INTRODUCTION TO PROFESSIONAL ETHICS AND PRACTICE

1. INTRODUCTION:
 The public needs protection from the unqualified, unethical, incompetent, irresponsible, fraudulent lawyer,
or a lawyer of no character or repute. For the integrity and reputation of the Bar, the legal fraternity too
needs to be distanced from such a lawyer.
2. DO WE NEED TO TEACH/ LEARN ETHICS?
 An American Judge and scholar Richard Posner has questioned the utility of teaching legal ethics.
According to him no course that teaches legal ethics will make law students good people or ethical lawyers.
However, there is a need to develop an awareness of ethical issues and capacity to navigate ethical and
professional challenges.
 An advocate’s capacity to meet these challenges is grounded in cognizance of the relevant ethical rules,
awareness of broader moral and ethical concerns, and familiarity with functional techniques and strategies
that enable advocates to avoid ethical pitfalls and work through inevitable ethical challenges.
 Mere knowledge and techniques is however not enough. An advocate must also have the character and
integrity that will drive the advocate to right decisions and actions. An advocate with integrity must be able
to “walk the talk.”
 Teaching ethics to the trainee lawyers is important because:
a) without a grip on professional ethics, lawyers would be left largely to their own whims and wishes;
b) of preventing abuse of process.
3. ETHICAL CHALLENGES LAWYERS FACE:
 As per Ugandan Justice Ogoola, there are three key ethical challenges that the legal profession must
address. These are:
a) The challenge of a culture of self-interest and favouritism: People operate out of self-interest to a
certain degree. People have for instance developed a culture where they choose self-interest over
ethical and legal obligations in order to get what they can. The culture of ‘kitu kidogo.’ Besides,
practices such as nepotism and tribalism are widespread because tribe and clan members often expect
to receive special treatment from fellow tribe and clan members. This culture results in a perception
that who you know has more to do with the result you will get in Court than what is right and just.
Advocates must rise above the tactics of bribery and the exploitation of relationships. Results within
the justice system should be the product of the facts and the law. If advocates pursue other means for
the advancement of their client’s case, the profession will continue to suffer and the public’s trust in
the legal system will to erode
b) The challenge of trust-building: If people believe that corruption and favouritism are rampant, they
will not have trust in the justice system. Besides, they will not use it. In many jurisdictions lawyers
have fallen into some disrepute e.g., the phrase “lawyers are liars.” Advocates must work to change
public such perception by demonstrating honesty to the Courts, the opposing counsel, the nation as
well as the client. The citizenry must also have trust in Judges. They ought to believe that Judges are
free from bias and that they make rulings and decisions based on the facts and the law. Kenyans must
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
1
 not believe that Judges can be bribed to get a good result in Court. Without the public’s trust in the
justice system, people will choose to resolve issues outside of the Courts by, for instance engaging in
“mob justice,” and many advocates will not get clients.
c) The challenge of access: Majority of Kenyans cannot afford to access the justice system. However,
some lawyers have begun offering pro bono service while plans are underway to set up Legal Aid
systems. All advocates must take this challenge to heart by going beyond the baseline requirements of
the law to make radical commitments to enable the poor access the justice.
4. WHAT CONSTITUTES A LAWYER?
a) Knowledge of the law.
b) The skills of the profession (i.e., advocacy: how to apply accumulated legal knowledge effectively and
efficiently); and
c) The conduct and liturgy of the practice of law (i.e., the ethics and etiquette of legal practice).
This trinity of constituent parts addresses the lawyer’s Know-What (knowledge); Know-How (process);
and Know-Why (philosophy and morality of legal practice).
5. WHAT CONSTITUTES THE PRACTICE OF LAW?
The constituents of the practice of law differ from country to country but they typically include:
a) oral argument in the Courts;
b) research and drafting of Court papers;
c) advocacy in administrative hearings and ADR proceedings;
d) legal advice and client counseling (with regard to pending litigation);
e) legal advice generally;
f) protecting intellectual property;
g) negotiating and drafting contracts;
h) commercial transactions;
i) conveyancing;
j) carrying out the intent of the deceased;
k) prosecution and defense of criminal suspects.
6. SOURCES OF ETHICS:
 The sources of ethics are many and varied. Ethics is grounded in:
a) philosophy;
b) metaphysics: Ethics is the firstborn of Metaphysics: the discipline dealing with what is good and bad
and with moral duty and obligation; the touchstone against which our actions rise above the minimum
standards of human decency;
c) virtues and values;
d) logic and reason;
e) in ancient traditions;
f) morality;

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
2
 g) religion: It is one of the oldest foundations of ethical standards. Religion wields varying influences
across various sects of people. It is believed that ethics is a manifestation of the divine and so it draws
a line between the good and the bad in the society. Religion exerts itself to a greater degree among the
orthodox and to lesser extent in case of moderates.
h) culture: It is a pattern of behaviors and values that are transferred from one generation to another, those
that are considered as ideal or within the acceptable limits. No wonder therefore that it is the culture
that predominantly determines what is wrong and what is right. It is the culture that defines certain
behavior as acceptable and others as unacceptable.
i) law: These are procedures and code of conduct that are laid down by the legal system of the State.
They are meant to guide human behavior within the social fabric. The major problem with the law is
that all the ethical expectations cannot be covered by the law and specially with ever changing outer
environment the law keeps on changing but often fails to keep pace. In Kenya, ethical rules and
obligations may be found in any of the following sources among others:
i. Statutes impacting on the advocate e.g., the Advocates Act, Cap 16 and the Law Society of Kenya
Act, Cap 18.
ii. The LSK Code of Standard of Professional Practice and Ethical Conduct, 2016.
iii. The Public Officer Ethics Act, 2003;
iv. Common Law;
v. Generally accepted standards of conduct/culture.
7. REASONS FOR PROTECTING THE REPUTATION:
Protecting reputation is critical for a number of reasons, i.e.,:
a) To cultivate and sustain the public’s confidence in the integrity of your profession;
b) To inculcate and retain a clients’ trust and satisfaction;
c) To generate growth and expansion of one’s business;
d) To garner good ratings from organizations and institutions that routinely or occasionally undertake
professional assessments or perception ratings of one’s standing or work;
e) To serve as an indicator of one’s firm’s discipline, efficiency, competence, diligence, proficiency, etc.
f) To act as a barometer of your being a law-abiding firm: one that demonstrates due obedience to the law of
the land; and to enhance good, positive publicity for the firm to potential clients and consumers.
8. WHETHER LEGAL ETHICS MATTERS?
According to Peter MacFarlane, legal ethics helps to:
a) protect the rule of law: Advocates are integral to the principles of justice, fairness and equity. If advocates
fail to adhere to and promote such ethical principles, then the law will fall into disrepute and people will
resort to alternative means of resolving conflict;
b) a profession’s most valuable asset is its collective reputation and the confidence it inspires;
c) advocates are officers of the Court with an obligation to serve the Court and the administration of justice;
d) only lawyers are privileged to take on the causes of others and to bring them before the Court.
9. ETHICS AND GOVERNANCE BY PUBLIC INSTITUTIONS:
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
3
 To get rid of unethical conduct from all facets of the society, the Kenyan Government has set up a variety
of organs responsible for ethical governance. These are:
a) Ethics and Anti-Corruption Commission.
b) Commission on Administrative Justice (Ombudsman).
c) Anti-Corruption Court(s) (an anti-corruption Division) dedicated to combating graft.
d) Directorate of Public Prosecutions (DPP) to pursue the lawless and the outlaws, the misfits and the non-
conformists in society.
e) Public Procurement Oversight Authority.
f) Police Unit (the Anti-Fraud Unit) dedicated to forensic investigation of high financial shenanigans and of
kindred white collar crime; and
g) Constitutional Office of the Auditor General and Controller of Budget.
10. AREAS WHICH THE LEGAL PROFESSION NEED TO ADDRESS:
a) Delays in litigation: This is an area at which the profession needs to address. Often, such delays arising
from incessant adjournments, are the result of the lawyer’s indulgence, indolence, ineptitude, greed,
gluttony, or, even worse, contrived ingenuity to exploit especially the vulnerable elements of the
adversarial style of our judicial process. These underhanded procedural devices stretch out the time taken to
resolve the judicial dispute.
b) High cost of litigation: In the area of finance and fiduciary duties of an advocate, two things are important:
stewardship and accountability by an advocate for the funds of the client, and the cost of access to justice
(i.e., an advocate’s professional fees). Charging too much scares clients away, and makes prospective
clients out of litigation and, therefore, denying them access to justice. Charging disproportionate fees does
more harm to the already shaky reputation of the legal profession exposing it to public hatred and to be
seen as a means of greedy professional grabbers.
c) Use of constitutional petitions: Constitutional petitions for the enforcement of the people’s fundamental
rights and freedoms are provided for and duly protected under the COK. Nonetheless, advocates must
guard against the misuse, overuse or abuse of constitutional petitions. Of late, there is proliferation of
constitutional petitions, pressed in virtually each and every case filed in the trial Courts. In many of such
applications, the line is thin between genuine submission and contrived manipulation of the system.
Invariably, the petition to the constitutional Court stays the substantive matter in the trial Court. The
resultant snail’s pace of the Court process inevitably grinds to a complete halt, to await the fate of the
constitutional petition.
d) Procedural delays: The proliferation of such bad faith constitutional petitions as an extravagant technical
procedural device to interpose layers of delay in the way of the litigation process should be given serious
consideration as it is injurious to the attainment of substantive justice. The lawyers must eschew any
unprincipled practices that verge on professional indiscipline through abuse of Court process. The Courts
too, should do their part: through case management, properly applied. The Court must intervene in the pre-
trial and the trial stages of the case to ensure that the process is properly marshalled; and that the current
system, is appropriately shifted or reversed.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
4
 PHILOSOPHY
1. INTRODUCTION:
 Philosophy is the study of the fundamental nature of knowledge, reality, and existence. But it can also be
seen as a set of views and theories of a particular philosopher concerning a study or an aspect of it. It can
also refer to the most basic beliefs, concepts, and attitudes of an individual or a group.
2. PHILOSOPHY DISTINGUISHED FROM SCIENCE:
 The history of the modern sciences begins with philosophical inquiries, and the scientific method of
experimentation and proof remains an instance of the general approach that a philosopher tries to bring to a
question: one that is logical and rigorous. However, while today the sciences focus on specialized inquiries
in restricted domains, the questions addressed by philosophy remain the most general and most basic, the
issues that underlie the sciences and stand at the base of a worldview.
3. PHILOSOPHY DISTINGUISHED FROM RELIGION:
 Religions differ from philosophies not in the subjects they address, but in the method they use to address
them. Religions have their basis in mythic stories that pre-date the discovery of explicitly rational methods
of inquiry. Many religions nowadays appeal to mystical faith and revelation—modes of belief that claim
validity independent of logic and the scientific method, at least for the biggest questions. But most religions
are in their origins pre-rational rather than anti-rational.
4. FIELDS OF PHILOSOPHICAL INQUIRY:
Philosophy is traditionally divided into the following major areas:
a) Metaphysics: (the theory of reality): This is the study of the nature of reality, of what exists in the world,
what it is like, and how it is ordered. In metaphysics philosophers wrestle with such questions as is there
God? is the world strictly composed of matter? do people have minds? if so, how is the mind related to the
body? and do people have free wills?
b) Epistemology: (the study of knowledge): It is primarily concerned with what we can know about the world
and how we can know it. Typical questions of concern in epistemology are: what is knowledge? how do we
know what we know? can we be justified in claiming to know certain things?
c) Logic: Another important aspect of the study of philosophy is the arguments or reasons given for people’s
answers to some questions. To this end, philosophers employ logic to study the nature and structure of
arguments. Logicians ask questions such as, what constitutes "good" or "bad" reasoning?
d) Ethics: (the theory of moral values): Ethics deals with questions such as, what is good? what makes actions
or people good? what is right? what makes actions right? is morality objective or subjective? and how
should I treat others?
Categories of ethical theories: Philosophers group ethical theories into four categories:
i. Meta ethics: It deals with the nature of moral judgement. It looks at the origins and meaning of ethical
principles such as the origins of the words good and bad.
ii. Normative ethics: It is concerned with the content of moral judgements and the criteria for what is right
or wrong. In other words, it is concerned with the questions of how one ought to act, and what the right

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
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 course of action is. It seeks to establish ultimate criterion of moral conduct i.e., the Golden Rule ‘we
should do to others what we would want others to do to us.’
iii. Applied ethics: It looks at controversial topics like war, animal rights and capital punishment.
iv. Descriptive ethics: Also known as ‘comparative ethics’ is the study of people's beliefs about morality.
e) Politics: (the theory of legal rights and government)
f) Aesthetics: (the theory of the nature of art): It deals with beauty, art, enjoyment, sensory-emotional values,
perception, and matters of taste and sentiment.

ETHICS AND THE LEGAL PROFESSION

1. WHAT IS A PROFESSION?
The 1980 Report of the British Royal Commission on Legal Services defined a profession as a body of men
and women a) identifiable by reference with some register or record, b) recognized as having some special
skill and learning in the same field of activity in which the public needs protection against incompetence,
the standards of skill and learning being prescribed by the profession itself, c) holding themselves out as
willing to serve the public, d) voluntarily submitting themselves to standards of ethical conduct beyond
those required of the ordinary citizen by law, e) undertaking to accept personal responsibility to those
whom they serve for their actions and to their professions for maintaining public competence.
2. CHARACTERISTICS OF A PROFESSION:
a) Restrictions: Professions impose restrictions in two ways – in terms of entry requirements and in terms of
operation of the profession.
b) Entry requirements: Professions impose anti – competitive rules and barriers to entry in order to regulate
the number of people joining the profession. Accordingly, a person can only become a member of the
profession after having been certified by some established body of the profession.
c) Professional operation: The profession usually controls the conduct of its members in a number of
aspects. The argument for this position is that “professions must maintain dignity, and that, advertising and
price competition are not conducive for dignity.”
d) Competition: Professions prevent unnecessary competition among its members by ensuring that the
number of people joining the profession is regulated by having strict entry requirements.
e) Regulation of performance: First, professions offer peer review for the members of the profession. The
aim is to evaluate the performance of their members and to instill the accepted code of behaviour in their
members at all times and to ensure that the quality of services offered to the public is not compromised.
Second, professionals are supposed to conduct their affairs with decorum at all times and to avoid engaging
or doing anything that may bring the name of the profession into disrespect in the society. Third,
professionals are not allowed to engage in unauthorized practice. For instance, in Kenya, only certified
members of the bar are allowed to practice law. The argument for this is that it is one thing to qualify as a
lawyer and yet, another thing to qualify to practice law. Fourth, professional evaluation is, in most cases,
based on the standards of malpractice as opposed to negligence so that a professional will only be held
liable where s/he conducts hims/herself in manner that is not befitting to that profession. However, in
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
6
 certain instances, a professional may be held liable for negligence where the same is proved against
him/her. Fifth, professions are self regulating so that it is other members of that profession who set
professional rules and decides on whether a professional is in error. It is argued that the review by experts
is an advantage to professionals as there are no swift disciplinary actions taken.
f) Professional advancement: The starting point is that professions do not exist for business purposes; they
exist to serve the best interest of their clients, therefore, they emphasize on quality. Again, when serving the
clients, professionals must have in mind and avoid engaging in practices that may inflict unnecessary harm
to the public because the services the professionals offer aim at benefiting the public as a whole and not
mere individuals who pay for those services. This explains why professionals, especially, lawyers have an
obligation to always balance the interests of their clients against other competing interests such as the
interests of the public and the Court. In this regard, where there is a conflict between individual interest and
public interest the public interest takes pre-eminence. Again, where there is a conflict between a lawyer’s
obligation to the client and a lawyer’ obligation to the Court, then the lawyer’s obligation to Court will
prevail. The reasoning is that professionals are more interested in public service rather than individual self-
aggrandizement explains why Courts have forced advocates to continue representing their clients even
where the client has not paid the advocate.1
g) Fiduciary relationship: Professions emphasize on the fiduciary nature of the relationship the professionals
have with their clients. It is argued those professionals are fiduciaries of their clients. They are expected to
act as trustees for their clients in all circumstances. Accordingly, it behooves a professional to act in utmost
good faith and due diligence when dealing with their clients or when handling their clients’ property.
Professionals are prohibited from unfairly using their client’s information, or money, or property, or
overcharging their clients for their services.
h) Others: These include:
i. Members identify themselves through a register i.e., the Roll of Advocates.
ii. Members possess special skill and knowledge due to their wide and thorough training.
iii. Members offer their services to the public.
iv. Members adhere to certain ethical standards which are binding on them. In other words, professionals
are regulated by a Code of Conduct derived from rules of legal ethics.
v. There exists enforcement mechanism for the code of conduct.
vi. Members have high ethical standards beyond what is expected of an ordinary citizen.
vii. Restrictions are imposed on entry and operation.
viii. Discipline- professionals have a disciplinary process that is self-governed.
ix. Professionals are licensed.

1
See, P. Machira v. Abok James Odera, [2006] eklr.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
7
3. ETHICS AND THE LEGAL PROFESSION:
 Legal advocates have played a vital role in the formulation and administration of law. Because of their role
in society and their close involvement in the administration of law, lawyers are subject to special standards,
regulations, and liability.2
 The rules of professional conduct, as we know them today, have a long history that goes back over two
centuries. For instance, there was a time when the legal profession was never regulated. Lawyers were
solely guided by their moral conscience.3 However, times have changed and the nature of a lawyer’s work
has also changed. The law practice has become more of a business than a profession as it originally used to
be. Lawyers can no longer be left to regulate their own conduct by use of common sense as this would lead
to absurd consequences. Accordingly, lawyers have to be regulated because they have fiduciary duties to
their clients; duties which are more than mere contractual obligations.
 Many jurisdictions world over regulate the conduct of the legal profession through enactment of relevant
Statutes and Codes of Professional Conduct and Ethics which prescribe what is regarded as ethical and
unethical in the practice of law.
 Regard must be had to the fact that what is unethical according to the standards of the legal profession may
not necessarily be what is regarded as unethical in ordinary standards.
 Legal ethics involves regulation of legal professionals in a manner that conforms to minimum moral
standards required by the legal profession. The society demands exemplary services from lawyers so that a
lawyer does not have a carte blanche in the performance of his duties once a brief is accepted. 4
 As a safeguard, the following questions ought to linker in the mind of a lawyer at all times whenever s/he
engages in a particular act or conduct:
a) Is the conduct in question prohibited? If yes, what is the penalty?
b) Doe the conduct in question give rise to ethical or moral concerns?
c) Does the conduct in question give rise to legal concerns?
d) How should a lawyer act when confronted with two equally conflicting situations?
e) Should a lawyer be held liable for acting in a particular manner? How should a lawyer act under such
circumstances?
4. LAW AS A LEARNED PROFESSION:
Learned professions share common and differentiating characteristics. These are:
a) They are learned in the sense that one goes through a period of education, training and apprenticeship
before being admitted to engage in the profession. For insytance, one obtains a law degree, then goes to the
Law School to be trained and exposed to the procedures relevant to the profession, and the bar exams
should expose one to procedure and ethics.
b) The prospective professional must first be subjected to a process of testing by persons who are already in
practice and they must be certified as minimally competent to practice as professionals. For advocates the

2
Dr. Destiny Tom Namwambah, “Ethics; A Philosophical Inquiry”, 2009.
3
See, Russel G. Pearce, Rediscovering the Republican Origin of Legal Ethics code, 6 Georgiatown Journal of Legal Ethics (1992) at 241.
4
See, Richard Du Cann, The Art of the Advocate at 13.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
8
 prospective advocate services pupilage under a pupil master who should be an advocate of at least 5 years
standing.
c) Professionals specifically the small class of professions enjoys an advantage in social prestige on account
of assumed wisdom, the high income and the nature of the work which gives social prestige that other
members of society don’t enjoy.
d) Professionals enjoy a significant amount of autonomy as a group what is known as professional
independence. This is because only other members of the profession have the intense special learning of
the profession.
e) Organised groups of members of the profession attempt to exercise relatively rigid control over other group
members i.e. they tend to organize themselves into organizations that exert control over members of that
organization exercised in terms of a code of ethics.
f) The profession enjoys a monopolistic control over its own affairs and income but with a measure of state
support. The affairs of the legal profession are largely controlled by the Law Society of Kenya a body
created by statutes. The income of the members is regulated by law i.e., the Advocates Remuneration
Order which is subsidiary legislation made under the Advocates Act which gives guidelines on how lawyers
should charge for their services. The figures stated in the Advocates remuneration order are usually
prepared by the Law Society of Kenya and approved by the Chief Justice.
5. FEATURES OF LAW PRACTICE THAT MAKES IT A PROFESSION AS DISTINCT FROM A
BUSINESS OR TRADE:
The practice of law has four characteristic features that make it a distinct profession:
a) Law is a public calling which entails a duty to serve the good of the community as a whole and not just
one’s own good or that of one’s clients: It is a part of the lawyer’s job to be directly concerned with the
public good i.e., with the integrity of the legal system, the fairness of its rules and their administration and
the health and well being of the community that the laws in part establish and in part aspire to create.
b) The non-specialized nature of law practice: The education that lawyers receive reflects this.
c) The capacity for judgment: The goal of legal education is not to impart a body of technical knowledge but
to develop certain general principles or abilities: the ability for e.g., to see facts clearly, and to grasp the
appeal of points of view one doesn’t embrace. A good lawyer is skilled at his job, possesses full
complement of emotional and intellectual powers needed for good judgment - a lawyer’s most important
and valuable trait.
d) Time: To join the legal profession is to join an activity with self-conscious historical depth. Joining the
profession makes one to feel that s/he belongs to a tradition. By contrast, all that matters is what is
happening now.
6. THE ROLE OF LAWYERS IN THE SOCIETY:
Ray Simon/Murray Schwartz have warned law students that they are about to enter a profession which is
under constant attack in Court, by the press, in the business world, political arena and the legislature. They
said “lawyers are not popular, they are not trusted, and lawyers are not respected. You are embarking on
a career that will lead you to ridicule, criticism and suspicion, your work will seldom be understood or
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
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 appreciated by your friends, by the public or even by your own clients.” Despite this, lawyers play the
following roles in the society:
a) The promotion of social, political, and economic progress. Gone are the days when the role of the
lawyer was restricted merely to the traditional duty of being a guardian and watchdog for the protection of
the rule of law only. While that role still remains significant and fundamental, the role of the lawyer,
especially in a developing country such as Kenya transcends this age-old traditional role. This position was
fortified by Lord Denning in Rondel v. Worseley reiterated in Groom v. Crocker. where he summarised the
role/duties of a lawyer as being: a) duty to his client, b) duty to the profession, c) duty to Court, and d) duty
to himself..
b) Drafting legal instruments: American lawyers contributed substantially in the formation of the States of
America. They are credited with drafting the Federal and State Constitutions of the United States, which
are said to form one of the most complex federal systems of Government in the world.
c) Enforcement of human rights: Lawyers also have a calling to the enforcement of human rights.
Advocates, on admission to the bar, take an oath swearing to defend the Constitution and the rule of law.
Lawyers can be counted as true heroes in the defence of human rights. They speak out for the rights of
others. The public, in that respect, view them as fearless champions of the rights of the individuals.
d) Defence of supremacy of the law: In the words of Lord Atkin, “there is no other profession which has
done more in the way of both effort and sacrifice to maintain the supremacy of the law of a over force hand
to preserve the safeguards of liberty against any form of invasion whether from the autocracy of a
sovereign or from the domination of a class or from the seductions and threats of a crowd.” The work of a
lawyer must therefore include the curbing of abuse and misuse of power and the setting of limits to power.
e) Separation of powers: The full meaning of separation of powers can be achieved only with the help of
lawyers through an independent bar and the judiciary. The COK adopts the multi-dimensional approach to
the organisation of governance by adopting both the horizontal and vertical separation of powers. Under the
horizontal separation of powers, the Constitution creates three distinct arms of Government and thereafter
delineates specific powers and functions to each or these arms. It is the duty of lawyers therefore to help
ensure the existence of a responsible Executive, Legislature, and an independent Judiciary.
f) Independence of the Bar: The rule of law requires not only an independent judiciary, but also an
independent bar. Thus, advocates are enjoined by their oath to work independently, fairly and without
favouring parties in their choice of clients. The Bar must be independent from the Executive, Legislature,
Judiciary, the client and must be independent from the desire to win at any cost. The professional
requirements of an advocate’s work necessitate decisions relating to a client’s case to be made in the
interests of the client upon the facts and the applicable law and not to be made by reference to the desires of
the Executive or its directions, or from the expressed or implied suggestions and directions of the Court or
clients.
g) Lawyer’s knowledge held in trust for society: The scale and knowledge of lawyers are not to be
employed solely for the benefit of clients but should also be regarded as held in trust for society. That is
why it is said that, the calling of a lawyer is to public service.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
10
 h) Under Section 4 of the Law Society of Kenya Act, Cap 18: The role of lawyers is set out in the objects of
the Law Society of Kenya Act at Section 4. There are several but two are crucial, i.e., to:
i. assist the Government and the Courts in all matters affecting legislation and administration of justice in
Kenya;
ii. protect and assist the public in Kenya in all matters touching or incidental to the law.
i) Lawyers are concerned with the prevalence of poverty, ignorance and inequality in human society:
They should continue taking a leading role in providing measures which will help eradicate these evils. As
so long as these evils prevail in the society, human beings cannot fully enjoy their civil rights and liberties.
Lawyers are required to continue engaging actively in promotion of free legal aid providing services to the
poor free of charge for them to have access to justice and enjoy their civil rights.
j) Promotion of rule of law: Lawyers should continue promoting the knowledge of and to inspire the rule of
law and an appreciation of all people of their rights under the law. Lawyers therefore have a higher duty
than that of ordinary citizens in protection of the rule of law and it is this higher duty which demands a
higher degree of personal integrity on the part of lawyers.

THE LEGAL FRAMEWORK AFFECTING ADVOCATES

1. INTRODUCTION:
There are a number of laws affecting the advocates in Kenya. These include:
2. THE CONSTITUTION OF KENYA, 2010:
Bahaviour of a State officer: Article 75(1) of the Constitution of Kenya, 2010 provides that a State Officer
shall behave, whether in public and official life, in private life, or in association with other persons, in a
manner that avoids demeaning the office the officer holds.
3. THE LEADERSHIP AND INTEGRITY ACT:
Bahaviour of a State officer: Section 32 of the Leadership and Integrity Act also provides that a public
officer shall conduct his private affairs in a way that maintains public confidence in the integrity of his
office.
4. JUDICIAL CODE OF CONDUCT:
Preamble to Judicial Code of Conduct: It should always be remembered that each judicial officer
occupies a special and revered position which must be protected both in public and private life, so as not to
bring the Judicial Service generally, into disrepute. It is imperative, therefore, that every judicial officer
should adhere to this Code with scrupulous care
5. THE LAW SOCIETY OF KENYA ACT, CAP 18:
The Act established the existing Law Society of Kenya as an incorporated body and made its membership
mandatory. It also sets out its objectives and the administration of the society.
6. THE COUNCIL FOR LEGAL EDUCATION ACT, CAP 16A:
The Act mainly addresses the issues relating to pupillage and bar examinations.
7. THE ADVOCATES ACT, CAP 16: The Act contains the following provisions:

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
11
  QUALIFICATIONS FOR PRACTISING AS AN ADVOCATE: Section 9 of the Act provides that no
person shall be qualified to act as an advocate unless:
a) s/he has been admitted as an advocate;
b) his/her name is on the Roll of Advocates;
c) s/he has a valid practising certificate: It is important to note that a practising certificate shall be deemed
not to be in force at any time while an advocate is suspended by the Advocates Disciplinary
Committee or by the Court.
 FOREIGN ADVOCATES: There are two categories of advocates who are allowed to practice in Kenya
i.e., the Kenyan trained advocates and foreign advocates. Foreign advocates can only practice in Kenya
with the permission of the Attorney-General. The A.G has absolute discretion to admit to practise such
advocates for the purpose of only specified suit or matter. Such advocate must have come, or intends to
come to Kenya for the purpose of appearing, acting or advising in that suit or matter. However, before
beginning to practice, such advocate must pay to the Registrar the prescribed admission fee.
 ADMISSION TO THE BAR: Any person who is a citizen of Kenya, Rwanda, Burundi, Uganda or
Tanzania and whose name is duly entered into the Roll of Advocates is admitted to the bar, so too is any
person whose name has been entered into the Roll of Senior Counsel.
Professional and academic qualifications for admission to the Bar: Section 13 of the Act provides that a
person shall be duly qualified for admission if s/he:
a) has passed the relevant examinations of any recognized university in Kenya and holds, or has become
eligible for the conferment of, a degree in law of that university; or
b) has passed the relevant examinations of such university, university college or other institution as the
Council of Legal Education may from time to time approve, and s/he holds, or has become eligible for
conferment of, a degree in law of that CLE approved institution;
c) has attended as a pupil and received from an advocate of such class as may be prescribed, instruction
in the proper business, practice and employment of an advocate, and has attended such course or
tuition as may be prescribed for a period which in the aggregate including such instruction, does not
exceed 18 months. Candidates are required to serve pupillage with an advocate of not less than 5 years
standing;
d) has passed such examinations as the CLE may prescribe i.e., Bar Examinations; or
e) possesses any other qualifications which are acceptable to and recognized by the CLE;
f) is an Advocate of the High Court of either Uganda, Rwanda, Burundi or Tanzania;
g) is admitted as an advocate of the superior Court of a country within the Commonwealth and:
i. has practised as such in that country for a period of not less than 5 years; and
ii. is a member in good standing of the relevant professional body in that country.5
however, CLE may, in addition, require that such a person undergos such training, for a period not
exceeding 3 months for the purpose of adapting to the practice of law in Kenya.

5
Applications by Matiba and Koigi wa Wamwere: Matiba sought in 1992 to engage a barrister from England to lead his legal team in his election
petition against President Moi. The matter went to Court and Matiba lost because AG has absolute discretion. Koigi made similar application
when he was being tried for treason and the application was refused on similar grounds.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
12
 Section 13 has been disputed ia number of occasions in the Courts. For instance, In the matter of an
Application by Rita Biwott, HCCA 238 of 1994 (unreported), Rita Biwott had obtained a law degree after 2
years and the CLE was of the opinion that she did not satisfy the conditions as set out in Advocates Act.
She challenged the decision of the CLE in a judicial review. The Court found out that she actually satisfied
the requirements of Section 13 of the Advocates Act, Cap 16.
Admission as an advocate: Once the above conditions are fulfilled, Section 15 the Advocates Act, Cap 16
provides that for a person to be admitted as an advocate, s/he must follow the following procedure:
a) First, a person must make an application addressed to the Chief Justice of Kenya for admission as an
advocate. Such application must be:
i. made by petition in the prescribed form;
ii. verified by oath or statutory declaration;
iii. filed with the Registrar together;
iv. accompanied with such other documents as may be prescribed.
b) The person must also make a notice intimating that the petition has been so filed. The notice shall be
publicly exhibited by the Registrar for one month before any order is made on the petition.
c) The applicant shall also deliver a copy of the petition and of any document delivered to the Secretary
of the CLE and to the Secretary of the LSK.
d) The petition is heard by the Chief Justice in chambers within 90 days of the expiry of the 30 days
notice period referred above. However, any period during which the High Court is on vacation shall be
excluded when calculating the period of 90 days.
e) The CLE and the LSK shall have the right to be heard thereon.
f) If the Chief Justice is satisfied as to the qualifications, service and moral fitness of the petitioner, s/he
shall adjourn the hearing into open Court and shall order that the petitioner be admitted as an advocate.
g) After an order is made by the Chief Justice, the petitioner is required to make payment to the Registrar
of the prescribed fee.
h) After the payment, the petitioner shall take an oath or make an affirmation as an officer of the Court
before the Chief Justice.
i) After the oath or affirmation, the petitioner shall sign the Roll of Advocates in the presence of the
Registrar or a Deputy Registrar who shall add his signature as witness. Section 16 of the Act provides
that the Roll is kept by the Registrar but may be inspected by any person during office hours without
any payment. The implication of Section 16 is that it is the:
i. only conclusive authority that one is recognized as an advocate in Kenya. Accordingly, the
absence of a person’s name on the Roll, disqualifies that person from practising as an advocate;
ii. Roll which gives validly to the practising certificate. This means that even where an advocate has
a current practicing certificate but his/her name has been struck off the Roll, that practicing
certificate expires automatically.6

6
The proviso to Section 24(3) of the Advocates Act, Cap 16 provides that where the name of an advocate is removed from or struck off the Roll,
the practising certificate (if any) of that advocate shall expire forthwith.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
13
 j) All reports, records and communications made in this connection are absolutely privileged.
 PRACTISING CERTIFICATE: The following provisions relate to the practising certificate:
a) Registrar to issue practising certificates: Section 21 the Advocates Act, Cap 16 empowers the
Registrar to issue certificates authorizing the advocates named therein to practise as advocates.
b) Application for and issue of practising certificate: Section 22 the Advocates Act, Cap 16 provides
that an application for a practising certificate shall be made to the Registrar. Such application must:
i. be in duplicate;
ii. be signed by the applicant
iii. specify his/her name and place of business
iv. specify the date of his/her admission as an advocate;
Then, the applicant must produce evidence satisfactory to the Registrar that s/he has paid:
i. to the LSK the fee prescribed for a practising certificate;
ii. the annual subscriptions payable to the LSK;
iii. to the Advocates Benevolent Association.
Besides, the applicant must produce a written approval signed by the Chairman of the LSK stating that
there is no objection to the grant of the certificate.
The Registrar, if satisfied that the name of the applicant is on the Roll and that he is not for the time
being suspended from practice, shall within 14 days of the receipt by him of the application issue to the
applicant a practising certificate. The Registrar shall cause one copy of each declaration delivered to
him to be filed in a register kept for that purpose, and any person may inspect the register during office
hours without payment.
c) Issue of practising certificate to confer membership of Society: Section 23 the Advocates Act, Cap
16 provides that every advocate to whom a practising certificate is issued shall thereupon and without
payment of any further fee, subscription, election, admission or appointment, become a member of the
LSK and the Advocates Benevolent Association and be subject to any provision of law or rule of the
LSK and the Advocates Benevolent Association for the time being affecting the members thereof.
Every advocate who has become a member of the LSK shall remain a member until the end of one
month after expiration of his practising certificate, unless his name, whether at his own request or
otherwise, is removed from or struck off the Roll.
The LSK shall issue to every advocate registered with it a stamp or seal bearing the advocate's name,
admission number and the year of practice in such form as may be approved by the Council of the
Society and prescribed in regulations, and such stamp or seal shall be affixed on every document
drawn by such advocate and lodged for registration in any registry in Kenya or issued for any other
professional purpose.
d) Date and validity of practising certificate: Section 24 provides that every practising certificate shall
bear the date of the day on which it is issued and shall have effect from the beginning of that day it is
issued to end of the practising year. The practising year is generally from the 1st January to 31st
December.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
14
e) Discretion of Registrar to issue practising certificate in special cases: Section 25 the Advocates Act,
Cap 16 empowers the Registrar to issue a practising certificate to a person:
i. when for 12 months or more s/he has ceased to hold a practising certificate in force; or
ii. whilst he is an undischarged bankrupt or a receiving order in bankruptcy is in force against him; or
iii. when, having been suspended from practice or having had his name removed from or struck off
the Roll, the period of his suspension has expired or his name has been restored to the Roll.
iv. not having held a practising certificate in force within 12 months next following the date of his
admission as an advocate; or
v. whilst s/he is a person to whom the powers and provisions of the Mental Health Act, Cap. 248
relating to management and administration apply; or
vi. without having paid a penalty or costs ordered by the Disciplinary Committee to be paid by him;
or
vii. after having been adjudicated a bankrupt and obtained his discharge or after having entered into a
composition with his creditors or a deed of arrangement for the benefit of his creditors; or
viii. after having had given against him any judgment which involves the payments of moneys, not
being a judgment limited to the payment of costs.
The Registrar may in his discretion grant or refuse any application made under this section; or decide
to issue a practising certificate to the applicant upon such terms and conditions as he may think fit.
f) Appeals in connection with issue of practising certificate: Under Section 26, if in any case, the
Registrar on an application duly made to him refuses or neglects to issue a practising certificate the
applicant may apply to the Chief Justice who may make such an order in the matter as is just.
g) Suspension of practising certificate in certain circumstances: Under Section 27, the making by the
Disciplinary Committee or the Court of an order suspending an advocate from practice shall operate,
and the adjudication in bankruptcy of an advocate shall operate immediately, to suspend any practising
certificate of that advocate for the time being in force.
h) Duration of suspension of practising certificate: Section 28 provides that where a practising
certificate has become suspended by an order under Section 26(2) or by virtue of Section 27, that
suspension shall continue until the certificate expires. However, the person may apply to the Registrar
to terminate the suspension of the practising certificate, giving at the same time notice to the secretary
of the Society that the application has been made. The Council of the Society may make
representations or submit recommendations to the Registrar with respect to any such application. The
Registrar may then in his discretion by order terminate the suspension either unconditionally or upon
such terms and conditions as he may think fit; or refuse the application.
i) Publication of suspension or termination of suspension of practising certificate in certain cases:
Section 29 provides that where an advocate’s practising certificate has been suspended or terminated,
the Registrar shall forthwith cause notice of that suspension to be published in the Gazette and a note
thereof to be entered against the name of the advocate in the Roll.

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
15
 j) Evidence as to holding of practising certificate: Section 30 provides that any list purporting to be
published by authority of the Registrar and to contain the names of advocates who have obtained
practising certificates for the current year before the 1st February in that year shall, until the contrary is
proved, be evidence that the persons named therein as advocates holding such practising certificates.
k) Judicial approach on practising certificate: In Wilson Ndolo Ayah case,7 where the advocate
drafted, prepared and executed the charge instruments and deed of guarantee did not have current
practising certificates, the Court of Appeal noted the fact that neither the Advocates Act nor any other
law addresses the issue of validity of documents drawn by unqualified persons. However the Court
drew analogy from Section 19 of the Stamp Duty Act, Cap 480 which makes unstamped documents
inadmissible in evidence. It held that, by extension such documents are not only un-registrable but also
invalid for any purpose before stamping. The Court declared the charge and deed of guarantee invalid.
In Anaj Warehousing case,8 where also an advocate drafted, prepared and executed the charge
instruments did not have current practising certificates, the Supreme Court questioned the wisdom
behind the Court of Appeal’s decision in Wilson Ndolo Ayah case which was fundamentally flawed. It
held that equating ‘unqualified person’ with ‘advocate without a current practicing certificate’ is failure
to appreciate full import of provisions in the Advocates Act on who is an (a qualified) advocate. The
Supreme Court thus overturned the Court of Appeal’s decision in Wilson Ndolo Ayah case and held
that Section 34 of the Advocates Act was silent as to the effect of documents prepared by advocates not
holding current practising certificates. The Section does not invalidate instrument or document of
conveyance prepared by an advocate without a current practising certificate. The Court was of the view
that an illegality committed by an advocate cannot be visited on an innocent party (client) who did not
commit the offence. However, advocates taking instructions, drawing or preparing conveyancing
instruments without a current practising certificate will face civil, criminal and disciplinary
proceedings. The documents prepared by other categories of unqualified persons are void for all
purposes and intent.
 PRECEDENCE AND SENIORITY IN THE BAR: The following provisions:
a) Precedence: Section 15 the Advocates Act, Cap 16 provides that the Attorney-General, the Director of
Public Prosecutions, the Solicitor-General, Senior Counsel (equivalent to Queen’s Counsel in
England), according to the date of their appointment as such, the chairman and the vice-chairman (if
not a Senior Counsel) of the LSK shall, in that order, take precedence of advocates who, inter se, shall
take precedence according to the date upon which they signed their names on the Roll.
b) Senior counsel: Section 17 the Advocates Act, Cap 16 provides that the President may grant a letter of
conferment to any person as a Senior Counsel only if the person is:
i. is of irreproachable professional conduct;
ii. has rendered exemplary service to the legal and public service in Kenya;
iii. duly enrolled as an advocate of the High Court of not less than 15 years’ standing; or

7
National Bank of Kenya Ltd. v. Wilson Ndolo Ayah, Civil Appeal No. 119 of 2002: 2009 eKLR.
8
National Bank of Kenya Ltd. v. Anaj Warehousing Limited, Supreme Court Petition No. 36 of 2014: 2015 eKLR.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
16
 iv. being an officer in the office of the Attorney-General or the office of the Director of Public
Prosecutions, or the Principal Registrar of Titles and any Registrar of Titles, or any person holding
office in a local authority established under the Local Government Act, Cap. 265. However, such
an officer must have held office for a continuous period of not less than 15 years, and must meet
the qualifications specified in Section 13(1).
v. nominated by Committee on Senior Counsel through the Chief Justice.
vi. granted the title not later than 60 days upon receipt of a list of names submitted by such
Committee.
c) Roll of Senior Counsels: Section 18 provides that, the Registrar shall cause to be prepared, and shall
thereafter maintain, a Roll of Advocates having the rank of the Senior Counsel. Chief Justice may give
directions as to its form and the information to be recorded therein. The Registrar shall allow any
person to inspect the Roll during office hours without payment. Every person upon whom the rank of
Senior Counsel has been conferred shall sign the Roll of Senior Counsel in the presence of the
Registrar, and the Registrar shall add his signature as a witness. The Chief Justice shall cause to be
published in the Gazette the names of the advocates upon whom the rank of Senior Counsel is
conferred.
d) Work of Senior Counsel: The practice demands that it is the Senior Counsel who should introduce
other lawyers in Court when they are appearing in a matter. Accordingly, it is the Senior Counsels who
leads other junior lawyer in matter before the superior Courts and they are supposed to receive
instructions only from other advocates and not directly from clients.
 AN ADVOCATE AS AN OFFICER OF COURT: Section 55 provides that every advocate shall be an
officer of the Court and shall be subject to the jurisdiction thereof and, subject to the Advocates Act, to the
jurisdiction of the Disciplinary Tribunal. ‘An officer of the Court,’ means any person who has an obligation
to promote justice and effective operation of the judicial system, including Judges, the attorneys who
appear in Court, bailiffs, clerks, and other personnel. Accordingly, as officers of the court advocates have
an absolute ethical duty to tell Judges the truth, including avoiding dishonesty or evasion about reasons the
attorney or his/her client is not appearing, the location of documents and other matters related to conduct of
the Courts.
 AN ADVOCATE AS A FRIEND OF COURT: An advocate is regarded as a friend of the Court (Amicus
Curia). This means that s/he is allowed by the law to address the Court at any stage on any matter to which
s/he is not a party. The reason why the advocate may address the Court is to help the court resolve a matter.
 AN ADVOCATE AS A COUNSELOR: Judicial officers refer to advocates as counsels. This name
originates from the reasoning that advocates usually counsel their clients on legal matters.

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
17
 CREATION OF ADVOCATE-CLIENT RELATIONSHIP
1. INTRODUCTION:
An advocate –client relationship may be created in a number of ways:
a) Between the individual client and the advocate: This occurs where a client (in person) approaches an
advocate and enters into an agreement for legal services.
b) Between the advocate and the client’s authorized agent, trustee or representative: This therefore indicates
that it is not mandatory that an advocate should create a relationship with only a client in person. S/he may
enter into such relationship with a duly authorized agent of the client, trustee or a legal representative.
c) The relationship may be created either expressly or by implication: This is the Common Law position of
the creation of advocate-client relationship which need no formality. Accordingly, an advocate would be
bound even in circumstances where s/he would otherwise not be bound under normal circumstances.9 This
position, however, begs the question as to when does an advocate-client relationship begin? Suppose as an
advocate you meet an accident victim and she asks you of the chances of succeeding in a claim against the
driver of the vehicle and you advice her, would she be your client? The position appears to be in the
affirmative. However, this depends on whether one is an advocate. Besides, there are instances in Kenya
when the Courts have held that advocates had obligations to act when they did not have to. For instance, in
holding brief, some Courts have ordered advocates to continue with the case even where the advocate says
that his/her instructions were merely to seek for an adjournment. This implies that where an advocate
instructs another to hold brief for him/her does so as a representative of his/her client so that where the
advocate so instructed does so wrongly, s/he may be held liable. Where an armature gives advice as an
expert, the law will hold that armature liable for that advice. 10 The rationale for this appears to be that when
you are giving advice which is likely to be acted upon by the recipient, you are supposed to exercise due
diligence to avoid misrepresentation. You will be held liable if the recipient acts on that advice to his/her
detriment. The same position holds for advocates. In this regard, an advocate is obligated to offer correct
legal advice to his/ her client, otherwise s/he will be held liable for incorrect advice.
d) The relationship may be created through retainer agreements or by employment: Retainer agreements
occur where a client enters into an agreement to retain an advocate so that the advocate may be available to
him/her when the client needs legal services.
e) The relationship may be created between an advocate and any person who pays the advocate fees: The
advocate Act acknowledges that a client may include any person who pays the advocate fees.
2. NATURE OF THE ADVOCATE-CLIENT RELATIONSHIP:
The nature of advocate-client relationship is multifaceted. It may be categorized into:
a) Contractual relationship: An advocate agrees to offer legal services to the client through a contract. The
contract may either be express or implied depending on the circumstances. However, at some point the
contract between the advocate and the client should be made explicit and it must be signed by the client to
show the terms as agreed between them. This contract is regulated by the ordinary principles of Contract

9
See, Way v. Latilla, (1937)3 ALL ER 759. See also, the American case of Togstad vs. Vesely, Otto, Miller and Keefe, 291 N. W. 2d 686 (Minn.
1980)
10
Hedley Byrne v. Heller and Parteners.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
18
 Law, Cap 23 save that it factors in the fiduciary nature of the advocate-client relationship. In this regard, it
is expected that the agreement as to the fees to charge should be reasonable based on the circumstances of
the case and should be written and signed. 11 Again, where the client does not know how to read and write,
it is incumbent upon the advocate to read to the client the contract and let the client make an informed
decision about it.
b) Fiduciary relationship: Advocate–client relationship is fiduciary in nature because of the trust the client
has in the advocate. The rules of professional conduct and ethics, therefore, prescribe how an advocate
should behave under such circumstances. For instance, there are rules on disclosure which prohibits an
advocate from disclosing certain communications which are regarded privileged.12 Again, there are rules
which regulate how an advocate is supposed to handle the client money and other properties to the best
interest of the client. Rules on conflict of interest prohibit an advocate from engaging in conduct that are
likely to create conflict of interest or conduct which is likely to embarrass the process of Court and defeat
the course of justice. The overriding requirement is that an advocate should always have the client in mind.
c) Agency relationship: An advocate is an agent to his/her client in all matters, including receipt of money on
his/her behalf and signing of contracts. As an agent, an advocate is expected to do all that the client would
have done, whether with or without the authority of the client. Again, an advocate is obligated to disclose
all the information that may affect the client’s judgment whether the client has asked for and is aware of
such information or not.

11
This is intended to avoid future conflicts as to the payment of legal fees.
12
For instance Section 134 of the Evidence Act, Cap 80.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
19
 ETHICAL DUTIES OF A TRIAL ADVOCATE: A QUINTESSENCE FOR EFFECTIVE
ADMINISTRATION OF JUSTICE IN KENYA
1. INTRODUCTION:
In any civilised nation, advocates, apart from being regarded as intellectuals amongst the elites of the
country and social activists amongst the downtrodden, they are professionals considered as Court officials
playing a significant role in the administration of justice. As such, most jurisdictions, including Kenya, have
clearly laid down rules and regulations that govern the advocates’ professional conduct. This generally arises
out of the duty that they owe not only to the Court and client, but also to their fellow opponents (advocates) and
witnesses. A thorough analysis of the said duties is as hereunder.
2. CONCEPT AND MEANING OF THE TERMS ‘ETHICAL, DUTY AND TRIAL ADVOCATE’:
The adjective term ‘ethical’ is derived from the word ‘ethics’ which refers to the quality of good moral.
‘Duty’ according to Black’s Law Dictionary, refers a legal obligation that is owed or due to another and that
needs to be satisfied.”1 When the two words are combined, in Court opinion, they refer to a moral obligation a
party has towards another.
3. TRIAL ADVOCATE’S ETHICAL DUTIES TO THE COURT:
An advocate's duty to the Court is a fundamental obligation that defines his/her role within the
adversarial system. It should be noted that the trial advocate’s duty to Court takes priority over all other duties
that a trial advocate has including the duty to the client, opponents, State and to the witness. 2 This therefore
means that in the event any duty to the aforementioned persons or authorities tries to supersede the duty to
Court, it will be appropriate for the trial advocate to act for the good of the Court as s/he is an officer of the
Court.3
An advocate's duty to the Court also relates to the profession's independence, or what has been
described as the high degree of autonomy that advocates experience from external controls other than those
imposed by self-regulation.
The following are therefore the duties of an advocate to the Court:
3.1 DUTY TO ADOPT TACTICS THAT ARE LEGAL, HONEST AND RESPECTFUL:
An advocate must adopt tactics that are considered legal, honest and respectful. This duty is often
referred to as the duty of candour. An advocate should not offer before the Court false evidence, regardless of
the client's wishes. S/he should withdraw from representing a client who insists on tendering such evidence. It is
important for an advocate to try to persuade a client to rectify the situation and/or promptly disclose the
deception to the Court if no action is taken by the client.
3.2 DUTY NOT TO MISLEAD THE COURT:
It is the duty of an advocate to assist the Court in carrying out the administration of justice. In other
words, advocates are primarily responsible for ensuring that they do not employ strategies that will mislead the
Court. Misleading the Court encompasses misleading the Court on legal points and evidentiary issues as well as
making tactical strategies that are likely to affect the case.
a) Misleading the Court on evidentiary issues: This simply means that an advocate cannot knowingly:

1
The Black’s Law Dictionary 543, 8th edn., 2004. Patterson L. R., A Preliminary Rationalization of the Law of Legal Ethics 57, N. C. L.,
Rev. 519 (1979), available at http://scholarship.law.unc.edu/nclr/vol57/iss4/4. In this article, Patterson analyses the issue of whether the
ethics that guide the legal principles are laws and/or mandatory or, merely a little bit more than commentary. In his opinion, there is no
definite answer to the question since the Courts have been willing to enforce such rules even though some of them are not enshrined in a
Statute.
2
S.55, the Advocate‘s Act, Cap 16.
3
S.55, the Advocate‘s Act, Cap 16.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
1
  rely on or provide false evidence to the Court; or
 mis-represent or mis-state facts in an argument; or
 compel a witness to give false evidence; or
 maintain false pretence. For instance, where counsel knows that the Court is operating under a
mistaken assumption and actively maintains the false pretence, the lawyer is guilty of misleading the
Court i.e., where a judge is referring to a witness by an improper title i.e., referring to a defendant as a
Chief Inspector when s/he had been demoted to the rank of station sergeant without being corrected by
an advocate.4
There have been instances where advocates have been sued for misleading the Court. For instance, an advocate
was sued for:
 preparing and delivering a letter containing information he not only knew to be false but also would
likely to be relied upon by others in civil proceedings.
 attempting to induce a witness to sign a statement containing a different version of events related to the
facts at issue rather than what actually transpired.
In both cases, the Law Society of Kenya was forced to impose sanctions for misleading the Court.
In Law Society of Upper Canada v. Punnett,5 an advocate was sued for misleading Halton region on
what an order in council had said. His defense was that there was a clerical error which was made by an
employee at the Halton region. It was found to be in fact false as the error was based on his misinterpretations. 6
Similarly, in De Ian Bwosiemo Magara & Another v. Future Estates Limited, 7 an advocate’s case was
struck out because he did not have a valid practicing certificate at the time of filing a case in the Court of law.
b) Misleading the Court on Legal Issues: Corresponding to duty not to knowingly mislead the Court on
evidentiary issues, an advocate cannot misstate the law. Advocates are under a positive duty to make
full disclosure of all the binding authorities relevant to a case. This means that all such authorities on
point must be brought before the Court, whether they support or undermine the position being argued
by that party, even if opposing counsel has not cited such authority.
3.3 DUTY TO AVOID TRIAL PUBLICITY (SUB JUDICE):
The goal of the legal system is that each party shall have his or her case, criminal or civil, adjudicated
before an impartial Court/Tribunal. The rules regarding trial publicity are designed to enhance the likelihood of
that occurrence and ensure that a Court/Tribunal and its proceedings are as impartial and without prejudice as
possible. An advocate should therefore not make an extrajudicial statement through public communication,
which will have a substantial likelihood of materially prejudicing an adjudicative proceeding.8
3.4 DUTY TO UPHOLD THE LAW:
Advocates are an integral part of the administration of justice in a legal system. They must at all times
act within the law and more importantly, uphold the law when engaged in their profession. Though an advocate

4
See Meek v. Fleming, [1961] 2 Q.B. 366.
5
(1997).
6
Chapter 5 of the Solicitors Codes of Conduct, 2011, provides that one cannot attempt to deceive or knowingly or recklessly mislead the
Court.
7
(2008).
8
Mississippi Bar Association, Duty to Court: Obligation of Good Faith 7, (2003), available at
http://www.msbar.org/admin/spotimages/134.pdf. An extrajudicial statement is substantially likely to materially prejudice adjudication if it
relates to either: a) the identity, expected testimony, character or credibility of a party or witness; b) the likelihood of an accused's guilty plea
or the existence or contents of his confession or admission against interest; c) a description of potential physical evidence, or a statement as
to any examinations or tests which may or may not have been performed; d)information which an advocate knows will be inadmissible and,
if disclosed, substantially likely to prejudice an impartial trial; or, e) any opinion as to an accused’s guilt or innocence.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
2
has the duty to represent his client zealously to the best of his ability, s/he should not forget the fact that his/her
loyalty is foremost to the Court and to the law.
3.5 DUTY TO DISCLOSE ALL RELEVANT INFORMATION:
Trial advocates must ensure that the Court is well informed of all existing relevant informations,
decisions and legislative provisions in his/her possession. S/he should not allow a Court to be misled by
remaining silent about a matter within his or her knowledge which a reasonable person would realize and if
made known to the Court would affect its proceedings, decision or judgment.
Moreover, where one of the parties makes an incorrect reference to a case or omits a case or Statute, or
in case of existence of any procedural irregularities, the other party should inform the Court of the same whether
it is in his or her favor or not. An advocate should not preserve such matters only to reveal them during appeals.
3.6 DUTY TO ACT WITH INTEGRITY AND PROFESSIONALISM:
Section 55 of the Advocates Act, Cap 16 provides that an advocate is an officer of the Court and as
such, must act with integrity and professionalism while maintaining his/her overarching responsibility to ensure
civil conduct. Thus, an advocate is expected to conduct himself in a manner befitting the status of an officer of
the Court. Under this duty, a number of areas are covered i.e.,
a) Duty to avoid sharp practice: Trial Advocates should avoid sharp practices, which includes taking
advantage or acting without fair warning upon slips, irregularities, or mistakes on the part of other
advocates. They should also refrain from influencing the decisions or actions of Courts or Tribunals by
anything other than open persuasion. This rule applies both inside and outside the courtroom.
Advocates may not make allegations of dishonesty unless they have evidence to support such
allegations and should not interfere with the administration of justice.
b) Duty to respect the Court: Trial advocates must respect the Court. Respect comes in all forms –
preparedness and timeliness are one aspect of consideration. Being familiar with the facts and law
applicable to a case, and knowing a client's position is the most fundamental display of respect for the
Court process. S/he should not abuse the Court process nor unreasonably raise or defend an action for
which there is no legal justification. In particular, when an advocate knows there is no merit to the
client's claim but pursues the claim for some other reason, this is an abuse of the Court process.
3.7 SUBMISSION OF EVIDENCE TO THE COURT:
A trial advocate should ensure that the evidence presented to the Court is “necessary, relevant,
admissible and probative.” In other words, the evidence should facilitate the decision-maker in achieving the
outcome. The role of counsel is thus to sift and distil the evidence to make focussed decision-making by the
judge easier and efficient. The temptation, for e.g., in commercial cases to file Court books containing many
volumes is unlikely to help speedy decision-making. It is not part of the role of counsel to create evidence which
does not exist.
3.8 DUTY NOT TO GIVE PERSONAL OPINIONS:
As a general rule/grand norm, an advocate cannot assert a personal opinion on facts of the law. This is
only allowed if invited by the Court to do so, or when appearing before a Tribunal, or if it is an advocate’s duty
to do so. Thus, s/he should always speak in his/her role as an advocate and not in his/her personal capacity.

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi
3
3.9 PERSONAL RESPONSIBILITY FOR CONDUCT:
Trial advocates are personally responsible for the conduct and presentation of their cases within and
without the Court. They are required to exercise personal judgment on the substance and purpose of statements
made and questions asked.
As officers of the Court, trial advocates must act competently, honestly, diligently and with complete
candour when dealing with the Court. Their conduct therefore needs to be exemplary.
Sometimes waiting for a Court appearance may be frustrating for especially junior counsels. It is
important to remain patient and courteous when waiting for a matter to be called.
It is considered inappropriate for practitioners to talk loudly inside and/or outside the courtroom or,
move around the courtroom in a disruptive manner.
Mobile telephones must at all times be switched off and solicitors should not play games or read
newspapers while the proceedings are going on in the Court.
The Court must be silent and still when:
 the Court is being opened or closed,
 a person is taking an oath or affirmation,
 a person is being sentenced or a judgment is being delivered, or a prisoner is being arraigned.
When entering and leaving the courtroom, it is essential that all legal practitioners acknowledge the presence of
a Judge or Magistrate with a bow, and then to sit in a manner that minimizes disruption.
3.10 DUTY OF COURTESY:
The English Bar Rules states in part that lawyers must at all times be courteous to the Court and to all
those whom they have professional dealings with. Lawyers are officers of the Court and as such, must act with
integrity and professionalism while maintaining their overarching responsibility to ensure justice. Trial
advocates are therefore personally responsible for their conduct and presentation of their cases not only in the
Court but also out of the Court.
An advocate should at all times therefore uphold the dignity/reputation of the Court through respectful
conduct and courteous speech. S/he should never adopt a confrontational view with the Court even when there is
reason to believe that the judicial officer’s position is at odds with the law. In this regard, in the case of Ajay
Kumar Pandey, Advocate, In Re.,9 an advocate was charged of criminal contempt of Court for the use of
intemperate language and casting unwarranted aspersions on various judicial officers and attributing motives to
them while discharging their judicial functions. Upon considering the facts of the case, the Court held that:
The subordinate judiciary forms the very backbone of administration of justice. This Court would come
down a heavy hand for preventing the judges of the subordinate judiciary or the High Court from being
subjected to scurrilous and indecent attacks, which scandalise … or lower … the authority of any Court
as also all such actions which interfere … with the due course of any judicial proceedings or obstruct
… the administration of justice in any other manner. No affront to the majesty of law can be permitted.
The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is
necessary for the Courts to enable them to discharge their judicial functions without fear.

9
(1998) 7 SCC 248.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
4
Similarly, in Radha Mohan Lal v. Rajasthan High Court10 and Chetak Construction Ltd. v. Om Prakash &
Ors.,11 the Supreme Court of India deprecated the practice of making allegations against the Judges and
observed that:
Indeed, no lawyer or litigant can be permitted to browbeat the Court or malign the Presiding Officer
with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if
such activities were permitted and in the result administration of justice would become a casualty and
rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any
fear or favour. Lawyers and litigants cannot be allowed to terrorize or intimidate Judges with a view to
secure orders which they want. This is basic and fundamental and no civilised system of administration
of justice can permit it.
Thus, even though an advocate is entitled to freedom of expression, s/he equally owes countervailing duty to
maintain dignity, decorum and order in the Court proceedings or judicial processes. 12 Any adverse opinion about
the judiciary should only be expressed in a detached manner and respectful language. The liberty of free
expression cannot therefore be confounded or confused with licence to make unfounded allegations against any
institution, much less the judiciary.13
An advocate should also be courteous, civil and act in good faith with all persons with whom s/he deals
with during the course of practice. The civil conduct also extends to those in the legal profession and those
individuals who are integral to the legal process.
An advocate should always stand when addressing a Judge or Magistrate, or when a Judge or
Magistrate is addressing them. Moreover, it is good to always speak from the bar table and not from anywhere
else in the body of the Court. The bar table must never be left unoccupied during the hearing of a Court list. An
advocate must therefore remain at the bar table until s/he is given leave of the Court to vacate the bar table, or
when the next matter on the list is called, or where the Court adjourns.
It is equally important for a junior counsel to always show respect to a senior counsel. Where there are
several counsels at the bar table appearing for a matter, a senior counsel should be left to occupy the bar table
with the most senior occupying the chair at the centre.
It is also significant that an advocate should refrain from speaking when a Judge, or Magistrate, or
prosecution, or someone else is speaking.
It is also important for a trial advocate to be courteous to the Court, Court staff and the prosecution.
This will go a long way in making working life easier for an advocate especially when s/he inevitably delays in
making an appearance in the Court.
The Solicitors Code of Conduct, 2011 provides that solicitors and authorised bodies should not take
unfair advantage of those they deal with. 14 The outcomes include conduct in relation to undertakings and that all
undertakings are performed within an agreed timescale or within a reasonable amount of time. 15 Some of the
conduct requirements in this area apply in all circumstances in which professional titles are used to advance
personal interests.

10
(2003) 3 SCC 427.
11
(1998) 4 SCC 577.
12
See, Lalit Mohan Das v. Advocate General, Orissa & Another, AIR 1957 SC 250.
13
See, D. C. Saxena v. The Hon'ble Chief Justice of India, (1996) 5 SCC 216.
14
Chapter 11, the Solicitors Code of Conduct, 2011.
15
Ibid.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
5
3.11 DUTY NOT TO WASTE COURT’S TIME:
Trial advocate must take all reasonable and practical steps to avoid wasting the Court’s time. It is
important that advocates should:
 report to the Court before the commencement of the list. In other words, advocates must be present in
Court at the appointed time. Being late is generally considered egregious and neglectful of a lawyer's
obligation as it causes delay and disruption to the Court process. It can also be considered as rude to
keep the Court waiting;
 not keep a Court waiting whilst engaged in other matters. Where it is unavoidable, it is important for
the trial advocate to inform the Court clerk in advance. In case the Court is meant to wait for an
appearance, it is vital for an advocate to first apologize to the Court for the delay and provide reasons
for the delay before proceeding with the suit before the Court;
 not seek to arrange a postponement of a matter to suit his or her convenience unless the client has
agreed and an advocate on the other side has also been informed as to the reason of such postponement.
Adjournments of cases can cause disruption to Court sittings, inconvenience to witnesses and also, as a
result of the passage of time, cause problems for a witness's memory. It is important to note that
unnecessary adjournments drain Court resources;
 appear before the Court when required. It’s a common phenomenon for an advocate failing to appear
before the Court simply because the client has instructed him/her not to do so. It is a lawyer’s duty to
appear before the Court irrespective of such instructions if s/he is counsel on record;
 not file unnecessary proceedings and raise unnecessary technicalities even if prompted to do so by a
client;
 thoroughly prepare for a case. The level of preparation should not be based on the amount of legal fees
being paid by a client. Every case should be treated with the seriousness it deserves regardless of the
type of case or the fees being paid.
 not make frivolous and vexatious objections;
3.12 DUTY TO EXPEDITE PROCEEDINGS:
Advocates should aid the Court in speedy decision-making by not subjecting a Judge to excessive
material or more documents than strictly necessary which do not facilitate decision-making or such resolution.
In Ashmore v. Corporation of Lloyd’s,16 Lord Templeman observed that:
the parties and particularly their legal advisers in any litigation are under a duty to cooperate with the
Court by chronological, brief and consistent pleadings which define the issues and leave the judge to
draw his own conclusions about the merits when he hears the case. It is the duty of the counsel to assist
the judge by simplification and concentration and not to advance a multitude of ingenious arguments in
the hope that out of ten bad points the Judge will be capable of fashioning a winner. In nearly all cases
the correct procedure works perfectly well. But there has been a tendency in some cases for legal
advisers, pressed by their clients, to make every point conceivable and inconceivable without judgment
or discrimination.
The opinion of the Court in Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd., is quite important.17 The Court in
this case held that:

16
(1992) 1 WLR 446, at p.453.
17
(1999) 1 SCC 37.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
6
 It is the solemn duty of every Court to proceed with judicial function during Court hours and no Court
should yield to pressure tactics or boycott calls or any kind of browbeating. The Bench as well as the
Bar has to avoid unwarranted situations or trivial issues that hamper the cause of justice and are in the
interest of none.
The Mahabir Prasad Singh case therefore raises an important element that advocates should refrain from
making frivolous and vexatious objections, or seeking unnecessary adjournments intended to delay Court
proceedings that eventually lead to unfair administration of justice.
3.13 KNOWLEDGE OF FACTS ASSISTING OPPONENT:
This duty provides an exception while prosecuting. Trial advocates who know of facts or witnesses
likely to assist their opponents are generally not obliged to inform the latter or the Court about them to the
detriment of their client. However, if they know that, for instance, a relevant affidavit has been filed in the
proceedings and is therefore notionally within the knowledge of the Court, there is a duty to inform the judicial
officer of its existence. This duty is also consistent with the trial advocate’s duty as an officer of the Court.
3.14 DUTY WHEN PROSECUTING TO ACT WITH SCRUPULOUS FAIRNESS:
Only an advocate who is fair can be aptly described as an officer of the Court. The duty of fairness is
inherent in the nature of the work performed by an advocate. S/he should always conduct him/herself with
fairness while dealing with fellow advocates, members of the public, clients or witnesses that s/he meets in
Court. Fairness is a legal requirement provided for in Article 50 of the Constitution of Kenya, 2010.
An advocate should also be fair when the other side is not represented by an advocate to ensure that no
advantage is taken of the party’s lack of knowledge of the law and procedure. 18 The duty of fairness also
requires that an advocate brings to the attention of the Court all the authorities relevant to the point at issue
whether the cases or the authorities support or undermine the advocate’s viewpoint.
Lord Reid summed up this duty in Rondel v. Worseley,19 as:
An officer of the Court concerned in the administration of justice, the advocate has an overriding duty
to the Court, to the standards of his profession and to the public, which may and often does lead to a
conflict with his client’s wishes ... . Accordingly, an advocate has a duty to be fair, fair to the Court and
fair to the public. So important is fairness to the Court and the public that the public duty prevails over
the duty to the client if there is a conflict. It is by fairness that the public judges the profession.
Advocates prosecuting a criminal case on behalf of the State must ensure that every material point is made
which supports the prosecution. When presenting the evidence, prosecutors should:
 do so dispassionately and with scrupulous fairness;
 not regard themselves as appearing for a party;
 lay before a Court fairly and impartially the whole of the facts which comprise the case for the
prosecution;
 assist the Court on all matters of the law applicable to that case and any mitigating circumstances.
Generally the duty of trial advocates towards the Court can be summarised as an obligation of honesty and
directness, as the Courts depends entirely upon advocates who appear before it as the need for integrity is
absolute.

18
It may be argued that fairness may require that one overlooks certain procedures just to accommodate the un-represented party.
19
(1969) 1 A.C 191.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
7
3.15 DUTY TO OBEY COURT ORDERS:
An advocate must uphold utmost respect for Court orders in order to maintain the dignity of the Court.
S/he must therefore avoid issues such as:
 obtaining and executing decrees without sending the draft to the other side for approval;20
 showing a client how to circumvent Court orders and disobey injunctions. 21
 obtaining ex parte injunctions without full disclosure. 22
3.16 DUTY TO RESPECT THE COURT:
Advocates must respect the Court. Respect comes in all forms - preparedness and timeliness are some
aspects for consideration.
Being familiar with the facts and law applicable to a case, and knowing a client's position, are some of
the most fundamental display of respect for the Court process.
In the matter of In re: Vinay Chandra Mishra,23 the contemner who was a Senior Advocate, President
of the Bar and Chairman of the Bar Council of India, on being questioned by a Judge started to shout and said
that no question could have been put to him and that he will get the High Court Judge transferred or see that
impeachment motion is brought against him in Parliament. The Supreme Court of India while sentencing him to
simple imprisonment for six weeks suspended him from practising as an advocate for a period of three years and
observed as follows:
The contemner has obviously misunderstood his function both as a lawyer representing the interests of
his client and as an officer of the Court. Indeed, he has not tried to defend the said acts in either of his
capacities. On the other hand, he has tried to deny them. Hence, much need not be said on this subject
to remind him of his duties in both the capacities. It is, however, necessary to observe that by indulging
in the said acts, he has positively abused his position both as a lawyer and as an officer of the Court,
and has done distinct disservice to the litigants in general and to the profession of law and the
administration of justice in particular.
However, a Constitution Bench in the same Court in the case of Supreme Court Bar Association v. Union of
India & Anr.,24 overruled In re: Vinay Chandra Mishra,25 and held that:
The power of the Supreme Court to punish for contempt of Court, though quite wide, is yet limited and
cannot be expanded to include the power to determine whether an advocate is also guilty of
"professional misconduct" in a summary manner which can only be done under the procedure
prescribed in the Advocates Act, 1961. The power to do complete justice under Article 142 is in a way,
corrective power, which gives preference to ‘equity’ over ‘law’ but it cannot be used to deprive a
professional lawyer of the due process contained in the Advocates Act by suspending his licence to
practice … while dealing with a case of contempt of Court… . An Advocate who is found guilty of
contempt of Court may also … be guilty of professional misconduct in a given case but it is for the Bar
Council of the State or Bar Council of India to punish that Advocate [in accordance with law and with
a view to maintain the dignity of the Court] by either debarring him from practice or suspending his
licence, as may be warranted, in the facts and circumstances of each case.

20
See, Mwangi Mbothu v. Gachira Waitimu, CA Civil Application No. 23 of 1993.
21
See, Shuck v Gemer (1846) 2 Ph 113.
22
See, Tiwi Beach Hotel v. Staum, (1940) 2 KAR 189.
23
(1995) 2 SCC 534.
24
(1998) 4 SCC 409.
25
(1995) 2 SCC 534.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
8
3.17 DUTY NOT TO MALIGN THE REPUTATION OF A JUDICIAL OFFICER:
Of late, there is growing tendency amongst some of the advocates of not only maligning the reputation
of judicial officers but also adopting defiant attitude and casting aspersions for having failed to persuade the
Court to grant an order in the terms they expect. Some advocates have as well taken a step further of using their
clients in maligning the reputation of judicial officers in instances where they fail to secure the desired order
from the said officers.26
In M. B. & Sanghi, Advocate v. High Court of Punjab & Haryana,27 the Supreme Court of India
observed that:
The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to
secure the desired order is ever on the increase and it is high time it is nipped fat the bud. And, when a
member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into
submission, it is all the more painful. When there is a deliberate attempt to scandalise which would
shake the confidence of the litigating public in the system the damage caused is not only to the
reputation of the concerned Judge but also to the fair name of the judiciary, veiled threats, abrasive
behavior, use of disrespectful language and at times blatant condemnatory attacks … are often
designedly employed with a view to taming a Judge into submission to secure a desired order. Such
cases raise larger issues touching the independence of not only the concerned Judge but the entire
institution … . It is high time that we realise that the much cherished judicial independence has to be
protected not only from the Executive or the Legislature but also from those who are an integral part of
the system.
The question as to whether an advocate (a contemnor) who has tendered an apology for maligning the reputation
of judicial officer can escape punishment was discussed in the case of L. D. Jaikwal v. State of Uttar Pradesh.28
The Court held that:
… merely because the appellant has tendered his apology we should set aside the sentence and allow
him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making the
grossest imputations against him to do, is to go ahead and scandalize him, and later on tender a formal
empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule
and not as an exception, we would in fact be virtually issuing a 'licence' to scandalize Courts and
commit contempt of Court with impunity. It will be rather difficult to persuade members of the Bar,
who care for their self-respect, to join the judiciary if they are expected to pay such a price for it. And
no sitting Judge will feel free to decide any matter as per … his conscience on account of the fear of
being scandalized and prosecuted by an advocate who does not mind making reckless allegations if the
Judge goes against his wishes. If this situation were to be countenanced, advocates who can cow down
the Judges, and make them fall in line with their wishes, by threats of character assassination and
persecution will be preferred by the litigants to the advocates who are mindful of professional ethics
and believe in maintaining the decorum of Courts.

26
See, M. Y. Shareef & Anr. v. Hon'ble Judges of Nagpur High Court & Ors., (1955) 1 SCR 757; Shamsher Singh Bedi v. High Court of
Punjab & Haryana, (1996) 7 SCC 99 and M. B. Sanghi, Advocate v. High Court of Punjab & Haryana & Ors., (1991) 3 SCC 600.
27
(1991) 3 SCC 600.
28
(1984) 3 SCC 405.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
9
3.18 A LAWYER'S DUTY TO EDUCATE CLIENTS ABOUT THE COURT PROCESSES IN THE
INTEREST OF PROMOTING THE PUBLIC'S CONFIDENCE IN THE ADMINISTRATION
OF JUSTICE:
It is the duty of an advocate to educate a client about the Court processes in the interests of promoting
public confidence in the administration of justice. Education can be based on the limits of the law as well as
professional obligations. Thus, advocates are mandated to ensure that the society:
 has a knowledge and understanding of the law;
 appreciates the values advanced by the rule of law;
 has a knowledge and understanding on judicial system in Kenya, and
 has a knowledge and understanding on the value of Judges, advocates and other judicial officers.
In view of the above, it may be noted that an advocate's duty to the Court touches upon nearly every aspect of
one’s practice. The moot question relates to determining when duties to the client are secondary to those owed
to the Court. This is yet to be made crystal clear and as such, advocates may face difficulties when duties
conflict as they cannot be able to provide proper guidance to their clients. The only hope is that advocates
should be prepared to address such issues whenever they arise with a fuller understanding of their duty to the
Court.
4. TRIAL ADVOCATE’S DUTY TO THE OPPONENTS:
Trial advocates owe duties to the opposing counsel extending from the pre-trial stage up to the point of
sentencing and/or acquittal. This is governed by rules of professional conduct, breach of which leads to
consequences and so as the conventions of etiquette to be observed by an advocate towards the opposing
counsel that goes beyond courtroom to everyday dealing in legal matters. A true advocate practices his art at all
times, both in and out of the Courts. These duties extend from pre-trial to point of sentencing or acquittal. These
duties are explained below:

4.1 DUTY TO MAINTAIN CIVILITY IN DEALING WITH OTHERS:

When dealing with others, a trial advocate should be courteous, civil and act in good faith with all
persons including opponents with whom s/he deals with during the course of practice. An advocate's duty to be
civil to opposing counsel, includes the duty:
a) not to engage in acrimonious exchanges with opposing counsel or otherwise engage in undignified or
discourteous conduct;29
b) to be honest and truthful with opposing counsel; and
c) to be accommodating and flexible regarding scheduling and routine matters.
4.2 DUTY TO MAINTAIN AN HONEST RELATIONSHIP WITH OPPOSING COUNSEL:
A trial advocate has a duty to maintain an honest relationship with an opposing counsel. The failure to
fulfil this obligation was demonstrated in Jeffery case30 where during the course of the litigation, a Court official
instructed an advocate that the trial, which was scheduled to begin in three days, had been taken off the trial list.
The advocate undertook to inform opposing counsel. However, in the hopes of reaching a settlement with the
defendant, the advocate did not tell the opposing counsel immediately but instead sent a revised offer to settle.
Opposing counsel subsequently discovered from a different source that the trial had been adjourned. The

29
Acrimonious exchanges with opposing counsel come in all forms – sarcasm, intimidation, rudeness and unfounded personal attacks.
30
Law Society of British Columbia v. Jeffery, (1996) L.S.D.D. No. 250.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
10
discipline panel held that the lawyer was under an obligation to the Court to promptly pass on the information. It
rejected the argument that this was a situation analogous to that of an advocate possessed of information
developed during the adversarial process for the use of his client.
4.3 COURTESY AND RESPECT TOWARDS COLLEAGUES:
Professional courtesy may properly be considered professional fairness, but may be used as a tool to
persuade others, including the Court and clients, that lawyers act with professional integrity. Advocates acting
with professional integrity will likely be more successful when asking for what they want whether from
opposing counsel or the Court.
Opponents are entitled to respect and display courtesy in and out of the Court. It helps to gain the other
parties’ respect and advances the cause of their client and their own career. Advocates who treat their opponents
rudely are unlikely to gain respect and cannot expect to be treated politely.
Courtesy can be demonstrated in several ways i.e., salutation-‘senior, wakili, making space for seating,
order of addressing the Court by allowing a colleague looking at the document at your possession,
accommodating genuine reasons for adjournment of an application, conserving time allowed, keeping emotions
and high tone in check, and focusing on issues and not the person.
Respect, in the other hand, is accorded to senior counsels regardless of whether they are opposing
counsel or not. Seniority is not in terms of age, but it rather alludes to when one signed the roll of advocates.
Seniority of an advocate can as well be determined by the office an advocate holds (i.e., the Attorney General
and the Solicitor General) regardless of the day the advocate signed the Roll of Advocates.31
4.4 DUTY TO DISCLOSE
An advocate must always disclose to the opposing counsel any information pertinent to the case in due
time. Thus, there is need to inform an opponent the authorities an advocate plans to rely on to avoid chances of
misleading the Court. Advocates should as well bring into fore procedural irregularities before the Court during
the hearing and not to reserve matters to be raised on appeal.
The Law Society of Kenya Digest on Professional Conduct and Etiquette gives proper directions as to
how full disclosure should be undertaken.32 An advocate must always ensure that a copy of the list of authorities
s/he intends to use in their matter is submitted to the opposing counsel at least a day prior to the hearing of their
matter.33
The rules of full disclosure are such that the advocate should not:
 obstruct the opposing counsel’s access to evidence;
 alter, destroy or conceal any evidence if s/he knows fully well that the evidence is or shall be subject to
discovery in Court;
 assist any other person to alter, destroy or conceal any evidence, and
 falsify evidence in favor of their case or assist any other party to do the same.
4.5 DUTY NOT TO UNNECESSARILY EMBARRASS THE OPPONENT:
This may happen when the trial advocate fails to notify the opposing counsel of legal opinion not
evident from papers. This has effect of undermining reputation of the colleagues and the reputation of the
profession. Thus, trial advocates should at all times strive to maintain honour and dignity of the legal profession.

31
See, S.20, the Advocates Act, Cap 16.
32
Rule 28, The Law Society of Kenya Digest on Professional Conduct and Etiquette.
33
Ibid.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
11
 The Law Society of Kenya Digest on Professional Conduct and Etiquette provides that an advocate
should always inform his opponent if he proposes to brief counsel or leader from senior bar. Moreover, an
advocate, who has briefed counsel or leader from junior bar, should maintain close liaison with their leader. In
particular cases should not be taken out off the list nor should hear dates be altered without first obtaining
agreement with the leader.34
4.6 DRAW ATTENTION TO CASE/PROVISION OPPONENTS OVERLOOKED:
In case a trial advocate knows a case or legislative provision that has been omitted, or if an opponent
makes incoherent reference to a case or provision, it is the duty of a trial advocate to draw the Court’s attention
to it even if it assists an opponent’s case.
4.7 DUTY NOT TO INCONVENIENCE OR HARASS OPPONENTS:
A trial advocate should not wait till the last minute to reply to the opposing counsel, or insist that a
matter proceeds even before the counsel has studied the file, or insist on attendance of witness who cannot
attend on time. For instance, if a matter is urgent, it should be indicated as URGENT, some advocates have
specified stamps for urgent matters, or use stickers.
The Law Society of Kenya Digest on Professional Conduct and Etiquette provides that attention is
drawn to the absolute necessity of advocates replying to correspondence with minimum delay, particularly in
case of correspondence with other advocates and the law society. Failure to reply to correspondence has been
held to amount to professional misconduct. 35
4.8 DUTY WHEN PROSECUTING TO PROVIDE EVIDENCE ASSISTING THE DEFENCE
It is essential for prosecuting advocates to ensure that all relevant evidence is either presented or made
available to the defence before prosecution process begins. The duty applies only to the prosecution. The
defense is exempted since the burden of proving a case lies on the prosecution.
4.9 DUTY TO AVOID PERSONALITY CONFLICTS WITH OPPONENTS:
Trial advocates should at all times remember that clients are litigants and they should therefore be
impartial and keep their personal feelings aside. Clients come and go but the profession remains, any bad blood
that may exist between the clients during litigation should never be allowed to influence the advocates in their
conduct or demeanour towards each other or the parties they are representing. Presence of animosity between
them in a matter may cause clouded judgement triggered by emotional factors thereby hindering the proper
resolution of matter in the best interest of their client. Personal remarks and references between them should be
avoided.
4.10 DUTY TO OBTAIN CONSENT BEFORE PLACING MATERIALS BEFORE COURT:
Trial advocates are required to obtain consent from the Court’s presiding officer before presenting any
new and relevant evidence to the Court. The principle here is that advocates are agents of the Court and helps it
to come to the truth. Equally, a trial advocate has a duty to seek consent from an opposing counsel when
introducing new evidence after substantial hearing of the case has been completed.
4.11 DUTY TO AVOID SHARP PRACTICE:
It has been observed that ‘law suits are not tea parties and lawyers are not potted plants, living things
that stand mute.’ While a client is important, an advocate has an obligation to others as well. It is for this reason
that the use of trial tactics that go beyond the vigorous representation of a client’s case and enter into sharp
practice are not permitted. The rules dictate that when advocating on behalf of a client, a lawyer remains bound

34
Rule 16, The Law Society of Kenya Digest on Professional Conduct and Etiquette.
35
Rule 15, ibid.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
12
by his duty to the Court, the administration of justice and opposing counsel. These duties cannot be abandoned
for the sake of trial tactics.
The Law Society of Kenya Digest on Professional Conduct and Etiquette categorically states that it is
wrong for an advocate to tape record by any means a telephone conversation with another advocates client
except, with that advocates consent.36
4.12 DUTY OF FAIRNESS:
The duty to act in fairness is inherent in the nature of the profession or work done by advocates. In
Rondel v. Worseley,37 Lord Reid J. summed it up as follows:
“… as an officer of the Court concerned in the administration of justice, the advocate has an overriding
duty to the Court to the standards of his profession and to the public, which may and often does lead to
a conflict with his client’s wishes.”
The duty therefore also extends to the opposing counsel i.e., an advocate must not seek to obtain and execute
decrees without sending out the draft for the other side’s approval as was illustrated in Mwangi Mbothu v.
Gachira Wairimu.38

4.13 CORRESPONDENCE:
An advocate is duty bound to deal promptly with any communication from other professional
colleagues (opposing counsel).
The Law Society of Kenya Digest on Professional Conduct and Etiquette provides that it is of absolute
necessity for advocates to reply to any form of correspondence from the opposing counsel with minimum delay
and reasonable promptness. 39 Thus, professional letters and communication from opposing counsel that require
a reply should be dealt with urgently in fulfilling all commitments as stipulated.
An advocate should also correspond in a civil and respectful manner in all their interactions with other
advocates. Failure to do so is tantamount to professional misconduct.
Advocates are not permitted to communicate or to negotiate a matter directly with any person who is
represented by another lawyer except with the express consent of the opposing counsel.
4.14 DUTY TO BRIEF OPPONENTS:
It is essential for advocates to brief the opposing counsel on reasonable requests concerning trial dates,
adjournments, any waiver of procedural formalities and other matters that do not prejudice the right of the client.
The Law Society of Kenya Digest on Professional Conduct and Etiquette clearly stipulates that an
advocate should always inform his/her opponent if they so wish to have cases taken off the list or hearing dates
altered.40 Thus, an advocate should not act arbitrarily without consulting opposing counsel. S/he must give
notice to the opposing counsel where s/he intends to apply to have the pleadings of the opposing counsel struck
out for being an abuse of the Court process for some default.
4.15 PROFESSIONAL COURTESY:
Professional courtesy is defined as extending to the other side an assistance to which the other side is in
law entitled to as long as the cause of justice is not affected nor any substantial prejudice occurs to the lawyer’s
own client.

36
Rule 44, ibid.
37
(1969) 1 A.C 191.
38
C.A.C.A No. 233 of 1993.
39
Rule 15, the Law Society of Kenya Digest on Professional Conduct and Etiquette, 2000.
40
Rule 16, ibid.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
13
 Advocates must be courteous to each other at all times. Clients do come and go but the profession
remains as it is. Any bad blood or acrimony that may be exhibited by a client, particularly during litigation,
should never be allowed to influence the advocates in their conduct and demeanor toward each other or the
parties they are each representing.
The presence of personal animosity between advocates in a matter may generally cause clouded
judgment triggered by emotional factors thereby hindering the proper resolution of a matter before the Court in
the best interest of their clients.
Courtesy demands that personal remarks or references between them within or without the premises of
the Court must be avoided.
Courtesy is in relation to the order of seniority. Proper respect must be accorded to seniors irrespective
as to whether they are opposing counsel or not. According to the Advocates Act, Cap 16, seniority in this respect
is not in terms of age but it alludes to when one signed the Roll of Advocates. 41 Seniority of an advocate can as
well be determined by the office an advocate holds (i.e., the Attorney General, and Solicitor General) regardless
of the day the advocate signed the Roll of Advocates.42
Courtesy can be considered in many ways: it may be common courtesy to honour professional
undertakings of the opposing counsel by for e.g., paying damages on time. It can also be deemed to be a
professional courtesy where an advocate does not undertake something that cannot be fulfilled whatsoever. It is
therefore essential that undertakings must be in writing and absolutely unambiguous.
Moreover, if an advocate giving an undertaking does not intend to accept any personal responsibility,
that should be expressly stated in an undertaking made. In the absence of such a statement, the person to whom
the undertaking is given may expect that the advocate giving it will personally honour it.
4.16 CONFIDENTIALITY:
Ethics demands that a counsel should not disclose any confidential information disclosed to him/her by
an opposing counsel.
4.17 DUTY TO AVOID SHARP PRACTICE:
An advocate should always act in good faith and more importantly avoid sharp practice. This means
that an advocate should not:
 take advantage of or act without fair warning to the opposing counsel upon slips, irregularities or
mistakes on the part of the other party;
 impose on opponents impossible, impractical or manifestly unfair conditions during and after the
clients’ matter for instance, unfavourable conditions in respect to time and payment of penalty interest;
 attempt to directly communicate with the opposing counsel’s client in a bid to jeopardize the case or to
engage in negotiations with such client without the knowledge or consent of the opposing counsel,
 resort to trickery in engaging with opposing counsel or a client of an opposing such as using a tape
recorder or any other devices to record a conversation43;
 represent a client who persists in such improper conduct. S/he should not consider him/herself a mere
mouth-piece of the client;
 use restrained language in correspondence, scurrilous attacks in pleadings, and use intemperate
language during arguments in Court.

41
Infra.
42
S.20, the Advocates Act, Cap 16.
43
Rule 44.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
14
5. TRAIL ADVOCATE’S ETHICAL DUTY TO A CLIENT:
The Constitution of Kenya, 2010 lays the basis for the right to legal counsel.44 However, the right
cannot be properly exercised if an advocate does not adhere to the Code of Conduct for Advocates at the time of
instruction, institution, trial and conclusion of a client’s matter. Generally, failure to adhere to such Code leads
to injustice on the part of a client. Consequently, the law has imposed certain obligations 45 on an advocate to
ensure that the interests of clients (who are major source of income for an advocate) are properly protected. 46
Such obligations, inter alia, include:
5.1 DUTY TO EDUCATE CLIENTS:
Trial advocate's duty to the Court requires that an advocate educate clients about the Court processes in
the interests of promoting the public's confidence in the administration of justice. This requires an advocate to
educate clients about:
a) the limits of the law;
b) professional obligations;
c) values advanced by the rule of law;
d) judicial system and the value of lawyers, judges, juries and many other participants in the system.
5.2 DUTY OF DUE CARE AND DILIGENCE:
An advocate has the duty to act with due diligence and reasonable care to the client as a result of the
professional relationship between them in which an advocate is always expected to act professionally and not
negligently. In National Bank of Kenya v. E. Muriu Kamau and Another,47 the Court reiterated that an advocate
is required to have a reasonable duty of care and skill in the execution of his/her duties. In Kinluck Holdings v.
Mint Holdings,48 the Court went ahead to explain that if the advocate breaches the duty s/he owes to the client,
s/he may be liable professionally.
In Abraham v. Justsun,49 Lord Denning MR also held that:
[It is an] advocate’s duty to take any point which he believes to be fairly arguable on behalf of his
client…He is not guilty of misconduct simply because he takes a point which the tribunal holds to be
bad. He only becomes guilty of misconduct if he is dishonest. That is, if he knowingly takes a bad point
and thereby deceives the Court.
Moreover, in Gran Gelato Ltd. v. Richcliff (Group) Ltd.,50 that involved a solicitor’s replies to preliminary
enquiries in a conveyancing transaction, the Court stated that a solicitor owes a professional duty of care to the
client and no-one else. He is subject to professional rules and standards, and owes duties to the Court as one of
its officers.
Exceptionally, an advocate may owe a duty to a non-client. The decision in Hedley Byrne v. Heller &
51
Partners suggests that an advocate who provides professional advice aware that the person to whom the advice
is given would be relying thereon could not argue that there was no contract for the service, and could be held

44
Art.50(2)(g), the Constitution of Kenya, 2010.
45
The imposition of the obligation is mainly because there exists a special relationship of trust and confidence between an advocate and
client.
46
S.2, the Advocates Act, Cap 16 Laws of Kenya provides that the term ‘client’ includes any person who, as a principal or on behalf of
another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or
employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs.
47
[2009] eKLR.
48
(2009) eKLR.
49
[1963] 2 All ER 401 at p.404.
50
[1992] Ch 560.
51
[1963] 2 All ER 575.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
15
liable. In the said case, the Court found that there was a special relationship between an advocate and a client
that gave rise to a duty of care.52
5.3 DUTY TO COMPETENTLY DEFEND/REPRESENT A CLIENT:
A trial advocate is believed to possess sufficient qualifications and skill to undertake a brief. S/he
should thus provide competent legal representation to a client. Competent representation requires adequate legal
knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. 53 The advocate
must do so, without abandoning the case, to the conclusion of the suit even if that client fails to pay his fee.
Once a suit is concluded, an advocate is entitled to sue for his fees.54
5.4 DUTY TO FEARLESSLY UPHOLD THE INTERESTS OF A CLIENT:
Various Courts have upheld duty to fearlessly uphold the interests of the client as one of the major
ethical duties of a lawyer to his client. For instance, in Kinluck Holdings v. Mint Holdings,55 the Court held that
an advocate owes his duty to the client, the breach of which makes him/her liable to the client.
The English House of Lord’s case of Medcalf v. Weatherill and Another56 has attempted to explain the
duty of an advocate to fearlessly uphold the interests of the client in even better terms. According to the Court:
 the duty of an advocate to the client is a constitutional guarantee;
 there should be no pressure from the Executive, Judiciary or any other body requiring an advocate not
to represent certain clients, or employ pressure that can deter an advocate from representing a client
effectively;
 unpopular and unmeritorious clients ought to be represented without the advocate being penalized or
harassed by any institution or person, and
 an advocate must avoid situations where his/her conduct of a case is not driven by the needs of a client
but by the advocate’s own interests.
Lord Brougham has also held (in his famous defence of Queen Caroline):
An advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one
person in the world – the client and none other. To save the client by all expedient means, to protect the
client at all hazards and costs to all others and among others to himself, is the highest and most
unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction
which he may bring on any other. Nay, separating even the duties of a patriot from those of an advocate
and casting them if need be to the wind, he must go on reckless of the consequences, if his fate it
should unhappily be to involve his country in confusion for his client’s protection. 57
In the Kenyan situation, there are several instances where advocates have been under pressure not to represent
certain clients. For instance, the pressure on Counsel Cliff Ombeta when he chose to represent the police
officers who were allegedly involved in the murder of Advocate Willie Kimani, and in a more recent case of the
extradition of the Akasha brothers was unethical. However, it may be noted that the duty to the client is
subservient to an advocate’s duty as an officer of the Court i.e., to uphold justice. This is apparent in the UK

52
For further information see, Carley v. Freehills, [2013] FCA 954: paras 310ff.
53
Rotunda Ronald D. and Dzienkowski John S., Professional Responsibility: A Student’s Guide 73, (The Center For Professional
Responsibility: The American Bar Association, Thomson/West, Thomson West, St. Paul, MN, USA, 2006).
54
J. P. Machira v Abok James Odera [2006] eKLR, as per Angawa J.
55
(1998) eKLR.
56
(2002) UKHL 27.
57
Limumba P. L. O., The Legal Profession and Crisis of Ethics 82, quoted in Ghai Yash Pal & Ghai Jill Cottrell, The Legal Profession and
the New Constitutional Order in Kenya, (Nairobi: Strathmore University Press, 2014). For further analysis see, Monroe H. Freedman, Henry
Lord Brougham and Zeal (2006) 34 Hofstra Law Review 1319, available at
http://law.hofstra.edu/pdf/academics/journals/lawreview/lrv_issues_v34n04_bb1_freedman_
final.pdf.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
16
case of Rondel v. Worsley58 where the Court held that the advocate is simply not the mouthpiece of the client,
s/he has a calling higher than that of truth and justice.
5.5 DUTY NOT TO BREACH THE CONFIDENTIALITY OF THE CLIENT:
In the course of interactions with a client, an advocate comes across a lot of client’s information often
given in confidence which if not used in an ethical manner, it can be antithesis to a client’s case and future legal
prospects. Such information should be safeguarded, and except in exceptional circumstances as provided for
under Section 134 of the Evidence Act, Cap 80 it should not be divulged. This was reiterated in Omari S/O
Hassan v. R.59 Thus, disclosure of information made in the course of employment as an advocate is permissible
only:
a) when there is a client’s express consent;
b) on any communication made in furtherance of any illegal purpose, or
c) on any fact observed by any advocate in the course of his employment showing that any crime or fraud
has been committed since the commencement of employment. 60
The objective of the duty to confidentiality is to ensure that the client can confide completely and without
reservation to the advocate.61 It is important to note that the privilege:
a) extends to oral communication and documentary information received from a client in the course of
acting for a client;
b) survives the death of a client, so long as there is an issue in which the client’s interests are in question.
In other words, it continues even after the employment of an advocate has ceased;62
c) extends to communication made to the advocate’s interpreters, clerks and/or servants of an advocate.63
However, this privilege is not absolute and it may be overlooked in certain cases. 64
In King Woolen Mills and Another v. Kaplan and Stratton Advocates,65 the Court held that:
the fiduciary relationship created by the retainer between the client and his/her advocate(s) demands
that the knowledge acquired by the advocate while acting for the client be treated as confidential and
should not be disclosed to anyone else without that client’s consent. This principle exists even where an
advocate acts for more than one party as a common advocate and continues long after the matter for
which the retainer was created has been concluded hence a special type of agency relationship is
created.
The duty not to breach the confidentiality of the client has also been cited in the case of Lizzie Borden. In the
late 1800s, Ms. Borden apparently killed her father and the only witness to the murder, her mother. She was
tried and acquitted of the murder in 1892. Since then, the law firm that represented Ms. Borden refused to open
up her file in spite of pressure from scholars. The case raised two important issues as to:
 whether confidentiality should live past the death of the client? and
 how many years after death the file can be made public?

58
(1969) 1 A.C 191: (1967) 3 WLR 1666,
59
(1956) 23 EACA 550. In this case, the appellant was convicted of murder. During trial, counsel for the accused informed the Court that
the accused person had refused to testify under oath, against his counsel’s advice. The disclosure by the advocate was held, on appeal, to be
a breach of professional privilege, and the trial court should not have allowed it to affect its mind in the deliberations.
60
S.134(1), the Evidence Act, Cap 80.
61
It is important to note that the privilege is that of the client and not the advocate and for that reason, only the client can waive the
privilege.
62
S.134(2), the Evidence Act, Cap 80.
63
S.135, the Evidence Act, Cap 80.
64
Limumba P. L. O., The Legal Profession and Crisis of Ethics 83, quoted in Ghai Yash Pal & Ghai Jill Cottrell, The Legal Profession and
the New Constitutional Order in Kenya, (Nairobi: Strathmore University Press, 2014).
65
Nairobi Civil Appeal No.55 of 1993.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
17
In Swidler & Berlin v. United States,66 the United States of America Court was able to answer the first question
when it held that privilege and confidentiality outlives the life of the client. However, the issue as to how long
after death the file can be made public is yet to be decided.67
Following the Swidler & Berlin case,68 it is one thing to state unequivocally that the privilege does or
does not survive death. There are however practical questions yet to be answered, for instance:
 Who will enforce the privilege 50, 75, or 100 years when the relevant actors, immediate executors and
heirs are all dead and the law firm is defunct?
 If the privilege is breached, who will complain and who can be held liable or responsible for any
wrongful actions?
 Whether such a situation can be considered as an inadvertent waiver of confidentiality interests? and
 Who can be held responsible for any arguable damage to the reputation of the client? 69
Taking into account the above questions, Klinefelter and Laredo have held that, whereas during the life of the
client, the issue is not controversial, after the client’s death and the elapsing of a significant time, the question of
confidentiality will continue posing an ethical dilemma until the Courts decides it in a definitive manner.

5.6 LOYALTY:
An advocate generally has the duty to ensure that s/he has complete, undivided loyalty to the client’s
interests. S/he should not be compromised. In other words, the interests of other parties should not influence
his/her duty to the client. Such loyalty should thus be total and sincere. This is apparent in the case of Amina and
Others v. R. where the Court barred an advocate from representing a client in a matter in which he had acted for
the opposite party in the interests of justice.
The duty also includes the duty to:
 avoid any conflict of interest, existing or contemplated, and
 provide good, independent and honest advice as pronounced in the Code of Conduct for Advocates.
5.7 DUTY TO LISTEN AND ACT ON CLIENT’S INSTRUCTIONS:
The advocate also has the duty to listen and act on the instructions the client presents and advise
him/her accordingly. An advocate acting other than on the instructions of a client commits professional
misconduct. Besides, any action carried out may not bind a client and can easily constitute a breach of contract.
After the instructions, s/he should advise the client on the next course of action. However, if the matter
is unethical or illegal, from which a course of action cannot lie, s/he should:
 advise the client accordingly on the futility, illegality or the unethicality;
 decline to carry out the illegal or unethical instructions.
5.8 DUTY TO ACCOUNT TO THE CLIENT:
An advocate has duty to account to the client. Thus s/he should:
 inform well on time where s/he chooses to opt out of advising or representing a client;
 disclose the likely success or otherwise of the case to the client;
 present any alternatives to the course of action a client might have other than the Court process.

66
(1998) 524 U.S. 399
67
Klinefelter & Laredo, Is confidentiality Really Forever?, Spring 2014 40 (3), p.47.
68
(1998) 524 U.S. 399
69
Ibid.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
18
  account to all the money that s/he receives on behalf of the client including the interests that may be
earned. An advocate should also pay back any money that a client might pay in excess of the requisite
legal fees;
 avoid self-dealing. In other words, an advocate cannot misuse to his benefit the assets of his client.
In some cases, such as conveyancing, an advocate may act for both parties in the buying and selling of property.
In this case, the Court has explained that it is unethical for the advocate to act for one party against another in
King Woollen v. Kaplan and Stratton.
5.9 DUTY TO EXPEDITE PROCEEDINGS:
An advocate also has a duty to expedite proceedings. Litigation can be an expansible exercise for the
clients. Consequent, as far as possible, the client should refrain from asking for adjournments whose only
purpose is to delay the trial. This not only wastes the Court’s time, but it also delays justice for the client.
5.10 DUTY TO COMMUNICATE WITH THE CLIENT:
Establishing and maintaining an efficacious and professional relationship with clients is a hallmark of a
successful advocate.70 This will be determined by the level of communication which an advocate has with
his/her client. An advocate is thus duty bound to adequately communicate with a client (in a language s/he
understands) regarding his/her conduct in order for a client to make an informed decision regarding
representation.
Moreover, after taking instructions, an advocate should also (in order for a client make an informed
decision concerning representation) advise a client concerning the advantages and disadvantages of embracing
alternative dispute resolution mechanisms to settle the dispute.
In the course of representation, an advocate should as well keep a client reasonably informed about the
status/developments of a matter and promptly comply with requests for information by a client.71
Communication is thus facilitative of competent representation and supportive of continued client trust,
confidence and professional relationship.
5.11 DUTY TO DISCLOSE:
This duty includes the following:
a) The duty to disclose the likely success or otherwise of actions that would be taken by an advocate and
alternatives that may be available should be given greater emphasis. This is so especially in the context
that litigation should be a remedy of last resort. An advocate who fails to honestly disclose the true
chances of success puts his/her interests before those of his/her client as s/he is presumed to seek
earning higher fees through litigation rather than advising a client on cheaper and expeditious available
alternatives measures to settle a dispute.
b) Duty to disclose financial benefits to the client: The duty to disclose financial benefits arises from the
agency relationship between an advocate and a client that demands, inter alia, good faith and
transparency. In United Insurance Co. Ltd. v. Dorcas Amunga,72 Justice Alnashir Visram stated that the
relationship between an advocate and a client is governed by the retainer which is the contract that
determines their rights and liabilities subject to terms which the law will infer in the particular

70
Hayden Paul T., Ethical Lawyering: Legal and Professional Responsibilities in the Practice of Law 187, American Casebook Series,
(Thomson West, St. Paul, MN, USA, 2003).
71
Failure to inform a client of any significant developments of a matter is a serious component of professional misconduct and is punishable
as a disciplinary offence.
72
Nairobi HCCC No. 462 of 2000.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
19
 circumstances. The authority of an advocate to act for his client will therefore arise from the retainer.
The conduct of the advocate under the retainer will also be governed by the Advocates Act.
c) Duty to disclose conflict of interest: An advocate should not act in a matter where s/he is likely to be
called as a witness. S/he must therefore ensure that there’s neither conflict of interest nor likelihood of
such a conflict arising subsequently during the trial process. In King Woolen Mills and Another v.
Kaplan and Stratton Advocates,73 the respondent firm had acted for both a lender and a borrower in a
previous transaction. The borrower defaulted and sought to question the security of the transaction. The
Court of Appeal held that since the firm was aware that there was likely to arise a conflict between the
lender and the borrower, and since having acted for both parties they were in a position to be privy to
information pertaining to the appellant’s case, they would not purport to enforce the said securities to
the prejudice of the appellants.
5.12 COURTESY:
An advocate is enjoined to treat clients with utmost respect, fairness, candour and courtesy. S/he should
uphold the dignity of a client at all times within and without the Court premises and his/her office.
5.13 DUTY OF AN ADVOCATE ACTING FOR BOTH PARTIES IN A TRANSACTION NOT TO
ACT AGAINST ONE FOR THE OTHER:
If an advocate acts for both parties in the same transaction, s/he should not act for one against the other.
This was stated by the Court of Appeal in King Woollen v. Kaplan & Stratton74 where it held that:
The fiduciary relationship75 created by the retainer between client and advocate demands that the
knowledge acquired by the Advocate while acting for the client be treated as confidential and should
not be disclosed to anyone else without the client’s consent. That fiduciary relationship exists even
after conclusion of the matter for which the retainer was created.
The decision was upheld by the same Court in Uhuru Highway Development Ltd and 3 others v. Central Bank
of Kenya and 4 Others,76 where an advocate who had acted for both parties in the preparation of a charge was
barred by the Court of Appeal from appearing as a witness for one party against the other in an ensuing dispute
before the High Court.
5.14 DUTY TO CHARGE REASONABLE FEES:
An advocate should charge a client reasonable fees which is consistent with Advocates Act, Cap 16 and
the Advocates (Remuneration) Order, 2009. Section 45 of the Advocates Act provides that an advocate and his
client may fix the amount of an advocate’s remuneration by agreement. Besides, an advocate should not
stipulate a fee contingent on the results of litigation, or agree to share the proceeds of litigation. 77 Giving an
advocate an interest in the subject matter of a suit is against professional ethics and violates public policy.
Moreover, an advocate should not charge less than the set limit provided under the Advocates
(Remuneration) Order, 2009 Order.78 Doing so will constitute an undercutting and is an offence under Section
36 of the Advocates Act, Cap 16.
Further, an ideal advocate is obligated to disclose, discuss and conclude the issue of legal fees and
other payments to the client from the onset.

73
Nairobi Civil Appeal No.55 of 1993.
74
Civil Appeal No. 55 of 1999 (Unreported).
75
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons).
76
(2003) eKLR.
77
S.46, the Advocates Act, Cap 16.
78
R.3, the Advocates (Remuneration) Order, 2009.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
20
5.15 DUTY TO PROVIDE SOUND LEGAL ADVISE:
An advocate should strife to give true, accurate and sound advise to the client, in a language s/he
understands, on the merits of a case and more importantly do what is considered right and in the client’s best
interest. Such advise should be based on sound legal principles and professional judgement.
5.16 DUTY TO SAFEGUARD CLIENT’S PROPERTY:
Quite often, advocates possess client’s property and may receive money and other things in trust for a
client. An advocate is enjoined to safeguard such property and not to mix with his or her own. Besides, s/he
should not to use it for his/her benefit. Thus, it is important to have a Client/Trust Account.
Equally, an advocate should safeguard a client’s files and other documents. It is prudent to take an
insurance policy for the purpose.
5.17 OTHERS:
a) Duty to act with utmost good faith.
b) Duty to advice the client of any requisite payments over and above their legal fees.
6. TRIAL ADVOCATE’S DUTY TO THE ADMINISTRATION OF JUSTICE:
The following are the duties:
6.1 DUTY TO ASSIST THE STATE AS PROSECUTORS WHEN CALLED UPON:
A trial advocate has the duty to assist the State as prosecutors when called upon as part of his or her
functions as officer of the Court. The same rules apply for refusing a ‘cab rank’ rule brief where a prosecutor
wishes to decline brief as a prosecutor. Assisting a prosecutor generally aids in the administration of justice.
Sections 5 and 6 of the Office of the Attorney-General Act, 2012 lay down the powers and functions of
the Attorney-General. The Attorney-General is empowered to issue directions to any officer performing legal
services functions in any Government Ministry. Accordingly, it is the duty of an advocate performing
Government legal services to comply with the directive of the Attorney General in the interest of administration
of justice in Kenya.
Similarly, the Director of Public Prosecutions exercises State powers of prosecution as enshrined under
Article 157 of the Constitution of Kenya, 2010 and Section 5 of the Office of the Director of Public Prosecutions
Act, 2013. S/he is required to ensure due regard to the public interest, the interest of the administration of justice
and the prevention and avoidance of abuse of legal process. Moreover, s/he is required to set the qualification
for the appointment of prosecutors, monitor their training and ensure gazettement of Public Prosecutors in
Statutory Corporations. Further s/he can engage the services of a qualified private legal practitioner to assist in
the discharge of his mandate. Therefore, it is the duty of an advocate engaged by the Director of Public
Prosecutions to ensure that s/he undertakes prosecution in a manner that will uphold, protect and promote
human and Constitutional rights of every Kenyan citizen. Thus, when engaged as a prosecutor, an advocate's
prime duty is:
 not to seek to convict but to see that justice is done through a fair trial on the merits;
 to make timely disclosure to defence counsel or directly to an unrepresented accused of all relevant and
known facts and witnesses, whether tending to show guilt or innocence;
 not to do anything that might prevent the accused from being represented by counsel or communicating
with counsel.

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi
21
6.2 DUTY NOT TO CORRUPT THE ADMINISTRATION OF JUSTICE:
A legal practitioner may be heavily constrained in representing a client who insists on pleading 'not
guilty', even though the client has made a frank admission of guilt to the practitioner prior to the trial.79 The
advocate should reject such aspersions. It is therefore important for an advocate not to participate in any
dishonourable or improper conduct of a client, either in or out of Court despite the request from the client in the
interest of administration of justice.80
The duty encompasses the obligation not to participate in, introduce into evidence or rely upon an
untrue affidavit sworn by a client. That is an obligation particularly applicable in relation to an affidavit of
discovery in civil litigation.
6.3 DUTY TO ASSIST THE STATE BY APPEARING IN LEGAL AID MATTERS WHEN
CALLED UPON:
A trial advocate has the duty to assist the State in legal aid matters. This is in matters where the
defendant cannot afford a lawyer. This ensures that defendants have a legal representation.81
Chapter 4, Part 2 of the Constitution of Kenya, 2010 categorically provides that every accused person
has a right to a fair trial, which includes the right to:
 choose, and be represented by, an advocate and to be informed of such right promptly82;
 have an advocate assigned to the accused person by the State and at State expense, if substantial
injustice would otherwise result, and to be informed of such right promptly. 83
There are many other provisions of the Constitution that are relevant to the concept of free legal aid. These
include:
 the value of social justice under Article 10;
 provisions on equality before the law under Article 27;
 provisions on protection of marginalised and vulnerable persons and the requirement under Article 159
that justice shall be done to all irrespective of status.
The overarching notion to be derived from these provisions is that it is difficult to achieve justice where one
party has to compete with the elaborate machinery and resources available to the opposite party. The
Constitution thus expressly provides for the legal representation of an accused person unable to afford legal
fees.84 This is mandatory and cannot be taken away by an ordinary law as was held in Shobharam case.85
However, in Legal Aid South Africa v. Van Der Merwe and Others, 86 the Court held that a Court cannot be
required to provide legal representation at State expense where this is not necessary, because the person
concerned is able to afford such representation him/herself.
Apart from the Constitutional provisions, the Government of Kenya has also established a legal and
institutional framework for the provision of legal aid. The Legal Aid Act, 2016, was enacted in order to:
 give effect to Articles 19(2) (general provision on the Bill of Rights); 48 (right of access to justice) and
50(2)(g) and (h) (right of fair hearing) of the Constitution;
 facilitate access to justice and social justice;

79
Tuckiar v. The King (1934) 52 CLR 335.
80
See, Legal Services Commission v. Winning, (2008) QLPT 13 (25) – (26).
81
The aim is to honour and celebrate pro bono lawyers who have excelled in litigating economic, social and cultural rights.
82
Art.50(2)(g), the Constitution of Kenya, 2010.
83
Art.50(2)(h), ibid.
84
See, Gideon v. Wainwright, (1963) 327 U.S. 335.
85
State of Madhya Pradesh v. Shobharam, AIR 1966 SC 1910, 1917: 1966 Supp SCR 239.
86
(A409/2010) [2010] ZAWCHC 525.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
22
  establish the National Legal Aid Service;
 provide for legal aid and for the funding of legal aid and for connected purposes. 87
The National Legal Aid Service established under the Act as the successor to National Legal Aid and Awareness
Programme88 is required, inter alia, to:
 establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible
and accountable;89
 facilitate the representation of persons granted legal aid under the Act;90
 assign legal aid providers to persons granted legal aid under the Act; 91 and
 administer and manage the Legal Aid Fund.92
The Legal Aid Act, 2016 further provides the general principles of legal aid. Free legal aid can be provided:
 to persons who qualify for legal aid services i.e., a person who is indigent, resident in Kenya and is a
citizen of Kenya, a child, a refugee under the Refugees Act, 2006, a victim of human trafficking, or an
internally displaced person, or a stateless person. A person must however make an application for the
service in the prescribed manner.
 in civil, criminal, children, constitutional matters and matters of public interest.93
It is the duty of the Court before which an unrepresented accused person is presented to promptly inform:
 the accused person of his right to legal representation;
 the accused person of his right to have an advocate assigned to him if substantial injustice is likely to
result; and
 the National Legal Aid Service to provide legal aid to the accused person. 94
The importance of legal representation was first recognized by the African Commission in Advocats Sans
Frontiers (on behalf of Bwampanye) v. Burundi, African Commission on Human Rights,95 when it observed that:
Legal assistance is a fundamental element of the right to fair trial more so where the interests of justice
demand it … . The right to equal treatment by a jurisdiction, especially in criminal matters, means …
that both the defence and the public prosecutor shall have equal opportunity to prepare and present
their pleas and indictment during the trial. They must in other words, be able to argue their cases … on
an equal footing.96
In Pett v. Greyhound Racing Association,97 Lord Denning held that:
It is not every man who has ability to defend himself on his own. He cannot bring out the point[s] in his
own favour or the weakness in the other side. He may be tongue tied, nervous, confused or wanting in

87
In addition to the Constitutional and statutory provisions for the Government to provide legal aid, there is an international framework in
place committing the Government of Kenya to provide legal aid. The Government has made commitments under various regional and
international human rights instruments to enhance access to justice and provide a state funded legal aid scheme. Some of the international
human rights instruments include: the International Covenant on Civil and Political Rights, 1996; the United Nations Convention on the
Rights of the Child, 1989; the United Nations Convention on the Rights of Persons Living with Disabilities, 2007; the African Commission
on Human and Peoples’ Rights, and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003.
88
S.5, the Legal Aid Act, 2016. The State established the National Legal Aid and Awareness Programme in 2007 with the goal of creating a
practical, affordable and effective legal awareness and legal aid service.
89
S.7(1)(a), the Legal Aid Act, 2016.
90
S.7(1)(l), ibid.
91
S.7(1)(m), ibid.
92
S.7(1)(p), ibid.
93
Ss.35 & 36, ibid.
94
S.43(1), ibid.
95
Comm. No. 213/99 (2000).
96
In the United States, the Court also in Gideon v. Wainwright, 371 US 335 (1963) held that the noble ideal of a fair trial before impartial
tribunals in which every defendant stands equal before the law, cannot be realized if the poor man charged with a crime has to face his
accusers without a lawyer.
97
(1968) 2 All E.R 545, at 549.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
23
 intelligence. He cannot examine or cross-examine witnesses … . If justice is to be done, he ought to
have the help of someone to speak for him and who [is] better than a lawyer who has trained for the
task.
For the first time in Kenya, the Court of Appeal in David Macharia Njoroge v. R.,98 considered applicability of
Article 50(2)(h) of the Constitution on the right to free legal counsel at State expense and expounded on the
principle of “substantial injustice.” The Court held:
State funded legal representation is a right in certain instances. Article 50 provides that an accused shall
have an advocate assigned to him by the State and at State expense. Substantial injustice is not defined
under the Constitution, however, provisions of the International Conventions that Kenya is signatory to
are applicable by virtue of Article 2 (6). Therefore provisions of the International Covenant on Civil
and Political Rights, 1996 and the commentaries by the Human Rights Committee may provide
instances where legal aid is mandatory… . We are of the considered view that in addition to situations
where substantial injustice would otherwise result, persons accused of capital offences where the
penalty is loss of life have the right to legal representation at State expense. We would not go so far as
to suggest that every accused person convicted of a capital offence since the coming into effect of the
new Constitution would automatically be entitled to a re-trial where no such legal representation was
provided.
Expounding further on the principle of “substantial injustice,” the Court of Appeal in Karisa Chengo & 2
Others v. R.,99 held:
It is obvious that the right to legal representation is essential to the realization of a fair trial more so in
capital offences. The Constitution is crystal clear that an accused person is entitled to legal
representation at the State’s expense where substantial injustice would otherwise be occasioned in the
absence of such legal representation … . Substantial injustice only arises in situations where a person is
charged with an offence whose penalty is death and such person is unable to afford legal representation
pursuant to which the trial is compromised in one way or another only then would the State obligation
to provide legal representation arise.100
In Thomas Alugha Ndegwa v. Republic,101 the appellant, Thomas was charged and convicted of the offence of
defilement of a girl contrary to Section 8(1) read together with Sub-Section (2) of the Sexual Offences Act, 2006.
He was sentenced to mandatory life imprisonment by the Chief Magistrates’ Court at Thika. The conviction and
sentence was upheld by the High Court at Nairobi. In an appeal to the Court of Appeal, during the hearing, the
appellant, due to financial constraints, applied for legal representation since he was unrepresented in the two
earlier Courts. The issue for determination by the Court was whether the appellant was
entitled to receive legal aid as guaranteed by Articles 48 and 50(2)(h) of the Constitution of Kenya, 2010? The
Court held that the applicant, according to Article 50(2)(h) of the Constitution read with Section 41 of the Legal
Aid Act is eligible to make the application for legal aid to the National Legal Aid Service in person or through
any other person authorized by him in writing.

98
(2011) eKLR.
99
CR Nos. 44, 45 & 76 of 2014.
100
The South Africa Constitutional Court in the case of Fraser v. Absa Bank Limited, (66/05) (2006) ZACC 24; 2007 (3) SA 484 (CC);
2007 (3) BCLR 219 (CC) has also observed that the principle of “substantial injustice,” depends on all relevant prevailing factors, including
the complexity and seriousness of the criminal charges.
101
(2016) eKLR.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
24
 In Hansraj case,102 some railway porters offered satyagraha103 at a railway station. They were arrested,
tried and convicted under the provisions of the Railways Act. No information was given to them regarding the
date of trial, nor were they told that under Article 22(1) of the Constitution of India, 1950, they had a right to
consult and be defended by a legal practitioner. It was held that in such circumstances, Article 22(1) had been
violated and the trial was vitiated. In Shobharam case,104 the Supreme Court of India went ahead to hold that a
person arrested is entitled to be defended by a counsel at the trial and such right is not lost even if he is released
on bail. Thus the right has to be recognised and scrupulously protected.
In order to effectuate the right to consult an advocate of one’s choice properly and reasonably, it is
necessary that:
 the right be exercised immediately from the day of arrest 105;
 such legal practitioner must be allowed the facility to consult the accused without the hearing of the
police. A Court cannot therefore direct consultation between an accused and the counsel in the
presence of the police.106
 the right be exercised at the time an accused is being examined.107
This apart, an advocate whom an accused has engaged for his/her defence cannot be put under a threat of
prosecution so that he can refrain from discharging his professional duty of defending his client in a fearless
manner.108
The Supreme Court of India has in R. D. Saxena v. Balram Prasad Sharma,109 pointed out that:
A social duty is cast upon the legal profession to show the people [beacon] light by their conduct and
actions. The poor, uneducated and exploited mass of the people need a helping hand from the legal
profession, admittedly, acknowledged as a most respectable profession. No effort should be made or
allowed to be made by which a litigant could be deprived of his rights, statutory as well as
constitutional, by an advocate only on account of the exalted position conferred upon him under the
judicial system prevalent in the country.
The right to legal aid and assistance is thus an integral component of fair trial leading to fair administration of
justice as it ensures that an indigent person is not denied fair hearing due to lack of means to hire a competent
counsel. However, the provision of free legal aid and assistance is a capital-intensive undertaking which many
poor States, including Kenya, have found difficult to implement. 110 Therefore, a serious thought need to be
given to ways and means of availing the right without compromising national resources that can otherwise be
used for other development purposes.
Moreover, to ensure the provision of consistent, competent and timely legal representation, the
National and County Governments need to budget for resources to aid legal clinics and support pro bono
lawyers and institutions that offer free legal counsel.

102
Hansraj v. State of Uttar Pradesh, AIR 1956 All. 641.
103
It is a policy of nonviolent resistance developed by Mahatma Gandhi as a means of pressing for political reform in South Africa and
India.
104
State of Madhya Pradesh v. Shobharam, AIR 1966 SC 1910, 1917: 1966 Supp SCR 239.
105
Motibai v. State of Rajasthan, AIR 1954 Raj. 241.
106
Jose Poothrikkayil v. Union of India, 2009 (1) KLJ 381.
107
Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025: (1978) 2 SCC 424; Jain M. P., Indian Constitutional Law1252, 6th edn., (Gurgaon:
LexisNexis Butterworths Wadhwa Nagpur, 2010).
108
Sri Jayendra Saraswathy Swamigal (II) v. State of Tamil Nadu, AIR 2006 SC 6: (2005) 8 SCC 771.
109
(2000) 7 SCC 264.
110
See, an argument in Udombana N., The African Commission of Human and Peoples’ Rights and The Development of Fair Trial Norms
in Africa, 6 African Human Rights Law Journal, 2006, 312.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
25
6.4 DUTY TO TREAT THE COURTS AND TRIBUNAL WITH RESPECT:
A trial advocate is required to treat the Courts and Tribunals with respect. S/he is therefore required to
adhere to the rules of conduct when addressing the Court or a Tribunal.
6.5 DUTY TO THOROUGHLY PREPARE FOR EVERY CASE:
A trial advocate is required to thoroughly prepare for a case to be presented before a Court of law. S/he
must address each and every case with seriousness.
The level of preparation for a case should not be based on the amount of legal fees being paid by the
client or other factors. Each case should be treated with the seriousness it deserves regardless of either the type
of case or the fees being paid.
7. TRIAL ADVOCATE’S DUTY TO WITNESSES:
The general fallacy abounding in the legal fraternity is that an advocate has only a fiduciary duty to his
client alone. It’s no wonder many lawyers are rude to witnesses especially during cross examination. Some have
used this tactic as a way of intimidating witness by ensuring they quiver in their boots and therefore provide
contrary statements that would buttress their client’s case. However, this should not be the case.
Trial advocate owe a number of duties to their witnesses. They, inter alia, include:
7.1 DUTY NOT TO HARASS OR BADGER WITNESSES:
A trial advocate should refrain from harassing, badgering or bullying a witness as such may cause a
witness to be confused, agitated or upset and consequently irritate the Court. Even though the approach is
adopted by some advocates to intimidate witnesses, it does not necessarily produce the desired results. The
evidence obtained might be considered to be given under duress which may be detrimental to a trial advocate’s
case. Thus, an advocate should be tactful, gentle and firm but polite at all times. Sallazar v Republic is a good
example where the Court deplored an advocate‘s disrespectfulness towards witnesses and the Court at large.
7.2 DUTY TO CONSULT WITH ONE’S OWN WITNESS BEFORE TRIAL:
Trial advocates ought to have a pretrial conference with their witnesses. This is not for the purposes of
coaching the witness but to prepare the witness not to be apprehensive in the Court.111 In this context, Daniels
Morris observes:
[l]t is permissible to prepare the witness in the general sense for cross examination. Somewhat in the
following terms: listen to the question before you answer. If you don’t understand it, say so. If you
don’t know any answer, don’t guess. Just say that you don’t know. Don’t worry about what the man
has in mind when he asks his question. Just give direct answer. Answer as shortly as possible and don’t
make speeches.112
7.3 COURTESY:
Witnesses should be treated with courtesy and respect as they are important to the Court process.
Treating them in a manner seeking to antagonize them will not aid a trial advocate in his cross examination.
7.4 DUTY NOT TO MAKE UNSUBSTANTIATED ATTACKS ON THE CHARACTER OF A
WITNESS:
An advocate ought to be civil to the witness and not cast aspersions on the character of a witness
especially during cross-examination and to ensure that defamatory statements are kept within the qualified

111
Rule 8, Law Society of Kenya Code of Conduct and Ethics for Advocates.
112
Daniels Morris (ed), Technique in litigation 135, 4th edn., (1993).
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
26
privilege. The Evidence Act, Cap 80 however provides an exception i.e., there must be sufficient reason for
attacking a witness character before launching such an attack. 113
The Any questions intended to annoy or insult a witness should be avoided. In other words, an
advocate should refrain from asking indecent, scandalous, insulting or annoying questions to the witnesses. The
Court has discretion to restrain such questions, despite the fact that they may reveal relevant information to the
case.114 An advocate should therefore act with integrity and professionalism maintaining his or her overarching
responsibility to the Court.115
7.5 DUTY NOT TO WANTONLY OR RECKLESSLY ACCUSE WITNESS OF A CRIME:
An advocate should appreciate that the witness is not on trial. Therefore, when undertaking cross
examination, s/he should exhibit professionalism.116 The witness should thus be allowed to undertake their civic
duty without perceiving to be on trial.
7.6 DUTY TO HANDLE CHILDREN WITNESSES WITH GREAT CARE AND ENHANCED
SENSITIVITY:
The law under Oaths and Statutory Act has provided ways in which a child can be allowed to
appreciate the nature of the oath. A trial advocate should be friendly and sensitive to the tender age of the
children. The procedure on how to handle such witnesses was laid down in Peter Kiriga Kiune v. Republic117
and in James Wanjohi Kinyua v. Republic.118 In both cases, the importance of voire dire examination by the
Court was emphasized.
A trial advocate should avoid any suggestion calculated to induce any child witness to suppress
evidence or deviate from the truth. However, an advocate may inform a witness that s/he is not duty bound to
submit to an interview, or to answer questions propounded by an opposing counsel unless required to do so by
judicial or legal process.
7.7 PAYMENT OF COMPENSATION TO A WITNESS:
An advocates should not pay, offer to pay, or acquiesce in the payment of compensation to a witness
contingent upon the content of the witnesses’ testimony or the outcome of the case. In addition, an advocate
may advertise for witnesses to a particular event or transaction but not for the witness to testify to a particular
version that advances his/her case.
7.8 DUTY TO INFORM WITNESSES:
An advocate has a duty to inform a witness about the date a case is going to be heard promptly. S/he
must also furnish the witnesses with the full details of the case so that their testimony can be correct.
7.9 DUTY TO PREPARE WITNESSES:
A trial advocate has a duty to:
a) advise witnesses how to address the Court:
b) educate witnesses about the procedures that will be followed in eliciting their evidence;
c) assist in refreshing witnesses’ memories by referring to known facts or other evidence and prepare
them to stand up to a hostile cross-examination.

113
S.158, the Evidence Act, Cap 80.
114
Ss. 159-160, ibid.
115
Law Society of Upper Canada’s Rules of Professional Conduct.
116
Rule 12, Law Society of Kenya Code of Conduct and Ethics for Advocates.
117
Cr Appeal 77 of 1982 (unreported).
118
[2002] eKLR.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
27
7.10 DUTY NOT TO BE UNFAIR OR ABUSIVE TO ADVERSE WITNESSES:
An advocate should never be unfair or abusive or inconsiderate to adverse witnesses or opposing
litigants. S/he should ask questions intended legitimately to discredit the assertions of the witness, but not to
insult or degrade them.
7.11 DUTY NOT TO COACH WITNESSES:
Rule 8 of the Law Society of Kenya Code of Conduct and Ethics for Advocates requires an advocate not
to:
 coach or permit the coaching of any witness in the evidence s/he will give before any Court, Tribunal
or arbitrator;
 call to give evidence before any Court, Tribunal or arbitrator any witness whom s/he knows to have
been coached in evidence without first informing the Court, Tribunal or arbitrator of the full
circumstances.
8. DUTIES OF AN ADVOCATES TO THE PUBLIC:
 The duties of an advocate are not limited to the client; they also extent to the third parties and the
public at large. This is because an advocate is first a citizen before s/he became an advocate. It is
therefore only prudent that the advocate should be made obligated to the public as well.
 Robert W. Gordon in Why Lawyers Can’t Just Be Hired Guns equates clients to fish thus: “Think of
lawyers as having the job of taking care of fish. As lawyers, we have to feed the fish. But the fish, as
they feed, also pollute the tank. It is not enough to feed the fish. We also have to help change the
water.”
 Some of the duties of an advocate to the public include:
a) Duty to prevent unnecessary harm to third parties and the general public: In this regard, an
advocate should not participate to perpetuate conduct which may be prejudicial to innocent third
parties. For instance, an advocate has a right to refuse to take instructions from clients which are
likely to lead to unnecessary harm to the public.
b) Duty to promote a just and effective legal system: An advocate should be interested in the
pursuit of truth and veracity and not victory as the ultimate goal. This obligation calls for respect
of the core values such as honesty, fairness and good faith which form the foundation of a justice
system.
c) Duty to develop a wide range of appropriate dispute resolution processes: that can respond to
particular individual and societal interests at stake. Dispute resolution is not all about going to
Court. Best solutions are sometimes made through adoption of Alternative Dispute Resolution
[ADR] processes.
d) Duty to charge affordable and convenient access to justice: This obligates an advocate not to
charge exorbitant prices for their legal services. However, in an effort to make legal services
affordable, an advocate is not supposed to charge less than the amount prescribed in the Advocates
(Remuneration) Order.
9. LAWYER’S DUTY TO THE LEGAL PROFESSION:
a) Duty against professional misconduct: Professional misconduct refers to the breach of rules set up in
the Advocates Act. The following amount to professional misconduct under the Act:

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi
28
 i. Drawing or preparing documents or instruments and not endorsing name thereon (Section 35): In
Jambo Biscuit v. Barclays Bank119 the words “Drawn by” were not inserted by the advocates when
the document was drawn.
ii. Undercutting (Section 36)
iii. Sharing of profits with unqualified persons (Section 37): In Re A. Solicitor120 and Re Lydell121, the
House of Lords held that a solicitor who carried on the practice of undisclosed profit sharing with
another who presented conflicting interest was guilty of professional misconduct.
iv. Touting (Section 38);
v. Employing a person who has been struck off from the roll (Section 41(1); and
vi. Non-disclosure by people who are disqualified to act as Advocates (Section 42).
b) Duty against unprofessional conduct: It is a lawyer’s duty to the legal profession that he should not
engage in unprofessional conduct. Tom Ojienda defines “unprofessional conduct” as including the
breach of good manners in practice. He gives the following examples as amounting to unprofessional
conduct:
i. chewing gum in court;
ii. attending Court while drunk;
iii. running a brothel or living from the earnings of prostitution;
iv. bad language – where an advocate cannot express himself properly in English;
v. insults to the public.
10. LAWYER’S DUTY TO HIMSELF:
a) Duty to honour professional undertaking: An advocate’s undertaking is the bedrock of the system of
the transfer of property and conveyancing in society. It shows how much society trusts the undertaking
given by an advocate. It is a serious pledge within the profession. It is not lightly given. But once
given, it cannot be breached. Its breach is policed by the Court and by statute122. Pheroze Nowrojee
says that “an advocate’s word is his bond.” In Kenya Reinsurance Corporation v. V. E. Muguku Muriu
& Company123 the Court held that having given a solemn professional undertaking to pay a certain
sum of money, an advocate is bound and cannot resile therefrom.
b) Duty to act reasonably, morally and honorably: In asserting their clients’ autonomy, lawyers must
not sacrifice their own. Their representative role may make it appropriate for them to take steps on
behalf of a client that they would not take on their own behalf. However, it will never be appropriate
for a lawyer to embrace a standard which involves abdicating their own responsibility as a moral
human being.
11. DUTIES OF ADVOCATE TO HIS FORMER CLIENT:
a) A lawyer who has formerly represented a client in a matter shall not thereafter represent
another person: in the same or a substantially related matter in which that person's interests are
materially adverse to the interests of the former client unless the former client gives informed
consent, confirmed in writing.

119 Law Africa 2001

120 93 LT 838
121 1901] 1KB 187
122 Order 52, Civil Procedure Rules
123 Nairobi Civil Appeal No.48 of 1994
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
29
 b) Information: A lawyer who has formerly represented a client in a matter or whose present or
former firm has formerly represented a client in a matter shall not thereafter:
i. use information relating to the representation to the disadvantage of the former client except
as these Rules would permit or require with respect to a client, or when the information has
become generally known; or
ii. reveal information relating to the representation except as these Rules would permit or
require with respect to a client.
If these duties cannot be adhered to then the firm of Advocates and/or their agents should
withdraw from acting in the matter. Failure to do the same, a formal application may be made by
the adverse party for the disqualification of the firm as witnessed in the case of Carnevali Fausto &
another v. Gianluigi Luigi & 2 others. A general exception to the rules would be once the advocate
seeks informed consent of both concerned parties.
12. COMPETING/CONFLICTING DUTIES OF AN ADVOCATE:
An advocate not only has a duty to his/her client, but s/he still has duties to the Court, public, opponent,
witnesses and his personal interests. The exercise of such duty as an advocate has not only led to clashing of
roles creating a dilemma as to which way to follow when there is a conflict in the exercise of duties, but also
whether all duties should be given equal prominence.
Gavin MacKenzie in The Ethics of Advocacy124 states that a lawyer's duty to the client and duty to the
Court are given equal prominence. He goes on to say that in the United States the duty to the client is generally
seen as the lawyer's primary duty, while in Britain, Australia and Newzealand, the duty to the Court is pre-
eminent. However, in Canada, the two duties are given equal prominence which may make ethical choices in
advocacy more difficult.125
12.1 CONFLICT OF INTEREST:
1. INTRODUCTION:
 A conflicting interest is an interest which gives rise to a substantial risk that the advocate’s
representation of a client would be materially and adversely affected by the advocate’s own interests or
by the advocate’s duties to another current client, former client or a third person.126
 Conflict of interest has increasingly become a problem because of the:
a) increasing size of the profession;
b) increasing mobility (movement) of solicitors between legal practices;
c) greater likelihood of clients changing advocates during the course of matters.
 For the interest of justice, an advocate must remain independent in judgement, loyal and objective at all
material times during the subsistence of a client-advocate relationship. This independence is multi-
faceted i.e., independence from the a) client, b) Court, c) public, d) third parties, and e) winning at all
costs. Rules of professional ethics, therefore, require an advocate to decline instructions where there is
a possibility of his/her independence being interfered with. This is meant to avoid embarrassment to the

124
MacKenzie Gavin, The Ethics of Advocacy, The Advocates' Society Journal, September, 2008, p. 26.
125
MacKenzie Gavin, The Ethics of Advocacy, The Advocates' Society Journal, September, 2008, p. 26.
126
S.96 of the LSK Code of Standards of Professional Practice and Ethical Conduct, 2016.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
30
 Court. Accordingly, an advocate should only take such representations where the client consents which
must however, be confirmed in writing. 127
2. KENYAN LEGAL POSITION ON CONFLICT OF INTEREST:
 Invalid agreements: Section 46(a) of the Advocates Act, Cap 16 provides that nothing in the Act shall
give validity to any purchase by an advocate of an interest, or any part of an interest of his client in any
suit or other contentious proceeding. This provision bars the purchase of an interest in property of a
client by an advocate which is the subject matter of contentious suit.
 Called as a witness: Rule 8 of the Advocates (Practice) Rules, 1966 provides that an Advocate who
believes that s/he shall be called as a witness in a matter should not appear before a Court or a Tribunal
presiding over the same matter.128
3. FORMS OF CONFLICT OF INTEREST:
Conflict of interests can take two forms:
a) Conflict of duty and interest: It occurs where an advocate's personal interests clashes with the duty
s/he owe to the client. Principle 15 of the UN Basic Principles on the Role of Lawyers states that
lawyers shall always loyally respect the interests if their clients. In Law Society of New South Wales v.
Harvey,129 the defendant, a solicitor, was also a director and shareholder in three companies in the
business of property investment. Over a period of years, clients of the defendant lent money to these
companies at the suggestion of the defendant. The investments undertaken by the companies were of
very high risk and the clients stood to substantially lose in the event of failure. The investments were
not fruitful and it cost the clients dearly. The Court held that the solicitor’s flagrant disregard of his
duty to his client’s proved that he was professionally unfit to practice.
Conflict of duty and interest takes the following forms:
i. Pecuniary conflict of interest: An advocate’s acquisition of even the smallest interest in litigation
or a party to it may result in his/hers disqualification. However, an advocate may be permitted to
represent the client upon full disclosure to the client that there is a possible conflict of interest and
the client must then consent to the representation.
ii. Potential witness in a case: This arises when it is expected that an advocated will be called as a
witness in the case. In such a case there is a need to protect the client’s interests because of the
probability that the testimony could harm the client’s case. Rule 8 of the Advocates (Practice)
Rules, 1966 provides that an Advocate who believes that s/he shall be called as a witness in a
matter should not appear before a Court or a Tribunal presiding over the same matter. In Francis
Mugo & 22 Others v. James Muthee & Others, 130 advocate was disqualified from acting for the
plaintiff because the advocate had drawn a lease agreement between the plaintiff and defendant,
and the defendant intended to call the advocate as a witness in the same matter.
b) Conflict of duties: Conflict of duties takes the following forms:
i. Conflict between duties owed to two or more clients, former clients or new clients: This type of
conflict takes the following forms:

127
See, S.134, the Evidence Act, Cap 80.
128
Rule 13 of the International Code of Ethics of the International Bar Association states that lawyers should never represent conflicting
interests in litigation. In non-litigation matters, lawyers should do so only after having disclosed all conflicts, or possible conflicts of interest
to all parties concerned and only with their consent. The rule also applies to all lawyers in a firm.
129
(1976) 2 NSWLR 154.
130
Civil Case No. 122/2005.
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Kenyatta University School of Law, Parklands, Nairobi
31
  Simultaneous representation: This is where an advocate represents two or more adversaries in
a case. This is prohibited. The rationale behind this is that since the advocate-client
relationship is fiduciary in nature (which means it is based on trust) a client may reveal to
his/her advocate information which may hurt his/her interests and the advocate cannot
represent the very parties who seek to benefit from the revelation of such injurious
information. In King Woolen Mills Ltd v. Kaplan & Stratton Advocates,131 it was held that
because the lender had retained the respondent’s Law Firm, a fiduciary relationship had been
created by that contractual obligation. As such, the Court of Appeal allowed the appeal and
ordered the injunction to have the respondents remove themselves from the case.
 Successive representation: This arises when an advocate represents a client in a matter which
may be adverse to a former client. Where matters of former and current clients are related in
some way, the advocate would risk breaching confidentiality in representing the current client.
In Uhuru Highway Development Ltd. v. Central Bank of Kenya,132 it was held that an advocate
would not be allowed to act against a client where he could consciously or unconsciously use
the confidential information acquired when he acted for such a client to his detriment. Where
it is established such a client would suffer prejudice, then the Court would have no alternative
but to order such an advocate ceases to act for the opposing party.
 Adverse representation: It arises when an advocate represents one client in a manner that is
adverse to the interests of another current client in a typically unrelated manner.
Representation that is adverse to the interests of a current client is forbidden not only in
litigated matters but in transactional ones.
 Parallel representation: It arises in a situation where an advocate attempts to concurrently
represent different plaintiffs in different matters against a single defendant who has limited
assets to satisfy an adverse judgment.
 Dual roles conflict: It arises where an advocate acts in dual roles i.e., where an advocate
simultaneously serves as both advocate and legislator. It may also arise in a situation where an
advocate represents an entity client (stakeholders) but at the same time s/he serves on the
Board of Directors or Trustees.
ii. Conflict between duties to the Court and to a client: An advocate is an officer of the Court and
plays a very vital role in the functioning of the judicial process. Equally, an advocate owes his
clients a duty of confidentiality and the duty to act in the best interests of the client due to the
nature of the relationship between himself and the client, which is fiduciary. The jurisprudence
with regard to this matter in most commonwealth jurisdictions appears to incline to the fact that the
duty owed to the Court is higher than that owed to the client. In Rondel v. Worsley,133 Lord
Denning held that:
An advocate is a minister of justice i.e., equally with Judges. ... [H]e must accept the brief and
do all he honourably can because his duty is not only to his client. He has a duty to the Court
which is paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what
he wants; or his tool to do what he directs. He owes allegiance to a higher cause. It is a cause

131
Nairobi Civil Appeal No.55 of 1993: (1990-1994) EA 244.
132
Civil Appeal No.286 of 2001: (2003) KLR 62.
133
(1967) 3 WLR 1666.
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Kenyatta University School of Law, Parklands, Nairobi
32
 of truth and justice. He must disregard the most specific instructions of his client if they
conflict with the duty to the Court.
Often, the conflict in these two duties arises where:
 a client confesses to having committed a crime; or
 a client intends to give a false testimony; or
 an advocate is in possession of facts which may prejudice his clients’ case
In the above circumstances, an advocate is faced with the dilemma of flouting attorney-client
privilege by informing the judicial officer of his discovery of the commission of a crime.
Section 134(1) of the Evidence Act, Cap 80 clearly provides that “no advocate shall at any time be
permitted unless with his client’s express consent, to disclose any communication made to him in
the course and for the purpose of his employment as such advocate, by or on behalf of his client, or
to state the contents or condition of any document with which he has become acquainted in the
course and for the purpose of his professional employment, or to disclose any advice given by him
to his client in the course and for the purpose of such employment: Provided that nothing in this
section shall protect from disclosure any:
 communication made in furtherance of any illegal purpose;
 fact observed by any advocate in the course of his employment as such, showing that any
crime or fraud has been committed since the commencement of his employment.
The protection given above continues even after the employment of the advocate has ceased.
4. INSTANCES WHICH ALLOW AN ADVOCATE TO REFUSE A CLIENT’S BRIEF:
An advocate may decline a client’s brief where:
a) there is conflict of interest;
b) representation of one client would directly, adversely affect the representation of another client;
c) representation of one client would materially amount to the representation of another, a former client or
a third party;
d) there exists a fiduciary relationship between the advocate and the client;
e) an advocate has specialized in a specific area and the client has brought in an issue which the trial
advocate lacks necessary expertise. The advocate may refer the client to another advocate who is
specialized in the area;
f) an advocate is too busy and may lack enough time to prepare for the client case. The advocate may
refer the client to another advocate;
g) a client’s instructions are against the Professional Codes of Conduct and may propagate fraud and
misrepresentation. In such circumstances an advocate may decline to take up instructions;
h) an advocate is a potential witness in the same suit before the Court regarding the subject matter in
dispute;
i) an advocate was in the tribunal that decided the matter before the Court and s/he was representing the
opposing party;
j) an advocate is practicing in a partnership and his/her partner is likely to be called as a witness in the
matter before the Court;
k) the legal fee is not adequate to the case;
l) an advocate has been consulted by the other side;

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Kenyatta University School of Law, Parklands, Nairobi
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 m) an advocate has confidential info on the other side;
n) an advocate knows one of the witnesses;
o) the case falls outside the jurisdiction of the Court in which one ordinarily practices;
p) a client wants an advocate to take a certain action purely meant to injure someone else;
q) the instructions given are not clear;
r) a client refuses to pay legal fees.
5. THE TEST FOR A CONFLICT OF INTEREST:
 The test whether a conflict of interest will arise was laid down in the Rukesen v. Elius, Munday and
Clerk as being that, a Court must be satisfied that the real mischief and real prejudice will in all human
probability result if the solicitor is allowed to act. The Court went on to observe that:
a solicitor who has been retained by a client is under an absolute duty not to disclose any
information of a confidential nature which has come to his knowledge by virtue of a retainer, and
to exercise the duty of utmost good faith towards his client not only for so long as the retainer lasts
but even after the termination of the retainer.
6. WAYS TO AVOID CONFLICT OF INTEREST:
In the circumstance that there exists a conflict of interest, an advocate has following options/ways to
avoid the conflict:
a) Withdrawal: An advocate withdraws fully from representing a client in a given matter before Court,
or a given transaction. In Francis Mugo & 22 Others v. James Muthee & 3 Others Musinga J. stated:
While I agree that the choice of counsels is a prerogative of a party to a suit, it must be borne in
mind that in the discharge of his office, an advocate has a duty to his client, opponent, Court,
himself and a duty to the State. As an officer of the Court, he owes allegiance to a cause that is
higher than serving the interests of his client … and thus, as a good officer of the Court, the
advocate will ascend to a higher echelon of service to the cause of justice by his disqualification
from acting so as to fulfill the wider cause of his duty.
b) Make a full disclosure to client: An advocate is required to make a full and frank disclosure to the
client when it becomes apparent that there is a conflict of interest, or a likelihood of it occurring due to
continued representation. This requirement is to enable the client to make an informed decision on
whether to allow the advocate to continue to act despite the existence or possibility of a conflict of
interest. An advocate, who accepts instructions and proceeds to act without making a disclosure of
conflicting interests, commits a professional misconduct which may lead to miscarriage of justice and
is subject to disciplinary proceedings.134
However, under Section 134(1) of the Evidence Act, Cap 80, no advocate shall at any time be
permitted, unless with his client’s express consent, to disclose any communication made to him in the
course and for the purpose of his employment as such advocate to another client, or to state the
contents or condition of any document with which he has become acquainted in the course and for the
purpose of his professional employment, or to disclose any advice given by him to his client in the
course and for the purpose of such employment.
In making full disclosure, an advocate lawyer should take the following steps:
 Explain the issues and risk to the client.

134
See, Mwendwa v. Mwendwa, (2004) 2 KLR 621.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
34
  Have a reasonable belief that the clients understand that risk before proceeding.
 Ensure that the client gives informed consent in writing as per Section 134(1) of the Evidence Act.
 An advocate must be satisfied that it is reasonable to act for the clients and that it is in client’s best
interest.
 An advocate should ensure that the benefit of acting for the clients outweighs the risks.
c) Getting client’s written consent: An exception to this rule, require informed written consent from all
affected clients. In some circumstances, a conflict of interest can never be waived by a client e.g.,
divorce or child custody cases. The getting of a client’s written consent is closely related to the full
disclosure of information to the client as it is only after disclosure has been made that the client may
make an informed decisions regarding the matter at hand and, after weighing out the outcomes, choose
to give a written consent as to whether the advocate may continue to represent him despite the
conflicting interest.
d) Chinese walls: This usually involves the establishment of internal rules and procedures designed to
prevent the passage of confidential information from one part of the law firm to another. This may be
done through undertakings, limitation of communication between various persons, provision of lock
rooms for containing confidential information and documents, monitoring access, having written rules
on confidentiality and having separate teams working on different sides of a matter. A Chinese wall is
successfully claimed to be in place when there is:
 physical separation of departments;
 training and education of staff in confidentiality obligation;
 strict procedures and sanctions if the wall is crossed, and
 monitoring of compliance officers.
The concept of Chinese wall was adopted in Shalom Ltd. & 2 Others v. Sadrudin Kurjii & Another,135
where two firms, previously acting for opposing parties, namely, Oraro & Co. Advocates and Harrison
Hamilton & Matthews merged to form HHM Oraro. The Oraro & Co. Advocates chose not to represent
its clients for fear that the merger could cause conflict of interest. However, Harrison Hamilton and
Matthews did not opt out thereby being put in a defensive position as why it should not. The Court held
that failure by the applicants to present to Court material upon which the Court would make a
determination that indeed there are grounds upon which the Court could reach a determination that
there exists a possibility of conflict of interests was a sure reason that the alleged conflict of interest
does not arise. It was further stated that even where a firm is acting for an opposing party, the
disqualification of the entire firm may not be required. Accordingly, it was the Court’s position to have
the advocates previously working in the firm of Oraro & Co. Advocates disqualified as opposed to the
entire firm of HHM Oraro.
e) Compelled disqualification: An advocate may file an application to show that the opposing counsel is
not fit to represent a client where there is a conflicting interest. Rule 8 of the Advocates Practice Rules,
1966 provides that “no advocate may appear as such before any Court or Tribunal in any matter in
which he has reason to believe that he may be required as a witness to give evidence, whether verbally
or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be

135
(2015) eKLR.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
35
 required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not
continue to appear.”136
In Francis Mugo & 22 Others v. James Muthee & Others, 137 advocate was disqualified from acting for
the plaintiff because the advocate had drawn a lease agreement between the plaintiff and defendant,
and the defendant intended to call the advocate as a witness in the same matter.
In Imena v. Ethuro & 2 Others, 138 the Court held that an advocate can be restrained as a matter of
absolute obligation and as a general principle from disclosing any secrets which are confidentially
reposed in him. There must however be proof that real mischief and prejudice would in all human
probability, result if the advocate is allowed to act.
In Delphis Bank Limited v. Chatthe & 6 Others Ltd.,139 the Court of Appeal held that it was a
constitutional right of a party to be represented by an advocate of his choice but such right could be put
to serious test if there was a conflict of interest, which could endanger the principle of confidentiality in
an advocate-client fiduciary relationship, or where an advocate could also double up as witness.
In King Woolen Mills Ltd v. Kaplan and Stratton Advocates, the Court held that once a retainer is
established, the general principle is that an advocate should not accept instructions to act especially
where there is a conflict of interests.
The case in point was Uhuru Highway Development Ltd. & Others v. Central Bank of Kenya &
Others140 in which an advocate had acted for both parties to the case. The advocate had drawn a charge
in favour of the bank to advance money to Pattni. The Court held that it was not right for the advocate
to act for the plaintiff and the defendant in the same matter. Similarly, in King Woolen Mills Ltd. &
Another v. Kaplan and Stratton Advocates,141 the Court of Appeal held that an advocate who has acted
for two common clients cannot later act for either party in litigation when a dispute arises between the
common clients concerning the original transaction or the subject matter for which he acted for the
clients as a common advocate.
In filing an application to show that the opposing counsel unfit to represent a client, the applicant has
the burden of proof to show that prejudice and mischief may result in all human probability if the
opposing counsel continues to act.142
7. REMEDIES OF BREACH OF CONFLICT OF INTEREST: A client can:
a) Termination of the relationship: on account that the advocate acted where there was a conflict of
interest;
b) sue for breach of fiduciary duty;
c) sue for secret profits;
d) sue for accounts;
e) sue for fees disgorgement:143 In Kevin So v. Leornard J. Suchanek,144 Mr. Suchanek was alleged to be
acting in conflict of interest with a Chinese business man, Kevin in an International Ponzi Scheme law
suit. After the end of attorney-client relationship, Kevin filed a malpractice suit against Suchanek. The

136
Guardian Bank Limited v. Sonal Holdings.
137
Civil Case No. 122/2005.
138
(2008) 3 KLR (EP).
139
(2005) I KLR 766.
140
Civil Appeal No 286 of 2001
141
Nairobi Civil Appeal No.55 of 1993: (1990-1994) EA 244.
142
Supasave Retail Ltd. v. Coward Chance and Others, (1991) 1 ALL ER 668.
143
S.33, the Advocates’ Act, Cap 16.
144
(2012) D.C. Cir.10-7071.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
36
 District Court found that Suchanek breached his fiduciary duty to his clients and ordered him to
disgorge $400,000 of his legal fees plus interest.
f) initiate disciplinary measures: If a client is dissatisfied with the way an advocate has treated him/her,
s/he can file a complaint at the:
 Advocates Complaints Commission: A Department at the State Law Office mandated to inquire
into complaints against advocates, advocate’s Firms and employees thereof. 145
 Advocates Disciplinary Tribunal under the LSK. 146
 Court - S.56 of the Advocates Act, Cap.16 saves disciplinary powers of the Court by providing that
nothing in the Act shall supersede, lessen or interfere with the powers vested in the Chief Justice or
any of the Judges of the Court to deal with misconduct or offences by an advocate.

145
S.53(1), the Advocates Act, Cap 16.
146
S.57, the Advocates Act, Cap 16.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi
37
 THE RIGHTS, PRIVILEGE AND OBLIGATIONS OF AN ADVOCATE
1. INTRODUCTION:
 Advocates are human beings. They are entitled to all human rights as stipulated in Chapter 4 of the
Constitution of Kenya, 2010.1 These rights, inter alia, include:
a) Right to life h) Equality and freedom from discrimination
b) Privacy i) Freedom of conscience and religion, believe and opinion
c) Freedom of expression j) Freedom of the media
d) Access to information k) Fair hearing
e) fair administrative action l) Freedom of movement
f) Freedom of security to the person, slavery, servitude and forced labour
g) freedom of association, political rights, access to justice.
 The other rights of advocates include:
a) Rights of audience in the Courts
b) Right to represent clients of choice
c) Right to be heard in all Courts and Tribunals
d) Right to be represented in any Court of law or Tribunal
e) Disclosure of information: Section 134-137 of the Evidence Act, Cap 80 provides that there can be no
disclosure of communication with client except with express consent of client, or contents of any
document except for illegal activities, in case of fraud. The protection extends even after employment
of an advocate has ceased. The clerks, interpreters of advocates are also included in Section 134. There
can only be waiver of that privilege in case of being a witness in a case.
 Privilege is a doctrine that protects specific categories of information from disclosure in Court. In R. v.
Gruenke,2 it was held that privilege operates as a rule of evidence to exclude relevant information from
consideration by decision makers: If the aim of the trial process is the search for truth, the public and the
judicial system must have the right to any and all relevant information in order that justice be rendered.
Accordingly, relevant information is presumptively admissible.

UNQUALIFIED PERSONS ACTING AS ADVOCATES

1. INTRODUCTION:
 The provisions of Sections 9-13 of the Advocates Act, Cap 16 are absolute and as such any person who
purports to practice law as an advocate without complying with the said provisions will be held liable for
acting as an advocate when unqualified.
 No unqualified person shall act as an advocate: Section 31(1) of the Act provides that Subject to Section
833, no unqualified person shall act as an advocate, or as such cause any summons or other process to issue,

1
There are however instances where advocates rights have been violated i.e., Willie Kimani’s case.
2
[1991] 3 S.C.R. 263.
3
Section 83 provides in this regard that “[Nothing] in this Act or any rules made there under shall affect the provisions of any other written law
empowering any unqualified person to conduct, defend or otherwise act in relation to any legal proceedings.”
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
1
 or institute, carry on or defend any suit or other proceedings in the name of any other person in any Court
of civil or criminal jurisdiction.
 Consequences for acting as unqualified advocate: Section 31(2) of the Act highlights three consequences
for contravening the subsection. These are:
i. It may attract contempt of Court proceedings and appropriate punishment awarded against any person
who contravenes it.
ii. Any person who so acts shall be incapable of maintaining any suit for any costs in respect of anything
done by him in the course of so acting.
iii. Such a person shall be guilty of an offence punishable under Section 85 of the Act i.e., s/he shall be
liable to a fine not exceeding Ksh.100,000, or to imprisonment for a term not exceeding 2 years, or
both.
 Unqualified person not to prepare certain documents or instruments: Section 34 of the Act provides
that no unqualified person shall, either directly or indirectly, take instructions, or draw, or prepare any
document or instrument:
a) relating to the conveyancing of property; or
b) for, or in relation to, the formation of any Limited Liability Company, whether private or public; or
c) for, or in relation to, an agreement of partnership or the dissolution thereof; or
d) for the purpose of filing or opposing a grant of probate or letters of administration; or
e) for which a fee is prescribed by any order made by the Chief Justice under Section 44; or
f) relating to any other legal proceedings;
nor shall any such person accept or receive, directly or indirectly, any fee, gain or reward for the taking
of any such instruction or for the drawing or preparation of any such document or instrument: Provided
that this subsection shall not apply to:
i. any public officer drawing or preparing documents or instruments in the course of his duty; or
ii. any person employed by an advocate and acting within the scope of that employment; or
iii. any person employed merely to engross any document or instrument.
Any money received by an unqualified person in contravention of this section may be recovered by the
person by whom the same was paid as a civil debt recoverable summarily.
Second, it may be argued that Section 34 was intended to protect the public as well as the legal profession
and the course of justice. The section protects the public from unqualified persons acting as advocates
because public policy demands that people who deal with the public should be appropriately qualified
before they can offer services at a fee.
 Advocate not to act as agent for unqualified person: Section 39 of the Act provides that any advocate
who acts as agent in any suit, or in any matter in bankruptcy, for any unqualified person, or permits his
name, or that of any firm of which he is a partner, to be made use of in any such suit or matter, upon the
account or for the profit of any unqualified person, or who does any other act enabling an unqualified
person to appear, act or practise in any respect as an advocate in such suit shall be guilty of an offence.

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
2
  No costs recoverable where unqualified person acts as advocate: Section 40 of the Act provides that no
costs in respect of anything done by an unqualified person in contravention of this Part shall be recoverable
in any suit or matter by any person.
 When to practice on own behalf: The Advocates Act and the Council of Legal Education Act are clear on
when a newly admitted advocate is allowed to practice on his/her own. Accordingly, even after getting a
practice certificate, an advocate is not supposed to engage in practice on his own behalf either full-time or
part time unless he has practised in Kenya continuously on a full-time basis for a period of not less than 2
years after obtaining the first practising certificate in a salaried post either as an employee in the office of
the Attorney-General, or an organization approved by the Council of Legal Education, or of an advocate
who has been engaged in continuous full-time private practice on his own behalf in Kenya for a period of
not less than five years.4 The rationale for this requirement is malti-faceted. First, it helps to protect the
public from unqualified persons purporting to practice law and second, to protect the professional
standards. The period of 2 years may be served under more than one employer. Nonetheless, the cumulative
period must add up to 2 years before a certificate of compliance is issuable.
 Name and address of the drawer of a document or an instrument: Under Section 35(1) of the Act,
every advocate who prepares a document must have their name and address be entered on that document
for record purposes and any person omitting so to do shall be guilty of an offence and liable to a fine not
exceeding Ksh.5000 in the case of an unqualified person, or a fine not exceeding Ksh.500 in the case of an
advocate.
RETAINER5
1. INTRODUCTION:
 Retainer refers to ‘legal fees paid in advance’ by a client for ‘unrendered services.’
 Modes of a retainer: Retainer services fall between a ‘one-time contract’ and ‘full-time employment.’
Additional contracts regarding the performance of this work may also apply.
 The purpose of a retainer fee is to ensure payment for future services or work to be rendered.
2. NATURE OF A RETAINER:
 A retainer can be:
a) a single advance payment or a recurring (e.g., monthly) payment;
b) a fixed pre-negotiated rate, or on a variable hourly rate depending on the nature of retainer and also,
the practice of the lawyer/advocate being retained;
c) refundable if the work is not performed.
 An advocate is an agent of his client: Under the Civil Procedure Rules, 2010 an Advocate who is on record
is considered to be the party’s advocate to the final conclusion of a matter including any review or appeal.
While retained as such he is authorized to:
a) accept service of all documents which are not in all required to be served personally upon his client;
b) make formal written admissions in the course of proceedings for the purpose of those proceedings;

4
Section 32(1), the Advocates Act, Cap 16. See, Mohammed Ashraf Sadique & another v. Matthew Oseko T/A Oseko & Co Advocates.
5
October 2017: Discuss in detail the concept of retainer in the legal profession.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
3
 c) bind his client by a compromise of existing proceedings on terms which do not involve extraneous
matters, unless the client has limited his authority and has communicated that limitation to the other
side, and subject to discretionary power of the Court;
d) make an order is required;
e) inquire into the circumstances and grant or withhold its intervention as it thinks fit, and subject also to
the disability of the client;
f) defer the action;
g) receive payment of debt, damages, or costs except when the client or litigant is under disability, or the
money is to be paid into Court, or to a particular person;
h) act as the client’s authorized agent in all matters which may reasonably be expected to arise for
decision in the proceedings.
 The conduct of an advocate under the retainer will be governed by the Advocates Act, Cap. 16. The Act
provides that a client includes any person who, as a principal or on behalf of another, or as a trustee or
personal representative, or in any other capacity, has power, express or implied, to retain or employ, and
retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to
pay to an advocate any costs.
 Contractual relationship: The retainer creates a contractual relationship between an advocate and the client
irrespective of whether two or more clients are involved. That is to say that the relationship is not
‘tripartite.’ Each client has a separate retainer relationship with the common advocate.
 Arbitration clause: A retainer agreement may contain an arbitration provision covering malpractice claims
as long as the client is fully informed of the provision's effect and is advised to seek independent legal
advice.
 A retainer can come into being by operation of law: Where the law demands that one takes up a pauper
brief- this is retainer by operation of law.
3. ACTING FOR TWO OR MORE CLIENTS:
 Once the retainer is established the general principle is that an advocate should not accept instructions to
act for two or more clients where there is a conflict of interests between those clients as was in the case of
King Woolen Mills and Another v. Kaplan and Stratton Advocates. 6
 In cases where an advocate is retained by two parties as a common advocate each client has a separate
retainer relationship: with the common advocate so that the advocate cannot act for one of them in
enforcing certain obligations against the other since such advocate would already have obtained relevant
knowledge that may be detrimental to the other party’s case.
 Duty not to disclose: The fiduciary relationship created by the retainer between client and advocate
demands that the knowledge acquired by the advocate while acting for the client be treated as confidential
and should not be disclosed to anyone else without that client’s consent. This principle exists even where

6
Nairobi Civil Appeal No.55 of 1993.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
4
 an advocate acts for more than one parties as a common advocate and continues long after the matter for
which the retainer was created has been concluded.
 The general principle: is that once the solicitor has acted for a client, he should never act for the client or
opponent client in a subsequent litigation arising from the transaction or subject matter for which he had
acted for the client.
4. FACTORS TO CONSIDER BEFORE SIGNING A RETAINER:
a) Always be in writing: Oral agreements are common, even though ethical rules in many jurisdictions
prohibit or discourage them. Such agreements can lead to a “he said, she said” dispute. Sometimes a lawyer
will deny the existence of an attorney-client relationship if there is no formal written retainer agreement.
Without a written agreement one risks having no attorney and no recourse for an attorney error, even if s/he
has already paid.
b) Contain a statement that the firm has conducted a search for conflicts of interest: and either there are
no conflicts, or appropriate parties, including the client, have been advised of potential conflicts and waived
them. For large engagements, it is prudent to have the retainer agreement or some other writing specify the
steps taken to ensure a conflict-free representation.
c) Contain an estimation of all fees necessary to undertake the engagement: In fixed fee cases, this
provision should specify the terms and timing of compensation. For hourly fees, the agreement should
estimate fees and identify any external factors which may increase or decrease the estimated amount. If
there is a separate budget for the case, the retainer agreement should refer to and incorporate the budget.
d) Specify the scope of the engagement: If the lawyer is being hired to prosecute a civil case, specify
whether the engagement covers appellate work, or legal work to enforce the judgment. This is especially
important in work undertaken for a fixed fee, where attorneys will have an interest in limiting the scope of
the engagement, while clients will have an interest in expanding the scope. The agreement should identify
precisely who will work on the case, what s/he will do, and at what rates. The agreement should also note
that subsequent staffing changes will only occur with client consent.
e) Specify the goals of the engagement: If the subject of a retainer agreement is litigation, the goal may be
an early, favorable settlement, or victory by summary judgment. The agreement should make clear that the
goals are not guaranteed.
f) Identify favored methods of communication: Since failures in communication are arguably the most
common source of attorney-client friction, it makes sense to address effective communication at the
inception of the attorney-client relationship. Phone calls are still the number one way to communicate, but
these days many prefer e-mail for day-to-day communications. Keep a record of all communications with
the client and reduce any oral communications into writing for ease of reference.
g) Specify that any disputes between attorney and client should be referred in the first instance to non-
binding mediation or arbitration: An advocate should not sign an agreement that extinguishes the
client’s right to go to Court or to have a jury trial nor should s/he ask clients to settle disputes in Court. Let
the Court be the last place to go in the event of a dispute with a client.

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
5
 h) Specify that the client controls the matter and must be consulted on all major decisions going
forward: An advocate can define “major decisions” as specifically as one wishes. For instance, in the
litigation context, clients should require informed consent for all substantial motions, legal research
projects, additions to staff, out-of-town travel, settlement offers, and engagements of experts or consultants.
Since clients have the right to provide lawful instructions to their counsel at any time during the course of
the representation, an advocate can amend instructions after the retainer agreement has been signed.
i) Specify the client’s right to terminate the attorney: and detail the attorney’s obligations after
termination. These obligations should include retaining the file for a number of years, and offering to copy
the file (at the client’s expense) for the client and/or incoming counsel.
5. RETAINERS BY SPECIAL PERSONS: They include:
a) Minors: They defend through guards and sue through next of kin.
b) Persons of unsound mind: Presumption of insanity is important.
c) Poor persons: This is through pauper briefs
d) Unincorporated bodies: The fees for incorporation to be paid by the promoters.
e) Companies: Depends on articles of association. A company cannot enter into contracts unless incorporated.
f) Trustees, executors and liquidators: They can appoint an advocate in the usual way. Trustees are personally
liable for the costs and can pay from the proceeds of the trust property.
g) Receivers: They may appoint an advocate and personally liable .can look into the assets of the company for
costs.
h) Partnerships: The partners may be liable on a retainer given by one of them for business.
i) Agents: Agents can only retain on behalf of the principal if they have actual authority and upon ratification
by the principal otherwise one can seek to be indemnified by the agent.
j) Persons with conflicting interests: An advocate not to represent such persons. S/he should instead advice
the client to seek for alternative representation.
In Muriithi Kireria & Associates Advocates v. Kenya Planters Co-operative Union Limited, [2017] eKLR, the
Union contended that there had never existed any advocate-client relationship between it and the advocate. The
Union asserted that it had by a resolution made on 7 th August 2012 only retained Senior Counsel Paul Muite to
act generally for the union in active cases pending in Court. By the same resolution, the union also resolved that
the Senior Counsel could engage junior counsel(s) in matters involving the union, the legal fees payable to both
the lead counsel and junior counsel would be agreed upon on ‘a brief by brief basis.’ On behalf of the Union,
Mr. Ongegu who appeared in for Mr. O. Obar’s stead urged that in the absence of a clear retainer, the advocate
could not file an advocate-client’s Bill of Costs. In the instant case, the retainer was with Paul Muite and the
Union would have had no problem if the Senior Counsel was the one who had filed the Bill of Costs. Mr.
Ongegu also relied on the case of Bugerere Coffee Growers Ltd. v. Sebaduka, [1970] EA 147 for the
proposition that where a retainer was disputed involving a company, the advocate needed to avail evidence in
the form of a minute book or resolution by either the company or its directors authorizing his firm or the
advocate to act for the company. He thus urged the Court to strike out the Bill of Costs as the advocate had
shown that a retainer existed. The Court held that:
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
6
 I return the verdict that a retainer existed between the advocate and the Union. I have found no evidence to
displace it. Existence of a retainer entitles an advocate to earn fees and be paid by the client for work done
and I have found for the advocate in this case. I consequently see no reason why the advocate-client Bill of
Costs should not go through a detailed assessment by the Deputy Registrar. The application by the Union to
stay proceedings will be and is hereby dismissed.
6. DURATION OF A RETAINER:
 An advocate can be retained and remunerated by way of salary until the conclusion of the matter for which
s/he is retained.
 An advocate’s independence would be interfered with if one client retained him for an extended period for
no known or particular cause. The advocate then has to act in such a manner that he is never in conflict
with the interest of that particular client.
7. TERMINATION OF A RETAINER: This can be through:
a) Notice in writing7; h) loss of capacity
b) a Court order i) frustration of the contract
c) lapse of time frame in which legal services were engaged j) death of a client
d) fraud k) declaration of bankruptcy
e) a clent’s intentions l) completion of business
f) change of advocates m) withdrawal
g) insanity of the client or the advocate
8. TAXATION OF BILL OF COST WHEN THERE IS A DISPUTE AS REGARDS RETAINER:
 In Mbugua & Mbugua Advocates v. Kenindia Assurance Co. Ltd.,8 the issue was as to whether a dispute as
to retainer can be a bar to taxation of a Bill of Costs? The respondent submitted that a dispute as to retainer
is not a bar to taxation. Section 51(2) of the Advocates Act stating that taxation can proceed and certificate
of taxation issued by a taxing officer even where an advocate’s retainer is disputed. The Court held that
there was a retainer in this case and the respondent was therefore entitled to his instruction fees and
disbursements that remain unsettled by the client, and that an advocate who has rendered services for the
client as instructed, should be remunerated and not impoverished. In the premise, the Court directed the
taxing officer to tax the advocate client Bill of Costs in accordance with the laid down principles for
taxation of an advocate-client bills of costs.
 Time-barred: In Abincha & Co Advocates v. Trident Insurance Co Ltd.,9 the issue was whether an
advocate’s Bill of Costs was time-barred under the Limitation of Actions Act? An advocate’s claim for costs
would be based on the contract for professional services between him and his client. An action to recover
such costs would be subject to the limitation period set out in Section 4(1)(a) of the Limitation of Actions
Act.10 Solicitor’s costs: If a solicitor sues for his costs in an action, the Statute of limitation only begins to

7
See, Mercy Nduta Mwangi t/a Mwangi Kengara & Company Advocates v. Invesco Assurance Company Limited [2016] eKLR.
8
[2015] eKLR.
9
[2013].
10
Section 4(1) of the limitation of Actions Act in this regard provides that: The following actions may not be brought after the end of six years
from the date on which the cause of action accrued:
a) actions founded on contract;
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
7
 run from the date of termination of the lawful ending of the retainer of the solicitor. If there is an appeal
from the judgment in the action, time does not begin to run against the solicitor, if he continues to act as
such, until the appeal is decided. If judgment has been given and there is no appeal, time runs from the
judgment, and subsequent items of costs incidental to the business of the action will not take the earlier
items out of the statute. In respect of miscellaneous work done by a solicitor, time under statutory limitation
begins to run from the completion of the whole of each piece of work. A solicitor cannot sue a client for
costs until the expiration of one month after delivery of a signed bill, but nevertheless time runs against a
solicitor from the completion of the work and not from the delivery of the bill.
 Termination of retainer needs to be in writing: In Mercy Nduta Mwangi t/a Mwangi Kengara & Company
Advocates v. Invesco Assurance Company Limited, [2016] eKLR, the respondent’s submissions on the
issue of limitation of time was that there was no letter terminating the retainer, or evidence of when
judgment was entered in the primary cause in Stella Mutabe Ndumi v. Kimeu Mula,11 or a notice of change
of advocate duly filed in Court and served upon the advocate's Law Firm. The Court held that a perusal of
the Bill of Costs showed that the last service delivered by the respondent before the filing of the Bill of
Costs was on 20th July 2005 when the respondent sought instruction fees for defending the applicant in
Stella Mutabe Ndumi case. The Bill of Costs was filed on 26th October 2015, ten years later. However, the
applicant did not bring any evidence of the end of the respondent’s retainer in this respect, or evidence of
when judgment was entered in the primary cause. For that reason, the Court did not find that that the Bill of
Costs filed by the respondent was time-barred.
9. EFFECTS OF TERMINATION OF A RETAINER:
 Right to recover retainer fee: Section 45(5) of the Evidence Act, Cap 80 provides that an advocate who is a
party to a retainer agreement and who has acted diligently for the client is entitled to sue and recover for the
whole retainer fee should his client default in payment thereof. As long as the advocate has been diligent,
his entitlement to the fixed sum is so outright that he need not tax his costs nor give statutory notice to the
client prior to his pursuit of the said fee. Consequently, it behooves such advocate to ensure that the retainer
agreement once made, is reduced into writing.
 Right to terminate retainer: In Richard Buxton (Solicitors) v. Mills-Owens,12 the Court held that solicitors
should not terminate their retainers, leaving their clients with the task of finding fresh solicitors to complete
the job.
10. AUTHORITY ON DOCUMENTS AFTER TERMINATION OF RETAINER:
Where a client terminates the retainer, an advocate should do the following:
a) Determine whether or not the client is retaining new counsel.
b) Prepare a final bill for the client in order to settle accounts (whether the client owes you money, or you are
required to refund money to the client).

b) actions to enforce recognizance;

c) actions to enforce an award;
d) actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written
law.
11
Kithimani RMCC N0.135 of 2004.
12
[2010] EWCA Civ 122.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
8
 c) Remind the client of limitations or deadlines that might affect the client’s legal rights or obligations.
d) Suggest that the client instruct new counsel.
e) Arrange for the transfer of client’s property to the client or his new counsel.
f) Confirm your communications in writing.
Where an advocate terminates the retainer, s/he should do the following:
If a lawyer withdraws from a file, or is discharged, they must do the following;
i. Give the client reasonable notice: This will allow the client time to make alternate arrangements for
representation, and reduces the chance that the client will feel abandoned.
ii. Remind the client of important dates: For instance, limitation dates, trial dates, examinations for discovery.
If you have not provided the client with a roadmap, advise the client of these matters so that the client can
take proper steps to protect his or her rights, or meet obligations. However, if you have already provided
the client with a roadmap, this will amount to confirming what you have already told them.
iii. Give a final reporting letter which would confirm the result: and remind the client that s/he will have to
take steps to collect on the judgment.
iv. Using a model client survey: can be helpful to track the efficacy of your client communication skills and
help you identify strengths and weaknesses in your practice.
v. You might wish to provide the client with the survey at the beginning of the retainer: and ask them to fill it
out when the work has been completed. This approach lets the client know that you are interested in
communicating effectively, and that you value their feedback. It might also allow the client to alert you to
points of strength, or areas of concern, earlier in the relationship.
vi. Copies of documents: When you transfer a file, make copies of the content, as you may be required to prove
that a bill is fair and reasonable. It is also important to keep copies of core materials as they can be used to
defend against future claims a client might make regarding the services you provided.
vii. Liens to secure payment: While a lawyer may assert a lien on a file, the Court may order the file to be
delivered to the client. This is meant to protect a client from injury. 13
11. GUIDE TO DOCUMENTS HELD IN A RETAINER: Documents:
a) prepared by the solicitor for the benefit of the client: and which may be said to have been paid for the
client, belong to the client.
b) prepared by the solicitor for his own benefit as protection: the preparation of which is not regarded as an
item chargeable against the client, belong to the solicitor.
c) sent by the client to the solicitor during the course of the retainer: the property in which was intended at the
date of dispatch to pass from the client to the solicitor, e.g., letters, belong to the solicitor.
d) prepared by a third party: during the course of the retainer and sent to the solicitor (other than at the
solicitor's expense), e.g., letters belong to the client.
In McInerney v. Macdonald, a patient requested copies of the contents of her medical file from her doctor.
The doctor delivered copies of the records that she had prepared herself, but refused to produce copies of
reports and records that she had received from other doctors who had treated the patient. She took the

13
Re Galland, (1885), 31 Ch. D. 296 (C.A.)
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
9
 position that those records were the property of those other doctors. The Supreme Court of Canada held
that the relationship between the doctor and patient is a fiduciary relationship. Information revealed to the
doctor in his/her professional capacity is held in a manner somewhat similar to a trust. While the doctor
owns the actual medical records, the information is to be used by the doctor for the benefit of the patient.
Generally a patient is entitled to reasonable access to examine and copy all information in the patient's
medical file which the doctor considered in administering advice or treatment provided that the patient pays
a legitimate fee for the preparation and reproduction of the information.
12. DISABILITIES OF AN ADVOCATE IN A RETAINER AGREEMENT:
 Fiduciary relationship of client and advocate: Utmost good faith must exist between an advocate and his
client. It is a fiduciary relationship. An advocate must seek to give disinterested advice at all times and that
is why s/he act for more than one client at a time. This disability continues even after cessation of the
relationship or demise of the client.
 Purchase by an advocate from the client: An advocate is not allowed to make a purchase from their
client when retained as such, but it will be open to one to show that the bargain entered between one and
their client is as good a bargain as would be entered with any other party. If one is selling to their client, the
same role applies.
 Loans by an advocate to his client: The general rule is that an advocate should never borrow money from
his client when on retainer. One can only borrow from their client if there is no one else to borrow from and
at their costs. If the client wants security, one must give them adequate security. In Norton v. Ashburton, it
was held that one may lend money to the client and take security upon the loan. However, it is not
encouraged. Instead, an advocate should advise the client on where to go to obtain the facilities.
 Gifts to the advocate by the client: An advocate is properly entitled to his fees. One can only ask their
client to donate to their favourite charity. Any gift one is given, it is open to the Deputy Registrar to include
the value of that gift in the amounts to be taxed off. This rule applies in retainer agreement.
 Bequest and devices to advocate from client: If one is instructed to procure a Will and the client
intimates that they want to leave something for you, one must cease to take instructions and advice the
client to get another lawyer. The advocate may be accused of having undue influence over the client and
therefore it would not be proper to act for the testator. An advocate who is independent must draw the will.
 Advocate as an agent in a purchase: Where advocates are agents for clients in transactions, an advocate
cannot purchase from the client and make a profit from the resale. If one does that, the profits are due to the
client. An advocate is only entitled to the commission that has been negotiated as a retainer as an agent.
 Costs: An advocate is entitled to take security for costs due. This is an area that is quite troublesome in that
it becomes difficult to realise security for costs where it can be shown that the security was way above the
fees due under the retainer. An advocate should not have an interest in the subject matter of the suit.
 Sureties: An advocate should never be a surety for their client at any time. Even if on retainer.
 Affidavits: It is not open to the advocate to cause an affidavit to be drawn that contains untruths. An
affidavit must be very clear as to what has to be substantiated. An advocate should always shun swearing

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
10
 any affidavit on behalf of the client, unless they are deponing to matters that are within their knowledge.
An advocate must not file affidavits that they are aware contain untruths.
LIEN
1. INTRODUCTION:
 Lien is a legal claim. A charge upon real or personal property for the satisfaction of some debt or duty, A
right in one to control or hold and retain the property of another until some claim of the former is paid or
satisfied.
 What is the nature of the right that an advocate can exercise lien over? The right attaches, deeds, papers and
other personal properties which come into possession of an advocate in the cause of professional
employment with the sanction of the client and are the client’s property i.e., letters of administration,
money, insurance policy, etc.
2. CONDITIONS IN EXERCISE OF THE RIGHT TO LEIN:
One must be careful when determining if they are in a possession to exercise lien over client property. As
such, the following must be taken into account:
a) The property must be delivered to the advocate: in respect of whose bill is to be paid. The bill is what gives
the advocate the right to exercise lien.
b) The advocate must have received the document or property in his professional character: If he receives the
property for example as a trustee, he cannot exercise lien, it has to be in his professional capacity. As
against the trust, an advocate can exercise lien over documents in his possession.
c) An advocate cannot exercise a right of lien in a clients’ representative action: when claiming fees from
those who have not paid. If the majority have paid, an advocate must release the documents. On the other
hand, if it is the majority who have not paid, the Court will order that they pay and the advocate has right to
lien over their documents.
d) The client has no right to the deeds or documents that are being held.
3. LIMITATIONS TO LIEN:
 Delivery of documents will be ordered where payment of an advocates’ costs are secured.
 If one has security for costs, they cannot exercise a lien. Delivery will also be ordered where the interest in
the documents may be injured or lost through exercise of the lien.
 No advocate can create a lien beyond his or her interest. This means that under limitations if a client
delivers documents where their interests are limited an advocate can only exercise lien to the limits of the
interests of the client.
 In a mortgagor/mortgagee where an advocate acts for both parties he cannot exercise lien over the same
documents as against the mortgagee for costs that are due from the mortgagor. This explains the general
rule of where a person is exercising greater title they are entitled to the documents. In this case you have to
give the documents to the mortgagee coz his interests are greater than those of the mortgagor.
4. TYPES OF LIEN:
a) Common law lien
b) Statutory lien
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
11
 c) Retaining lien: Also referred to as ‘General lien’ is founded on the general law of lien, which springs from
possession. It is a right at common law depending on the implied agreement.
d) Specific lien.
5. WHAT IS SECURED BY A LIEN?
 Costs: Lien is limited to costs on work done in respect of a particular matter. These are taxable costs
charges incurred by an advocate for his client.
 An unqualified person cannot exercise lien as he is not entitled to fees
 The personal representatives of a deceased advocate have a right to exercise lien. This would be for costs
due to the estate.14
6. PROVISIONS ON LIEN:
a) Power of the Court to order advocate to deliver his bill and deed: Section 47 of the Advocates Act, Cap
16 provides that the jurisdiction of the Court to make orders for the delivery by an advocate of a Bill of
Costs, and for the delivery of deeds, documents or papers in his possession, custody or power, is hereby
declared to extend to cases in which no business has been done by him in the Court.
b) Action for recovery of costs: Section 48 of the Act also provides that no suit shall be brought for the
recovery of any costs due to an advocate or his firm until the expiry of one month after a bill for such costs,
which may be in a summarized form, signed by the advocate or a partner in his firm, has been delivered or
sent by registered post to the client, unless there is reasonable cause to be verified by affidavit filed with the
plaint, for believing that the party chargeable therewith is about to quit Kenya or abscond from the local
limits of the Court’s jurisdiction, in which event action may be commenced before expiry of the period of
one month. Such a suit may be brought for the recovery of costs due to an advocate in any Court of
competent jurisdiction. A Bill of Costs between an advocate and a client may be taxed notwithstanding that
no suit for recovery of costs has been filed.
c) Charging orders: Section 52 provides that any Court in which an advocate has been employed to
prosecute or defend any suit or matter may at any time declare the advocate entitled to a charge on the
property recovered or preserved through his instrumentality for his taxed costs in reference to that suit or
matter, and may make orders for the taxation of the costs and for raising money to pay or for paying the
costs out of the property so charged as it thinks fit, and all conveyances and acts done to defeat, or
operating to defeat, that charge shall, except in the case of a conveyance to a bona fide purchaser for value
without notice, be void as against the advocate: provided that no order shall be made if the right to recover
the costs is barred by limitation.
d) Betrayal of trust: Section 80 provides that any person who, being an advocate, is entrusted in his
professional capacity with any money, valuable security or other property to retain it in safe custody with
instructions to pay or apply it for any purpose in connection with his duty as an advocate fails to pay, apply
or account for the same after due completion of the purpose for which it was given, shall be guilty of an
offence: provided that no prosecution for an offence shall be instituted unless a report has been made to the
Attorney-General by the Tribunal constituted to hear a complaint against the advocate under Section 61(3).

14
Representatives of the Estate of Maxwell Ombogo v. Standard Chartered Bank and LSK.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
12
 PRO BONO SERVICES
1. INTRODUCTION:
 Pro bono is a Latin phrase for professional work undertaken voluntarily and without payment. Unlike
traditional volunteerism, it is service that uses the specific skills of professionals to provide services to
those who are unable to afford them.
 Various organizations do pro bono work in Kenya i.e., Kituo Cha Sheria, LSK, M-Sheria, Lawyers Without
Boarders, KNCHR, and various higher institutions of learning i.e., University of Nairobi.
2. INSTANCES WHERE PRO BONO SERVICES ARE ALLOWED IN KENYA:
 Pro bono services are offered in the Supreme Court, Court of Appeal, High Court and the Magistrate
Courts.
 Pro bono services are offered in capital cases and cases of children in conflict with the law in the
Magistrate Courts.
3. PURPOSE FOR OFFERING PRO BONO SERVICES:
 To enhance accountability and;
 To provide a clear framework of entry and exit to the Scheme.
 Access to justice: Article 48 of COK provides that the State shall ensure access to justice for all persons
and, if any fee is required, it shall be reasonable and shall not impede access to justice.
 Fair hearing: Article 50(1) of COK provides that every person has the right to have any dispute that can be
resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate,
another independent and impartial tribunal or body. Moreover, Article 50(2)(h) provides that every accused
person has the right to a fair trial, which includes the right to have an advocate assigned to the accused
person by the State and at State expense, if substantial injustice would otherwise result, and to be informed
of this right promptly.
4. ADVANTAGES OF DOING PRO BONO WORK:
a) It provides an early opportunity for substantial and meaningful direct interaction with clients.
b) It often offers young litigators the opportunity to develop skills through experiences that simply would not
be available to them from paying work.
c) It provides experience in a far wider range of subject matters than the standard commercial litigation fare.
d) It gives a young litigator an edge over their peers due to the exposure.
e) It can help one in specialization, it is an opportunity for a young advocate to find their area of interest.
f) It is a way of giving back to society.
g) It is fulfilling to know that you helped a person in need.
5. PROCEDURE FOR OFFERING PRO BONO SERVICES:
 An advocate shall apply to serve using a standard application form.
 Pro bono briefs are allocated to individual advocates and not firms.
 An advocate appointed by the State shall be discharged if the accused person, appellant or their family
engages an advocate.

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
13
  All Court Stations shall form Pro bono Committees chaired by the Registrar, Deputy Registrar, or Head of
Station. The other committee members include: Court Administrator, a representative of the Law Society of
Kenya and two nominees of the Court Users Committee that shall allocate pro bono briefs.
 Any new brief being allocated to an advocate shall be evaluated against pending pro bono work load of an
advocate.
 The fees payable is:
a) an all-inclusive sum of Ksh.30,000, paid in 2 installments. The first installment is after first appearance
and the second installment upon completion of the brief;
b) managed centrally at the Chief Registrar’s Office;
c) based on certification by the station Pro bono Committee.
 The Registrars of the respective Courts keeps a Register of all advocates involved in pro bono services
where relevant information and feedback on their performance is recorded.

MARKETING AND ADVERTISING

1. INTRODUCTION:
 Advertising is making known of the services that one can provide.
 Advertising has been very controversial in most jurisdictions and Kenya is no exception. People have not
agreed in principle that advertising should not happen.
 Section 38 of the Advocates Act, Cap 16 prohibits touting even though there seems to be massive touting.
Third parties are not allowed to tout.
 Rule 2 of the Advocates (Practice) Rules, 1966 does not allow advertising.
 In Kenya, advocates are now using newsletters that they let circulate to clients either on emerging issues of
law, etc., however, the question is, is this advertising? Sending the newsletter to a bank with the intention
that the bank might need their services, then it amounts to advertising.
 Okenyo Omwansa George & another v. Attorney General & 2 Others,15 Justice Majanja held that a
complete ban of advertising by advocates is unconstitutional and inconsistent with Articles 35, 46(1) and
48 of the Constitution which provides for ‘right to access to information,’ ‘consumers right to information
to gain the full benefit of goods and services offered by either a public or a private person’ and ‘right to
access to justice’ respectively. This followed a petition to the High Court to challenge the requirement of
newly admitted advocates to set up independent legal practice and to challenge the prohibition against
advertising in the legal profession.
The brief background to this petition was that the petitioners who are advocates of the High Court of Kenya
raised two issues. One was with regard to Section 32 of the Advocates Act, Cap. 16 which prevents an
advocate from engaging in practice on his own behalf either full-time or part time unless he has practiced in
Kenya continuously on a full-time basis for a period of not less than two years after obtaining the first
practicing certificate in a salaried post. This is either as an employee in the office of the Attorney General

15
[2012].
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
14
 or an organization approved by the Council of Legal Education, or an advocate who has been engaged in
continuous full-time legal practice in Kenya for a period of not less than five years. Secondly, the
petitioners averred that Rule 2 of the Advocates (Practice) Rules, 1966 barred advocates from advertising.
The said Rule specifically provides that, no advocate may directly or indirectly apply for or seek
instructions for professional business, do or permit in carrying on his practice any act or thing which can be
reasonably regarded as advertising or as calculated to attract business unfairly.
2. ARGUMENTS FOR ADVERTISING:
 In the year 2000, the LSK appointed a committee to review the rules of advertising but ultimately it was
rejected by members. Most lawyers felt that it was the big firms who were advocating for advertising and
they therefore rejected it.
 Advertising can be said to enhance awareness.
 From a consumer rights perspective there is a place to pass information.
 There is an explosion of number of advocates coming into the market and people need to know who is in
the market and where to find them.
 Specialization of law. There some lawyers who are specialists in certain areas and people ought to know
which lawyer is good at what field. People should be allowed to publicize their specialty.
 Most people think that if lawyers were allowed to advertise, it will force the lawyers to be consistent with
the picture that they have presented in their adverts making them better lawyers. To be competitive lawyers
will be forced to give exemplary service at very competitive prices.
 It is more of benefit to young lawyers, big law firms need not advertise, they are already known.
 Clients are a lot more sophisticated and the majority will demand for legal services that are specialized.
They need information on what is available. It would be better for the majority if they knew exactly where
to go.
3. ARGUMENTS AGAINST ADVERTISING:
 Advertising is an expensive business – young lawyers would not afford it making the competition unfair.
 Advertising tends to give the impression that it is the ingenuity of the lawyer that gets you justice rather
than the justice of the case.
 There is an assumption that justice is blind and it does not matter where the law firm but the essence should
be the same.
 Advertising tends to give the wrong impression that what matters is the capacity or character of the lawyer.
 Advertising places unreasonable expectations on an advocate’s ability to deliver. It will tend to give the
indication that a lawyer will deliver and therefore capacity for a lawyer to cut corners are compromised as a
lawyer tries to deliver on the promises that they have made. It is the Court that makes the final
determination and so the advocate cannot make promises.
 Advertising lowers the dignity of profession as it tends to reduce it to sort of a retail trade.
 Advertising will increase the cost of litigation.

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
15
  In reality the choice of a lawyer is based on personal knowledge, referrals and most people do feel that
good lawyers do not need to advertise. There are people who feel that advertising has no impact.
 Advertising makes a bad situation worse by lowering the perception of advocates even lower.
4. THE ADVOCATES MARKETING AND ADVERTISING RULES, 2012:
 General Conduct: No Advocate shall directly or indirectly apply for or seek instructions for professional
business, or do or permit in the carrying on of his practice anything which can be reasonably regarded as
calculated to attract business unfairly.
 Advertising: No Advocate shall advertise himself or his practice nor allow himself or his practice to be
advertised other than in accordance with the rules.
 Manner of advertising: Any advertisements allowed under the rules must be objective true and dignified.
They shall in all cases be respectful of the ethics of the profession and shall not attempt to denigrate any
other advocate or professional.
 Information which may be advertised: The following information may be advertised:
a) the identity of the advocate or his firm;
b) the year of his admission as an advocate;
c) the location of office, postal address, telephone, fax, email address and website.
d) the hours the office is open and language in which for conducting business;
e) the professional and academic qualifications;
f) the law firms to which the firm is associates with;
g) any publications or cases in which the advocate or other professional members of the firm may have
made contributions to.
 Information which may not be advertised:
a) names or identities of clients of the advocates or the firm;
b) pictures;
c) non-legal positions distinctions or occupations held or formerly held by the advocate
d) reference to fees to be charged or reductions thereof;
e) promises to achieve results or to complete business in any particular time or quicker than other
advocates, and in the event of failure to achieve such results, that no fee will be charged;
f) deceitful or erroneous information or persuasive, ideological, comparative advertising or phrases of
self aggrandizement.
 Manner of advertising:
a) In telephone, fax telex and similar non-legal directories, an advocate shall only advertise the
information specified in Rule 6 without any added emphasis and in the normal type of the directory.
b) In legal and/or professional directories (including national and international) an advocate may
advertise all the information set out in Rule 6 and 7.
c) On the internet an advocate may advertise all the information set out in Rules 6 and 7.
d) In magazines, newspapers, booklets, publications, periodicals or any graphic media or internet, an
advocate may advertise all of the information set out in Rules 6 and 7 in a type size and face and
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
16
 manner normally used in the advertising pages of the graphic media set out above and so that the area
used for the advertisement is no longer than is required for the inclusion of the information and is no
event shall it be large than 5 x 5 inches.
e) Advertisement referred to in under Rule 10(4) may only be done once per quarter in each year.
f) No advocate/firm may advertise in any of the print media noted in clause 9(4) more than once monthly.
g) No advocate shall advertise on television other than to appear in order to give personal opinions on
issues of general interest or in connection with professional matters in which he is involved provided
that in all such circumstances the advocate must respect professional decorum.
h) On radio, an advocate shall only advertise the information specified in Rule 6.
i) No advocate shall place illuminated signs or placards in any place whatsoever in an attempt to
advertise his location and type of business but plates or plagues advertising an advocate’s professional
activity to be affixed to the walls or access doors or building in which the advocate’s firm is located
are permitted. The maximum size of such plate shall be 0.5 x 0.35 m.
j) Seminars and Media - An Advocate may take part in conferences and seminars including those not
involving legal issues and may publish papers, circulars and periodical articles on issues of law, even
in media that do not specialize on such issues whereby the Advocate concerned may only append his
name and designation as a lawyer.
 Prohibited manner of advertising:
a) No advocate shall seek to solicit or to attract business through any of the following means, through:
i. an “intermediary” that would amount to professional touting;
ii. unsolicited “in person” contact;
iii. a retainer by a non-lawyer who has not sought the advocate’s advise;
iv. false or misleading statements, or where undue influence is used, or where the potential client is in
a physical or mental condition that would make it unlikely that such client could have exercised
considered judgment in the selection of an advocate.
b) An Advocate shall at all times be permitted to seek further or additional business from his exiting or
former clients.

CHAMPERTY
1. INTRODUCTION:
 Champerty: This is where one promotes litigation as a third Party. There is no legitimate interest in the
matter. But they promote it for a benefit to themselves from the litigation that will ensue.
 Champerty is prohibited under Section 46 of the Advocates Act which makes invalid:
a) a purchase by an advocate of an interest in his clients’ suit, or
b) an agreement which stipulates for payment only in the event of success of the suit, or
c) that an advocate shall be paid at different rates depending on the failure or success.
 Pursuant to Section 45 of the Advocates Act, an advocate may exercise three options in charging fees:
a) the use of Advocates Remuneration Order in charging;
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
17
 b) entering into an agreement with the client on the means of charging, and
c) the advocate may charge ex gratia on agreements with the clients as to costs.
Such agreements are only valid and binding on the parties if it is in writing and signed by the client or his
agent duly authorized in that behalf.
2. EVILS SOUGHT TO BE AVOIDED BY THE CURRENT STATE OF LAW:
a) A litigious society and commercialization: Litigation is an expensive way of getting justice compared
alternative dispute resolution methods as one has to meet the Court costs, advocate’s fees and costs of the
suit. When it emerges that a litigant (client) can have his suit financed by another party at the cost of a
percentage of the money won and paid, litigating is preferred. Champerty therefore results into a litigious
society as there are willing financers of suits and willing litigants. The aim of bringing actions to court will
therefore shift from getting justice to winning suits.
b) Speculation in lawsuits: Champerty promotes successful suits for the financier to get his share of the
money paid. Contingency fees on the other hand would advocate for a win so that the advocate can get
paid. It is hard to predict the outcome of a suit, leading to speculation. This may consequently affect their
behavior in court where the advocate would deviate from the law in his arguments and the litigant would be
focused on winning.
c) Pressure by the advocate to settle the case out of Court: The advocate financing the lawsuit would
promote settlement as it guarantees his share of the proceeds. The litigant however, may want to settle for
maintaining a good relationship with his opponent. This consequently leads to conflict of interest between
the two. The outcome of a suit may not appear promising even though the litigant in the champertous
agreement is the aggrieved. Pressure is mounted on litigants to settle as it is the only way money to be
shared with the client will come forth, thus achieving his self-serving interest.
d) Illegality: Permitting payment of contingency fees would mean that if a lawsuit is not successful, the
advocate would not get paid. This is contrary to Section 44 of the Advocates Act which provides for
remuneration of advocates for all their professional business whether contentious or non-contentious. It
would also be unjust not to pay an advocate simply because he did not win the lawsuit.
e) Conflict of interest: The primary duty of an advocate as an officer of the Court established in Rondel v
Worsley, gets compromised when imposing champertous and contingency fee because advocates have
limited regard to their duty to litigate on behalf of the client zealously. Consequently, advocates act at their
clients’ expense.
f) Attraction to particular fields: Advocates are persuaded to practice the fields which reap the highest
benefits where contingency fee arrangements are used.
g) Unethical practices: The main reason against the practice of champerty is the fear that it may incite
lawyers to abuse the legal process for their own benefit and gain. Since the lawyer undertakes to assume
litigation costs, they would have invested quite a significant amount of man power and money from their
own pockets. This would make the prospect of losing the case even riskier since they will not only forego
any fees but will most probably lose out financially. Such a prospect of risk may drive lawyers to engage in

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
18
 unethical practices such as suppressing evidence or corrupting witnesses as an underhanded way of
winning the case.
h) Corruption of public justice: Champerty agreements could be extortionate and unconscionable, for
instance, when a lawyer draws up such an agreement with the intention of taking advantage of a poor and
uninformed client. This is contrary to the principles of justice and equity and is detrimental to the public.

TORT OF NEGLIGENCE IN PROFESSIONAL ETHICS

1. INTRODUCTION:
 An advocate ought to be able to read the law to know what is required before instituting the suit.
 A suit for negligence can be instituted against an advocate because of:
a) failure to attend the Court proceedings;
b) not appearing in Court when the cause is listed;
c) mismanaging a case so much so that the Court can determine that an advocate properly admitted would
not have handled a case the way the particular advocate handled it.
2. MANAGEMENT OF THE CASE:
 Management of the case involves the manner of examination of witnesses, calling of witnesses, manner of
cross-examination, certain aspects of determining if certain documents need to be admitted, preferring
certain interrogatories.
 Interpreting a case in a certain manner – it is doubtful whether interpretation can lead one to a suit in
negligence.
 In De Sousa v. Minister of State for Immigration, French J. regarded the proceedings instituted by the
solicitor in that case as reflecting a “… serious failure to give reasonable attention to the relevant law and
facts…” that amounted to a serious dereliction of duty to the Court.

PROFESSIONAL MISCONDUCT
1. Undercutting
2. Champerty: Advocate agrees to finance lawsuit or matter in return for a percentage of the fees.
3. Sharing Profits: It is an offence to share profits with an unqualified person. Sharing of bonus with
employees is excepted.
4. Touting: (sell by pestering people). S 38 prohibits unqualified persons from touting.
5. Agent of an unqualified person: S 39-40 is an offence
6. Employment of persons struck off the Roll of Advocates: Sections 41-42. You can employ only with the
written permission of the Council.
7. Breach of an undertaking. Rule 46 Digest
8. Advertising soliciting and attracting business unfairly: The case of Okenyo Omwansa George & another v
Attorney General & 2 others declared Rule 2 unconstitutional.
9. Failing to attend Court Rule 1(b)(6) of the Digest.
10. Practicing without a practicing certificate Rule 35 Digest
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
19
11. Failure to Endorse the Name of an Advocate on an Instrument [s. 35].
12. Unpaid cheques drawn on a clients account Rule 11(b) digest.
13. Failing to provide an accountants certificate when one is demanded rule 11 (c ) digest.
14. Failure to respond promptly to correspondence Rule 15 Digest
If one is found guilty of the above, the Disciplinary Committee can order that:
a) such advocate be admonished; or
b) such advocate be suspended from practice for a specified period not exceeding five years; or
c) the name of such advocate be struck off the Roll; or
d) such advocate do pay a fine not exceeding one million shillings;
e) such advocate pays to the aggrieved person compensation or reimbursement not exceeding five million
shillings, or
f) such combination of the above orders as the Committee thinks fit
g) Payment of costs and witness expenses.

Dr. Ratemo Tom

Kenyatta University School of Law, Parklands, Nairobi.
20
 LAWYER- CLIENT PRIVILEGE
1. INTRODUCTION:
Generally, communications between an advocate and a client entails disclosures of deep secrets that ought
to ethically and legally remain confidential and well protected.1 Disclosures which include incriminating
informations and confessions, if revealed can bring an end to the relationship of the advocate-client and endless
legal suits. It is therefore essential to regulate the relationship through one of the oldest recognized concept referred
to as lawyer- client privilege.
The ethical duty of lawyer-client confidentiality is quite extensive in terms of what information is
protected. It applies not only to matters communicated in confidence by the client but also to all information relating
to the representation regardless of whether it came from the client him/herself, or from another source. So, if a Court
determines that particular information is not covered by the lawyer-client privilege, it still may be covered by the
lawyer’s ethical duty of confidentiality. The lawyer-client privilege may be raised at any time during criminal
proceedings, pre-trial, during trial or post-trial.2
2. CONCEPT AND MEANING OF THE TERM ‘LAWYER- CLIENT PRIVILEGE’:
Lawyer- Client privilege, a concept first recognized in Swidler & Berlin v. United States,3 is a client's right
privilege to refuse to disclose and to prevent any other person from disclosing confidential communications between
the client and a lawyer.4 In other words, it is a legal as well as a moral concept promulgated and enforced to protect
certain communications between or among clients and their lawyer with the sole goal of ensuring that the
communications remain confidential and well protected.5 The concept remains in place even after the lawyer-client
relationship is over.6
John H. Wigmore has also defined the term ‘lawyer- client privilege’ as a situation:
[W]here legal advice of any kind is sought from a professional legal adviser in his [or her] capacity as such,
the communications relating to that purpose, made in confidence by the client, is at his [or her] instance
permanently protected from disclosure by [the client] or by the legal adviser, except the protection be
waived.7
In Upjohn Co. v. United States,8 the Supreme Court of America went ahead to hold that lawyer-client privilege
attaches not just to individuals, but to corporations as well. The same Court in Commodity Futures Trading

1
It is important to note that the duty of confidentiality placed on an advocate extends to his/her staff members.
2
“Attorney-Client Privilege.” Retrieved on 18th May 2017 from http://defensewiki.ibj.org/index.php/Attorney-Client_Privilege.
3
[1998] 524 U.S. 399, 403. See, Pacin Carl, Seay Pamella and Placid Raymond. Accountants Attorney-Client Privilege and the KOVEL Rule:
Waiver Through Inadvertent Disclosure Via Electronic Communication. Delaware Journal of Cooperate Law, Vol.28, p.896. Retrieved on 18th
May 2017 from http://www.djcl.org/wp-content/uploads/2014/08/Accountants-ATTORNEY-CLIENT-PRIVILEGE-AND-THE-KOVEL-RULE-
WAIVER-THROUGH-INADVERTENT-DISCLOSURE-VIA-ELECTRONIC-COMMUNICATION.pdf.
4
Garner A. Bryan (2014). Attorney–Client Privilege, Black's Law Dictionary. 10th edn., Col. 2, , p. 1391.
5
Unger K. Jackie. (2013). Maintaining the Privilege: A Refresher on Important Aspects of the Attorney-Client Privilege, Business Law Today,
Retrieved May 18th 2017, from http://www.americanbar.org/publications/blt/2013/10/01_unger.html. See also, McCullough Ralph, Whelchel
Chris and Epley Sharyn, Trustees: The Ability to Waive the Debtor's Attorney / Client Privilege. Retrieved on 18th May 2017 from
http://www.finkellaw.com/Published-Works/The-Ability-to-Waive-the-Debtors-Attorney-Client.aspx; Wong Belle J. D. (2015) What is Attorney-
Client Privilege? Retrieved on 18th May 2017 from https://www.legalzoom.com/articles/what-is-attorney-client-privilege.
6
Wong Belle J. D. (2015) What is Attorney-Client Privilege? Retrieved on 18th May 2017 from https://www.legalzoom.com/articles/what-is-
attorney-client-privilege.
7
Wigmore John Henry (1991). Evidence in Trials at Common Law. McNaughton 1961 & Supp, p. 554
8
449 U.S. 383, 389 (1981).
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
1
Commission v. Weintrab9 held that the power to waive the corporate lawyer-client privilege rests with the
corporation’s management and is normally exercised by its officers and directors. 10
The Court in Blank v. Canada (Minister of Justice)11 explained the rationale for lawyer-client privilege as
follows:
The solicitor-client privilege has been firmly entrenched for centuries. It recognizes that the justice system
depends for its vitality on full, free and frank communication between those who need legal advice and
those who are best able to provide it. Society has entrusted to lawyers the task of advancing their clients’
cases with the skill and expertise available only to those who are trained in the law. They alone can
discharge these duties effectively, but only if those who depend on them for counsel may consult with them
in confidence. The resulting confidential relationship between solicitor and client is a necessary and
essential condition of the effective administration of justice.
3. IMPORTANCE OF LAWYER- CLIENT PRIVILEGE:
Lawyer-client privilege is a very important concept as it regulates communications between a lawyer and a
client. Moreover:
 It encourages clients to make full and frank disclosures to the advocates. 12
 It is a source of an assurance to the client that the secrets revealed to the advocate are safe and that the
advocate is prevented from disclosing them.13
 It is a source of security to the client as the lawyer is barred from using confidential information given in
the course of professional counsel against a client, or in advancing his own interests, or from blackmailing
a client.14
 It enables an advocate to obtain full information from a client facilitating him/her to offer appropriate legal
counsel.
 It protects an advocate from being compelled to disclose information received from a client.
 It restates the position of the practice of law as a profession with set standards, ethics and professionalism.
4. ELEMENTS OF LAWYER- CLIENT PRIVILEGE:
As noted above, communications between an advocate and a client entails disclosures of deep secrets that
ought to ethically and legally remain confidential and well protected.15 A lawyer-client privilege,16 a privilege
founded on the philosophy of professional honour and trust, arises when the following conditions are met:

9
471 U.S. 343 (1985).
10
See, Lingo Jessica. (2012) Attorney-Client Privilege in the Corporate Context: Can Corporate Officers Waive the Corporation’s Privilege?
Tennessee Business Litigation Newsletter. Retrieved on 18 th May 2017 from http://www.frostbrowntodd.com/resources-attorney-client-privilege-
in-the-corporate-context.html.
11
[2006] SCC 39, para. 26 per Fish J. See also, Smith v. Jones, [1999] 1 S.C.R. 455, para. 46 per Cory J.; R. v. McClure, [2001] 1 S.C.R. 445,
para. 33 per Major J.
12
See, Upjohn Co. v. United States, [1981] 449 U.S. 383, 389. See also, Fisher v. United States, 425 U.S. 391, 403 (1976); McCullough Ralph,
Whelchel Chris and Epley Sharyn, Trustees: The Ability to Waive the Debtor's Attorney / Client Privilege. Retrieved on 18 th May 2017 from
http://www.finkellaw.com/Published-Works/The-Ability-to-Waive-the-Debtors-Attorney-Client.aspx.
13
“Attorney-Client Privilege.” Retrieved on 18th May 2017 from http://defensewiki.ibj.org/index.php/Attorney-Client_Privilege.
14
Paul R. Rice, Attorney-Client Privilege: Continuing Confusion About Attorney Communications, Drafts, Pre-Existing Documents, and the
Source of the Facts Communicated, 48 AM. U. L. REV. 967, 969-70 (1999).
15
It is important to note that the duty of confidentiality placed on an advocate extends to his/her staff members. See, Brown Kathy Owen. (2012).
Strategies for helping to preserve attorney-client and work product privileges. Retrieved on 18th May 2017 from
https://www.dlapiper.com/en/us/insights/publications/2012/06/strategies-for-helping-to-preserve-attorneyclien__/.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
2
  The person asserting the privilege 17 must be a client and the one to whom communication is made is a
qualified advocate.18 A “client” in this regard may refer to a person, public officer, or corporation,
association, or any other organization or entity, either public or private, who is rendered professional legal
services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the
lawyer.19
 For the proponent to invoke the attorney-client privilege, s/he must establish a communication between a
lawyer and client.20 Such communication must be made solely for the purpose of obtaining legal advise,
assistance, opinion, representation, etc.21 The privilege will thus not apply where information is shared
between a lawyer and a client without any request for legal counsel nor, will it apply to general draft
proposals and/or draft reports where legal assistance is not provided 22 nor will it apply to casual
conversations between a lawyer and a client. 23 However, it is important to note that where a client intends
the underlying documents and drafts to remain confidential, the privilege applies. 24
 The client intended the communications made to be confidential/private and should have been acted upon
accordingly.25 However, an important exception to the strict confidentiality requirement is the ‘doctrine of
common interest’ that basically applies where:
a) a communication was made to a third party who shares a common legal interest;
b) communications were made in furtherance of that legal interest, and
c) the privilege was not otherwise waived.26
 There must be in existence an agreement on legal counseling/representation made between an advocate and
a client.
 The advocate must be duly qualified, registered with Law Society of Kenya and authorized to practice and
render legal services.27 This therefore excludes an advocate who is under suspension.

16
The history of lawyer-client privilege can be traced back to the 16th Century in the Roman Republic during the reign of Queen Elizabeth I. The
privilege prevents an advocate, in case of a disagreement or fallout, from fixing a client by disclosing confidential material information given in
the course of legal consultation to the detriment of a client.
17
Privilege, as defined in Black’s Law Dictionary, is the right to prevent disclosure of certain information especially when the information was
originally communicated in a professional or confidential relationship, Black’s Law Dictionary. (2000) (Bryan A. Gardner, ed.). p.974.
18
See, United States v. United Shoe Mach. Corp., [1950] 89 F. Supp. 357, 358-59 per D. Mass.
19
Poppe Jennifer, Popov Christopher and Amy Tankersley. An Overview of the Attorney-Client Privilege and Common Privilege Issues.
Retrieved on 9th May 2017, from
http://www.velaw.com/uploadedFiles/VEsite/Resources/PoppePopovTankersleyAttorneyClientPrivilegeCommonPrivilegeIssues.pdf.
20
Silverman B. Arnold. Silence is Golden—The Attorney-Client Privilege. Retrieved on 18th May 2017 from
http://tms.org/pubs/journals/JOM/matters/matters-9706.html. See also, McCullough Ralph, Whelchel Chris and Epley Sharyn, Trustees: The
Ability to Waive the Debtor's Attorney / Client Privilege. Retrieved on 18 th May 2017 from http://www.finkellaw.com/Published-Works/The-
Ability-to-Waive-the-Debtors-Attorney-Client.aspx.
21
Unger K. Jackie. (2013). Maintaining the Privilege: A Refresher on Important Aspects of the Attorney-Client Privilege, Business Law Today,
Retrieved May 18th 2017, from http://www.americanbar.org/publications/blt/2013/10/01_unger.html.
22
Unger K. Jackie. (2013). Maintaining the Privilege: A Refresher on Important Aspects of the Attorney-Client Privilege, Business Law Today,
Retrieved May 18th 2017, from http://www.americanbar.org/publications/blt/2013/10/01_unger.html.
23
See, McCullough Ralph, Whelchel Chris and Epley Sharyn, Trustees: The Ability to Waive the Debtor's Attorney / Client Privilege. Retrieved
on 18th May 2017 from http://www.finkellaw.com/Published-Works/The-Ability-to-Waive-the-Debtors-Attorney-Client.aspx.
24
See, Iowa Pac. Holdings, LLC v. Nat'l R.R. Passenger Corp., 2011 WL 1527599 where the Court held that a draft contract prepared by an
attorney contains information shared between an attorney and a client which entitles it to protection.
25
Unger K. Jackie. (2013). Maintaining the Privilege: A Refresher on Important Aspects of the Attorney-Client Privilege, Business Law Today,
Retrieved May 18th 2017, from http://www.americanbar.org/publications/blt/2013/10/01_unger.html. See also, Wong Belle J. D. (2015) What is
Attorney-Client Privilege? Retrieved on 18th May 2017 from https://www.legalzoom.com/articles/what-is-attorney-client-privilege.
26
See, In re Mortgage & Realty Trust, 212 B.R. 649 (Bankr. C.D. Cal. 1997). Cf, Bank of America, N.A. v. Terra Nova Ins. Co. Ltd., 211 F. Supp.
2d 493, 496 (S.D.N.Y. 2002).
27
See, United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950).
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
3
  The communication between an advocate and a client must be made exclusively and in absence of other
unauthorized persons.28 Any communication made in presence of third parties loses confidentiality element
and the privilege cannot thus be claimed. However, the moot question regards whether the privilege
extends to communications made to former employees of an organization? This issue was covered in depth
in Peralta v. Cendant Corp.,29 where a former employee brought an employment discrimination suit upon
his termination. Cendant Corporation’s counsel had discussed the underlying facts of the case and the
corporation’s position with Peralta (the counsel’s former supervisor) prior to the supervisor’s deposition.
Peralta sought to uncover the details of that communication, but the Court held the communication
privileged, recognizing that “the attorney-client privilege is served by the certainty that conversations
between the attorney and client will remain privileged after the employee leaves.”
 The privilege extends to a client personally and not by proxy or representation.
 The existence of the relationship between an advocate and a client is established only when an advocate
expressly and freely acknowledges representation or the relationship. This is through the: letter of
instruction; opening of a file for the client; receiving the brief documents and instructions; acceptance of
the engagement letter/document, deposit of legal fees, retainer and filing fees; oral engagement or
instructions as to the scope of the representation; implication from the conduct of the advocate and the
client; appearing on behalf of the client in the Court, Tribunal, etc.
 The person seeking to assert the privilege should not have waived the said privilege.
 The dealing between an advocate and a client must be lawful and for acceptable purposes.
 There must be freewill and general consensus in creating a lawyer-client relationship.
Lawyer-client privilege does not extend to cover the following:
 Confidential information disclosed to the lawyer in the presence of third parties or lawyers who are not
engaged in the brief.
 Events, dates, personalities and scenarios leading to privileged communication.
 Circumstances leading to or surrounding the lawyer-client privileged communication. In other words, what
transpired before or leading to the communication cannot be protected by the concept of lawyer-client
privilege.
 The identity of the parties to a meeting, a document or case.
 Public documents or documents required by law to be disclosed or made public. This may include Court
paper, documents of title, tax returns, etc.
 The fact of existence of the lawyer-client relationship is not privileged. A lawyer and a client must disclose
the existence of such a relationship in order to plead privilege.
 Legal fees charged as well as the amount paid.
 Any communications made for purposes of being relayed to Court or third parties.

28
See, United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950). See also, “Attorney-Client Privilege.” Retrieved on
18th May 2017 from http://defensewiki.ibj.org/index.php/Attorney-Client_Privilege.
29
190 F.R.D. 38 (D. Conn. 1999). See also, Domingo v. Donahoe, 2013 WL 4040091.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
4
5. INSTANCES IN WHICH A LAWYER-CLIENT PRIVILEGE CAN BE WAIVED:
Solomon Ibn Gabirol (1021-1058) rightly observed “your secret is your prisoner, once you reveal it, you
become its slave.”
In the course of interactions with a client, an advocate comes across a lot of client’s information often given
in confidence which if not used in an ethical manner, it can be antithesis to a client’s case and future legal prospects.
Such information should be safeguarded, and except in exceptional circumstances as provided for under Section 134
of the Evidence Act, Cap 80 it should not be divulged. This was reiterated in Omari S/O Hassan v. R.30 Thus,
disclosure of information made in the course of employment as an advocate is permissible only:
a) when there is a client’s express consent;
b) on any communication made in furtherance of any illegal purpose, or
c) on any fact observed by any advocate in the course of his employment showing that any crime or fraud has
been committed since the commencement of employment. 31
The objective of the duty to confidentiality is to ensure that the client can confide completely and without
reservation to the advocate.32 The privilege which continues even after the employment of an advocate has ceased33
extends to communication made to the advocate’s interpreters, and the clerks or servants of advocates. 34 However,
this privilege is not absolute and it may be overlooked in certain cases. 35
The duty not to breach the confidentiality of the client has also been cited in the case of Lizzie Borden. In
the late 1800s, Ms. Borden apparently killed her father and the only witness to the murder, her mother. She was tried
and acquitted of the murder in 1892. Since then, the law firm that represented Ms. Borden refused to open up her file
in spite of pressure from scholars. The case raised two important issues as to:
 whether confidentiality should live past the death of the client? and
 how many years after death the file can be made public?
In Swidler & Berlin v. United States,36 the United States of America Court was able to answer the first question
when it held that privilege and confidentiality outlives the life of the client. However, the issue as to how long after
death the file can be made public is yet to be decided.37
Following the Swidler & Berlin case,38 it is one thing to state unequivocally that the privilege does or does
not survive death. There are however practical questions yet to be answered, for instance:
 Who will enforce the privilege 50, 75, or 100 years when the relevant actors, immediate executors and heirs
are all dead and the law firm is defunct?

30
(1956) 23 EACA 550. In this case, the appellant was convicted of murder. During trial, counsel for the accused informed the Court that the
accused person had refused to testify under oath, against his counsel’s advice. The disclosure by the advocate was held, on appeal, to be a breach
of professional privilege, and the trial court should not have allowed it to affect its mind in the deliberations.
31
S.134(1), the Evidence Act, Cap 80.
32
It is important to note that the privilege is that of the client and not the advocate and for that reason, only the client can waive the privilege.
33
S.134(2), the Evidence Act, Cap 80.
34
S.135, the Evidence Act, Cap 80.
35
Section 134(1)(a)(b) of the Evidence Act provides for: a) any communication made in furtherance of any illegal purpose, or b) any fact showing
that a crime or fraud has been committed since the commencement of employment of the advocate.
36
(1998) 524 U.S. 399
37
Klinefelter & Laredo, Is confidentiality Really Forever?, Spring 2014 40 (3), p.47.
38
(1998) 524 U.S. 399
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
5
  If the privilege is breached, who will complain and who can be held liable or responsible for any wrongful
actions?
 Whether such a situation can be considered as an inadvertent waiver of confidentiality interests? and
 Who can be held responsible for any arguable damage to the reputation of the client? 39
Taking into account the above questions, Klinefelter and Laredo have held that, whereas during the life of the client,
the issue is not controversial, after the client’s death and the elapsing of a significant time, the question of
confidentiality will continue posing an ethical dilemma until the Courts decides it in a definitive manner.
The Court has in R. v. McClure40 held that:
[D]espite [the] importance [of lawyer-client privilege], solicitor-client privilege is not absolute. It is subject
to exceptions in certain circumstances. Nevertheless, the privilege must be as close to absolute as possible
to ensure public confidence and retain relevance. As such, it will yield only in certain clearly defined
circumstances, and does not involve a balancing of interests on a case-by-case basis.41

In view of the above, a lawyer-client privilege does not therefore extend to cover the following instances:
 Waiver: A client has an inherent and exclusive right to waive in writing, at any time, for any reason and
regardless of the consequences of such waiver, his/her privilege.42 Upon such waiver, the lawyer is legally
bound to respect the waiver.43 It is significant to bear in mind that a waiver may occur even though a client
does not intend to waive the privilege. For instance, if a client carelessly allows disclosure of information to
others, confidentiality is lost and a waiver occurs.44 Similarly, a waiver may result from failure to object to
the demand for disclosure in litigation.45 Where a client is a corporation, the corporate management
including officers and directors, decide whether to assert or waive the privilege. 46 However, if there is a
change in control of the corporation, ownership of the privilege is a spoil that generally passes to the
successors. The privilege does not therefore remain with the former corporate management.47
 Court order: In instances where a Court of competent jurisdiction has issued an express order, the lawyer-
client privilege can be lifted and as a result, the lawyer is bound to obey such order.

39
Ibid.
40
R. v. McClure, [2001] 1 S.C.R. 445, para. 33-34 per Major J.
41
In Blank v. Canada (Minister of Justice), 2006 SCC 39, para. 23 per Fish J. the Court described the privilege as “near-absolute.”
42
Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61. The privilege can only be asserted or waived by
the client through his or her informed consent. See, also, Hunt v. Blackburn, 128 U.S. 464; Turner v. Black, 19 Ill. 2d.296, 166; Passmore v.
Passmore, 50 Mich. 626.16 N.W. 170; Sowers v. Olwell, 64 Wash. 2d 828, 394; R. v. McClure, [2001] 1 S.C.R. 445, para. 33-34 per Major J.;
Paul R. Rice, Attorney-Client Privilege: Continuing Confusion About Attorney Communications, Drafts, Pre-Existing Documents, and the Source
of the Facts Communicated, 48 AM. U. L. REV. 967, 969-70 (1999); Silverman B. Arnold. Silence is Golden—The Attorney-Client Privilege.
Retrieved on 18th May 2017 from http://tms.org/pubs/journals/JOM/matters/matters-9706.html; Marrs D. Michael. (1969) Attorney-Client
Privilege, 46 Chi.-Kent. L. Rev. 54. Retrieved on 18th May 2017 from http://scholarship.kentlaw.iit.edu/cklawreview/vol46/iss1/6.
43
In Johnson v. Zerbst [1938] 304 U.S. 458, 464, the Court defined the term “waiver” as an intentional relinquishment or abandonment of a
known right or privilege. There are three forms of waiver: a) Voluntary waiver – This is where a client voluntarily discloses the privileged
communications to a third party either to: intentionally waive the privilege; abandon confidentiality; or for using the confidential communications
for purposes other than seeking legal advice; b) Implied Waiver - This is where a client injects the advice of counsel as an issue in the litigation;
c) Inadvertent (or accidental) Waiver - An attorney’s inadvertent disclosure of an otherwise privileged document may waive the privilege.
44
Silverman B. Arnold. Silence is Golden—The Attorney-Client Privilege. Retrieved on 18th May 2017 from
http://tms.org/pubs/journals/JOM/matters/matters-9706.html.
45
A client may also waive lawyer-client privilege when after disclosing confidential information to a lawyer, s/he later discloses the same
information to a third party.
46
See, for e.g., Commodity Futures Trading Comm’n v. Weintraub, [1985] 471 U.S. 343, 349 where the Court held that the power to waive the
corporate attorney-client privilege rests with the corporation’s management and is normally exercised by its officers and directors.
47
See, for e.g., O’Leary v. Purcell Co., Inc., [1985] 108 F.R.D. 641, 644.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
6
  Presence of a third party: Where for instance communications take place between a client and his or her
lawyer while in the presence of a third party who is not covered by the privilege, the concept of lawyer-
client privilege cannot be invoked. Similarly, the privilege cannot be invoked in cases where a discussion
between a client and a lawyer is made in a public place where they can be easily overheard. 48
 Disclosure ostensibly to support lawyer's own interests: Lawyers may breach the duty where they are
defending themselves against disciplinary or legal proceedings. A client who initiates proceedings against a
lawyer effectively waives rights to confidentiality. This is justified on grounds of procedural fairness. A
lawyer unable to reveal information relating to the retainer may be incapable of defending him/herself
against an action.
 Common interest: In instances where there are common interests and the parties concerned are
represented by the same lawyer, lawyer-client privilege can be waived as regards communication between
each of the clients and the lawyer. A lawyer therefore, can disclose earlier communications made from one
of the clients to the other in order to further their common interests. However, a lawyer cannot ethically act
for protagonist with conflicting interests.
 Mitigation or Repair: The defense lawyer may be required to disclose confidential communication
obtained from a client if doing so would mitigate or rectify an ongoing economic injury in instances where
a client is using defense lawyer's services to further the harm.
 Absolute necessity: The privilege can be set aside where there is “absolutely necessary”. However, the
Court in Goodis v. Ontario (Ministry of Correctional Services) 49 held that absolute necessity is as
restrictive a test as may be formulated short of an absolute prohibition in every case. As a result, it is
unlikely that the privilege would be set aside to allow opposing counsel access to the privileged material in
order to argue whether or not privilege was properly claimed.50 Similarly, a prosecutor cannot be allowed
access to privileged material in order to argue the privilege claim. 51 Thus, lawyer-client privilege must
remain as close to absolute as possible if it is to retain relevance. The following are instances where the
privilege might be set aside:
a) In the interests of public safety.
b) To protect national security.52
c) Where core issues going to the guilt of the accused are involved and there is a genuine risk of a
wrongful conviction.53

48
Wong Belle J. D. (2015) What is Attorney-Client Privilege? Retrieved on 18th May 2017 from https://www.legalzoom.com/articles/what-is-
attorney-client-privilege.
49
Goodis v. Ontario (Ministry of Correctional Services), [2006] SCC 31, para. 20-21, per Rothstein J.
50
Goodis v. Ontario (Ministry of Correctional Services), [2006] SCC 31, para. 20-21, per Rothstein J.
51
Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61.
52
Smith v. Jones, [1999] 1 S.C.R. 455, para. 53 per Cory J.
53
R. v. McClure, [2001] 1 S.C.R. 445, para. 33-34 per Major J where the Court held that the system will not tolerate conviction of the innocent.
See also, R. v. Brown, [2002] 2 S.C.R. 185; R. v. Seaboyer, [1991] 2 S.C.R. 577, p. 607, McLachlin J. (as she then was) for the majority
(“solicitor-client privilege may yield to the accused’s right to defend himself on a criminal charge”); R. v. Stinchcombe, [1991] 3 S.C.R. 326, p.
340 per Sopinka J.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
7
  Fiduciary duty: Lawyer-client privilege can also be waived where a lawyer owes fiduciary duty of care,
for instance, if s/he is acting for a body corporate, s/he owes fiduciary duty to all shareholders of the
company and is bound to disclose any communication received to them.
 Non-legal Capacity: Where a lawyer is not acting primarily as a lawyer but, for instance as a business
advisor or Member of a Board of Directors of a certain organisation, then the lawyer-client privilege does
not apply.
 Death: Lawyer-client privilege can as well be waived in case of death of a client. 54 The communications
earlier received may be disclosed to the administrators, personal representatives and/or next of kin of the
deceased client. In certain cases, a client may consent to the revelation of personal or family secrets only
after his or her death, for example, a client’s will may leave a legacy to a paramour or a natural child.
 When a tort, crime or illegality is to be committed: In cases where a lawyer is sought by the client to
facilitate the commission of a tort,55 crime, fraud or any illegal act, or the post-commission concealment of
the crime or fraud,56 then s/he is bound to ignore the privilege and disclose such communication to prevent
the commission of the act.57 The theory behind this exception is that a communication in furtherance of a
criminal purpose does not come in the ordinary scope of professional employment.58 In Clark v. United
States,59 the Supreme Court of America held that a “client who consults an attorney for advice that will
serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”60
Communications relating to past crimes and frauds are however privileged unlike for ongoing or future
ones.61 In some instances, some Courts have applied the exception even if a lawyer had no knowledge of,
and didn’t participate in the actual crime or fraud.62 The exception ordinarily doesn’t apply if the client is
merely seeking advice about the consequences of some possible future action. This limitation is justified on
public policy grounds, because counselling against unfounded claims or illegal projects is an important part
of a lawyer’s function.63
 Where it is necessary to save lives: Where it is essential to safeguard the health and life of a person 64
based on the confidential information made to a lawyer in the course of a legal counseling of a client, the

54
Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, 387 per Wilson J.
55
For example, the exception could apply if a landlord sought advice about unlawfully evicting a tenant.
56
“The Crime-Fraud Exception to the Attorney-Client Privilege: Not all Attorney-Client Communications are Privileged.” Retrieved on 18th May
2017 from http://www.nolo.com/legal-encyclopedia/the-crime-fraud-exception-the-attorney-client-privilege.html.
57
See, United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950); Smith v. Jones, [1999] 1 S.C.R. 455, para. 53 per
Cory J.; R. v. Campbell, [1999] 1 S.C.R. 565, para. 49 per Binnie J; Jamal Mahmud. (2007). The Supreme Court of Canada on Solicitor-Client
Privilege: What Every Practitioner Needs To Know, Legal Tree. Retrieved May 9th 2017 from http://www.legaltree.ca/node/792.
58
R. v. Cox and Railton, [1884] 14 Q.B.D. 153, 167, per Stephen J.
59
(1933) 289 U.S. 1, 15.
60
Another example is where a securities broker asks her lawyer about the documents she should shred to avoid being charged with securities
violations. This is asking a lawyer to help her commit a criminal fraud. Assuming the prosecution suspects that the conversation took place, it
can, if the Court grants permission, call the lawyer to testify about it. The lawyer cannot be able to use the lawyer-client privilege as a basis to
refuse to answer questions about the broker’s document-shredding consultation.
61
“The Crime-Fraud Exception to the Attorney-Client Privilege: Not all Attorney-Client Communications are Privileged.” Retrieved on 18 th May
2017 from http://www.nolo.com/legal-encyclopedia/the-crime-fraud-exception-the-attorney-client-privilege.html.
62
“The Crime-Fraud Exception to the Attorney-Client Privilege: Not all Attorney-Client Communications are Privileged.” Retrieved on 18 th May
2017 from http://www.nolo.com/legal-encyclopedia/the-crime-fraud-exception-the-attorney-client-privilege.html.
63
R. v. Campbell, [1999] 1 S.C.R. 565, para. 49 per Binnie J.
64
The health and life of a person here may include threats to harm someone, for instance, a witness, attorney or judge. It is the duty of a lawyer to
report such threat.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
8
 concept of lawyer-client privilege cannot be invoked to prevent a lawyer from disclosing such pertinent
information before a Court of law. 65
 Where the law requires disclosure: A lawyer is obliged to reveal any information in his/her possession
where an International Treaty, Constitution or Act of Parliament provide for such disclosure. Statutes that
have overriding provisions requiring persons to disclose are those that deal mainly with crimes against
humanity, taxation, international organized crimes, wartime legislations, etc.
 Public documents: While preparing pleadings for filing in a Court of law, privileged information can be
incorporated. Once filed, the privilege is automatically terminated as the documents become public
documents. Documents used in Court proceedings, even when held in camera, are public documents that
are not subject to any privilege.
 Documents given to a lawyer: Documents do not automatically become privileged simply because they
are given to or reviewed by a lawyer. An existing, non-privileged document which is forwarded to a lawyer
does not then become privileged.66

65
Smith v. Jones, [1999] 1 S.C.R. 455, para. 85 per Cory J.
66
Wayne State University, Attorney Client Privilege. Retrieved on 9th May 2017, from http://generalcounsel.wayne.edu/legal/attorney-
privilege.php.
Dr. Ratemo Tom
Kenyatta University School of Law, Parklands, Nairobi.
9