TRIAL ADVOCACY

FIRM 8 ATP 104: 2023

THE TRIAL LAWYER AND CONFLICT OF INTEREST.

“CAB RANK” RULE
“A lawyer is obligated to take instructions and represent a legal fees-paying client regardless of their
personal feelings about the charges facing their client, and perceived outcome of the matter provided it
is in a field they profess to practice, subject to their availability”
 CAB RANK RULE
ORIGIN
A practice by the taxi/cab drivers in Britain where they
would have their lights on to indicate their availability
and off their unavailability.
Taxi drivers were obligated to carry the first passenger
that asked for a destination regardless of the distance to
be covered provided they could pay for the service.
 CAB RANK RULE…CONTD
Advocates have an obligation to take instructions and represent persons regardless
of their reputation, and the nature of the charge provided it is in a field they
profess to practice, subject to their availability and payment of legal fees.
Cab rank rule is traced to Thomas Erskine’s defence of Thomas Paine.
Thomas Erksine was condemned by the government and media for representing
Thomas Paine. In his speech, he advocated for impartiality in administering
justice.
He stated that if advocates refuse to defend, from what they think of a charge or of
the defence then he assumes the character of a judge and which beats the
administration of justice.
Further stated that for advocates to be allowed to choose to represent someone or
not infringes on the right to legal representation.
 BASIS IN LAW
Constitution of Kenya
Article 48 : Access to justice
Article 50(2) (a): Right of an accused person to legal
representation.
Article 50(2) (g): Right to be represented by an advocate
of your choice.
R v Ulcay
An advocate cannot refuse to take a brief or instructions
due to the nature of a charge.
 EXCEPTION TO CAB RANK RULE
Advocates may refuse to represent a client if:
They do not profess expertise in that particular field
There is a conflict of interest,
A client is not willing to pay fees,
They do not have time to handle a particular matter etc.
 CONFLICT OF INTEREST
Definition:
“A conflicting interest is an interest which gives rise to
substantial risk that the Advocate’s representation of the
client will 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.“
 CONFLICT OF INTEREST
Laws On Conflict of Interest
Constitution of Kenya 2010, Articles 10 and 70 of the
Constitution.
Advocates act, section 56,
Code of Ethics and Proffessional Conduct for
Advocates,2016
Case law
 Substantial relationship test
Substantial Relationship is a relationship where the
possibilty that the counsel obtained confidential
information from the former client is highly likely.
Francis Mugo and 22 others Versus James Bress Muthee
In this suit the advocate acting for the plaintiffs had
drafted lease agreement for the defendants over the suit
property thus giving rise to a substantial relationship that
would give rise to a risk of conflict of interest. The court
thus allowed the application by the defendants advocates.
 Where the advocate is a potential witness
An opposing counsel cannot testify to a matter in dispute
between parties in litigation and still fulfilling his or her
function as an advocate. This impairs his credibility as
witness and diminishes his effectiveness as advocate.
Mwendwa Versus M`Mwendwa [2004] 2KLR621
Court held that where the reality of being required to
appear as a witness becomes apparent then the advocate
who may be so required shall cease to appear.
 GENERAL FORMS OF CONFLICT OF INTEREST

Conflict of duty and interests

Between Advocates and clients e.g conflict between the
duty to court as an officer of the court and duty to client
to protect their interests
Conflict of duties
Duty to different clients that is, current client and former
clients.
 CONFLICT OF INTEREST WOULD ARISE WHEN:-
There is a conflict of Advocate’s duties to the court and a client
An opposing counsel testify in a matter in dispute between parties subject to
litigation and still fulfill his/her functions as an advocate as this impairs the
credibility of as a witness and further diminishes the effectiveness as an
advocate.
Duty to a client infers on the concept of confidentiality as was held in Delphis
Bank ltd v. Chanan Singh
Breach of client confidentiality can be failure to disclose information regarding a
certain client.
Instances where advocate may be allowed share client information;
 when the information is public knowledge,
 court order
 consensual information.
 CONFLICT OF INTEREST WOULD ARISE WHEN:-
Duty owed to two or more clients/Simultaneous representation
In any disputed/ controversial matter, an advocate ought not to represent two
or more clients whose interests may conflict.
Pursuant to the nature of client conflicts; existing client conflicts and former
client conflicts, each decision by an advocate is imperative that the interests
don’t coincide.
Breach of duty of confidentiality
Paragraph 98 Rule 7 Part VII of the Code of Ethics & Professional Conduct
for Advocates, 2016
Each advocate is legally obligated not to disclose the nature of the case and
the advice offered to third parties. Such obligation ought not to be disclosed
without any form of consent from the client, legal authority or justification
 VOLUNTARY DISQUALIFICATION
1. Duty of Disclosure
In the event there is a possibility of a conflict of interest there exists a duty
on an advocate to disclose to one’s client. The law provides for a duty of
disclosure as per Paragraph 105 Law Society Code of Conduct 2016 and
II. Duty to client and the public.
Advocates as public officials are obligated to oversee the avoidance of
conflict between the duties they owe as representatives of certain clients,
to the public, court & their own personal interest as per Para 102 Part VI
of the Code of Ethics & Professional Conduct for Advocates, 2016
III. Advocates interest and duty to the client
In the event an advocates interests collide with the duty to a client he/she
is required to remain independent in judgement, loyal and objective.
 COMPELLED DISQUALIFICATION
Circumstances precipitating such an application:
Conflict of Interest
Where the opposing counsel is a potential witness to the case, eg., in
Francis Mugo & 22 others v James Bress Muthee & 3 others [2005] eKLR;
See also: Jackson Kiprotich Kibor v Kipruto Arap Lelei & 20 others [2017]
eKLR
Uncoorperative and Incompetent conduct
An advocate may be precluded from acting for a client when it is proved on
balance of probabilities doubt that he/ she engaged in professional
misconduct.
See; section 56 of Advocates Act, 1989 on disciplinary powers of Court.
1. Conflict of interest
Questions to be asked to ascertain presence of conflict of
interest

1. What relations of the opposing counsel give rise to conflict of

interest?
2. Who stands to be harmed by the conflict of interest?
 Vicarous disqualification
This is disqualification of an advocate based on the fact
that he/she was a member of a firm that previously
represented the adverse party in court.
The existence of professional and pecuniary relationship
with the previous firm and the adverse must be shown.
Laskey Bros. of West Virginia Inc. Versus Warner Bros.
Pictures, 130 F. Supp 514 (S.D.N.Y.1955) based
vicarious disqualification on an irrebuttable presumption
of exchange of information from the counsel to the firm
which he/she is/was then a member.
 Exception to vicarious disqualification
Silver Chrysler Plymouth vs Chrysler Motors Corp
The Court declined to disqualify a lawyer who, as a young associate with another
firm, had played a minor role in the tainting litigation.
The court rejected the Laskey doctrine of irrebuttably imputed knowledge within the
firm by refusing to impute to the lawyer his former colleagues’ knowledge.
“The law must reject defendants’ or opponent trial lawyer’s suggestion that for
purposes of disqualification, in an organization as large as Kelley Drye, every
associate is charged with the knowledge of the confidences of every lawyer in the
firm”.
In affirming, Silver Chrysler, two reasons for limiting vicarious disqualification were
emphasized:
 The right to counsel of one’s choice; and
The importance of retaining mobility for lawyers whose careers start in large firms.
 Exceptions:
If the testimony will relate solely to an uncontested matter.
If the testimony will relate solely to a matter of formality
and there is no reason to believe that substantial evidence
will be offered in opposition to the testimony.
If the testimony will relate solely to the nature and value of
legal services rendered in the case by the lawyer or his or
her firm to the client.
 As to any matter, if refusal would work as a substantial
hardship on the client because of the distinctive value of the
lawyer or his for as counsel in the particular case.
BEST PRACTICES TO AVOID ORGANIZATIONAL CONFLICT OF INTEREST

 Chinese Wall
A.k.a, screen/firewall/cone of science and/or ethical wall.
Definition: barrier in organizations aimed to block exchange of information between
departments to prevent potential breach of legal or ethical obligation, e.g conflict of interests
China Wall is an ethical practice embraced by institutions in financial sector, investment, stock
brokerage, and blue chip corporations to maintain confidentiality and conflict of interests
Caltex Oil Ltd v Crescent Construction Co. Ltd (2007)
Facts: D brought an application to set aside a consent aside filed by both D and P on account of
conflict of interest on the part of audit firm Deloitte & Touche as appointed in the consent. The
audit firm argued that they strictly adhered to Chinese Wall principles which shielded exchange
of information across its departments.
Holding: While overruling the defence of Chinese wall on account of permeability to leakages
outside the control of the audit , the court held that the existence of a fiduciary relationship
disclosed between the plaintiff and audit firm amounted to a conflict of interests, thus setting
aside the consent.
 TAKE AWAYS
A. General Rule: As a trial lawyer you are obliged to take instructions and
represent a legal-fee paying client in so far as the same is in their field of
practice.-”Cab Rank” Rule
B. Cab Rank rule is an equivalent of our Constitution’s right to legal
representation under article 46.
B. Exceptions:
i. Conflict of interests
ii. Client is not paying for representation
iii. Instructions are outside scope of one’s area of expertize
iv. Lack of enough time to render such services
C. Avoiding Organizational Conflict of Interests-China Wall Principles
THE END