QUESTION: What are the overriding values and principles of professional

practice which underpin a legal system?

INTRODUCTION

In any given profession, there exists principles and values that govern the interaction between the

employee and the employer as well as others that relate to the external affairs. These values and

or principles whether written or oral, play a very significant role in ensuring the smooth running

of the interaction. Without them, many relations have ended up so sour than ought to have been.

The legal profession is not left out in this, and as such in the advocate client relationship, several

rules of practice as well as ethics from experience dictate the manner in which all parties to the

said relationship carry themselves around. It’s from such that the duties and responsibilities of

either party emanate and the consequences of non-compliance to the same being stipulated.The

Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, June

2016 sets out the overriding values and principles of professional practice which are universally

applicable to law practice and certain ideals that should govern the conduct of the members in

the legal profession. These values and principles should guide the actions of members as well as

their decisions whenever they construe the members who are facing professional misconduct.

The values and principles are explained as below.

INDEPENDENCE

Lawyers’ independence means that lawyers are able to act in their client’s best interest without

fear of interference. A lawyer must be free to put the client’s interest first, free from political or

governmental influence, pressure or control. The legislature does not decide who can become a

lawyer nor can it prevent a lawyer from practicing law or representing a particular client. The
public has a right to obtain legal advice from a lawyer whose primary duty is to his or her client,

not to any other person and especially not to the state.Professional independence ought to be

nurtured and respected by the professional body, other regulatory authorities, fellow

professionals, the client and the Advocate himself/herself1.

INTEGRITY AND HUMILITY

Integrity is the quality of being honest and having strong moral principles while humility is the

quality of being courteous and respectful of others.

While pursuing any client’s matter an advocate should always forego his interests and give

priority to the client’s interests. He/she should deal with the client with the utmost honesty and

frankness. He should always keep his client informed about the progress of the case and other

matters that might be relevant to the client and he/ she should not make false statement while

representing his client.. An advocate who in one way or another fails to handle his/her client’s

case with honesty may expose himself to both criminal and civil proceedings. This was

illustrated in the case of Kinyanjui V Republic.2 He does not only have a duty of virtue of

honesty/ integrity to his clients only but also to his fellow colleagues, member of the

public,service providers , office staff and the judiciary at large.

An advocate should always demonstrate courtesy and good faith to any person whom he comes

into contact with. He should always demonstrate respect and courtesy in all his dealings with

others including those ones whom he has control over e.g the staff members and those serving as

pippils in his chambers.

1 LSK Code of Standards of Professional Practice and Ethical Conduct, June 2016
2 T Ojienda & K Juma professional ethics
CONFLICT OF INTEREST

Conflict of interest is another principle that serve as a cornerstone for the legal system.It is

defined as a “real or seeming incompatibility between one’s private interests and one’s public or

fiduciary duties.”3There are two types of conflicts of interest i.e legal and ethical conflict of

interest.The former may be described as a conflict of duties or a conflict between interests or as a

conflict between interest and duty owed by an advocate.It is an interest which gives rise to a

substantial risk that the advocate’s representation of the client will be materially and adversely

affected by the advocate’s own interest or by the advocate’s duties to another current

client,former client or a third person.4 An ethical conflict on the other hand occurs when a

lawyer is asked to represent a person and in order to do so they must disregard their own moral

principles or those of their organization.

The general rule is that an advocate shall not act where there is a conflicting interest unless

he/she makes adequate disclosure to both clients and obtains their consent.Therefore, an

advocate should always conduct a conflict of interest check before taking up any matter.This is

because the advocate’s ability to represent the client may be materially and adversely affected

unless the advocate’s judgement and freedom of action are free as possible from compromising

influences and the relationship between advocates and client is not materially impaired by the

advocate acting against the client in any other manner.5

It was held in Serve in Love Africa (Sila) Trust v David Kipsang Kipyego & 7 others [2017]

eKLR6 that for an advocate to act when he/she has a legal conflict of interest is a professional

misconduct as it involves breaching a fiduciary duty to a client or a former client.7

3 Black Law’s Dictionary, 8th Ed, 171

4 Para 96,LSK Code of Standards of Professional Practice and Ethical Conduct, June 2016
5 Para 97,LSK Code of Standards of Professional Practice and Ethical Conduct, June 2016
6 E&L Case No.21 of 2017
7 Serve in Love Africa (Sila) Trust v David Kipsang Kipyego & 7 others [2017] eKLR
Maintaining loyalty to the client promotes trust and confidence in the advocate.8Therefore,

avoidance of situations of conflict of interest enhances the legal professional’s ability to render

unbiased and objective services to the client and the standing of the legal profession in the eyes

of the public.9An advocate should thus avoid knowingly assuming or remaining in a position

which gives rise to a conflict of interest.

Forms of conflict of interest

There are various situations10 in which a conflict of interest might arise and they include:-

a. Simultaneous representation

This occurs where there is a conflict of interest between two or more clients that the advocate or

his firm is concurrently representing e.g in situations where the representations involves the

assertion of a claim by one client against another client.

The general rule is that an advocate may not represent two clients who are adversaries in a case.

This was set out in the case of King Woolen Mills Ltd (formerly known as Manchester

Outfitters Suiting Division Ltd) & another v M/s Kaplan & Straton Advocates [1993]

eKLR11and Uhuru Highway Development Limited and others v. Central Bank of Kenya [2002]

.12 However, this rule is subject to the exception of proof of undue prejudice arising out of the

representation. The courts look at the matter based on substance as opposed to form as was stated

in the case of Rakusen v Ellis, Munday and Clarke13 in the following words “....but in my view

we must treat each of the cases, not as a matter of form, not as a matter to be decided on the
8 98 LSK Code of standards of Professional Practice and Ethical Conduct(2016)
9Para 25 LSK Code of standards of Professional Practice and Ethical Conduct(2016)
10 Para 99 LSK Code of standards of Professional Practice and Ethical Conduct(2016)
11 Civil Appeal No. 55 of 1993
12 [2002] 2EA 654 (CA)
13 [1912] 1 Ch 831
mere proof of a former acting for a client but, as a matter of substance, before we allow the

special jurisdiction over solicitors to be invoked, we must be satisfied that real mischief and real

prejudice will in all human probability, result if his solicitor is allowed to act.”14

b . Issue conflict

This occurs where an advocate representing two clients in different cases and urging a legal

position of one which will have negative consequences for another if the cases are pending in the

same court.

c . Successive representation

This occurs when an advocate represents a client in a matter which may be averse to a former

client. Where matters of the former and current clients are related in some way and the advocate

would risk breaching confidentiality to represent the current client. Advocate-client

confidentiality goes beyond completion of a court case; It is infinite. An advocate can be

disqualified for such conduct if the interests of the former and current client are really and truly

adverse in nature and if the past and current matters are closely related in some way.

In the case of Simba Hills Farm Limited v Sultan Hasham Lalji & 5 others [2007] eKLR . 15In

the application for the disqualification or barring of advocate or advocate's firm from conducting

suit, on the ground that advocate for the plaintiff had previously acted for the 3rd and 4th

defendants. The court held that there was conflict of interest and the advocate could not be

allowed to act for the plaintiffs as it was possible that as former counsel for the said defendants,

he could have come across some knowledge that would be prejudicial to the defendants.

c. Expected witnesses

14 Ibid
15 Civil Case 22 of 2006
When it is expected that an advocate will be called as a witness in the case, then the said

advocate may be disqualified from acting in the matter. This is to protect the client’s interest

because of there is a probability that the testimony could harm his client’s case.

Rule 9 of the Advocates (Practice) Rules 1966 provides that an advocate who believes that he

or she shall be called as a witness in a matter should not appear before a court or a tribunal

presiding over the same matter.

Additionally, in the case of Francis Mugo & 22 others v James Bress Muthee & 3 others

[2005] eKLR16the firm of Mukite Musangi & Co. Advocates was disqualified from conducting

the suit because the defendant intended to call the advocate as their witness because the said

advocate had drawn and witnessed a lease which was relevant to the case.

d.Conflict of interest relating to Advocate’s duty to court and client

Advocates are often faced with conflict of interest where their duty as an officer of the court

conflicts with their duty to the client. Where such a conflict exists, it was held in the case of

Rondel v Worsley[9] that their duty to the court takes precedence, because a trial lawyer may

only protect or advance the interests of his or her client to the extent that it is consistent with

counsel’s function as an officer of the court. In the case of Malindi Air Services & Another Vs

Halima Abdinoor Hassan[1998]eKLR[10], Senior Counsel Ahmednasir Abdullahi disclosed to

the court the false facts put forward by his client guiding the court in arriving at its decision even

though the information given by him was detrimental to his client.

e. Conflicts between an advocate's interests and a duty to a client

An advocate-client conflict occurs when an advocate's personal interests conflict with that of his

or her duties to their client, forcing him or her to make a choice between the two. When this

happens, the advocate should remain independent. Rules of professional ethics requires an
16 Civil Suit 122 of 2005
advocate to decline instructions where there is a possibility of this independence being interfered

[12]
with. In Law Society of New South Wales v Harvey Street CJ held “Where there is any

conflict between the interests of the client and that of the solicitor, the duty of the solicitor is to

act in perfect good faith and to make full disclosure of his interest. It must be a conscientious

disclosure of all material circumstances, and everything known to him relating to the proposed

transaction which might influence the conduct of the client or anybody from whom he might

seek advice.....A solicitor who constantly promotes dealings with various clients clearly misuses

his position and puts it beyond his capacity to observe his primary duty to his clients. The price

of being a member of an honorable profession, whose duty to his client ought not to be

prejudiced in any degree, is that a solicitor is denied the freedom to take the benefit of any

opportunity to deal with persons whom he has accepted as clients. Therefore, he ought neither to

promote, suggest nor encourage a client to deal with him, but rather should take all reasonable

steps positively to avoid dealing directly, or indirectly, with his client.”

The following are cumstances where the independence of an advocate maybe at a risk of being

compromised:-

● Getting involved in a business transactions with the client, such as a debtor-client

relationship

● Acquiring an ownership,possessory or security interest in a property which is adverse to

the client’s interest in the same property

● Acquiring a financial interest in the subject matter of the case that the advocate is

handling

● Having a personal or professional relationship with the adverse party or a close associate

or family member of the adverse party.

FIDELITY TO THE LAW

The legal professional’s first duty is to the rule of law and due process. He or she is required to

demonstrate respect for the rule rule of the law and due process. The legal professional must

never subvert or connive in the subversion of the law or due process in his or her service to the

client’s interest17. As Isaac Meekins avers, the object of every trial is not to convict or acquit.

The object is to ascertain the truth of every inquiry, criminal or civil, by legal testimony and in

accordance with the law.18

. Albert Venn Dicey in his book ‘Introduction to the study of the law of the constitution' of

1885,outline the 3 principles of the rule of law as follows; (i)That no man ought to suffer or get

inflicted pain in body or by his own property, except by breach of law established in a legally

acceptable form and before the ordinary courts within that land

(ii)That no man is above the law and all men are subject to the ordinary law of the realm and

amenable to the jurisdiction of ordinary tribunals.

(iii)That the arsenal rules and principles of constitutionalism are there as a result of judicial

decisions affecting the rights and fundamental freedoms of private citizens before the court .The

term rule of law has been used to mean a variety of things. Two common components,

however, are: (1) the predictability of the law, which enables people to rely on it in ordering their

affairs, and to plan their conduct with some confidence and security; 19and (2) the coherence of

the legal system as a whole (that is, that one standard of law will not contradict another)The

court as an independent arbiter of the Constitution has fidelity to the Constitution and has to be

17 Law Society of Kenya Code of Standards of professional Practice and Ethical conflict, June 2016.
18 Isaac M. Meekins, The Lawyer as an Officer of the Court- His duty to the court in the administration of Justice,
4 N. C. L. Rev 95(1926).
19 See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Cm. L. REv. 1175 (1989) (explaining that
predictability is important factor in rule of law)
guided by the letter and spirit of the Constitution. In interpreting a statute, the court should give

life to the intention of the lawmaker instead of stifling it.

ADVOCATE- CLIENT CONFIDENTIALITY

Confidentiality refers to the fact that the transaction between Advocates and their client should

not be disclosed to any party and to the fact even in court. Such matters should not be disclosed

if they have come to the knowledge of the Advocate and client. The reason why this principle is

attached to the Advocate/client relationship is to give the client confidence to disclose everything

to the Advocate without fear that there would be betrayal. This principle is an indispensable

feature of the rule of law and essential to public trust and confidence in the administration of

justice.20 It enables the client to communicate frankly and it enables the Advocate to advice the

client frankly.In the case of King Woolen Mills Ltd & Another vs Kaplan & Stratton

Advocates it was held that;

“… 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. The

fiduciary relationship exists even after conclusion of the matter for which the retainer was

created.”

An advocate has a duty to keep confidential the information received from, and advice given

to the client. This duty requires the advocate to put in place measures and systems for data

storage and protection. Thus, if due to inadequate protective measures, client information

falls into the wrong hands, the Advocate could be guilty of professional misconduct, and the

client may sue for professional negligence.

20 LSK Code of Standards of Professional Practice and Ethical Conduct, June 2016
Section 134(1) of the Evidence Act prohibits advocates from disclosing privileged advocate-

client communication. The privilege covers contents, conditions of documents within the

Advocate’s knowledge and advice rendered by the Advocate to the client. The Advocate should

avoid indiscreet conversations or gossip which might reveal confidential information about a

client or a client’s matter. Section 135 of the Evidence Act extends the duty for non-disclosure

of privileged information to the clerks and servants of the Advocate. The Advocate has a duty

to ensure that such staff members maintain the obligation of confidentiality and professional

secrecy. The general rule is that any information known by the Advocate is deemed to be

known by the entire law firm. Unauthorized disclosure of client confidential information

amounts to professional misconduct even after the termination of the employment. Moreover,

an advocate should not make use of information made available to him by a client to advance

his private or business interests without the consent of the client.

The doctrine of professional privilege is a crucial element of public trust that instill

confidence in the administration of justice and the independence of the legal profession. The

client is under an assumption that, without his express consent or unless otherwise required

by law, matters disclosed to or discussed with the Advocate will be held secret and

confidential. However, under section 134 an advocate is permitted to disclose privileged

communication with the express consent of the client preferably in writing or where

communication is made in furtherance of an illegal purpose as well as observation by the

advocate on commission of crime or fraud from the time of his employment as the client’s

Advocate.
FIDUCIARY DUTY TO THE CLIENT

The relationship between the client and the lawyer is rooted in confidence and trust. It is the

nature of this relationship that creates a lawyer’s fiduciary duty to clients.

A client always trust the lawyer to handle his property or money without fear. This is a

fundamental principle that should be safeguarded by legal professionals when handling the

client’s money or property and account for them and not to use them for their own benefit at the

detriment of their clients.

Lawyers must recognize that they owe to their clients a fiduciary duty that includes protecting

the client’s confidence and property, avoiding conflicting interests, dealing honestly, and not

taking advantage of the attorney-client relationship.

REMUNERATION

Lawyers are entitled to fair, reasonable remuneration for services rendered. The fees in question

should be balanced out between the financial requirements of the advocate in question and the

fees not being a barrier to access to legal services, we have various mechanisms set out in law to

achieve these objectives. First and foremost, there are various factors involved in determining

fees charged ; the factors ensure that both the advocate and the client benefit in terms of

remuneration and representation.in addition to this, there exists various payment options with

regards to advocate fees. They include being paid based on the time spent on the work, flat rates,

contingent fee and a proportional fee. The various options available give discretion to both

parties in a legal transaction to decide on what best achieves the objectives of balancing out fees

vis a vis access to legal services.

There also exists a proviso for having an advocate on retainer which exists in many different

forms.

The Advocates Remuneration order is the principal law with regards to remuneration. It consists

of the rules that prescribe how charging is to be done and the schedule that shows the scales for

different types of business. Its two main objectives are to provide guidance with regards to

remuneration of advocates and to make legal services affordable to the public.

Lawyers are also bound to finish prosecuting or defending a case before demanding for

payment, and advocate must however be paid fees regardless of the outcome of the case. The

Advocates Act goes as far as terming such contingency contracts as illegal.

PROFESSIONAL UNDERTAKING

Professional undertaking was stated in the case of Harit Sheth t/a Harit Sheth Advocate v K.

Osmond Advocates21 as follows“a professional undertaking is a bond by an advocate on the

authority of his client. It is based on the relationship which exists between the advocate and his

client. An advocate who gives such a professional undertaking takes a risk. The risk is his own

and he should not be heard to complain that it is too burdensome and that someone else should

shoulder the responsibility of recovering the debt from his own client. The court further held that

A professional undertaking is a bond by an advocate to conduct himself as expected of him by

the court to which he is an officer. No matter how painful it might be to honour it, the advocate is

obliged to honour if only to protect his own reputation as an officer of the court.”22

PROFESSIONALISM

21 [2011] eKLR (Civil Appeal No 276 of 2001)

22 Waruhiu K’owade & Ng’ang’a Advocates v Mutune Investment Limited [2016] eKLR
Professionalism as described by the oxford dictionary is the competence or skill expected of a

professional. An advocate should exercise care and skill demanded of a reasonably competent

and diligent advocate.Legal practitioners should carry out their duties skillfully and with respect

to their clients, court, public , judiciary and other parties in a manner that is respectful. An

advocate should diligently and competently render his/her services. A law should not undermine

his/her opponent for example writing to a fellow counsel ‘‘If you think you have a good chance

of success in the appeal, we instruct you to proceed with the same without any further

delay.’’ A lawyer will be liable for any gross negligence on her part as was held in the case of

CHAMPION MOTOR SPARES LTD. V. PHADKE AND OTHERS [1969] E.A. where the

Court held, that an advocate is not liable for any reasonable error of judgement or for

ignorance of some obscure point of law, but is liable for an act of gross negligence or ignorance

of elementary matters of law constantly arising in practice

THE LAWYER IN SOCIETY

As a member of the society, the lawyer is expected to lead by example. The lawyer’s conduct in

society must uphold the dignity and honour of the profession and reflect the best of his/her

society’s values. In his/her private life just as in his/her professional life the lawyer must avoid

conducts which undermines the image of the legal profession.

NATURAL JUSTICE

Principles of natural justice are concerned with procedural fairness and ensure that a fair decision

is reached by an impartial and objective decision maker. Maintaining procedural fairness protects

the rights of individuals and enhances public confidence in the process.

The principles of natural justice are captured in article 47 to 50 of the Constitution of

Kenya,2010.

There are two maxims that guides the rule of natural justice these are Audi Ateram Partem and

Nemo judex in causa sua potest;

Audi Alteram Partem

Halsbury’s Laws of England, 5th Edn. Vol. 61 page 545 at para 640 states as follows

“The audi alteram partem rule requires that those who are likely to be directly affected by the

outcome should be given prior notification of the action proposed to be taken, of the time and

place of any hearing that is to be conducted, and of the charge or case they will be called upon to

meet. The particulars set out in the notice should be sufficiently explicit to enable the interested

parties to understand the case they have to meet and to prepare their answer and their own cases.

Notification of the proceedings or the proposed decision must also be given early enough to

afford the person concerned a reasonable opportunity to prepare representations or put their own

case. Otherwise the only proper course will be to postpone or adjourn the matter.”

Nemo judex in causa sua potest

This is a requirement that the deciding authority must be unbiased when according the hearing or

making the decision. Additionally, lawyers and decision-makers must act without bias in all

procedures connected with the making of a decision.This principle of natural justice builds

public confidence in the legal system. For Example a Monkey cannot be a fair judge in a case

where the matter for determination is Whether to cut down all tall trees in the forest or A hyena
being a fair judge in a case where a fellow hyena has petitioned the court to be given custody of

goates. The two examples clearly brings out the perception of bias.

CONCLUSION

In conclusion we would like to quote the words of Peter MacFarlane in his article on the

Importance of ethics and the application of ethical principles to the legal profession where he

says, “Surveys tell us that in terms of ethics and honesty only building contractors, politicians

and car sales-people have lower ratings than advocates. In a study done in the United States,

funeral directors rated more highly. The fact is that advocates have been 'on the nose' for a long

time now. Part of this can be explained by the fact that the client sees the advocate as the 'means

to justice' and so if they lose a case - be it criminal or civil - the advocate and 'the system' are

easy targets of blame.”23

23 http://www.paclii.org/journals/fJSPL/vol06/8.shtml