice. It is #rohi4ited for an advocate to allo) clients to #ut his na*e on their letterheads. If (ou are a director of a co*#an(' it is #rohi4ited for (ou to 4e identi!ed as an advocate on the director8s list.
-. Unu"li7e# Pe('onnel Pe('onnel @ S$"8. All secretaries' cler,s etc )or,ing in an advocates o6ice are #ursuant to the #rovisions of S." of the Advocates Act' un/uali!ed #ersons. #ersons . Bnder S.0 of the Act' (ou cannot share #ro!ts )ith the* or even #a( the* co**issions. Ho)ever' Ho)ever' un/uali!ed sta6 *a( 4e #aid a 4onus at the end of each (ear. (ear. he advocate or the !r* of advocates is strictl( lia4le for their actions.
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Bnder S."$ and "" of the Advocates Act ' one is re/uired to have a #rac #racti tici cing ng cert certi! i!ca cate te 4efo 4efore re he L she she is allo allo)e )ed d to #rac #racti tice ce as an advocate. Bnder S.0 A' one is also re/uired to ta,e out an annual license 4efore he can 4e allo)ed to #ractice. An annual license and a #racticing certi!cate are onl( issued • after one has #aid the #rescri4ed fees. One should a##l( for a #racticing certi!cate 4efore the end of • anuar(. anuar(. he 9.S.<. )ill usuall( issue a notice in Dece*4er for advocates • to su4*it their a##lications. If 4( the end of anuar( one does not have a #racticing license L • certi!cate one )ould not 4e eligi4le for #ractice as it )ould 4e illegal. he +egistrar of High Court )ill usuall( #u4lish a list of advocates )ho hold a #racticing license L certi!cate. /. In'u("nce o( P(oe''ion"l Ne!li!ence +."= of the 9.S.<. Digest re/uires that advocates ta,e out insurance against lia4ilit( for #rofessional negligence suits L actions. It is clear that advocates can no) 4e sued for #rofessional negligence. +ef. +ef. see the decision decision of the court in Midland ank Trust Co. v. ,ettStubbs and Kemp % )here the court o4served that solicitors could 4e sued in court for #rofessional negligence.
J. A%'ence When out of to)n or out of the countr(' infor* (our clients and arrange for so*eone to hold (our 4riefs and attend to (our clients. It is #rofessional *isconduct to 4e a4sent fro* court during #roceedings #ertaining to (our clients.
K. De%$ Collec$ion "n# E6ecu$ion •
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+.$0 +.$0 of the Advoca Advocates tes 1Pract 1Practice ice33 +ules +ules #rohi4 #rohi4its its advoca advocates tes fro* fro* charging collection fees in the !rst de*and letter. letter. If the de4tor #a(s i**ediatel(' i**ediatel(' the client should 4e charged. +.$& re/uires clients to #a( collection charges. Where Where e;ecut e;ecution ion has issued' issued' and the udg*e udg*ent nt de4tor de4tor o6ers o6ers the decretal su*' the advocate is re/uired to infor* the court and to )ithdra) the e;ecution.
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. Con'ul$"nc2 Fee' Where an advocate has consulted other #rofessionals' including other advocates' he8s re/uired to #a( their #rofessional fees. Bsuall( these are charged to the client )ho #a(s unless the advocate has given an underta,ing' in )hich case he is lia4le.
. P(oe''ion"l Un#e($"3in!' >(.J? >(.J? •
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A co::i$:en$ co::i$:en$ %2 "n "#5oc"$e %"c3e# %2 hi' )(oe''ion"l )(oe''ion"l n":e. Gust 4e clear and una*4iguous. It create creates s a 4indin 4inding g agree*e agree*ent nt and can 4e enforc enforced ed agains againstt the advocate. It a*ounts to #rofessional *isconduct not to honour an underta,ing. In (alker Kontos dvocates v. S. Mwirigi & Co. dvocates dvocates Civil A##eal No." of $&&' the res#ondents had o4tained docu*ents of title in res#ect of a #iece of land )hich )as the su4ect of a change. he( gave an underta,ing underta,ing to secure secure the discharge u#on co*#letion of a tran transa sact ctio ion n invo involv lvin ing g the the su4 su4ec ectt titl title. e. her herea eaft fter er the( the( #ur#orted #ur#orted to resile fro* the underta,ing underta,ing on account of a dis#ute dis#ute as to the interest interest rate a##lica4l a##lica4le. e. It )as held that that the fact that that there )as a dis#ute dis#ute as regards regards the interest interest #a(a4le on the charge charge did not of itse itsellf entitle the res# es#ondent ents to resil sile fro* the sol sole*n undert underta,i a,ing. ng. he sole*n sole*n and 4indin 4inding g nature nature of a #rofes #rofession sional al underta,ing )as reiterated in the case of Ken'a of Ken'a Reinsurance Corp. v. . #. Muguku Muriu t/a Muguku Muriu & Co. Civil A##eal No.>% of $&&% )here the advocates in /uestion on facts si*ilar to the ones in the the (alker Kontos case Kontos case sought to /ualif( their underta,ing on acco accoun untt of a dis# dis#ut ute e 4et) 4et)ee een n thei theirr clie client nt and and the the a##e a##ell llan antt cor#oration. I$ 4"' hel# $h"$ h"5in! !i5en " 'ole:n un#e($"3in! $o )"2 " ce($"in 'u: o :one2 "n "#5oc"$e i' %oun# %2 $he un#e($"3in! "n# c"nno$ (e'ile $he(e(o: . he sa*e result )as reached in the case of Karsam of Karsam Lal0i )atel )atel v. )eter )eter Kimani Kairu practicing as Kimani Kairu & Co. dvocates dvocates Civil A##eal No.$0= of $&&&.
+. Bu'ine''e' Not #rohi4ited. • ?ut *ust not 4reed a conict of interest and *ust not 4e 4iased • to)ards conduct un4eco*ing or to)ards unfairl( attracting clients. If in dou4t' one should consult the 9.S.<. •
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Sa*e #rinci#les a##l( to e*#lo(*ent of advocates' an advocate is #rohi4ited fro* sharing #ro!ts )ith his e*#lo(er. e*#lo(er. SAVIN* Client *one( should 4e handled in the *anner #rescri4ed 4( the • A#5oc"$e' >Accoun$'? Rule' "n# A#5oc"$e' A#5oc"$e' >De)o'i$ "n# In$e(e'$? Rule'. Advertising' undercutting' sharing of #ro!ts' touting etc 4( an • advocate are all strictl( for4idden 4( 4oth the Act' the Advocate 1Practice3 +ules and also 4( the 9.S.<. Digest. •
ADVOCA ADVOCATES TES PRACTICE AND AND ACCOUNTS ACCOUNTS RULES SALIENT REMAR=S Pursu Pursuan antt to S.%$ .%$ of the the Advo Advoca cate tes s Act Act the the coun counci cill of the the soci societ et( ( is e*#o)ered to *a,e rules su4ect to the a##roval of the Chief ustice. hese rules are )ith res#ect to a3 he #rofessio #rofessional nal #ractic #ractice' e' conduct conduct and and disci#li disci#line ne of advoca advocates. tes. 43 he ,ee# ,ee#ing ing of of accou accounts nts 4( advoc advocate ates. s. c3 Annual Annual su4*is su4*ission sion to the the council council of a certi!ca certi!cate te 4( an accoun accountan tantt 1certi!ed3 Advocates are re/uired to co*#l( )ith the said rules. Failure to do so renders the* o#en to disci#linar( action 4( the Disci#linar( Co**ittee set u# under #art -I of the Act.
A#5oc"$e' >P("c$ice? >P("c$ice? Rule' Rule' Pursuant to +.$' no advocate *a( directl( or indirectl( see, instructions for #rofessiona #rofessionall 4usiness or do an( act act in the carr(ing carr(ing of his 4usiness 4usiness )hich can 4e reasona4l( regarded as touting or a*4ulance chasing. +.0 thereof #rohi4its undercutting: this is 4asicall( charging fees )hich are less than those #rescri4ed 4( the Advocates +e*uneration Order. Bnder +.>' sharing of #ro!ts derived fro* #rofessional 4usiness )ith un/uali!ed #ersons is for4idden. +.= #rohi4its advocates e*#lo(ed 4( un/uali!ed #ersons fro* dra)ing an( docu*ents or doing an( other legal service to his e*#lo(er' )hich shal shalll 4e char charge ged d dire direct ctl( l( 4( his his e*#l e*#lo( o(er er to an( an( othe otherr #erso #erson n and and retained 14( the e*#lo(er3. +. #rohi4its #rohi4its #oaching #oaching of clients. clients. No advocate advocate *a( act for for a client in a *atter )hich he ,no)s or has reason to 4elieve that another advocate is acting )ithout the consent of that other advocate.
E6ce)$ion'
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i. ii. ii.
If the the cli clien entt h has as )i )ith thdr dra) a)n n ins instr truc ucti tion ons. s. If the the oth other er advo advoca cate te has has dec decli line ned d to to act act furt further her..
+.% renders advocates )ho have 4riefed or instructed or consulted other advo advoca cate tes s #erso #ersona nall ll( ( lia4 lia4le le for for the the #a(* #a(*en entt of the the cons conse/ e/ue uent ntia iall #rofessional fees. Bnder +.&' advocates are #rohi4ited fro* a##earing 4efore tri4unals or an( court )ith res#ect to an( *atter for )hich the( *a( 4e e;#ected to give evidence. Bnder +.$' coaching of )itnesses and calling coached )itnesses to give evidence in court is #rohi4ited. +.$" for4ids advocates fro* #racticing under a na*e other than their o)n na*es or na*es of #ast or #resent #artners.
A#5oc"$e' Accoun$' Accoun$' Rule' Rule' +." thereof de!nes an Madvocate to include a !r* of advocates. advocates. It also de!nes de!nes a Mclient as an( #erson on )hose account an advocate holds or receives receives client8s client8s *one(. *one(. Further Further'' Mclient *one( is de!ned as *one( held or received 4( an advocate on account of a #erson for )ho* he is acting acting as an advocate advocate or as an agent. agent. Such Such *one( also includ includes es an( *one( held or received 4( an advocate 4( )a( of de#osit against fees to 4e earned or dis4urse*ents to 4e incurred. Client Account is de!ned as a current or de#osit account at a 4an, in the na*e of the advocate 4ut in a title of )hich the )ord Mclient or Mtrust a##ears. +.0 thereof re/uires an advocate to ,ee# one or *ore client accounts and +.> re/uires advocates to #a( into the account an( client *one( received )ithout dela(. +.= allo)s an advocate to #a( into the client account an( trust *one( or an( *one( 4elonging to the advocate for the #ur#ose of *aintaining the account. account. Bnder +.2' +.2' an( *one( #aid #aid into the client client account' account' )hich )hich is not client *one(' *one(' *ust 4e #aid out as soon s oon as #ossi4le. +. #rohi4its #a(*ent of an( other *one( not 4eing client *one( into the client account )hile +.& allo)s )ithdra)als fro* the said account of an( *one( authoried for #a(*ent 4( the client or an( *one( 4eing transferred to another client account. hese rules rules shoul should d 4e read read toge togeth ther er )i )ith th Advo Advoca cate tes s 1De# 1De#osi ositt N@B hese Interest3 +ules
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CHAPTER SEVEN CLIENT;S PROPERTY AND CLIENT;S MONEY S., o $he A#5oc"$e' Ac$ #e7ne' " clien$ "' "n2one 4ho i' "%ou$ $o e:)lo2 o( (e$"in "n "#5oc"$e o( "n2one 4ho h"' (e$"ine# o( e:)lo2e# "n "#5oc"$e. A clien$ i' "l'o #e7ne# "' "n2one 4ho i' li"%le $o )"2 "n2 "#5oc"$e co'$'. he conduc conductt of advoca advocates tes )it )ith h res#ect res#ect to client client #ro#er #ro#ert( t( and client client *one( is governed 4( rules *ade 4( the 9.S.<. Council #ursuant to S.%0 of the Advoca Advocates tes Act Act$. he he Chie Chieff ustic ustice e *ust *ust a##ro a##rove ve these these rules rules 4efore the( attain validit(. Four categories of rules have 4een *ade 4( the 9.S.<. council #ursuant to the #o)ers conferred 4( S.%0 i. ii. iii. iii. iv. iv.
Advocates Advocates Advo Advoc cate ates Advo Advoca cate tes s
1Practice3 +ules 1Accounts3 +ules 1De# 1De#o osit sit IInt nter eres estt3 +ule +ules s 1Acc 1Accou ount ntan antt Cert Certi! i!ca cate te33 +ule +ules. s.
he de!nition de!nition of an advocate advocate su4su*es a #artnershi#. #artnershi#. Accordingl Accordingl( (' a 4rea 4reach ch of the the said said rule rules s 4( a #art #artne nerr a*ou a*ount nts s to a 4rea 4reach ch 4( all all #artne #artners. rs. A 4reach 4reach renders renders an advoca advocate te lia4le lia4le to face face Disci#li Disci#linar nar( ( #roceedings and the conse/uential e6ects. 1
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CLIENT MONEY Rule ,. O $he A#5oc"$e' >Accoun$'? Rule' #e7ne' Gclien$ :one2 "' "n2 :one2 hel# o( (ecei5e# %2 "n "#5oc"$e on "ccoun$ o " )e('on o( 4ho: $he "#5oc"$e i' "c$in! >clien$?. Such *one( could 4e received as fees' or dis4urse*ents (et to 4e • earned or incurred as e;#enses 1legal3 An advocate can also receive and hold client *one( as an( agent' • trustee or 4ailee' sta,eholder or in an( other ca#acit(. ca#acit(. he general #rinci#le is that an( client *one( *ust 4e #aid into the client account )ithout dela(. Pursuant to +.= of the $&&% Advocates 1Practice3 +ules' an( *one( • #a(a4le #a(a4le to a client client )ho is sui 0uris shall 0uris shall 4e released to the client not later than "$ da(s fro* the date on )hich the #roceeds are actuall( #aid into the Advocate8s Client Account.
CLIENT ACCOUNT +." of the Advocates 1Accounts3 +ules de!nes a client account as a current or de#osit Account at a 4an, or a 4uilding societ( L !nancial institution as de!ned in the 4an,ing Act' in the na*e of the advocate 4ut in the title of )hich the )ord Mclient or Mtrust a##ears. CLIENT PROPERTY •
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In *ost *ost cases cases a#ar a#artt fro* fro* cri* cri*in inal al la) la) cases cases'' )h )here ere ther there e is an advocate client relationshi#' the /uestion of client #ro#ert( )ill al)a(s arise. In dealing )ith client *one( and #ro#ert(' an advocate is usuall( in the #osition of a trustee and is accordingl( re/uired to carr( out the duties of a trustee.
THE ADVOCATES >ACCOUNTS? RULES As noted' r." de!nes Mclient *one(' Mclient account and Man advocate for the #ur#oses of the rules. +.0 thereof' an advocate is re/uired to ,ee# one or *ore client • accounts. +.> re/uires an advocate to #a( into the client account an( client • *one( held or received 4( hi* )ithout dela(. dela(. +.= +.= allo allo)s )s an advo advoca cate te to #a( #a( into into the the clie client nt acco accoun untt an( an( trust trust • *one( and an( *one( 4elonging to the advocate for the #ur#ose of *aintaining the account etc.
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+.2 re/uires that an( *one( #aid into the client account )hich is not clients *one( to 4e #aid out as soon as #ossi4le. +. +. cate catego gori rica call ll( ( #roh #rohi4 i4it its s #a(* #a(*en entt of an( an( othe otherr *one *one( ( 4ein 4eing g clients *one( into the client account. +.& allo)s an advocate to )ithdra) *one( #ro#erl( re/uired for #a(*en #a(*entt of client clients s an( *one( that he is transf transferr erring ing to anothe anotherr client account and an( *one( #ro#erl( re/uired for #a(*ent of a de4t due to the advocate fro* the client. +.& also re/uires that an( che/ue dra)n u#on a client account to 4ear on its face the )ord Mclient account or Mtrust account. +.$ categoricall( categoricall( #rohi4its #rohi4its an( )ithdra)als )ithdra)als fro* client account account of an( su* in e;cess of a*ount held 4( the advocate to the order of the client.
Boo3' o Accoun$' Pursuant to +.$0' ever( advocate is strictl( re/uired to ,ee# at all ti*es' #ro#erl( )ritten u#' such 4oo,s of accounts as *a( 4e necessar( to sho) i. Ever( Ev er( rece recei# i#tt of hi* hi* 4( clien clients ts *on *one( e( for for eac each h se#a se#ara rate te cli clien ent. t. ii. ii. Ever( Ev er( #a( #a(*e *ent nt 4( 4( hi* hi* fro* fro* cli clien ents ts acco accoun unts ts for for each each se# se#ar arat ate e clien client. t. iii. iii. he he a*oun a*ountt held held 4( 4( hi* hi* for for the the ti*e i*e 4ein 4eing in a clien lientt acco accoun untt for each se#arate client. iv. iv. he he *one( *one(s s e;#en e;#ende ded d 4( hi* hi* for the the cos costs ts cha charg rged ed 4( 4( hi* hi* to each each se#arate client. Such 4oo,s *a( 4e Cash 4oo,s or • 9edger 4oo,s • And *ust 4e su##le*ented 4( records sho)ing the #articulars of all ?ill of Costs delivered 4( the advocate to his clients distinguishing 4et)een #ro!ts' costs and dis4urse*ents Pursuant to +.$>' the 4oo,s of accounts *ust 4e #reserved for not less than 2 (ears fro* the date of the last entr(. entr(. Bnder Bnder the $&&% $&&% Advoca Advocates tes 1Pract 1Practice ice33 +ules +ules +.= thereo thereof' f' an( *one( *one( #a(a4le 4( an advocate to a client )ho is sui uris shall 4e #aid to the clie client nt not not late laterr than than "$ )o )or, r,in ing g da(s a(s fro* fro* the the date date on )h )hic ich h the the #roceeds are actuall( #aid L credited into the advocate8s client account. Bnde Bnderr +.2 +.2 ther thereo eoff' )h )her ere e an advo advoca cate te has has reac reache hed d a sett settle le*e *ent nt involving the #a(*ent of *one( as da*ages on 4ehalf of a *inor' for
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)ho* he acts' he is re/uired to a##l( to the court for a##roval of the settle*ent of the *one( )ithin $= da(s.
THE ADVOCATES >DEPOSIT INTEREST? RULES +." +." ther thereo eoff #rovi #rovide des s that that an advo advoca cate te is not not lia4 lia4le le 4( virtu virtue e of the the relation 4et)een an advocate and a client for interest received 4( the advocate on *one(s de#osited in a client for interest received 4( the advo advoca cate te on *one *one(s (s de#o de#osi site ted d in a clie client nt acco accoun untt 4ein 4eing g *one *one(s (s received or held on account of his clients generall(. generall(. Ho)ever Ho)ever under +.0' an advocate advocate is re/uired re/uired to ta,e instructions instructions fro* a clie client nt )i )ith th res# res#ec ectt to the the inves invest* t*en entt of an( an( clien clientt *one *one( ( held held or received 4( hi* and li,el( to 4e held 4( hi* for a length of ti*e )ith regard to )hich the *one( ought to earn interest. Bnde Bnderr r.>' .>' )h )her ere e the the *one *one( ( is de#o de#osi site ted d in a se#a se#ara rate te desig designa nate ted d account in the na*e of the advocate or his !r* in the title of )hich the )ord Mclient a##ears' the advocate )ould 4e lia4le to account to the client for interest.
THE ADVOCATES >ACCOUNTANTS CERTIFICATE?RULES Bnder +.0' thereof' an advocate is re/uired to deliver once ever( (ear to the 9.S.<. Council a certi!cate signed 4( the accountant )ho is dul( /uali!ed. In giving and L or signing the said certi!cate the accountant is re/uired to sati satisf sf( ( hi*s hi*sel elff that that the the Advo Advoca cate tes s 1Acc 1Accou ount nts3 s3 rule rules s have have 4een 4een co*#lied )ith. In doing this' this' the accountant accountant is not re/uired to do *ore than: a3 Ga,e a general e;a*ination of the ?an, Pass ?oo,s and state*ents. 43 Ga,e Ga,e a general general e;a*i e;a*inat nation ion of the 4oo,s 4oo,s of Accoun Accounts ts ,e#t ,e#t 4( the advocate. c3 Ascert Ascertain ain that that the clie client nt accou account nt is ,e#t ,e#t.. d3 E;a*ine E;a*ine the lia4ilit lia4ilities ies of the the advocate advocate to his his clients clients and the the 4alance 4alance standing to the credit of the client account. Pursuant to +. certain advocates *a( 4e e;e*#ted fro* delivering an accountants certi!cate i.e. a3 hose hose )ho hold hold their their !rst #rac #ractic ticing ing certi certi!ca !cate. te. 43 hose hose )ho hold hold afte afterr havi having ng ceased ceased to hold a curr curren entt #rac #racti tici cing ng certi!cate for $" *onths' hold their ne;t #racticing certi!cate.
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c3 hose hose )ho have have not #racti #racticed ced la) la) on their their o)n account account eithe eitherr alone or in a #artnershi#. d3 hose )ho )ho have not not at an( an( ti*e receive received d or held clients clients *one(. *one(. Bnde Bnderr +.$" +.$"'' if an( an( advo advoca cate te fail fails s to co*# co*#l( l( )i )ith th the the Advo Advoca cate tes s 1Accountants Certi!cate3 +ules' a co*#laint in res#ect of such failure *a( 4e *ade *ade 4( or on 4eha 4ehalf lf of the counc ouncil il to the disc isci#li i#lina nar( r( co**ittee.
OFFICE ACCOUNT It is advisa4le that an advocate *aintain a distinct o6ice account fro* )hich the da( to da( o6ice running e;#enses *a( 4e *et i.e. )ages' rent' etc. When it co*es to *one(' 1client *one(3' the rules have 4een overta,en 4( events. events. It is not onl( cash *one( *one( client client *one( *ust 4e ta,en ta,en to 4e inclusive of che/ues endorsed. P(o7$ co'$' o an advocate' #ro!t costs arise fro* the sur#lus over all dis4urse*ents and charges. P"($2 "n# )"($2 co'$' hese hese are created created 4( the +e*unera +e*uneratio tion n Order Order and arise as follo) follo)s s )hen #lainti6 A sues ? and succeeds ? is re/uired to rei*4urse the #lainti6 his legal costs. In this regard' A is entitled to recover fro* ? all dis4urse*ents and a certain a*ount of legal fees #aid. In the high court' one is allo)ed to recover $L0 of the fees #aid and in the su4ordinate court of the fees #aid.
TAATION his is a #rocedure 4( )hich +egistrar of the High Court or a *agistrate in the the lo)e lo)err cour courts ts 1he 1he a;in a;ing g Gast Gaster er33 asse assess sses es the the cost costs s of an advocate in an( *atter once the #lainti68s advocate has 4een successful. he advocate #re#ares a 4ill of costs in date se/uence and !les it in court court su##or su##orted ted 4( the releva relevant nt docu*e docu*ents nts i.e. i.e. decree decree'' udge* udge*ent ent'' recei#ts etc. Once ta;ed' the 4ill of costs cannot 4e a##ealed against on facts i.e. if one is /uestioning the !gures' unless one is a##ealing on a *atter of la). he registrar of the high court or the ta;ing *aster in the sur4odinate courts' in *a,ing his decision on ta;ation' is ta,en to 4e e;ercising udicial discretion.
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THE ECON THE ECONOM OMIC ICS S OF PRAC PRACTI TISI SIN* N* LA LAW W REMUNERATION ORDER •
•
•
•
i.
THE TH E AD ADVO VOCA CATE TES S
he he lega legall #rof #rofes essi sion on invo involv lves es and and *ust *ust invo involv lve e econ econo* o*ie ies s #rinci#all( 4ecause it is an econo*ic enter#rise.
he #racticing la)(er *ust thin, li,e an( other 4usiness*an. Part I- of the Advocates Act " is a clear indication of the fact that the #ractice of la) is an econo*ic entit(. entit(. It has #rovisions #ertaining to the +e*uneration of Advocates' though it *ust 4e #ointed out that the re*uneration of advocates is not onl( )hat it caters for. for. A*ong other o4ectives #art I- also serves #u4lic interests 4(: Prot Protec ecti ting ng the the #u4l #u4lic ic *e*4e *e*4ers rs fro* fro* the acti activi viti ties es of unsc unscru ru#u #ulo lous us advocates )hose #rinci#al ai* is /uic, enrich*ent at their e;#ense. Protecting the #u4lic and advocates fro* the dangers of undercutting and unfair co*#etition and to an e;tent' fro* rendition of legal services. Ena4ling the #u4lic to access a6orda4le legal services and accordingl( to realie and eno( their constitutional right to legal re#resentantion. Ga,i Ga,ing ng the the #rac #racti tice ce of la) la) att attra ract ctiv ive e to advo advoca cate tes s 4( ensur ensurin ing g that that advocates get fees co**ensurate to their status in the societ(. societ(. ?( #roviding a unifor* and easil( recognia4le enforcea4le *ethods of solving dis#utes 4et)een advocates and clients and 4et)een the clients the*selves. ?( #roviding the #rofession )ith a *echanis* to *onitor and #olice unfair and L or un#rofessional #ractice of 4illing clients. ?( #roviding a unifor* legal costing s(ste*. ?( ena4ling the #rofession to #roduce inde#endent and incorru#ti4le advo advoca cate tes s ca#a ca#a4l 4le e of fear fearle less ss defe defenc nce e of their their clie client nts s )i )ith thou outt !nancial an;iet(.
i i.
i i i.
iv. iv. v. v.
vi. vii. viii.
DETE DETERM RMIN INA ATION TION SCALES
OF
THE TH E
ADV AD VOCA OCATES TES
REM REMUNER UNERA ATION TION
The A#5oc"$e' Re:une("$ion Sc"le' "(e %"'e# on (eco: co::en#"$ #"$ion ion' o $he $he L.S.= .S.=.. Council cil )u(' )u('u u"n$ $o )(o5i'ion' o S. o $he A#5oc"$e' Ac$ .
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$he $he $he
Princ rinci# i#al all( l( S.>> .>> ther thereo eoff e*#o e*#o)e )ers rs the 9.S.< .S.<.. coun counci cill to *a, *a,e reco**endations to the Chief ustice in res#ect to all *attes relating to the +e*uneration of advocates. he chief ustice is e*#o) o)er ere ed to a##rove or ree eect the said reco**endations. In this regard' he is e;#ected to 4ear in *ind the needs of 4oth the #rofession and the #u4lic. In #ractice' the Chief usti stice a##oints a udge to )ho* the reco**endations are for)arded 4efore he gets the* and in deciding )hether or not to a##rove the said reco**endations' he sits )ith a s*all co**ittee of the 9.S.<. he he 9.S 9.S.<. .<. does does not not *a,e *a,e the the reco reco** **en enda dati tion ons s in vain vain L idlen idleness ess.. Bsuall Bsuall( (' it undert underta,e a,es s a surve( surve( a*ongs a*ongstt advoca advocates tes on the follo) follo)ing ing issues i. ii.
Ho) *u *uch it it co costs sts to to ru run an an o6 o6ice. he co cost of living et etc.
THE ADVOCATES REMUNERATION ORDER I$ i' )(inci )(inci)"l )"ll2 l2 " 'u%'i# 'u%'i#i"( i"(2 2 le!i'l le!i'l"$i "$ion on e'$"%l e'$"%li'h i'he# e# un#e( un#e( $he A#5oc"$e' Ac$ Ac$ 9 "n# oun#e# on S. o $he A#5oc"$e' Ac$ >+?. he !gures )e a##l( toda( )ere legislated in $&%" and su4se/uentl( a*ended a*ended in $&%> and $&%2. $&%2. he fees are !rst !rst )or,ed out out 4( the 9a) 9a) Societ( Council and assessed 4( cost accountants. A reco**endation on the costing is then su4*itted to the Chief ustice )ho )h o then then a##o a##oin ints ts a udg udge e to *a,e *a,e a co** co**it itte tee e 4efo 4efore re )h )hic ich h the the council *a,es a re#resentation. he Chief ustice is not 4ound to acce#t the reco**endations 4( the 9.S.<. 9.S.<. Council as noted. Bsuall( Bsuall('' these reco**endations reco**endations cover cover 4oth contentious and non contentious 4usiness. Pursu Pursuan antt to S.>> there thereof of'' the the rule rules s #ert #ertai aini ning ng to re*u re*une nera rati tion on of advocates cover i. he la4our involved. i i. he s,ill involved. iii. iii. he he #la #lace ce and and circ circu* u*st stan ance ces s et etc.
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he re*une re*unerat ration ion order order also allo)s allo)s for the charging charging of interest interest.. In acting for a client' an advocate is allo)ed to charge interest on an( fees outstanding. S.>= of the Act also allo)s an advocate to enter into an agree*ent )ith a clien clientt for for the the #a(* #a(*en entt of #rof #rofess essio iona nall fees fees )i )ith thou outt rega regard rd to the the +e*uneration Order. Order. Ho)ever )hat is agreed u#on should not not 4e 4elo) )hat is #rovided for under the re*uneration order. order. he relationshi# 4et)een an advocate and a client is 4oth !duciar( and contractu contractual. al. Accordingl Accordingl( (' the advocate and his client client are entitled entitled to agree on the fees fees #a(a4le. An( such agree*ent )hich is o6ensive to the the order is li,el( to 4e su##ressed 4( the court. his section is crucial to the client and the advocate )ho )ishes to agree on costs. costs. Ho)ever' Ho)ever' such an agree*ent agree*ent *ust 4e in )riting )riting and *ust 4e signed 4( 4oth the advocate and the client. If a client )ishes to challenge such an agree*ent' he can do so )ithin 2 *onths on the follo)ing grounds:5 hat the agree*ent is a3 Bnreason sona4le 43 Bnco Bncons nsci cion ona4 a4le le c3 Hars Harsh h and and e;or e;or4i 4ita tant nt he client8s challenge *ust 4e 4efore a High Court udge sitting )ith " assessors )ho *ust 4e advocates of not less than $ (ears standing. A valid agree*ent under S.>= is not su4ect to ta;ation in court' #rinci#all #rinci#all( ( 4ecause that section section tal,s of a valid agree*ent. agree*ent. In certain certain instances' such an agree*ent can also 4e invalid #ursuant to S.>2 of the Act. i. ii. iii. iii. iv. iv.
Where Where the advoca advocate te is #urc #urchasi hasing ng an interes interestt in in the the su4ec su4ectt *att *atter er'' then it is invalid. If the agree*ent relieves the advocate of #rofessional res#onsi4ilit(' res#onsi4ilit(' it is invalid. If the the agr agree* ee*en entt see, see,s s to #ro #rovi vide de for for fee fees s on a con conti ting ngen enc( c( 4as 4asis. is. If it see, see,s s to #rov #rovid ide e for for fees ees less less than than thos those e #re #rescri scri4e 4ed d 4( the scales #ursuant to S.>> etc.
Pursuant to S.>%' once an advocate has co*#leted acting for a client' he *ust deliver a 4ill and if after one *onth it has not 4een #aid ' an advo advoca cate te is enti entitl tled ed to co** co**en ence ce a suit suit for for reco recove ver( r( of the the fees fees.. Ho)ever' Ho)ever' there can 4e no udge*ent until such a 4ill is ta;ed.
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If a client is a4out to leave the urisdiction urisdiction of the court' an a6idavit can 4e s)orn in su##ort of an a##lication to get securit( of costs 4efore ta;ation. B#on getting the securit( of costs' an advocate is entitled to charge a client8s #ro#ert( #ursuant to S.=".
AREAS COVERED COVERED BY BY THE R.O. R.O. Prior to $&%>' the( covered onl( civil cases. After $&%>' during Chief ustice Gadan8s era' the Act )as a*ended to #rovide for re*uneration of advocates in cri*inal cri*inal cases. Ho)ever' Ho)ever' no 4ill of costs under under cri*inal la) cases cases has ever 4een successfull successfull( ( ta;ed. hus in #ractice #ractice the +.O. +.O. a##lies *ostl( to civil cases' 4oth in contentious and non5contentious #rofessional )or,. For contentious )or, it covers re*uneration for 4oth su4ordinate courts and the High Court' 4ut not the court of A##eal )here the( have their o)n rules.
Hi!hli!h$' o $he R.O. Rule' •
•
•
•
+.0: advocates are #rohi4ited fro* acce#ting re*uneration re*uneration at scale less than that #rovided for under the order. order. +.> allo)s allo)s advoca advocates tes to receiv receive e additi additiona onall re*une re*unerat ration ion for an( 4usiness to )hich he has attended outside nor*al 4usiness hours or to )hich he has accorded s#ecial dis#atch. +.= allo)s advocates to receive a s#ecial fee for underta,ing an( 4usiness of e;ce#tional i*#ortance or of unusual co*#le;it(. co*#le;it(. +.2 allo)s advocates to acce#t sec securit( for the advocates re*uneration and +. allo)s advocates to charge interest on un#aid fees after the e;#ir( of one *onth fro* the date of the deliver( of the advocates 4ill to the client.
7enerall(' the +.O. caters for: a3 Cont Conten enti tiou ous s *att *atter ers s 43 Non Non con conte tent ntiou ious s *at *atte ters rs N.?. S." of the Act de!nes and distinguishes contentious and non contentious *atters. c3 he *ode of ta;ation on 4oth the Hig High Court and the su4ordinate courts.
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N.?. for the Court of A##eal' the Court of A##eal Order *ade #ursuant to the A##ellate urisdiction Act =' #rovides for the re*uneration of advocates in res#ect of an( 4usiness conducted 4efore the Court of A##eal.
SCHEDULE + Provides for re*uneration of advocates in regard of: 5 Conve(ancing • Gortgages • Purchases etc. • he !gures sho)n in the Schedule $ are intended to cover all )or,' attendances and corres#ondence. Schedule $ has three scales: i. Scal Scale e I is on cha charg rges es on sal sales es'' #urc #urcha hase ses s and *or *ortg tgag ages es a6ec a6ecti ting ng land registered in an( registr(. registr(. ii. ii. Scal Scale e II is in in res#e res#ect ct of of char charge ges s rela relati ting ng to to Ge*o Ge*ora rand nda a of E/u E/uit ita4 a4le le Gortgages 4( de#osit of docu*ents or charges 4( de#osit of title . iii. iii. Scal Scale e III cat cater ers s for for negot negotia iati ting ng co** co**is issi sion on on sal sales es and and *or *ortg tgag ages. es. SCHEDULE II It #rovides for re*uneration of advocates in res#ect of the for*ation and incor#oration of co*#anies )ith share ca#ital.
SCHEDULE III It also #rovides for the re*uneration of advocates in res#ect of i. ii. ii. i i i.
For*a or*ati tion on and and inco incor# r#ora orati tion on of co* co*#a #ani nies es )ith )ithou outt share share ca# ca#it ital al.. +egis egisttrat ration ion of of for forei eig gn co* co*#a #an nies. ies. Issue of of de de4entures et etc.
SCHEDULE IV Provid Provides es for re*uner re*unerati ation on of advoca advocates tes )it )ith h res#ect res#ect to a##lic a##licati ations' ons' regi regist stra rati tion on of user users s and and assi assign gn*e *ent nt of trad trade e *ar, *ar,s s and and #ate #atent nts s a*ongst other activities.
SCHEDULE V Provides Provides for all other )or,s )or,s not descri4ed descri4ed 4( an( schedul schedule. e. It does not #rovide for a s#eci!c charge. Ho)ever' Ho)ever' it gives the advocate advocate discretion to charge an( !gure he considers e;#edient' )hich *ust 4e usti!a4le in all circu*stances. 5
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SCHEDULE VI AND VII Prov Provid ide e for for cost costs s in the the High High cour courtt and and in the the su4o su4ord rdin inat ate e cour courts ts res#ectivel(. he #rinci#le di6erence is that in res#ect of the High court' an advocate is entitled to charge instruction fees )hich is inde#endent of attendance fees. SCHEDULE VIII ?usiness Pre*ises ri4unal. SCHEDULE I +ent +estriction ri4unal. SCHEDULE Pro4ate and Ad*inistration In regard of cri*inal cases 9egal Notice No. 19NL%0L%>3 introduced • an a*end*ent )hich #rovides #rovides for ta;ation of )or, done full( under the a*4it of cri*inal la). +.>&A +.>&A #rovid #rovides es that that costs costs in cri*in cri*inal al cases cases )hethe )hetherr in the High • Court or Su4ordinate courts' if not agreed u#on or ordered' shall 4e ta;a4le 4et)een the advocate and the client #ursuant to Schedule V. V. Pursu ursuan antt to +.>' .>' in clai* lai*in ing g for #art art( and and #art( art( cost costs' s' the the • advocates 4ill *a( include )itness e;#enses.
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CHAPTER EI*HT THE LAW SOCIETY OF =ENYA ORI*IN he 9a) Societ( of & esta4lished the !rst 9a) Societ( of
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of its evolution. evolution. Ho)ever' Ho)ever' at #resent' the #rofession is over)hel*ingl( African. B# to the $&8s' $&8s' the Societ( )as *anaged *anaged 4( )hites. )hites. Sa* Waruhiu Waruhiu )as the the !rst 9.S.<. 9.S.<. chair* chair*an an in $& and served served for t)o (ears. (ears. he ta,eover 4( Africans of the legal #rofession is 4( no)' no)' a trite fact.
NATURE THEREOF • • •
It is a 4od( cor#orate )ith #er#etual succession and co**on seal. It can sue and 4e sued in its na*e. It )as !rst esta4lished 4( S.0 of the $&>& Act' )hich re#roduced in S.0 of Act NO. 0 of $&2".
THE L.S.=. L.S. =. ACT , •
• •
It is an act of #arlia*ent to consolidate the la) relating to the 9a) Societ( of thereof sets out the o4ects of the 9.S.<.
O%&ec$' a3 o *aintain *aintain and i*#rove i*#rove the the standard standards s of conduc conductt and learning learning of the legal #rofession in
0upra 1 note 1
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he courts have had occasion to rule on dis#utes 4et)een *e*4ers regard regarding ing the the o4ects o4ects of the 9a) Socie Societ( t( of " of $&&23 the a##licants had sought a declaration that Section > of the 9a) Societ( of
guarantees the freedo* of conscience of e;#ression and of asse*4l( and association' section %1$3 guarantees the freedo* of conscience )her )h erea eas s sect sectio ion n % has has to do )i )ith th free freedo do* * of asso associ ciat atio ion n and and asse*4l( asse*4l(.. It )as urged on 4ehalf 4ehalf of the a##licant a##licant that Section Section > of the 9S< Act *ade it co*#ulsor( that la)(ers should 4e *e*4ers of the 9S< then the the sa*e )as unconstitu unconstitutional tional.. Ho)ever Ho)ever'' the court foun found d as a *att *atter er of fact fact that that ir )as )as sect sectio ion n s "$1= "$1=33 and and "01$ "01$33 Advocates Act )hich *ade #rovisions concerning *e*4ershi# of the 9S< and Section Section >. As the a##licant a##licant had not directed his #ra(ers to Sect ection ion "14 "143 and and 1$3 1$3 Advo Advoca cattes Act' Act' the cour courtt did did not not !nd !nd it necessar( necessar( to to deal deal )ith )ith tthe he /uestion /uestion.. Nevertheless' Nevertheless' the court court held that it )ould not 4e reasona4le to stri,e out section > of the 9S< Act as that )ould leave the 9S< )ith no o4ects )ithin )hich to )or,. he a##lic a##licant ant8s 8s other other #ra(er #ra(er )as for a declar declarati ation on that that the onl( constitutionall( usti!a4le activities that the 9S< Act can sanction are activities )hich are ger*ane to the #ractice of la) to )it:5 1a3 Collection of dues 143 disci#line of *e*4ers and 1c3 regulation of the #rofession. #rofession. An( activit( activit( not )ithin )ithin these three three )ould then then 4e ultra vires. hough the court held that the 9S< )as 4ound to sta( )ithin its o4ects under section >' the court declined to grant a #er*anent inunction 4anning the 9S< fro* engaging in activities not ger*ane to the #ractice of la) or to e;#and an( *onies to fund such activities as are of a #olitical' ideological and #hiloso#hical nature. he court )as of the vie) that a re*ed( )ould 4e too 4road and )ould a*ount to )hat )hat the court in Aaron Aaron 7itong 7itonga a +inger +ingera a and Others Others and P. P. <. Guite and Others characterised as Mgagging the 9S< if not *ore. Pursuant to S.= *e*4ershi# of the Societ( consists of a3 An( advoc advocate ate )ho )ho is a *e*4er of of the societ societ( ( 4( virtue virtue of S."% S."% of the 0 Advocates Act . 43 An( #erson #erson ad*itte ad*itted d to *e*4ershi *e*4ershi# # of the the Societ( Societ( #ursuant #ursuant to S.2 S.2 of > the Act . c3 An( #erso #erson n elected elected as an honorar honorar( ( *e*4er *e*4er of the societ societ( ( #ursuant #ursuant to S. of the Act. d3 An( An( #ers #erson on )ho has has at an( ti*e ti*e 4een 4een #revio #revious usl( l( a *e*4 *e*4er er of the societ( and )ho co*#lies )ith the regulations. S.2 thereof thereof *a,es a #rovision #rovision for s#ecial *e*4ershi#' *e*4ershi#' 4asicall( 4asicall( li*ited to #ersons listed in the Advocates Act and to #ersons legall( /uali!ed 4ut not 4eing full ti*e
3
Cap 16 0upra note 1
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S. *a,es a #rovision for honorar( *e*4ershi# of an( #erson )ho* the societ( dee*s !t to honour. honour. Pursuant to S.%' all *e*4ers of the societ( are re/uired to #a( annual su4scri#tions 1Honorar( *e*4ers are e;e*#ted3 Purs Pursua uant nt to S.&' .&' no entr entran ance ce fee fee *a( *a( 4e #aid #aid 4( an( an( #ers #erson on as a condition for oining the societ(. societ(. Bnde Bnderr S.$' .$' resi resign gnat atio ions ns fro* fro* the the Soci Societ et( ( are are #roh #rohi4 i4it ited ed'' thus thus e6ec e6ecti tivel vel( ( *a,i *a,ing ng *e*4e *e*4ers rshi hi# # co*# co*#ul ulsor sor( ( for for all all la)( la)(ers ers hold holdin ing g current #racticing certi!cates. Ho)ever' under S.$$' an( *e*4er of the Societ(' other than a *e*4er )ho holds a current #racticing certi!cate issued under S."2 of Ca# $2' and and su4 su4ec ectt to S."% ."% of the the sa*e sa*e Act' Act' or an( an( hono honora rar( r( *e*4 *e*4er er'' an( an( *e*4er of the societ( *a( 4e e;#elled on various grounds. Pursua suant to S.$"' $"' an( *e*4 e*4er )ho ceases ses to 4e /uali!ed for *e*4ershi# ceases to 4e a *e*4er auto*aticall(. auto*aticall(.
MANA*EMENT OF THE L.S.=. The Council S.$0 .$0 esta esta4l 4lis ishe hes s the the 9.S 9.S.<. .<. Coun Counci cill *ade *ade u# of a Chai Chair* r*an an'' Vice ice Chai Chair* r*an an and and & othe otherr *e*4 *e*4ers ers'' all all of )h )ho* o* *ust *ust 4e the the soci societ et(8 (8s s *e*4ers. •
•
•
he *e*4ers of the Council are to 4e elected into o6ice annuall( 4( the rest of the *e*4ers. One of the Council *e*4ers *ust #ractice la) in Go*4asa' and anothe anotherr *ust *ust #ract #ractice ice in an( other to)n a#art a#art fro* fro* Nairo4i Nairo4i and Go*4asa. he Council is vested )ith authorit( to e;ercise the #o)ers of the 9.S.<. #ursuant to S.$> and is under S.$= e*#o)ered to delegate #o)ers and to deter*ine its #rocedure 1S.$23
CONFLICTS IN INTERPRETATION OF OB0ECTS •
Pursu ursuan antt to S.>1a .>1a3' 3' the 9.S 9.S.<. .<. is re/u re/uir ired ed to M*ai M*aint ntai ain n and and Mi*#rove the Mstandards of conduct and legal education. M*aintain logicall( #resu##oses the #re e;isting standards 4efore the esta4lish*ent of the 9.S.<. 4( the $&>& Act.
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Mi*# Mi*#ro rove ve logi logica call ll( ( *ean *eans s enha enhanc ncin ing g thos those e #re #re $&>& $&>& lega legall education education standards standards and those those e;isting thereafter thereafter 1u#to 1u#to date3. It is clearl( clearl( in #ursuit of this o4ective o4ective that the <.S.9. )as esta4lished esta4lished in $&. Mstandards Mstandards of conduct conduct #ertains #ertains to the #olicing #olicing of la)(ers la)(ers to ensure that the( co*#l( )ith the rules laid out in Ca# $2 = and )ith other un)ritten rules of Professional +es#onsi4ilit( and Ethics. It su4s su4su* u*es es the the as#e as#ect ct of cont contin inui uit( t( and and #uni #unish sh*e *ent nt of thos those e *e*4ers )ho deviate fro* the acce#ted standards of conduct. •
S.> 143 re/uir re/uires es the 9.S.<. 9.S.<. to Mfacil Mfacilita itate te the ac/uisi ac/uisitio tion n of legal legal ,no)ledge ,no)ledge 4( the *e*4ers. *e*4ers. Princi#all( Princi#all('' the 9.S.<. 9.S.<. is enoined to educate the #u4lic on the la) and to encourage and facilitate the ac/uisition 4( its *e*4ers of further L higher legal education. S.>1c3 re/uires the societ( to Massist the #u4lic on *atters touching on la). la). MAssist #rinci#all( *eans to hel# ?ut not to advise. S.> 1d3 re/uires the Societ( to Massist M#rotect and Mre#resent its *e*4 *e*4er ers. s. M+e# M+e#re rese sent nt clea clearl rl( ( #ert #ertai ains ns to #urs #ursui uing ng the the 4est 4est interests of the #rofession L its *e*4ers. N.?. the )ord Massist is used fre/uentl( in the the su4sections to S.>. S.>. It is confounding and a*4iguous. a*4iguous. At )hose )hose initiative is the assistance to 4e given he chair*an8s he *e*4ers Or Or the the #u4lic #u4lic
Further' the fact that the o4ectives of the 9.S.<. are listed do)n in detail' does it *ean that the Council *ust in its activities con!ne itself to those o4ects ∗
It a##ears that the list is e;haustive and that the 9.S.<. Council *ust strictl( con!ne itself to the o4ects listed in S.> and no other. other. An( deviation fro* the listed o4ects )ill therefore 4e ultra vires the Act' and accordingl( an( *e*4er of the Societ( can see, an inunction to restrain fro* acting ultra vires the Act. his #osition )as accorded udicial sanction 4( the court in the case of Kenneth Kiplagat v. v . The Law Societ' o" Ken'a Misc. Misc. Civil suit No.=>" of $&&2 in )hich the a##licant sought to restrain certain actions of the council of the 9S< as 4eing ultra vires the 9S< 9S< Act. he court held that that 5
Advoates At
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*atters of a #olitical nature )ere not conte*#lated 4( the Act and )ere hence ultra vires. vires. his #osition )as accorded udicial sanction 4( the court in the case of aron Ringera and %thers v. )aul Muite and %thers )h )her ere e the the a##l a##lic ican ants ts succ success essfu full ll( ( sough soughtt an inu inunc ncti tion on to rest restra rain in the the 9.S 9.S.<. .<. Council fro* issuing #olitical state*ents. •
•
•
he he cour courtt o4ser o4served ved that that such such an inu inunc ncti tion on did did not not viol violat ate e the the Council *e*4er8s freedo* of e;#ression' as long as the( )ere 9.S.<. *e*4ers and council *e*4ers at that' the( )ere restricted fro* acting in a *anner ultra vires to the #rovisions of S.> of the Act. he court *ade this #osition e;#licitl( clear 4( !nding the Council Ge*4ers to 4e guilt( of 4eing in conte*#t of court 1after the( had issued #olitical state*ents des#ite the inunction3 and conde*ned each of the* to #a( a
9argel(' the 9.S.<. is also e*#o)ered to ensure that un/uali!ed #ersons do not 4eco*e *e*4ers of the societ(. societ(. Clearl(' Clearl(' this #o)er arises out of o4ec o4ecti tive ve >1a3. >1a3. It is in #ursui #ursuitt of the said said o4ect o4ectiv ive e that that the 9.S.< 9.S.<.. Council declined to grant GLS +ita ?i)ott *e*4ershi# to the Council on the ground that she )as not dul( /uali!ed #ursuant to the #rovisions of S.& of the Advocates Act 2. See Rita See Rita iwott v. v. L.S.K.
O%&ec$1 Achie5e:en$ $he(eo $. Se*inars: the 9.S.<. organies #u4lic se*inars al4eit infre/uentl(. infre/uentl(. Se*inars have 4een held on the 9a) of Succession' the 9a) of the Child' International Co**ission of urists
0ee infra
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All the sa*e the 9.S.<. rarel( e;#resses its o#inions on an(thing' an( issu issues es and and )h )hen en it does does'' the( the( )i )ill ll fre/ fre/ue uent ntl( l( 4e in the the for* for* of #ersonalied state*ents 4( the chair*an. Ideall(' the 9.S.<. ought to issue o#inions on a )ide range of issues #ertai #ertainin ning g to #u4lic #u4lic intere interest. st. Such Such o#inions o#inions *a( for instance instance 4e addressed to a3 43 c3 d3 e3
he he Pu4l Pu4lic ic 9a) 9a) Inst Instit itut ute1s e1s33 he he 9a) 9a) +ef +efor or* * Co** Co**is issio sion n Parlia*ent arlia*ent through through the the s#ea,er s#ea,er of the Nationa Nationall Asse*4l( Asse*4l(.. he udi udicia ciar( r( throu through gh the the Chief Chief usti ustice. ce. he he Atto Attorn rne( e( 7en 7ener eral al..
It is )orth noting that the A.7. does not send draft 4ills to the 9.S.<. an( longer. >. Pu4l Pu4lic icat atio ions ns and and #a* #a*#h #hle lets ts he 9.S.<. rarel( issues an( #a*#hlets • he 9.S.<. s#onsored *againe' *againe' he Advocate' Advocate' )as started started in $&%"' • died in $&%= and has 4een /uite slo) in 4eing resurrected. =. 9a) +e +e#orts he last la) re#orts )ere #u4lished in $&% • Clearl( the 9.S.<. has a4sconded its duties L o4ligations. • he he onl( onl( e6ec e6ecti tive ve *eas *easur ure e it has has ta,e ta,en n is to *a,e *a,e su4s su4sid idia iar( r( • legi legisl slat atio ion' n' 4asic 4asical all( l( rule rules s of cond conduc uctt )h )hic ich h are are at 4est 4est'' rare rarel( l( enforced e6ectivel(. Guch' *uch *ore needs to 4e done if the 9.S.<. is to *eet its • *andate as set out in S.> of Ca# $%.
S"lien$ O%'e(5"$ion' Correctl(' the $&& Council Geeting 1held on %th Garch.$&&3 resolved that the 9.S.<. Act )as outdated and needed to 4e urgentl(' a*ended. he reasons for the a*end*ents )ere listed as a3 he he need need to 4ring 4ring it in line )ith )ith the ever chan changi ging ng reali realiti ties es of the legal #rofession and the countr(. countr(. he Act )as last a*ended in $&2. 43 he soci societ( et( )asLis )asLis fre/ fre/uen uentl( tl( *ire *ired d in intern internal al contr controve overs( rs( )hich )hich threatens to sunder it and *a,e it loose #u4lic credi4ilit( 1if it has not alread(3 c3 he need need to #rovide #rovide stricter stricter !nancial !nancial accou accounta4i nta4ilit( lit( *easures *easures on on the #art of the council *e*4ers. Page of $$>
TClearl(' these #itfalls and *an( others not listed have contri4uted to the dis*al #erfor*ance of the 9.S.<. Further' it is evident that the need to overhaul the 9.S.<. Act cannot 4e gainsaid
CHAPTER NINE DISPUTE RESOLUTION he he 9.S 9.S.<. .<. has has al)a al)a(s (s #la( #la(ed ed a fund funda* a*en enta tall role role in #oli #olici cing ng the the disci#line and #rofessional conduct of its *e*4ers. Ever since their e*ergence' the( 1la) societies3 in *ost co**on)ealth countries have al)a(s 4een self *anaging. Princi#all(' Princi#all(' this *eans that the #rofes #rofession sion itself itself has al)a(s al)a(s 4een res#ons res#onsi4l i4le e for disci# disci#lin lining ing its *e*4ers. Prio Priorr to the the a*en a*end* d*en entt in $&%& $&%& the the disc disci# i#li lina nar( r( #roc #rocess ess too, too, the the follo)ing #rocedure: i.
ii.
If an( #ers erson had a co*#laint against an advocate heLsh eLshe e )as re/uired re/uired to infor* infor* the 9.S.<. 9.S.<. Secretar( Secretar( )ho )as also the Secretar( Secretar( to the Disci#linar( Co**ittee. B#on receiving the co*#laint' the Secr ecretar( )ould refe efer the co*#laint to a ?oard of In/uir(' In/uir(' )hich )as a co**ittee of the 9.S.<. his co**ittee )as co*#osed of 0 advocates )ho had to 4e of over = (ears #ractice.
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his heed has indeed 4een reonised reently and there have 4een various tani4le attepts 4y the present ounil of the "0, to push for refors of the At At and of the la7s affetin the profession enerally$ enerally$ he need for suh a revie7 of the present reie 7as e8pressed in a paper authored 4y ienda $ dhia4o dhia4o entitled ;he "a7 0oiety of ,enya At: of Chanin Cirustanes Cirustanes and the Need for %efor in the 4ets' $ he "0, has indeed arisen to the hallenes presented presented in this paper and a lot has sine 4een done to7ards eaninful refor of the leal profession$ Durin the annual onferene of the "0, in the year 2*** under the thee: ;"a7yers at Crossroads' Crossroads' Definin the ' it 7as enerally oneded that there 7as an urent need to refor the leal profess in order order to salvae its its deteriorated deteriorated pu4li iae$ iae$ ?n the 1th and 19th to4er 2**1 an annual onferene 7as held under the the thee: ;"ayin $ Prior to that' a refor refor oittee had 4een appointed 7hih 7hih oittee oittee had prepared @uestionnaires @uestionnaires to e4ers e4ers on aspet aspet for refor of the "0, At and the leal profession enerally$ enerally$ ut of these' the vie7s of the respondents 7ere ollated and used as a 4asis to propose aendents to the "0, At$ At$ ?t seeed as thouh the oittee had 7or=ed 4eyond shedule and disussion durin the annual onferene$ onferene$ Aon ne7 issues proposed 7as the foration foration or reonition of reional 4ranhes of the "a7 0oiety and andatin the sae to perfor soe of the funtions of the larer "0, 4ody$ %ules reardin professional indenity insurane insurane and ontinuin leal eduation 7ere proposed and disussed$ ?t is hoped that there 7ill 4e a ne7 reie of la7 overnin leal professionals 4y early 2**2 durin the "0,s "0,s rdinary eneral eetin$
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iii. iii.
iv. iv. v. v.
vi.
vii.
viii.
his his ?oar ?oard d of In/ui In/uir( r( )oul )ould d then then inves investi tiga gate te the the *atte *atterr 4( calli calling ng the advocate concerned and recording his state*ent and also 4( hearin hearing g the co*#la co*#laina inant. nt. he ?oard ?oard had *andate *andate to deter*in deter*ine e )hether the co*#laint had an( *erits. If the ?oard ?oard det deter*i er*in ned that that the co*# co*#la lain intt )as )as *eri *erittorio orious us'' it )ould 4( )riting' infor* the council. he co*#laint )ould then 4e !ledL#laced 4efore the Disci#linar( co** co**it itte tee e )h )hic ich h )as )as chai chaired red 4( the the A.7 A.7 or the the S.7 1Sol 1Solic icit itor or 7eneral3 or the +egistrar 7eneral and t)o other elected *e*4ers )ho had to 4e advocates of not less les s than $ (ears standing. he Disci#linar( Co**ittee )ould then tr( the accused advocate for the o6ence in /uasi udicial #roceedings. A #rosecutor a##ointed 4( the 9.S.<. 9.S.<. )ould #rosecute the *atter *atter on 4ehalf of the Societ(. Societ(. he advocate' if he so )ishes could 4e re#resented 4( counsel during the #roceedings. If the Co**ittee found for the co*#lainant' the advocate concerned could 4e a3 Ad*onishe shed. 43 St Stru ruc, c, o6 the the rol roll. l. c3 Warned. On the other hand' the co**ittee could ac/uit hi* if it )as not convinced of his guilt. An advocate )ith res#ect to )ho* the co**ittee decided against had a right to a##eal against the decision to the High Court and if need 4e' to the Court of A##eal. his s(ste* )as found )anting due to fre/uent inordinate inordinate dela(s as a result of the co**ittee8s fre/uentl( length( #roceedings. Othe Otherr *isg *isgiv ivin ings gs a4ou a4outt the the co** co**it itte tee e )ere )ere #ure #urel( l( cru; cru;ed ed on #olitical factors *ainl( 4ecause the 9.S.<. )as vie)ed as a closed sho#. As a conse/uence thereof' a ne) dis#ute resolution *echanis* )as #rovided and set u# under the ne) Advocates Act' vide Act No. $% of $&%&. Further a*end*ents )ere introduced Vide Act No. " of "" )ith a vie) of strengthening the disci#linar( #rocess.
THE CURRENT MECHANISM • •
Provided for under #arts - and -I of the Advocates Advocates Act$ Part - *a,es *a,es #rovisi #rovisions ons for the esta4l esta4lish ish*en *entt of the Co*#la Co*#laint ints s Co**ission.
1
Cap 16' "a7s of ,enya$
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Part -I *a,es #rovisions #ertaining to disci#line and conse/uences of 4reach. Princi#all(' Princi#all(' it outlines the su4stantive su4stantive #rovisions.
COMPLAINTS COMMISSION Esta4lished #ursuant to S.=0 of the Act. It is co*#rised of such co**issioners 1or co**issioner3 as shall 4e • a##ointed 4( the #resident. Its Its #rin #rinci ci#a #all #ur# #ur#ose ose is to en/u en/uir ire e into into co*# co*#la lain ints ts agai agains nstt an( an( • advocate or !r* of advocates or an( *e*4er or e*#lo(ees thereof. If a single co**issioner is a##ointed' it *ust 4e a #erson )ho is • /uali!ed to 4e a##ointed as a High Court udge. If *ore *ore than than one one co** co**is issio sione nerr is a##o a##oin inte ted' d' it has has to have have one one • such '#erson as a *e*4er 1the co**ission3. Pursuant to S.=0 103' the co**ission is e*#o)ered to re/uire an( • #erson )ho* it considers necessar( for the #erfor*ance of its duties to assist it. Pursuant to Act No. " of ""' )hich introduced a ne) section 0A' it 4eco*es an o6ence for an( #erson to' )ithout a la)ful e;cuse fail or refuse to assist the co**ission )hen re/uired to do so. he he co** co**is issi sion on has has the the foll follo) o)in ing g #o)e #o)ers rs )h )hen en dis#e dis#ens nsin ing g its its • duties i. ii. ii.
i i i.
iv. iv.
v. v.
If in in its its vie) vie) ther there e is no su4s su4sta tanc nce e in the the co*# co*#la lain int' t' it it can can ree reect ct it it forth)ith. If in its vie) vie) th there ere is su4 su4stan stanc ce in the the co*# co*#la lain intt' it can can refer refer the the *att *atter er to the the Disc Disci# i#li lina nar( r( Co** Co**it itte tee' e' 4ut 4ut onl( onl( if the the co*# co*#la lain intt reveals a Disci#linar( o6ence. If in its vie) there is su4stance 4ut it does not a*ount to a Disci#linar( O6ence' it can notif( the advocate concerned and call u#on hi* to res#ond )ithin a reasona4le #eriod s#eci!ed. If the the reas reason ona4 a4le le #eri #eriod od s#ec s#eci! i!ed ed in Para Para.. 1iii 1iii33 A4ov A4ove e e;#i e;#ire res' s' the the co**ission is entitled to investigate the the *atter. *atter. In this regard' the co**ission *a(:5 a3 Call Call )i )itn tnes esse ses. s. 43 +e/uir +e/uire e #rodu #roducti ction on of of docu docu*en *ents. ts. c3 E; E;a* a*in ine e )it )itne nesse sses s on on oat oath. h. d3 a,e an( an( ste# generall( generall( it *a( conside considerr #ro#er #ro#er.. e3 Hear Hear an( su4*i su4*issio ssions ns fro* fro* either either #art( #art(.. f3 Ga,e Ga,e such such an orde orderr or a)ar a)ard d in acco accorda rdance nce )it )ith h S.=0 S.=0 as it dee*s !t' ust and #ro#er. #ro#er. If it a##ears to the co**ission that though there is su4stance in the co*#la co*#laint int 4ut it disclose discloses s no Disci#l Disci#lina inar( r( O6ence O6ence'' )hich )hich can can 4e addres addressed sed 4( the Disci# Disci#lin linar( ar( Co**it Co**ittee tee'' and the Co**is Co**ission sion is further of the vie) that it can not co*#etentl( deal )ith the *atter'
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and that the #ro#er re*ed( is onl( availa4le in the courts it shall so advise the co*#lainant. he Co**ission is also e*#o)ered to: a3 Endeavour Endeavour to to #ro*ote #ro*ote reconci reconciliation liation and to facilitat facilitate e an a*ica4l a*ica4le e settle*ent 4et)een the #arties to the co*#laint. 43 A)ard the co*#lainant rei*4urse*ent of e;#enses not e;ceeding ' the Attorne( 7eneral is e*#o)ered to a##oint L#rovide an( other o6icers the co**ission *a( re/uire. he he rule rules s and and #roc #roced edur ure e to 4e ado# ado#te ted d 4( the the Co** Co**is issi sion on in the the discharge of its rules shall 4e *ade 4( the Attorne( 7eneral #ursuant to S.=> 103.
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DISCIPLINARY COMMITTEE Esta4lished #ursuant to the #rovisions of S.= of the Advocates Act". It is co*#rised of a3 he he Att Attor orne ne( ( 7ene 7enera rall 43 he he Soli Solici cito torr 7en 7ener eral al c3 2 advocate advocates s 1other than than the chair* chair*an' an' vice vice chair*an chair*an and secret secretar( ar( general3 of not less than $ (ears standing one of )ho* shall 4e an advocate )ho does not #ractice in Nairo4i. 1Prior to Act No. " e ""' the nu*4er of advocates advocates )as onl( three3. three3. Other Other #ersons )ere also introduced introduced such that vide #aragra#h #aragra#h 1d3 the Attorne( Attorne( 7eneral 7eneral a##o a##oin intts 0 oth other #ers #erson ons s )h )ho o are are not not advoc dvocat ates es 4ut 4ut on the reco**endation of the 9a) Societ( of
0upra
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level of a court and the rules of evidence under Ca# % a##l( in it as )ell. Bnder S.=% 123 the co**ittee is e*#o)ered to *a,e its o)n rules of #roc #roced edur ure e for for dete deter* r*in inin ing g and and hear hearin ing g of an( an( a##l a##lic icat atio ions ns and and co*#laints. S.2 .2 ther thereo eoff *a,e *a,es s #rov #rovis isio ions ns #ert #ertai aini ning ng to co*# co*#la lain ints ts agai agains nstt advocates. Such Such a co*# co*#la lain intt *ust *ust 4e for for #rof #rofes essi sion onal al *isc *iscon ondu duct ct'' )h )hic ich h • e;#ression is said to include disgraceful or dishonoura4le conduct inco*#ati4le )ith the status of an advocate. An( #erson is allo)ed to *a,e a co*#laint against an advocate to • the co**ittee. Such Such a co*# co*#la lain intt *ust *ust 4e *ade *ade 4( )a( )a( of an a6id a6idav avit it 4( the the • co*#lainant setting out the allegations of #rofessional *isconduct. he he co*#l o*#lai aint nt *ust *ust 4e acc acco*# o*#anie anied d 4( suc such fee as *a( *a( 4e • #rescri4ed 4( rules *ade #ursuant to S.=% 123. Where a co*#laint is referred to the co**ittee 4( the co**ission' the co**ittee *ust: i. 7ive 7ive the the adv advoc ocat ate e an an o##o o##ort rtun unit it( ( to to a## a##ea earr 4 4ef efor ore e it. it. i i. Furnish the advocate )ith a co#( of the co*#laint and an( su##orting evidence. iii. iii. 7ive 7ive hi* hi* an o## o##or ortu tunit nit( ( to ins ins#e #ect ct an( an( rele releva vant nt doc docu* u*en ents ts at at leas leastt da(s 4efore the hearing date. If the co*#laint does not disclose an( #ri*a facie case of #rofessional *isconduct' the co**ittee is e*#o)ered to discuss the co*#laint at an( stage of the #roceedings. Further' after hearing the co*#laint' the co**ittee *a( also hear the concerned advocate and *a( after considering an( adduced evidence the co**ittee *a( dis*iss the co*#laint. Ho)e Ho)eve verr' if a case case of #rof #rofess ession ional al *isc *iscon ondu duct ct is esta esta4l 4lish ished ed'' the the co**ittee *a(: i3Ad*onish the advocate. ii3Sus#end the advocate for a ter* not e;ceeding =(ears. iii3Stri,e his na*e o6 the roll of advocates. iv39ev( a !ne not e;ceeding
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enha enhanc nces es fro* fro* da(s. •
•
?oth the advocate and the council *a( *a,e su4*issions during the hearing of the a##eal. An a##eal cannot o#erate as a sta( or a sus#ension of an( order a##ealed against. Page of $$>
•
Bnder S.2>' the court *a(: a3 +e*it the *atter *atter to the co**it co**ittee tee for for reconsid reconsiderati eration. on. 43 Con! Con!r* r*'' set set aside' aside' or var( an( an( order order of the the co**it co**itte tee e or su4stitute therefore such order as it dee*s !t. c3 Ga,e Ga,e an( an( order order as to costs costs or other) other)ise ise in rela relati tion on to the a##eal.
he #o)ers of the High Court *ust' #ursuant to S.2=' 4e e;ercised 4( t)o udges in the least. Bnder S.2' an( advocate aggrieved 4( the decision of the High Court *a( a##eal to the Court of A##eal though the a##eal shall not o#erate as sta( or sus#ension of the court orders.
S"5in! S.2% of the Advocates Act descri4es a !nal order of the Disci#linar( Co**ittee. It is an order )hich:5 )hich:5 a3 Has not 4een 4een the the su4ec su4ectt of an( a##eal a##eal 43 hou hough gh a##e a##eal aled ed agai agains nstt to the the High High Cour Court' t' no a##e a##eal al has has 4een 4een #referred thereafter to the Court of A##eal. Bnder S.2&1$3 the 9.S.<. *ust 4e infor*ed of an( ongoing disci#linar( #roc #rocee eedi ding ngs s agai against nst an advo advoca cate te.. Furt Fu rthe herr' the the !nal !nal orde orderr of the the co**ittee *ust 4e #u4lished in the
Re'$o("$ion $o $he Roll Prior to the a*end*ents' an( advocate )ho has 4een struc, o6 the +oll could 4e restored 4( the Chief ustice in his o)n discretion either on his o)n *otion or u#on reco**endation of the co**ittee. Ho)ever' under the ne) section $' this function is e;ercised 4( the Chief ustice onl( u#on the reco**endation of the Disci#linar( Co**ittee. Bsuall(' the council has a right of audience in these #roceedings' and it usuall( usuall( consults the Disci#linar( Disci#linar( Co**ittee Co**ittee i.e. to ensure that it has no o4ections. Page % of $$>
he struc, o6 advocate8s 4ehaviour 1during the ti*e his na*e is not on the roll 3 )ill usuall( #la( a crucial role on the deter*ination of the /uestion as to )hether the advocate should 4e restored i.e. in case of theft' has there 4een an( for* of +estitution All the sa*e' once one has 4een struc, o6 the roll' the chances of one 4eing restored to the roll even after = (ears are virtuall( nil. Ho)ever' the Chief ustice is e*#o)ered #ursuant to S.$ to restore or reinstate the the stru struc, c, o6 advo advoca cate te 4ut 4ut onl( onl( u#on u#on the the reco reco** **en enda dati tion on of the the co** co**it itte tee. e. No) No) )h )hil ile e #rov #rovisi ision on is *ade *ade for for adve advert rtise ise*e *ent nt of the the advocate )hose na*e has 4een struc, o6' no corres#onding #u4licit( is envisioned for one )ho has restored to the +oll.
LIMITATIONS $. he *e*4ers of 4oth the Co*#laints Co**ission Disci#linar( Co**ittee are a##ointed 4( the President.
and
the
Natu Natura rall ll( (' the( the( are are li,e li,el( l( to o) o)e e alle allegi gian ance ce to the the one one )h )ho o has has a##ointed the* 1their 4enefactor3. Accordingl(' Accordingl(' the( *a( also 4e 4iased to)ards the )ill and )hi*s of the govern govern*en *ent. t. his his state of a6airs a6airs renders renders the autono autono*( *( and inde#endence of these t)o 4odies /uestiona4le. It is also 4e(ond dou4t that the( *a( 4e used as a tool against anti esta4lish*ent la)(ers. ". Dela Dela(: (: the #roc #roceed eedin ings gs of 4oth the co** co**iss issio ion n and and the the co** co**it itte tee e ta,e far too long. here is an o4vious need for the esta4lish*ent of other such li,e 4odies in the #rovinces. 0. Co*#le;it(: the #rocess ess is /uite co*#licated' thus for the co*#la co*#laina inants nts )ho do not underst understand and the la)' la)' those those )ho cannot cannot a6ord to hire an advocate to re#resent the* 1assu*ing there are an( )ho are )illing3 *a( !nd the*selves una4le to co*#rehend L nor follo) the #roceedings. here8s need to *a,e the #rocedure less onerous. >. Othe Others rs:: the the co** co**is issi sion on and and the the co** co**it itte tee e are are clea clearl rl( ( not not )ell )ell struct structure ured d and sta6ed sta6ed.. Furthe Furtherr' the co**it co**ittee tee does not sit on a #er*an #er*anent ent 4asis' 4asis' accord according ingl( l( causin causing g a 4ac,lo 4ac,log g of undete undeter*i r*ined ned co*#laints.
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Whil While e the the ne) ne) a*en a*end* d*en ents ts set set out out to incr increa ease se e6ic e6icie ienc nc( ( in the the advoca advocates tes disci# disci#lin linar( ar( #roces #rocess' s' critic criticis*s is*s have have 4een 4een leveled leveled agains againstt the* the* on the the grou ground nd hat hat the( the( have have give given n too too *uch *uch #o)e #o)err to the the co*#laints co**ission at the e;#ense of the disci#linar( co**ittee and even the courts. he( have 4een said to infringe the inde#endence of the 4ar in various )a(s. It is said that the ne) role and #o)ers of the co**ission co**ission are contradic contradictor( tor( to its role of investigati investigation' on' conciliati conciliation on and a*ica4le resolution of dis#utes. It usur#s certain of the functions of the disci#linar( co**ittee such as *a,ing decisions on #ast incidences of #rofessional *isconduct. As regards the disci#linar( co**ittee' the introd introduct uction ion of non5la non5la)(e )(ers rs into into the 4od( 4od( negate negates s the #rinci #rinci#al #al that that #rofessionals should 4e self5regulating. he #o)er of 4oth these 4odies to assess fees #a(a4le to an advocate has the e6ect of interfering )ith the advocateLclient relationshi#.
C"u$ion1 ?eing struc, o6 is the ulti*ate #enalt(' and is /uite a harsh #enalt( for the the advo advoca cate te conc concer erne ned. d. hus hus it is i*#e i*#era rati tive ve that that the the co** co**it itte tee e should tread )ith care )hen conte*#lating stri,ing o6 advocates. Further Further'' )here )here an advoca advocate te has *isa## *isa##lie lied d andLor andLor conver converted ted client client *one( or #ro#ert(' #ro#ert(' stri,ing o6 of the concerned advocate is clearl( not a re*ed( for the unfortunate client. he co**ittee should 4e e*#o)ered to order +estitution.
ASSESSIN* ASSESSIN* THE NEED FOR THE COMMISSION COMMISSION AND THE COMMITTEE Wh( is it necessar( to have rules of disci#line and 4odies to enforce the* i. ii. ii.
In orde orderr tto o u#h u#hol old d tthe he stan standa dard rds s of #rof #rofess essio iona nall cond conduc uct. t. o ensu ensure re uni unifo for*i r*it( t( 4ot 4oth h in sta stand ndar ards ds as as )ell )ell as as #erf #erfor or*a *anc nce. e.
iii. iii.
In orde orderr to *ain *ainta tain in #u4l #u4lic ic con! con!de denc nce e in the the #rof #rofes essi sion on and and #u4li #u4lic c good)ill.
iv.
In order to correct and control cases of *isconduct and 4ad #erfor*ance.
v. v.
o act as a deterrent.
vi.
o foster and enhance the #ursuit of high /ualit( standards of #erfor*ance 4( advocates.
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vii.
o co*#l( )ith statutor( re/uire*ents.
viii.
o assist the court in *aintaining order and disci#line a*ongst its o6icers.
i;. i;.
In orde orderr to focus focus the the #rofe #rofess ssio ion n to #ursu #ursue e #erfe #erfect ctio ion' n' or so*e so*eth thin ing g close to it.
O%'e(5"$ion1 Currentl(' the #rofession is reeling fro* an ende*ic onslaught of #u4lic outcr( and vicious accusations. Princi#all(' the dissatisfaction of the #u4lic )ith the #rofession is due to the e*ergence of a 4reed of (oung la)(ers )ho deserve to 4e la4eled as Mshar,s. he( have no re*orse' no /ual*s and the( discarded #rofessional ethics and res#onsi4ilit( rules a long ti*e ago. heir trail is littered )ith devastated clients' a trail evidenced 4( the recent A.<.I 9.S.<. controvers(. Bnless so*ething is done urgentl( to cur4 this *alaise' the future of the
PROPOSALS FOR REFORM In the (ear " the Attorne rne( 7eneral #u4lished sta statute la) 1Giscellaneous a*end*ents3 4ill in )hich a )ide variet( of changes )ere #ro#osed #ro#osed on the arena of disci#line disci#line of advocates. advocates. Gore stringent stringent *easures *easures to curls curls indisci#line indisci#line )ere )ere #ro#osed. #ro#osed. Ho)ever Ho)ever on "=th une' "$ "$'' the the St Stat atut ute e 9a) 9a) 1Gisc 1Giscel ella lane neou ous s A*en A*end* d*en ents ts33 ?ill ?ill "$ "$ )as )as Page %$ of $$>
#u4lished #u4lished 4ut ideall( ideall( )ith )ith si*ilar si*ilar #ro#osals. #ro#osals. 7enerall( 7enerall( the #ro#osed #ro#osed a*end*ents see, to give *ore #o)ers to the co*#laints co**ission and the disci#linar( co**ittee in a )a( in )hich so*e have criticised as 4eing 4eing intrusiv intrusive e in the inde#end inde#endenc ence e of the legal #rofessi #rofession. on. See for e;a* e;a*#l #le e Oie Oiend nda a . O. in his his #a#e #a#err ME;# ME;#lo lori ring ng Ne) Ne) Hori Horio ons ns in Gana Ganagi ging ng Co*# Co*#la lain ints ts agai agains nstt Advo Advoca cate tes' s' o) o)ar ards ds a +evi +evie) e) of the the E;isti E;isting ng +egi*e +egi*e of 9a). Present Presented ed at a )or,sh )or,sho# o# on Honest( Honest( and th E;ce E; cell llen ence ce in the the Prov Provisi ision on of 9ega 9egall Serv Servic ices' es' $> $= Ga(' Ga(' "$' Whitesands Hotel Go*4asa.
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CHAPTER TEN THE LE*AL PROFESSION AND CONTEMPORARY LE*AL ISSUES THE L.S.= VERSUS THE INSURANCE INDUSTRY • •
•
An area infested )ith controvers( and confusion. An area )hich can 4e credited )ith 4reeding a litan( of #rofessional *isconduct cases 4( advocates. An area )hich can also 4e credited )ith the e*ergence of Mshar,s:5
A categor( of la)(ers sui generis' generis' )hose s#ecialt( is #arting clients )ith their *one( as fast as #ossi4le. Gone Gone( (' )h )hic ich h is de!n de!nit itel el( ( hard hard earn earned ed'' for for )h )hic ich h the the devastated client has #aid a dear #rice i.e. a leg' a hand' or even a headQ Gone( arising out of co*#ensation for inuries su6ered in a +oad +oad ra6 ra6ic ic Acci Accide dent nt'' #aid #aid to the the clie client nts s 4( insur insuran ance ce co*#an co*#anies' ies' throug through h the la)(er1 la)(er1s3 s3 and )hich )hich the client client1s3 1s3 never get.
A$ $he (oo$ (oo$ o $he con$(o5e('2 con$(o5e('2 he 4attle 4et)een the 9.S.<. and the insurance industr( as re#resented 4( the the Asso Associ ciat atio ion n of
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In pollo In pollo 1nsurance Co. Ltd v. v. Muthanwa & Co. dvocates the insurance Co. and its insured ointl( !led a suit against an advocate and his client see,ing declarations to the e6ect that i. It )as )as a ust ust and and leg legal al *et *etho hod d to sett settle le cla clai* i*s s 4( acci accide dent nt v vic icti ti*s *s for insurance 4( issuing t)o che/ues a3 One One for for the the su* su* of co*#e co*#ens nsat atio ion n for for the the insu insure red d in his na*e. 43 he other other in the the na*e na*e of the advoc advocate ate for for the su* su* settle settled d as covering his legal fees. ii. ii. ?( iss issui uing ng the the t)o t)o che che/u /ues es'' an insu insura ranc nce e co*#a co*#an( n( 4e 4e dee* dee*ed ed to to have su6icientl( co*#ensated the clai*ant. ?efo ?efore re goin going g to cour court' t' the the insu insura ranc nce e co*# co*#an an( ( had had settl settled ed a clai clai* * against it out of court then #ur#orted to #a( the a)ard in t)o che/ues as outlined. outlined. At the instigati instigation on of the defendant defendant L res#ondent res#ondent la)(ers' la)(ers' the t)o che/ues had 4een #ro*#tl( returned to the co*#an( on the ground grounds s that that the( the( )ere )ere not acce#ta4 acce#ta4le' le' and a notice notice of intent intention ion to attach attach the Insura Insurance nce Co*#an Co*#an(8s (8s #ro#er #ro#ert( t( issued issued 14( the advoca advocate3. te3. Accordingl(' Accordingl(' the Insurance Co*#an( 1a##licant3' also sought restraining orde orders rs 1a te*# te*#or orar ar( ( inu inunc ncti tion on33 to rest restra rain in the the res# res#on onde dent nt fro* fro* attaching its #ro#ert( . he #rinci#al issue )as )hether the Insurance Co*#an( )as entitled to settle the clai* against it for insurance 4( )a( of t)o che/ues or onl( one che/ue in the la)(er8s na*e. It )as contended that the Insurance Co*#an( had dutifull( honored their o4ligations to the victi*' )ho had declined to acce#t the a)ard and and inst instead ead o#ted o#ted to return return the the che/ che/ue ue1s3 1s3 to the the co*# co*#an an( (. It )as )as argued for the res#ondent la)(er that an Insurance Co*#an( had no locus standi in standi in a clai* 4et)een an inured and tortfeasor8s insured 4( the co*#an( co*#an(.. It )as further further contended contended that the dis#ute dis#ute 4et)een the insured and the inured )as res 0udicata. 0udicata. It )as also argued that #ursuant to Order III of the Civil Procedure +ules' a la)(er acting for a successful litigant )as entitled to receive the #art(8s decretal su*s on 4ehalf of the #art(Llitigant and that an insurance co*#an( could not after su4rogation tell a successful #art( ho) heLshe should receive the a)ard. Further it )as argued that onl( a ta;ing *aster )as e*#o)ered to deter*ine ho) *uch the advocate )as entitled to receive and not the Insurance Co*#an(. In its su4*issions' the res#ondent !r* of advocates had relied on the decision of Gango . in K..S. in K..S. Ltd v. Susan Muteti$' )here the learned 1
Civ$ App$ No$ 15 of 1992
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udge had categoricall( stated that the advocate on the record for the clai*ant )as entitled to receive all #a(*ents arising fro* the suit on 4ehalf 4ehalf of the clai*ant. clai*ant. he said decision decision )as )as u#held 4( the the Court of A##eal. he trial udge' Hon.
ii. ii.
iii.
hat hat the the adv advoc ocat ates es in /ue /uest stio ion n )ere )ere 4oun 4ound d to rece receiv ive e the the *one *one(s (s #aid 4( the co*#an( and 4( declining to do so' had actuall( outed the #rinci#les of agenc( relationshi#. hat hat the the advo advoca cate tes s in /ues /uesti tion on had had 4( retu return rnin ing g the the *one( *one(s s #aid #aid to the client and to the* 4( the co*#an( esto##ed the*selves fro* fro* late laterr insis insisti ting ng that that the the Insu Insura ranc nce e Co*# Co*#an an( ( had had fail failed ed to honour its o4ligations. hat 4oth the insured and the insurer had discharged their o4ligations and neither the advocate nor the client )as entitled to decline to acce#t the #a(*ent' *ode not)ithstanding.
he udge then granted the te*#orar( inunction sought and ordered that the a)arded *onies 4e de#osited in court until the *atter )as su4stantivel( heard and deter*ined. he udge also o4served /uite 4itterl( that the legal #rofession in
the High Court Court and the Court Court of A##eal in a nu*4er nu*4er of decisions. decisions. he High Court in the case of 3nited 1nsurance Compan' v. 4orcas munga 4orcas munga Civil Case No. >2" of " follo)ed the decision of the court of A##eal in Ken'a in Ken'a us Ltd v. v. Susan Muteti Civil Muteti Civil A##eal A##eal No. $= of $&&". he court categoricall( stated that an advocate is the agent of his client and that their relationshi# relationshi# is governed governed 4( the retainer )hich is the contract contract that deter*ines their rights and lia4ilities su4ect onl( to ter*s )hich the said )ill )ill infer in the the #articular #articular circu*st circu*stances. ances. In follo)ing follo)ing the the Susan Muteti2s case' Muteti2s case' the learned Co**issioner of Assie Alnasir Visra* cited a #assage therefro* thus: Mhe Mhere re can 4e no dou4 dou4tt that hat gener eneral all( l( an advo advoc cate ate is authorised to act as his clients agent in all *atters not failing )ithin an e;ce#tion )hich *a( reasona4l( 4e e;#ected to arise fro* fro* deci decisi sion on in the the cour course se of #roce #roceed edin ings gs.. It follo follo)s )s therefore' in our vie) that an attorne( is o4viousl( entitled to de*and and receive *one(s due to his client until such ti*e his instructions are )ithdra)n. he court #roceeded to #oint out that the cases of Lakestar 1nsurance Compan Compan' ' v. Mark Mark Githiru T/ Githir Githiru u & Co.Co.- dvoca dvocates tes N?I N?I HCCC HCCC NO."&= M? OF " and ppollo and ppollo 1nsurance Co. Ltd vs. Scholastica K. Kamau and nother HCCC HCCC NO.$&>= OF $&&& 4oth u#holding the t)o che/ue s(ste* as having 4een )rongl( decided and that the udges therein had )rongl( distinguished the facts in those cases as a )a( of sideste##ing the Susan Muteti Muteti Case )hich )hich )as 4inding 4inding u#on the*. In that regard the learned co**issioner of Assie concluded that: Mhe issue 4efore *e is al*ost identical )ith the issue that that )as )as 4efo 4efore re the the cour courtt of A##e A##eal al in the the Susa Susan n Guteti Guteti case. case. I a* a* 4ound 4ound 4( it. I *ust *ust follo) follo) it. And I cannot fritter it a)a( )ith !ne distinctions. It is )orth considering )h( the learned udges in the 9a,estar Insurance Case and A#ollo Insurance case sought to co*e u# )ith circu*stances ustif(ing their sideste##ing a 4inding decision. It see*s the( )ere driven 4( a desire to save the #u4lic fro* the ravenousness of so*e la(ers on account of *one(s received on 4ehalf of clients. One )ould 4e 4e usti!ed in /uestioning the grounds for such thin,ing )hen it )as not a *atter *atter for )hich )hich udicial udicial notice notice could 4e ta,en ta,en of. It *a( 4e )orth concluding that these t)o decisions are 4ased on sha,( grounds and should not 4e cited as la) said to sho) the e;tent to )hich so*eti*es our courts )ill go in ignoring esta4lished #rinci#les of the la) in an atte*#t to do )hat has 4een referred to as M#al* tree ustice. ustice.
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THE L.S.= AND LE*AL AID he he conc conce# e#tt of lega legall aid aid is not not *ove *oved d in
CASE STUDY THE NEW CASTLE LAW SOCIETY his #articular 9a) Societ( is 4ased in Northu*4ria' B.<. and has an advanced *echanis* for dis#ensing legal aid to the #oor. #oor. It facilitates dis#ensation of four legal aid #ac,ages i. 9eg 9egal assis ssista tanc nce e and and advic dvice e 19. 19.A. A.A. A.33 ii. ii. Assi Assist stan anc ce 4( 4( )a( )a( of re#r re#res esen enttatio ation n iii . Civil 9e 9egal Ai Aid 1C 1C.9.A3 iv. Cri*inal 9eg 9ega al Ai Aid 1C 1C.9.A.3
L.A.A. >LE*AL ADVICE AND ASSISTANCE? ?oth solicitors and 4arristers ta,e #art in giving free legal advice and assistance to those )ho cannot a6ord to #a( advocates. Bsua Bsuall ll( ( this this #ac, #ac,ag age e is deli delive vere red d of the the Ne)ca Ne)cast stle le Citi Citie ens ns Advi Advice ce ?ureau' )hich is sta6ed 4( 4( volunteer la)(ers. hese la)(ers volunteer one or t)o hours of their valua4le ti*e to dis#ense free legal advice at the 4ureau. his his s(ste* is su##le* su##le*ent ented ed 4( the Dut( Solici Solicitor tor Sche*e Sche*e.. his his is )here4 )here4( ( di6eren di6erentt solici solicitor tors s dis#en dis#ense se legal legal advice advice over the #hone #hone at various to)ns to those )ho call. In Ne)castle' an(one can access free legal advice ">hrs a da( over the #hone. A further facet of the Dut( Solicitor Sche*e is )here the Ne)castle 9a) Societ( ensures that there is al)a(s a dut( solicitor at the #olice station. he solicitor dis#enses free legal aid to those )ho have 4een 4rought into #olice custod( after arrest.
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ABWOR >ASSIST >ASSISTANCE ANCE BY BY WAY WAY OF REPRESENT REPRESENTATI ATION? ON? he Ne)castle 9a) Societ( encourages its *e*4ers to #rovide free civil and and cri* cri*in inal al legal legal aid. aid. In res#ec res#ectt of civil civil lega legall aid' aid' its *e*4er *e*4ers s dis#ense legal aid' the societ( encourages its *e*4ers to render free legal legal advice advice to accuse accused d #erson #ersons s and organi organies es legal legal re#rese re#resenta ntatio tion n )here the sa*e is needed. All of these #ac,ages are also availa4le at the Ne)castle 9egal Aid Clinic in )hose esta4lish*ent the Ne)castle 9a) Societ( has #la(ed a crucial role.
L.S.=. AND LE*AL AID >OBSERVATIONS? Curre urrent ntl( l( the 9.S.< .S.<.. lac lac,s an( an( init initia iati tive ve to 4e invo involv lved ed in the dis#ensation of legal aid. As a *atter of fact' it has since its conce#tion' conce#tion' sho)n singular singular aversion aversion to legal legal aid. It does not even even encourage encourage nor recognie an( e6orts 4( its *e*4ers to dis#ense legal aid to the #oor. #oor. Clearl(' Clearl(' *uch *ore needs to 4e 4e done. he 9.S.<. *ust *ust a)a,en' it *ust refocus its o4ectives •
• •
•
It *ust co*e alive to the #light of *an(
OTHER CONTEMPORARY ISSUES here are certain intangi4les that a la)(er *ust endeavour to develo# es#eciall(' es#eciall('
+. F"i(ne'' A*ongst the ,aleidosco#e arra( of /ualities that a la)(er *ust #ossess is fairness. fairness. Onl( a la)(er la)(er can #ur#ort #ur#ort to vindicate vindicate the constitut constitutional ional " guarantee right to a fair hearing hough it is not easil( /uanti!ed' /uanti!ed' its a4sence a4sence is /uic,l( felt. Bnfairness is gang gangre rene ne in the the 4od( 4od( #oli #oliti tic' c' a gang gangre rene ne )h )hic ich h if not not deal dealtt )i )ith th urgentl(' )ill consu*e the
0$..(1! and ..(9! ..(9! of the onstitution onstitution
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he dut( of fairness is inherent in the nature of the )or, #erfor*ed 4( la)(ers. 9ord +eid su**ed it u# in Rondel in Rondel v. v. (orsele' (orsele' 0 MR.as an o6icer of the court concerned in the ad*inistration of ustice' Uthe advocate has an overriding dut( to the court' to the standards of his #rofession and to the #u4lic' )hich *a( and often does lead to a conict )ith his client8s )ishesRR Accordingl(' Accordingl(' an advocate has a dut( to 4e fair' fair' fair to the court and fair to the #u4lic. #u4lic. So i*#ortant i*#ortant is fairness fairness to the court and the #u4lic #u4lic that the #u4lic dut( #revails over the dut( to the client if there is a conict. It is 4( fairness that the #u4lic udges the #rofession. Fairness is also the foundation of the 4ar8s inde#endence and the 4ar8s inde inde#e #end nden ence ce is fund funda* a*en enta tall to free freedo do* * in our our coun countr tr( ( as is the the inde inde#e #end nden ence ce of the the udi udici ciar ar( (. With Without out fair fairne ness' ss' no advo advoca cate te can can #ractice inde#endentl(. Advocates need to avoid issues li,e:5
"? O4taining and e;ecuting decrees )ithout sending the draft for the othe otherr side side8s 8s a##r a##rov oval al as )as )as the the case case in Mwangi Mwangi Mbothu Mbothu v. > Gachira (aitimu %? 7oing for for*al #roof )ithout verif(ing the date to a #art( )ho has entered a##earance as )as the case in (aweru in (aweru v. 5diga = c? Sho)ing the client ho) to circu*vent court orders and diso4e( inunctions as )as the case in Chuck v. Cremer 2 #? O4taining e;#arte inunctions )ithout full disclosure as )as the case in Tiwi each ,otel each ,otel v. v. Staum O$he(' •
•
•
Not #lacing relevant authorities 4oth for and against one 4efore the udge' es#eciall( )here counsel is a##earing e$6parte. a,ing un)ritten un)ritten and vague #reli*inar( #reli*inar( o4ections o4ections and altering altering the* in re#l(. Serving and e;ecuting non5e;istent court orders etc.
No fair la)(er should 4e #art( to the said #ractices. 3
)1969+ 1 A$C$ 191 Court of Appeal Civil Appliation Appliation No$ NA? 233 of 1993$ 5 )193+ 1,A% 21* 6 (1&6!2 Ph 113 . )199*+ 2,A% 19 &
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,. In#e)e #e)en n#en #ence •
•
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Advocates are enoined 4( their oath to )or, fairl( and )ithout favouring favouring #arties #arties in their choice choice of clients. clients. he( are called called u#on to )or, inde#endentl(. he rule of la) re/uires not onl( an inde#endent udiciar(' 4ut also an inde#endent 4ar. he 4ar *ust 4e inde#endent fro* the e;ecutive' the udiciar(' the client and *ust 4e inde#endent fro* the desire to )in at an( cost.
In#e)en#ence (o: $he E6ecu$i5e he advocate *ust 4e free as the udges *ust 4e free of an( suggestion that heLshe is de#endent u#on the e;ecutive or co*#liant )ith its )ishes or una4le to resist its de*ands. he #rofessional re/uire*ents of an advocate8s )or, necessitate those decisions relating to a client8s case *ust 4e *ade in the interests of the client u#on the facts and the a##lica4le a##lica4le la). la). Such decisions decisions *ust not 4e *ade 4( reference reference to the desires of the e;ecutive or its directions.
In#e)en#ence (o: $he 0u#ici"(2 It is i*#ort i*#ortant ant that that the advoca advocate te retain retains s his inde#en inde#enden dence ce fro* fro* the e;#res e;#ressed sed or i*#lied i*#lied suggest suggestion ions s and direct directions ions of the court. court. he advocate is entitled to ta,e ever( defense or *aintain ever( #osition that that a clie client nt can ta,e ta,e or *aint *aintai ain n for for hers hersel elff L hi*s hi*sel elff. It is the the advocate8s dut( to do so. An advocate should gratefull( and gracefull( acce#t such #ro#er suggestions fro* the court 4ut *ust al)a(s re*ain conscious that that is not the court8s function' and that the conduct of his client8s case is his sole #reserve. o /uote Gadan A: Mthe litigant and their #rofessional advisers are the 4est udge of their a6airs. See M.M. See M.M. utt v. Rent Restriction Tribunal % An advocate ought to test court suggestions against the follo)ing criteria: i. ii. ii.
he he clien lientt8s 4est 4est inter interes ests ts:: Do the the court ourt8s 8s sugg sugge estio stions ns furth urther er the* he he advo advoca cate tes s o)n o)n #rof #rofess essio iona nall udg udge* e*en ent: t: Ho) Ho) do do the( the( co* co*#a #are re
C$A$ Civil$ App$ No$ NA?$ 6 of 19.9
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In#e)en#ence (o: $he Clien$ While strenuousl( acting in the client8s 4est interests' advocates *ust endeavour to re*ain inde#endent fro* the*. Bsua Bsuall ll( (' *ost *ost clie client nts s see, see, #rof #rofess essio iona nall advi advice ce fro* fro* an advo advoca cate te.. Ho)ever' there are certain clients 4oth cor#orate and individual' )ho see the advocate as an e*#lo(ee. An advocate should 4e live to the the fact that his legal L #rofessional fees do not 4u( hi* 1the advocate3' the( 4u( hisLher 4est #rofessional udge*ent and advice and 4e #re#ared to even lose the 4rief. 4rief. his is rendered rendered necessar( necessar( 4( the fact fact that the *o*ent *o*ent an advo advoc cate ate lose loses s his ind inde#en e#ende denc nce e to the clien lientt' he lose loses s his his #rofessional #rofessionalis*. is*. Accordingl Accordingl( (' sheLhe cannot cannot #rotect his client8s client8s 4est interests.
In#e)en#ence (o: 4innin! "$ "n2 co'$ A te*#tation faced 4( an advocate through out his career. career. his is 4ecause its insidious nature attac,s 4oth senior and unior counsel. his te*#tation te*#tation *ust *ust 4e resisted. It )ill al)a(s al)a(s lead to a 4reach of #rofessional rules and eti/uette. It logicall( de!es all other other la)s as )ell i.e. the la) of statistics' (ou cannot )in the* all' the *ore one 4eco*es des#erate and thus e*#lo(s des#erate *eans.
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Other /ualities that a la)(er ought to cultivate are: 5 • • •
Perseverance it ,ee#s honour 4right. Courtes(. +es#ect for the truth and honest(.
A la)(er should also hold the follo)ing 4eliefs clear: i. A 4eli 4elief ef tha thatt tthe he )or )or, ,o off la)( la)(er ers s incl includ udes es the the cur cur4i 4ing ng of of the the a4use a4use and *isuse of #o)er and to set se t li*its to #o)er. #o)er. ii. ii. A 4elie 4elieff that that all all socia sociall activ activit it( ( has li*i li*its ts and and is su4e su4ect ct to to rules rules'' including #olitics. iii. iii. A 4elie 4elieff that that la)(e la)(ers rs *ust *ust #art #artic ici# i#at ate e in re*e re*ed( d(in ing g inus inusti tice ce and and the a4use of #o)er.
S"5in! An advocate8s )ord should 4e his 4ond. An advocate should s hould not lightl( give ive his his )ord. ord. An advoc dvocat ate e *ust *ust thin hin, !rst !rst 4efo 4efore re *a, *a,ing ing a co**it*ent' es#eciall( if the( a6ect his clients. Once an advocate advocate gives his )ord he should not turn on it. he court and colleagues *ust rel( on his )ord )ithout an( a##rehensions. Page &$ of $$>
A la)(er is a realist. Accordingl(' Accordingl(' his starting #oint is the ac,no) ac,no)led ledge* ge*ent ent of realit( realit( of facts facts as the( the( e;ist. A la)(er cannot cannot advice a client' client' #re#are a case on the 4asis of )hat *ight 4e. MWhat is should should 4e a la)(er la)(er8s 8s starting starting 4loc,. 4loc,. A la)(er la)(er should should 4e Mno4od Mno4od(8s (8s darling. Po#ularit( is not )h( one see,s to #ursue a career career in la). la).
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THE LAW SOCIETY OF =ENYA DI*EST OF PROFESSIONAL CONDUCT AND ETIQUETTE 1Current as at $st anuar(' "$3 his Digest is intended to give guidance to advocates concerning their #rofessional #rofessional conduct conduct and and the eti/uette eti/uette of the #rofession. #rofession. It should 4e read in conunction )ith the Advocates 1Practice3 +ules' the Advocates 1Account3 +ules and the Advocates 1Accountant8s Certi!cate3 +ules. his his is not not e;ha e;haus usti tive ve trea treati tise' se' and and )h )her ere e #oin #oints ts are are not not cove covered red'' reference should 4e *ade to the Council of the 9a) Societ( for a ruling.
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1a3 Fro* Cha*4ers Cha*4ers 143Fro* Court 5 Acting against other Advocates 5 Advertising 5 Advocates e*#lo(ed 4( Non 9egal E*#lo(ers 5 Advocates fees 5 Advocates O6ices
" 0 > = 2
A4sence
1a3 ?ranch ?ranch O6ices 143Sharing O6ices +ule +ule % Act 1Ca# "%$3 +ule & +ule $ 5 +ule $$ 5 +ule $" 5 +ule $0 5 +ule $> 5 +ule $= 5 +ule $2 5
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5 5 5 5
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Agree*ents for Sale Vendors8 Costs Attestation of Signatures +egistration of itles
5 ?o)ing Cha*4ers of Co**erce Clients Accounts Clients8 !les Co**issioners for Oaths Duties Consultants Corres#ondence C o u ns e l 1a3?rie!ng 143Cases ta,en out of the 9ist Counsel8s Fees Court Fees De4t Collecting Disclosure and Privilege 1a3Inco*e a; Authorities Page &0 of $$>
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Dissolution of Partnershi# E;ecution Proceedings E;traneous Activities Honorar( 9egal Adviser Insurance 9eases and Counter#arts 9etter Heads 1a3Agents 143Assistants 1c3 Client8s Client8s 9etter heads 1d3rade Gar, Agents 1e3 ?arristers and Solicitors 9ist of Authorities 9oans 4( Advocates 1a3o Cler,s in 7overn*ent O6ices 143o *e*4ers of the udiciar( Gedical Profession Fees 1a3 Deceased8s Deceased8s Estates 143Gedical da*ages 1c3 S#ecial S#ecial da*ages da*ages 1d3a;ed Costs Na*e of Fir* O6ice E;#enses 9i*ited co*#anies Pleas in Gitigation Poor Persons 9itigation Practising Certi!cate Press +e#orts Court Cases Pu4lications +ecover( of Gone( due fro* Advocates +e*uneration 1a3Agenc( 143Professional Clients 1c3 ransferred ransferred Decree Decree 1d3Bndercutting +e#resentations to the Chief ustice S*o,ing in Court Sta6 Bn/uali!ed' +e*uneration ele#hone and other Directories ele#hone Conversations +ecording hreats of Cri*inal #roceedings Bnderta,ings Witnesses
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DI*EST OF OPINIONS OF THE COUNCIL OF THE LAW SOCIETY OF =ENYA On *atters of Professional Conduct and Eti/uette $. ABSENCE 1a3 Fro* Cha*4ers Cha*4ers 1i3
When advoca ocates close their eir o6ices for the #ur#oses ses of annual holida( or sic,ness e;tending over then da(s' the( should *a,e arrange*ents for their *ail to 4e collected and ac,no)ledged and the clients infor*ed of the non5availa4ilit( of the advocates during the #eriod.
143Fro* Court 1i3
Advocates )ho #ro#ose to leave the countr( should *a,e arra arrang nge* e*en ents ts for for thei theirr cour courtt case cases s to cont contin inue ue duri during ng thei theirr a4sence. a4sence. It is not su6icient su6icient *erel( *erel( to 4rief a colleague colleague to as, for for an adourn*ent since this disorganises the )or, of the Courts. Where for an( valid reason an advocate cannot a##ear in Court' he *ust infor* the Court at the earliest #ossi4le o##ortunit(. o##ortunit(.
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In cri* cri*in inal al case cases s advoc advocat ates es *ust *ust atte attend nd cour courtt on the da( da( of the hearing hearing once having a##eared a##eared on #lea da( and having acce#ted a hearin hearing g date. Non 5a##ea 5a##earan rance ce on the hearing hearing da( u#sets u#sets the Court8s calendar and accused #ersons are held in custod( longer than necessar(.
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As a *atter *atter of #rofe #rofessi ssion onal al eti/u eti/uet ette te an advoc advocat ate e should should on the date of #lea re/uest the court to dis#ense )ith his attendance on *ention dates.
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It is the the #ara* #ara*ou ount nt dut( dut( of defe defend ndin ing g couns counsel el to ensur ensure e that that the accused #erson is never left un5re#resented at an( stage of the trial. trial. In an( event event the advocat advocate e *ust notif( notif( the court court and his client at the earliest #ossi4le o##ortunit( of his ina4ilit( to attend Court. Advocates should contact the the court either #ersonall( or 4( tele#hone' tele#hone' or telegra*' telegra*' if there is not su6icient su6icient ti*e for letters to reach the Court.
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When When an acc accuse used d #erso #erson n ins ins re#re re#resen sente ted d 4( t)o t)o adv advoc ocat ates es nei neith ther er should a4sent hi*self other than for a #urel( te*#orar( #eriod e;ce e;ce#t #t for for good good reas reason on and and then then onl( onl( if the the cons consen entt of the the instructing advocate' if an(' an(' or the client is o4tained. Page &= of $$>
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Wher Where e an accu accuse sed d #ers #erson on is re#r re#res esen ente ted d 4( onl( onl( one one advo advoca cate te'' that advocate *ust nor*all( 4e #resent throughout the trial and *a( onl( a4sent a4sent hi*self hi*self in e;ce#tional e;ce#tional circu*stanc circu*stances es )hich he could not reasona4l( have 4een e;#ected to foresee and #rovided:5 1a3he o4tains the consent of the instructing advocate' if an(' of his client and 143another advocate ta,es his #lace )ho is )ell infor*ed a4out the case and is lia4le to deal )ith an( /uestions )hich *ight reasona4l( 4e e;#ected to arise. Failure ailure to attend attend court court could could a*ount a*ount to #rofes #rofession sional al *iscond *isconduct uct and lead to disci#linar( action.
,. ACTIN* ACTIN* A*AI A*AINST NST OTHE OTHER R ADVOCA ADVOCATES TES It is not not righ rightt for for an advo advoca cate te to refu refuse se to act act in a *att *atter er *ere *erel( l( 4ecause 4ecause the o##osite o##osite #art( is another another advocate. advocate. his is intended intended as a state*ent of general #rinci#le and it is recognised that' in #articular case cases' s' ther there e *a( *a( 4e circ circu* u*st stan ance ces s in )h )hic ich h an advo advoca cate te shou should ld #ro#ert( refuse to act.
-. ADVERTI ERTISI SIN N* he Press should not 4e #er*itted' so far as advocates can control it' to *a,e *a,e refere reference nce to their their #rofes #rofession sional al career careers s #u4lish #u4lish #hotog #hotogra# ra#hs hs of advo advoca cate tes s in )ig and go)n. go)n. his his does does not not a##l a##l( ( to advoc advocat ates es on a##oint*ent to an esta4lished udicial or legal o6ice in the service of the State. 1a3Consideri 1a3Considering ng the a##lic a##licati ation on of +ule +ule " of the Advocates Advocates 1Pract 1Practice ice33 +ules' and 4earing in *ind the funda*ental #rinci#le that advocates shou should ld not not adve advert rtis ise' e' the the foll follo) o)in ing g ruli ruling ngs s are are set set out out for for the the guidance of the #rofession. 143An advocate should at all ti*es have regard to the need to u#hold the good na*e of the Profession. He should also 4e conscious of the fact that that certai certain n #u4lic #u4licati ations' ons' 4roadc 4roadcast asts s and a##ear a##earanc ances es *ight *ight )ell )ell involve a 4reach of +ule " of the Advocates 1Practice3 +ules. 1c3 In #articular #articular'' a 4reach could easil( 4e co**itted co**itted 4( the *anner or fre/uenc( of doing things not other)ise o4ectiona4le' in #articular if the( are done fre/uentl(. 1d3Su4ect to 143 and 1c3 a4ove' )here an advocate: 1i3 1i3
4roa 4roadc dcas asts ts on rad radio or tele televi visi sion on Page &2 of $$>
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gives a tal, or le lecture or or give gives s an an iint nter ervi vie) e) to the the #res #ress s or cont contri ri4u 4ute tes s an art artic icle le or or lett letter er to to the the #ress #ress or edit edits s or or ) )ri rite tes s a 4oo 4oo, ,o orr o oth ther er #eri #eriod odic ical als s
Whether on a legal or non legal su4ect:5 He *a( 4e identi!ed 4( na*e onl( or 4( a designation' 4ut the na*e and the design designati ation on *a( not 4e cou#le cou#led d P+OVID P+OVIDED ED HA HA )here )here an advo advoca cate te cont contri4 ri4ut utes es a legal legal arti articl cle e or lett letter er to a legal legal our ourna nall or #u4l #u4lic icat atio ion n or edit edits s or )r )rit ites es a 4oo, 4oo, #eri #eriod odic ical al on a legal legal su4ec su4ectt #articulars *a( 4e given of his 4asic and acade*ic /uali!cations or an( #rofessional a##oint*ents currentl( or #reviousl( held 4( hi* and of s#eci!ed ,no)ledge relevant to the su4ect *atter of the #u4lication' let letter ter' tal, al, or lect lectur ure' e' and and his his 4usine siness ss addre ddress ss in the the case ase of #u4lication' letter' tal, or lecture and his 4usiness address in the case of #u4lications or letters 1i3
Nothing sho should 4e #u4lished shed identif(ing or li,el( to ident entif( individuals or organisations for )ho* he or his !r* acts or has acted
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he shoul should d not not ente enterr into into corre corres# s#on onde denc nce e on an advo advoca cate teLc Lcli lien entt 4asis )ith readers' vie)ers or listeners )ho are not alread( his clients
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Prior Prior #ress #ress anno announc unce*en e*entt or su4se su4se/ue /uent nt #res #ress s re#ort re#orts s relati relating ng to to the a4ove *atter in relation to the identit( and /uali!cations of an advocate *a( either na*e the advocate or give his designation' 4ut the t)o *ust not 4e cou#led.
. ADVOCA ADVOCATES TES EMPLOY EMPLOYED ED BY NONLE NONLE*AL *AL EMPLOY EMPLOYERS ERS 1a3Su4ect to )hat follo)s' there is no o4ection to an advocate agreeing to do legal )or, for an e*#lo(er in consideration of a !;ed salar( 143Provided his e*#lo(er allo)s it' he *a( also acce#t instructions fro* other other clients. clients. Such Such an advocat advocate e *ust *ust co*#l( co*#l( )it )ith h the Advoca Advocates tes 1Accounts3 +ules and the Advocates 1Practice3 +ules. 1c3 Such an advocate *ust ensure that his e*#lo(er neither directl( directl( nor indi indire rec ctl( tl( adve advert rtis ises es his his serv servic ices es and and in #art #artic icul ular ar does oes not not reco**end hi* to fello)5e*#lo(ees. 1d3he advocate *ust satisf( hi*self that an( reco**endation 4( the e*#l e*#lo( o(er er )as )as *ade *ade onl( onl( at the the e;#r e;#ress ess re/u re/uest est of the the inte intend ndin ing g Page & of $$>
client' client' and that he *ust e;#lain that the e*#lo(ee is free to instruct an( advocate of his choice or such advocate )ho* he *a( )ish to instruct. Onl( on 4eing satis!ed satis!ed that there is not' )ould the advocate 4e usti!ed in acce#ting instructions. 1e3 In no circu*stances *a( an e*#lo(ed advocate allo) his e*#lo(er to to receive an( #art of an( #ro!t costs he *a( earn acting for clients other than the e*#lo(er. 1f3 As regards regards the e*#lo(e e*#lo(er8s r8s legal )or,' the #osition #osition is regula regulated ted 4( rule >' #roviso #roviso 1ii3 of the Advocates Advocates 1Practice3 1Practice3 +ules. +ules. he e*#lo(ed e*#lo(ed advocate can onl( set set o6 the costs sts of contentious and non5 contentious )or, done 4( hi* for his e*#lo(er to the e;tent of his salar( and and reasona4le reasona4le o6ice e;#enses. e;#enses. In other )ords' )ords' an( a*ount a*ount 4( )h )hic ich h the the tota totall fees fees e;ce e;ceed ed the the advo advoca cate te8s 8s sala salar( r( and and o6ic o6ice e e;#enses *ust 4e #aid to hi* 4( the e*#lo(er. e*#lo(er. 1g3No e*#lo(ed advocate can co*#l( )ith #roviso 1i.3 to +ule >2 of the Advocates 1Practice3 +ules unless he ,ee#s a 4ill delivered 4oo, sho)ing the full #ro!t costs of all )or, done for the e*#lo(er' and there there is an annu annual al acco accoun unti ting ng )i )ith th his his e*#l e*#lo( o(er er in ter* ter*s s of the the #roviso. 1h3An e*#lo(ed e*#lo(ed advocate advocate )ho is also a Co**issioner Co**issioner for Oaths Oaths cannot' of course' ad*inister an oath )hen he has dra)n the docu*ent. 1i3 1i3 It is i*#r i*#ro# o#er er for for such such an advoca advocate te to ad*i ad*ini nist ster er an oath to an( an( o6icial of his e*#lo(er in res#ect of that o6icial8s o6icial8s duties. E*#lo(er8s #ersonal a6idavits are su4ect to the considerations set out in 1d3 a4ove.
/. AD ADVO VOCA CATE TES; S; FEES FEES Where one advocate acts for the client of another at the latter8s re/uest' the the t) t)o o advo advoca cate tes s *a( *a( conc conclu lude de an agen agenc( c( or othe otherr agre agree*e e*ent nt to #rovide for the re*uneration re*uneration of the advocate advocate )ho does not )or,. In the a4sence of such an agree*ent' the advocate )ho carries out the )or, is entitled to treat the other advocate as 4eing in the sa*e #osition as a la( client and to charge hi* accordingl(. accordingl(. J. AD ADVO VOCA CATE TES S OFFI OFFICE CES S 1a3 ?ranch ?ranch O6ices here is no o4ection to the esta4lish*ent of a 4ranch o6ice to 4e visited #eriodicall( 4( an advocate and to act other)ise onl( as a rece rece#t #tio ion n cent centre re for for *a,i *a,ing ng a##o a##oin int* t*en ents ts and and hold holdin ing g #a#e #a#ers rs'' Page &% of $$>
#rovided that the o6ice is under the e6ective control of an advocate and that his na*e is not *erel( *ade use of to ena4le other #ersons to #ractise under cover of it. 143Sharing O6ices It is i*#ro#er for an advocate to share acco**odation )ith so*eone )ho is not an advocate since this )ould al*ost inevita4l( lead to the unfair attraction of 4usiness and 4reach of +ule " of the advocates 1#ractice3 +ules.
K. A*REE A*REEME MENTS NTS FOR FOR SALE SALE VEND VENDORS ORS COST COSTS S here is no o4ection to the insertion in conditions of' or contracts for' a sale of land of an e;#ress #rovision re/uiring either #art( to #a( the costs of the other #art(' #rovided that each #art( is left free to e*#lo( his o)n advocate advocate in each transaction. transaction. It is i*#ro#er to to suggest that the advocate 4e e*#lo(ed 4( the other #art(. #art(. %. ATTEST ATTESTATI ATION ON OF SI*NATURES SI*NATURES RE*ISTRATION RE*ISTRATION OF TITLES ACT >CAP ,+3 An advocate )ho is re/uested to attest a signature in #ursuance of this Act should insist on the signature 4eing a##ended in his #resence and shou should ld not not acce acce#t #t an ac,n ac,no) o)led ledge ge*en *entt of signa signatu ture re 4( the the #ers #erson on re/uesting re/uesting attestati attestation. on. It is not considered considered that that the advocate advocate should should acce#t an( further res#onsi4ilit( for the identi!cation of the signator( than that suggested a4ove. Advocates are re/uested to #rint' t(#e or ru44er5sta*# their na*es 4elo) their signatures.
. BOWIN* Advocates un5ad*itted assistants and cler,s should not 4o) to an( court. court. his #rivilege #rivilege is' 4( custo*' custo*' restricte restricted d to Ge*4ers Ge*4ers of the ?ar a##earing 4efore the Court. +.CHAMBERS OF COMMERCE COMMERCE here is no o4ection' in #rinci#le' to an advocate or !r* of advocates 4eing a *e*4er of a Cha*4er of Co**erce. ++.CLIENTS; ACCOUNTS 1a3he attention of advocates is called to the detailed #rovisions of the Advocates 1Accounts3 +ules' the Advocates 1Accountant8s Certi!cate3 +ules and the Advocates 1De#osit Interest3. 143If a che/ue dra)n on a Client Account is dishonoured #rofessional *isconduct is disclosed and disci#linar( action )ill follo). follo). Page && of $$>
1c3 1c3 Failu ailure re to #rod #roduc uce e an Acco Accoun unta tant nt8s 8s Cert Certi! i!ca cate te 1or 1or stat statut utor or( ( declaration in lieu thereof3 #ursuant to the Advocates 1Accountant8s Certi!cate3 +ules is #rofessional *isconduct.
+,.CLIENTS FILES 1a3 1a3 B#on B#on the the diss dissol olut utio ion n of a 4usi 4usine ness ss #art #artne ners rshi hi# # an acti action on )as )as instituted 4( the outgoing #artner against the continuing #artners. he he advo advoca catte )h )ho o had had acted ted for the #artne rtners rsh hi# duri during ng its its su4s su4sis iste tenc nce e had had refu refuse sed d to allo allo) ) the the advo advoca cate te acti acting ng for for the the cont contin inui uing ng #art #artne ners rs to have have acce access ss to the the !le !le rela relati ting ng to the the #artne #artnershi rshi# # 4usiness. 4usiness. His costs costs had 4een #aid #aid and there there )as no /uesti /uestion on of a lien lien for the*. the*. A client client is entitled entitled to co#ies co#ies of a an( docu*ents in his !le that he *a( re/uire and for )hich he *ust #a(' and to access to his !le. 143A client is entitled to the !les relating to his o)n *atters and an advo advoca cate te shou should ld acco accord rdin ingl gl( ( hand hand the* the* over over to a clie client nt on his his re/uest' su4ect to the /uali!cations:5 1i.3that an advocate has a lien over all #a#ers relating to a client and that client8s a6airs for his costs and 1ii3 1ii3 that that if if *ore *ore tha than n one one #art #art( ( )ere )ere invo involv lved ed'' the the advo advoca cate te *ig *ight ht 4e 4e entitled to retain the !les if re/uired in connection )ith another client8s a6airs in the sa*e *atter. *atter. 1c3 Clients Clients !les *a( 4e for)arded to the Pu4lic Archives Archives onl( )ith the client8s consent. 1d3Su4ec 1d3Su4ectt to the forego foregoing ing'' there is no o4ectio o4ection n to destru destructi ction on or dis# dis#os osal al of reco record rds s 4( advoca advocate tes s on the clea clearr unde underst rstan andi ding ng'' ho)ever' that the ulti*ate res#onsi4ilit( for this course of action is that of the advocate. 1e3An( advocate )ho is leaving the countr( and or ceasing to #ractice *ust *a,e arange*ents arange*ents for the retention retention or dis#osal of records records and *ust infor* the Secretar( Secretar( of the 9a) Societ( of the arrange*ents. 1f3 +ecord +ecords s Dis#osa Dis#osall It is agre agreed ed that that the the foll follo) o)in ing g #eri #eriod ods s are are reas reason ona4 a4le le 4ut 4ut not not o4ligator( for the dis#osal of records:5 Conve(ancing 5 De4t Collection !les 9itigation acting for cause
after " (ears 5 after 2 *onths 5 after the #eriod of li*itation fro* the
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he defendant Divorce and fa*il( Gatters 5 #arties
of action Never destro( un until it it is ,n ,no)n that all Have Have died. died.
hese hese should should 4e 4e 4rough 4roughtt u#
ever( 0 (ears. 5 after 2 *onths
Co**on 9a) *atters Pro4ate and Ad*inistration )here Whole estate is )ound u# And distri4uted 5
after = (ears
1g3Advo 1g3Advoca cate tes s shoul should d also also 4ear 4ear in *ind *ind that that alth althou ough gh in vie) vie) of the the 9i*itation Act' the Advocates 1Accounts3 +ules and the
+-.COMMISSIONER FOR OATHS DUTIES 1a3he attention of Co**issioners for Oaths is dra)n to the statutor( re/u re/uir ire* e*en ents ts )h )hic ich h are are set set out out in the the Oath aths and and St Stat atut utor or( ( Decl Declar arat atio ions ns Act Act 1Ca# 1Ca# $=3 $=3 and and the the Su## Su##le le*e *ent ntar ar( ( 9egi 9egisl slat atio ion n #u4lished thereunder. 143A Co**issioner *a( not act as such in an( #roceeding in )hich he has acted as advocate to an( of the #arties to that #roceeding or )hich he is interested. he MProceeding referred to is not li*ited to a Court #roceeding and also includes' for instance' all docu*ents #re# #re#ar ared ed 4( a #art #artne nerr or cler, cler, in the the Co** Co**is issio sione ner8 r8s s !r*. !r*. If a Co**issioner Co**issioner is in an( dou4t as to )hether )hether he is 1interested3 1interested3 or not' he should refuse to act. 1c3 A6idavits consisting of *ore that one #age' or )ith e;hi4its anne;ed' should 4e se)n across the to# left hand corner and sealed #rior to re#resentation to the Co**issioner. Co**issioner. 1d3he entire res#onsi4ilit( for the contents of the a6idavit rests )ith the the de#o de#one nent nt and the the advo advoca cate te )ho #re# #re#ar ared ed it. It )ould )ould 4e Page $$ of $$>
i*#ossi4le for a Co**issioner to deter*ine )hether the de#onent understood ever( state*ent *ade in the a6idavit unless he hi*self had read it to de#onent' and had hi*self *astered the facts of the case. Such a course course )ould 4e i*#ractica4le i*#ractica4le and 4e(ond the duties of the Co**issioner. 1e3It is the dut( of the Co**issioner to satisf( hi*self that the oath )hich he is ad*inistering is' in for* and u#on the face of it' an oath )hich his co**ission authories hi* to ad*inister. ad*inister. 1f3 When When the de#onent de#onent attends attends u#on u#on the Co**issi Co**issioner oner'' su4ec su4ectt to the e;ce#tion as to 4lind and illiterate #ersons' all that a Co**issioner is re/uired to do is to ascertain that the de#onent is actuall( in his #rese #resenc nce' e' the the de#o de#one nent nt a##a a##aren rentl tl( ( co*# co*#et eten entt to de#o de#ose se to the the a6idavit and that he ,no)s that he is a4out to 4e s)orn 4( the Co**issioner as to the truth of the state*ents it contains and that the e;hi4its 1if an(3 an(3 are the docu*ents docu*ents referred to. If the ans)ers to the Co**issioner8s /uestions are in the a6ir*ative' the oath *a( 4e ad*inistered. 1g3Where an a6idavit is s)orn 4( a 4lind or illiterate de#onent' the Co**issioner *ust certif(' in the urist' that the a6idavit )as read in his his #rese #resenc nce e to the the de#o de#one nent nt'' and and that that the the de#o de#one nent nt see* see*ed ed to understand it' and *ade his signature 1or *ar,3 in the #resence of the Co**issioner. 1h3If 1h3If it co*e co*es s to the the noti notice ce of a Co** Co**is issi sion oner er that that an a6id a6idav avit it is inco*#lete' e.g 4ecause it contains 4lan,s' or the Co**issioner is not satis!ed fro* evidence 4efore hi*' or in his #ossession' as to the ca#acit( of the de#onent to understand the Oath' or the Co**issioner has good cause to 4elieve that the a6idavit is false' he should refuse to ta,e Oath. 1i3 Altera Alteratio tions ns and interli interlinea neatio tions ns 1includ 1including ing *anusc *anuscri# ri#tt inserti insertions ons in 4lan,s left in t(#escri#t3 *ust 4e authenticated 4( the Co**issioner a##e a##end ndin ing g his his init initia ials ls in the the *arg *argin in agai against nst such such alte altera rati tion ons s or interlineation. 13 No alterati alterations ons *a( 4e *ade in an a6idavi a6idavitt after it has 4een s)orn and and in an( an( such such case case a secon second d ura uratt co** co**en enci cing ng )i )ith th the the )o )ord rd M+es)orn *ust 4e added and that the de#onent *ust 4e res)orn though there is no need for hi* to sign again. 1,3Ever( 1,3 Ever( e;hi4it e;hi4it referred to in an a6idavit and )hether )hether anne;ed to it or not' *ust 4ear a certi!cate' signed s igned 4( the Co**issioner' Co**issioner' to identif( it )ith )it h such a6idavi a6idavit. t. It is the dut( of the advocat advocate' e' or his cler,' cler,' to Page $" of $$>
re/uest the the co**issioner co**issioner to *ar, *ar, the e;hi4its. e;hi4its. he co**issioner co**issioner cannot cannot have ,no)ledge ,no)ledge of the e;hi4its' unless his attention attention is dra)n to the* )ithout reading the a6idavit and this he is not re/uired to do. 1l3 he *odern *odern for* of oath' oath' the use of )hich )hich 1)ith 1)ith an( *odi!cat *odi!cation ions s re/uired 4( the circu*stances3 is reco**ended' dis#enses )ith the co**issioner8s en/uir( as to the identit( of the de#onent )hich )as for*erl( re/uired. he #rocedure #rocedure is as follo)s:5 follo)s:5 he Co**issioner #laces the a6idavit 4efore the de#onent o#en at the the #age #age cont contai ainin ning g his his sign signat atur ure e and and the the ura uratt and and sa(s sa(s to the the de#onent' Ma,e the 4oo, in (our right hand and raise that hand. +e#eat after *e the follo)ing )ords MI s)ear 4( Al*ight( 7od that this is *( na*e and hand5)riting and that the contents of this *( a6idavit is true. Wher Where e ther there e are are t) t)o o or *ore *ore de#o de#one nent nts' s' each each *ust *ust 4e s)or s)orn n res#ectivel(' 4ut one urat is su6icient' #rovided that it refers to 4oth de#o de#one nent nts' s' thus hus MS)o MS)orn rn 4( the de#o de#one nent nts s RRRR RRRRRRR RRRRR R andRRRRRRRR.at'' etc andRRRRRRRR.at 1*3 1*3 A Co** Co**is issi sion oner er for Oath Oaths s is entit entitle led d to char charge ge for for each each co#( co#( of the A6idavit and e;hi4its he is as,ed to sign in addition to charging for the originals. $>. CONSULTANTS No #erson8s na*e *a( 4e sho)n as Consultant on the letterhead of an( !r* of advocates' unless' 1i3 1ii3 1ii3 1iii 1iii33 1iv3 1iv3 1v3 1v3
+/.
he is a for*er #artner #artner of the !r*' and he con conti tinu nues es to to hol hold d a #ra #ract ctisi ising ng cert certi! i!ca cate te'' and and his his advi advice ce is is avai availa la4l 4le e onl( onl( to to that that !r* !r*'' and and he does does not not advis advise e or a##e a##ear ar in cou court rt in *at *atte ters rs othe otherr than than those those originating in the !r* concerned he he descr descri# i#ti tion on of Mad Madvo voca cate te shoul should d not 4e 4e dis# dis#la la(e (ed d on the the na*e na*e 4oard or an( #lace other than his o6ice.
CORRESPONDENCE
1a3 Attention Attention is dra)n to the a4solute a4solute necessit( necessit( of advocates advocates re#l(ing to corres#ondence )ith the *ini*u* of dela(' dela(' #articularl( in the case of corres#ondence )ith other advocates and )ith the 9a) Societ(. Societ(. Page $0 of $$>
143Fa 143Fail ilur ure e to re#l re#l( ( to corr corres# es#on onde denc nce e has has 4een 4een held held to a*ou a*ount nt to #rofessional *isconduct. $2. COUNSEL 1a3 ?rie!ng An advocate should al)a(s infor* his o##onent if he #ro#oses to 4rief Counsel' or a leader fro* the unior ?ar. ?ar. 143 Cases ta,en out of the list Advocates Advocates )ho have have 4riefed counsel' counsel' or a leader leader fro* the unior ?ar' ?ar' should should *aintain *aintain close liaison liaison )it )ith h their their leader leader.. In #articul #articular ar'' cases cases should not 4e ta,en out of the list' nor should hearing dates 4e altered )ithout !rst o4taining the agree*ent of the leader. leader.
+K.
COUNSEL SEL;S FEES
1a3Where it is desired to ta;' in the Court of A##eal for % hours. 143h 143he e !;ing ;ing of @uee @ueen8 n8s s Coun Counse sel8 l8s s fee is #ri* #ri*ar aril il( ( a *atte atterr of arrange*ent 4et)een @ueen8s advocate and the client on the other. other. In of $$>
Advocates should not ignore re/uests for #a(*ent of court fees such fees should 4e #aid #ro*#tl(. $& DEBT COLLECTION 1a39etters 1a39etters of de*and de*and threat threateni ening ng #rocee #roceedin dings gs in defaul defaultt of #a(*en #a(*entt should save in e;ce#tional circu*stances' allo):5 da(s )here the de4tor resides in the sa*e to)n as the advocate not less than $ da(s )here he resides in a di6erent to)n in
Where an advocate is as,ed for details of transactions as )ell as of #arties' he should as, the clients )hether the( are #re#ared to )aive #rivilege and give infor*ation onl( if the clients agree.
1iii 1iii33
he he Co**is Co**issi sion oner er for inco inco*e *e a; a; has has agreed agreed tha thatt secti section on 2$ of the
1iv3 1iv3
If an advoc advocat ate e is as,ed as,ed 4( the the a; autho uthori ritties ies to disc isclose lose the the addr addres ess s of a clie client nt )h )ho o had had left left
1v3 1v3
If an advo advoc cate ate is as, as,ed 4( the the a; Aut Authori horiti ties es to discl disclos ose e the addr addres ess s of a clie client nt )h )ho o had had left left
143 Police 1i.3 1i.3
MPri MPrivi vileg lege e is the the #rivi #rivile lege ge of the the cli clien ent' t' not not that that of the the advoc advocat ate. e. It *a( *a( acco accord rdin ingl gl( ( 4e )aiv )aived ed 4( the the clie client nt'' 4ut 4ut not not 4( the the advocate.
1ii3 1ii3
he he o4ec o4ectt of the the rule rule of #ri #rivi vileg lege e and its its car cardi dina nall #rinc #rinci# i#le' le' is is to ensure that a client ent can con!de co*#letel( and )ithout rese reserv rvat atio ion n in his his advo advoc cate' ate' and and the #riv #rivil ileg ege e e;t e;tends ends to co**un co**unica icatio tions ns *ade *ade to the advoca advocateX teX88 agents agents and to Counse Counsell )here the advocate acts as solicitor. solicitor.
1iii3 1iii3
In litig litigiou ious s *atter *atters s the advo advocat cate8s e8s #rivi #rivileg lege e is no great greater er than than the the client8s right. If' therefore' therefore' a client could not refuse discover(' discover(' an advocate could not esta4lish #rivilege.
1iv3
here ere is no #rivilege in res#e s#ect of co**unications *ade in furtherance of a fraud or cri*e' 4ut co**unications *ade to an advocate for the #ur#ose of a defence in cri*inal #roceedings are )ithin the rule and #rivilege.
1v3 1v3
If the there re is is an( an( dou4 dou4tt in an adv advoc ocat ate8 e8s s *ind *ind as to )he )heth ther er or not not co**unication is #rivileged' he should clai* that it is.
1vi3 1vi3
he #rec #recedi eding ng #arag #aragra# ra#h h a##li a##lies es e/ual e/uall( l( to #rel #reli*i i*inar naries ies and and non5 non5 litigious *atters on the one hand and to actual #roceedings 4efore the court on the other other.. It is for the court court to decide' in #roceedings #roceedings 4efore it' )hether a clai* of #rivilege holds good or )hether the advocate is 4ound to disclose.
1vii 1vii33
he he forego foregoin ing g is not not inten intende ded d to 4e an e;hau e;haust stiv ive e revie) revie) of all #oints arising in a vast and co*#licated su4ect' 4ut onl( as a guide to so*e of the *ore i*#ortant general #rinci#les )hich *a( arise.
,+.DISSOLUTION OF PARTNERSHIP
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Where t)o advocates have dissolved #artnershi#' it )ould 4e i*#o#er for for the the outg outgoi oing ng #art #artne nerr to act act for for a clai clai* * agai against nst the the cont continu inuin ing g #art #artne nerr arisi arising ng to act act for for a clie client nt in a clai clai* * agai agains nstt the the cont contin inui uing ng #artner arising out of events )hich had occurred during the #artnershi# 4ut )ith )hich the outgoing #artner had not 4een concerned .
,,.EECUTION PROCEEDIN*S When #roceedings #roceedings for the e;ecution e;ecution of a udge*ent udge*ent de4t have 4een !le and #a(*ent has 4een *ade #rior to a further ste# in e;ecution' for e;a*#le' #rior to the date of hearing of an a##lication to sho) cause' an advocate should notif( the court and su4ect to #a(*ent of an( costs incurred' endeavour to have the #roceedings )ithdra)n.
,-.ETRANEOUS ACTIVITIES ?efore engaging in other #rofessions or 4usiness there are t)o tests to 4e satis!ed. satis!ed. First' the the #rofession #rofession or 4usiness 4usiness *ust 4e 4e an honoura4le honoura4le one that does not detract fro* one8s status as an advocate. Secondl(' Secondl(' it *ust *ust not 4e calcul calculate ated d to attrac attractt 4usines 4usiness s to the advoca advocate te unfair unfairl( l('' )hich )hich )ould 4e in 4reach of the advocates advocates 1#ractice3 1#ractice3 rules. rules. Su4ect Su4ect as aforesaid' the follo)ing guidelines are given' 4ut in case of dou4t an advocate should not hesitate to see, a ruling fro* the council. 1a3 1a3 It is i*#r i*#ro# o#er er for for a non5 non5#r #rac acti tisi sing ng advo advoca cate te to unde undert rta, a,e e so*e so*e conv conve( e(an anci cing ng )o )or, r, afte afterr o6ic o6ice e hour hours' s' eith either er for for frie friend nds s or in connection )ith those t(#es of 4usiness in )hich he had an interest. 143here is no o4ection to an advocate 4eing a##ointed as a Honorar( Consul. 1c3 here is no o4ection to an advocate acting acting as an agent for insurance insurance co*#anies. co*#anies. He )ould not' ho)ever ho)ever'' 4e usti!ed in charging clients clients for )or, done in #lacing and *aintaining their insurance #olicies )here a co**ission is earned fro* the insurance co*#an(. co*#an(. 1d3He *ust not' ho)ever' include an( reference to the fact he is sich an agent on his #rofessional note5#a#er or include an( reference to the fact that he is an advocate on the #a#er that he uses in connection )ith his Agenc( )or,' nor *a( the a##oint*ents 4e co*4ined in an( )a( on an( 4rass #late. 1e3 1e3 An Advo Advoca cate te te*# te*#or orar aril il( ( ceas ceasin ing g to #rac #racti tise se in orde orderr to into into a fa*il(8s 4usiness *a( •
+ene) his #ractising certi!cate
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•
•
Should not a##ear in court on 4ehalf of the 4usiness' though there is no o4ection to his doing #reli*inar( advocate8s )or, on 4ehalf of the 4usiness hat he should not conduct intervie)s in res#ect of legal *atters at the 4usiness #re*ises.
1f3 An advocate advocate )ho )ishes to 4eco*e 4eco*e an active active #artner in a 1non5legal3 1non5legal3 !r* dealing )ith insurance agencies and o6ice routine is advised that it )ould not 4e #ro#er to enter into such #artnershi#. 1g3It is i*#ro#er for advocates to register a li*ited lia4ilit( co*#an( to underta,e on their o)n account co*#an( )or, and the registration of co*#anies. 1h3here is no o4ection to an advocate' or !r* of advocates' acting as the the secr secret etar ar( ( of a li*i li*ite ted d co*# co*#an an( (' #rov #rovid ided ed that that ther there e is no reference to the #rofessional /uali!cations or an( la) degree of the secretar( in the co*#an(8s letter5heads and other docu*ents. 1i3 1i3 her here e is no o4ec o4ecti tion on to an advo advoca cate te ente enteri ring ng into into a 1non5 1non5ac acti tive ve33 #artnershi# in a #etrol station 4usiness in order to assist a client.
,.HONORARY LE*AL ADVISER An( #erson )ishing to act as a legal adviser to an( #rofessional 4od( or association should !rst 4e ad*itted as an advocate. ,/.INSURANCE In their o)n interests' interests' advocates advocates should ensure that the( are #rotected #rotected again against st the conse/ conse/uen uences ces of neglig negligenc ence e in their their o6ices o6ices 4( a #ro#er #ro#er Professional Inde*nit( Insurance Polic(. Polic(. ,J.LEASES AND COUNTERPARTS A lessen is entitled to the original 9ease 1the 9essor retaining the Counter#art3 on the 4asis that a grantee is entitled to the 7rant. ,K.LETTER HEADS 1a3Agents he na*e of agents outside
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1c3 Client8s Client8s letter5head letter5heads s An Advocate should not allo) his na*e 1associated 1 associated )ith his designation3 to 4e used on his clients8 o)n note5#a#er )hether he is descri4ed as advocate' honorar( legal advisor' or other)ise' e;ce#t onl( )here the advocate hi*self uses that #a#er /ua advocate on the 4usiness of the client. her here e is no o4e o4ect ctio ion n to the the inco incor# r#or orat atio ion n of an advo advoca cate te8s 8s na*e na*e 1)ithout his descri#tion as such3 on the note5#a#er of a li*ited lia4ilit( co*#an(' or a director of such co*#an(. 1d3rade Gar, Agents his descri#tion *a( not 4e inserted on an advocate8s letterhead. 1e3 1e3 An advoc advocat ate e *a( *a( not not desc descri ri4e 4e hi*s hi*self elf as eithe eitherr a 4arr 4arrist ister er or a solicitor or a Writer to the Signer on an advocate8s letterhead.
,.LISTS OF AUTHORITIES AUTHORITIES As a *atter of #rofessional courtes(' courtes(' the advocate acting for the o##osing #art( should 4e furnished )ith a co#( of the list of authorities as su4*itted to the li4rarian' at least one da( #rior to the hearing. ,.LOANS BY ADVOCATES 1a3 1a3 An( An( re/ue re/uest st for for loans loans 4( cler cler,s ,s in gover govern* n*en entt o6ic o6ices es shoul should d 4e ignored and 4eing highl( irregular' an( such case should 4e re#orted i**ediatel( to the a##ro#riate a##ro#riate De#art*ental Head. 143It 143It is i*#r i*#ro# o#er er for for advo advoca cate tes s to lend lend *one *one( ( to *e*4 *e*4er ers s of the the udiciar( )hatever the circu*stances.
-.MEDICAL PROFESSIONFEES As a result of discussions )ith re#resentatives of the
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1c3 S#ecial S#ecial Da*ages In cases cases )h )her ere e doct doctor or8s 8s fees fees are are clai clai*e *ed' d' and and reco recover vered ed as s#ec s#ecia iall da*ages' the advocate is under a dut( to discharge those fees )ithout dela( . 1d3a;ed Costs he doctor8s fee should 4e #aid in full' regardless of the a*ount allo)ed in res#ect thereof on ta;ation.
-+.NAME OF FIRM 1a3It is undesira4le for !r*s to #ractise under an( na*e other than that of a #ast or #resent *e*4er or *e*4ers. 143Advocates are re*inded that in the event of an( change of na*e or address' the secretar( to the 9a) Societ( and the +egistrar of the High Court should 4e infor*ed i**ediatel( for record #ur#oses. 1c3 When a #artner in a !r* has 4een a##ointed to the udiciar(' udiciar(' there is no o4e o4ect ctio ion n to the the rete retent ntion ion of the the !r* !r* na*e na*e 4( the the re*a re*ain inin ing g #artners.
-,.OFFICE EPENSES LIMITED COMPANIES her here e is no o4e o4ect ctio ion n in #rin #rinci ci#l #le e to advo advoca cate tes s for* for*in ing g li*i li*ite ted d co*#anies to deal )ith all e;#enses in connection )ith the running of their #ractices.
--.PLEAS IN MITI*ATION 1a3 1a3 In an( an( case case )h )here ere an advo advoca cate te is inst instru ruct cted ed 4( his his clie client nt to #ut #ut for)ard *atters in *itigation )hich involve serious i*#utation u#on the character of a #erson or #ersons )ho are not in a #osition' at the ti*e )hen such *atters are ventilated' to challenge their accurac(' then then he should should'' )henev )henever er #ract #ractica ica4le 4le'' avoid avoid *entio *entionin ning g in o#en o#en cour courtt an( an( deta detail ils s )h )hic ich h )o )oul uld d ena4 ena4le le the the iden identi tit( t( of the the #erso #erson n i*#ugned to 4e ascertained. Where necessar(' necessar(' na*es' addresses addresses or other such details should 4e )ritten do)n and handed in. 143In 143In nor* nor*al al circ circu* u*st stan ance ces' s' an advo advoca cate te shou should ld see his his la( la( clie client nt #ersonall( after conviction and sentence.
-.POOR PERSONS LITI*ATION 1a3he 4asis of the 9a) Societ(8s sche*e to assist #oor #ersons )ho are una4le to #a( an advocate8s fee in the ordinar( )a( is that the )or, shou should ld 4e unde undert rta, a,en en on a #ro #ro deo deo 4asi 4asis' s' that that is' is' )i )ith thou outt fee. fee. Page $$ of $$>
Accordingl(' Accordingl(' an advocate should not Mreduce the #ro#er fee #a(a4le )hich )ould a*ount to undercutting' nor should he agree to acce#t re*uneration in the event of a successful outco*e )hich *ight la( hi* o#en to allegations of cha*#ert( and *aintenance. Fro* the Fro* the fore forego goin ing' g' it follo follo)s )s that that #ro #ro deo deo liti litiga gati tion on shou should ld not not 4e underta,en in the e;#ectation of an( fee and that if a fee 4e o6ered' )hether as the result of the litigation 4eing successful or other)ise' it should 4e refused. In the event of the court a)arding costs to a successful #ro deo litigant' such costs should 4e retained 4( the advocate concerned 4ut should 4e #aid 4( hi* into a fund to 4e *aintained 4( the societ( and fro* )hich' eventuall(' no*inal fees could 4e #aid to advocates acting on 4ehalf of #oor #ersons. 143When acting for a )ife on a #ro deo 4asis' she is to 4e treated as #ledging her hus4and8s credit. In such circu*stances' the advocate could #ro4a4l( retain costs recovered fro* the hus4and.
-/.PRACTISIN* CERTIFICATES 1a3 1a3 Prac Practi tisin sing g cert certi! i!ca cate tes s shoul should d 4e a##l a##lie ied d for for #rio #riorr to the the end end of anuar( in each (ear. (ear. A##lications su4*itted after this date are not 4ac,dated. Ge*4ers #ractising )ithout a certi!cate after the *onth of anuar( do so illegall(. 143 143 o #ractise )ithout ta,ing out a #ractising certi!cate is an o6ence. 1c3 It is not #ro#er #ro#er for an advoca advocate te to ta,e ta,e out a #racti #ractisin sing g certi! certi!cat cate e )hile he is still on the 4ench.
-J.PRESS REPORTS COURT CASES +e#orters of court cases in
an Editor Editor )il )illl s(*#at s(*#athet hetica icall( ll( consid consider er an( co*#la co*#laint int )hich )hich *a( 4e *ade to hi* and )ill endeavour to *a,e a correction if the co*#laint 4e usti!ed. Advocates also als o *a( have the right to dra) the attention of the court to grave or su4stant su4stantial ial cases of *isre#ort *isre#orting. ing. he #ractice #ractice should should 4e to *ent *entio ion n an( an( such such inst instan ance ce at the the hear hearin ing g i**e i**edi diat atel el( ( foll follo) o)in ing g #u4lication and' )here #ossi4le' the ne)s#a#ers should 4e infor*ed in advance of the intention to *ention the re#ort. It is stressed that it is un#rofessional for an advocate concerned in court #leadings )hich *a( 4e re#orted to encourage #u4licit( for hi*self in the re#ort of the case.
-K.PUBLICATIONS here is no o4ection to an advocate #u4lishing his *e*oirs 1including references to cases in )hich he has 4een engaged3 #rovided that he 4ear 4ears s #oin #oints ts of #rof #rofess essio iona nall eti/ eti/ue uett tte e in *ind *ind at all all ti*e ti*es s and and it is i**aterial )hether or not he has a #ractising certi!cate in force. -.RECOVERY OF MONEY DUE FROM ADVOCATES Advocates are under a dut( to re#ort to the la) Societ( i**ediatel( )here a udge*ent de4t against an advocate has not 4een satis!ed in seven da(s. -.REMUNERATION 1a3Agenc( her here e is noth nothin ing g )r )ron ong g in #a(i #a(ing ng or rece receiv ivin ing g agen agenc( c( as 4et) 4et)ee een n advocates advocates and legal legal #ractitioner #ractitioners s in other countries. countries. Advocates Advocates are at li4ert( to *a,e such s uch arrange*ents as the( thin, #ro#er. #ro#er. 143 Professional clients A !r* of Attorne(s outside East Africa instructed advocates in
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Cert Certai ain n Mfor Mforeig eign n advo advoca cate tes s dedu deduct cted ed a #erc #ercen enta tage ge of the the a*ou a*ount nt reco recove vere red d unde underr decr decree ees s o4ta o4tain ined ed in
.REPRESENTATIONS TO THE CHIEF 0USTICE he Honoura4le the Chief ustice has stated that' )hilst he )ould not )ish to restrict the right of an( advocate to a##roach hi* direct' he )ould #refer all re#resentations and co*#laints' on other than #ersonal *att *atter ers' s' to 4e *ade *ade throug through h the the Coun Counci cill of the 9a) 9a) Soci Societ et( (. his his #ractice is co**ended to advocates since de#arture therefro* *ight' in so*e instances' create circu*stances )hich )ould 4e e*4arrassing to the Chief ustice or the Council. he sa*e sa*e #rinc rinci# i#le les s shou should ld a##l( ##l( to a##r a##roa oac ches hes to udg udges es and and *agistrates.
+.SMO=IN* IN COURT he ha4it of s*o,ing in court 4efore the co**ence*ent of #roceedings is de#recated and advocate are re/uested not to do so. ,.STAFFUNQUALIFIED1 REMUNERATION Although it *a( 4e #er*issi4le' in certain circu*stances' to #a( 4onu 4onuses ses to un/u un/ual ali! i!ed ed sta6 sta6 at annu annual al or othe otherr inte interv rval als s of ti*e ti*e in accord accordanc ance e )it )ith h the e*#lo(er8 e*#lo(er8s s accoun accounts. ts. It is not #er*is #er*issi4l si4le e for advo advoca cate tes s to #a( #a( un/u un/ual ali! i!ed ed sta6 sta6 on the the 4asis 4asis of a #erc #ercen enta tage ge or co**ission on the fees charged for )or, introduced or carried out 4( such un/uali!ed sta6. sta6. he attention advocates advocates is dra)n to +ule > of the advocates 1#ractice3 rules. -.TELEPHONE AND OTHER DIRECTORIES 1a3It is o4ectiona4le for an advocate8s na*e to a##ear in heav( 4lac, t(#e in the ele#hone director(. 143here is no o4ection to an advocate su##l(ing 4iogra#hical details re/u re/uest ested ed 4( an( an( E*4a E*4ass( ss( of High High Co** Co**is issio sion n )i )ith th di#l di#lo* o*at atic ic o6ices in
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1c3 here is no o4ection o4ection to the insertion insertion of an Advocate8s Advocate8s na*e' address address and tele#hone nu*4er in :Classi!ed rades section of the tele#hone director( or of a 4usiness director(. director(. 1d3Advocat 1d3Advocates es should should not includ include e the /uali! /uali!cat cation ion of MAdvoca Advocate te in a tele#hone or other director( against their residential' as o##osed to their o6ice' addresses.
.TELEPHONE CONVERSATION RECORDIN* It is )rong for an advocate to ta#e record 4( an( *eans a tele#hone conversation )ith another advocate e;ce#t )ith that advocate8s consent. /.THREATS OF CRIMINAL PROCEEDIN*S Advocates should carefull( consider the i*#lications involved 4efore threatening a #erson )ith cri*inal #roceedings on 4ehalf of a client. J.UNDERTA=IN* An underta,ing shall 4e in a for* )hich is clear and once acce#ted 4( an advo advoca cate te shal shalll 4ind 4ind hi* hi* or his his !r* !r* to the the unde undert rta, a,in ing g and and an( an( 4reach thereof shall constitute #rofessional *isconduct. K.WITNESSES 1a3 1a3 he he atte attent ntio ion n of advo advoca cate tes s is dra) dra)n n to +ule +ule & of the the Advo Advoca cate tes s 1Practice3 +ules. 143It is i*#ro#er for an advocate to converse )ith his )itness fro* the ti*e )hen he 4egins to 4e e;a*ined 4( the other side until that e;a*ination is co*#leted. 1c3 An e;ce#tion *a( have to 4e *ade )hen the )itness )itness is the client and he re/uires re/uires advised advised durin during g that ti*e ti*e on *atter *atters s other than than the evidence )hich he is giving' 4ut in such circu*stances it is #rudent to infor* the o##osing advocate generall( of o f the circu*stances. 1d3It is dut( of an advocate to guard against 4eing *ade the instru*ent 4( )h )hic ich h #u4l #u4lic icit it( ( is o4ta o4tain ined ed for for alleg allegat atio ions ns )h )hic ich h are are *ere *erel( l( scandalous or calculated to vilif( or insult an( #erson. th $" Fe4ruar(' Fe4ruar(' $&%" $ &%"
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