PROFESSIONAL ETHICS AND THE LEGAL PROFESSION

Lesson one

SCOPE OF THE COURSE

Conduct of members of the legal profession, qualifications and advocacy. An advocate is expected to discharge his duties competitively. He is expected to master the principles and techniques of advocacy. Advocacy is an art which has to be learnt and in most cases people dont have the aptitude for it. The responsibilities of an advocate to fellow advocates. Advocates owe a duty to the court, client, and other advocates to society. Remuneration economics of law practice it is a service that is not offered free how do you charge for different matters Discipline how to deal with wayward advocates. Continuing Legal Education upon being admitted to the bar.

Role of Advocates in Society

Is there any role that lawyers play in society? Lawyers are not altogether popular professionals.

Ray Simon/Murray Schwartz said the following about lawyers in their text Lawyers and the Legal Profession They warned law students that they are about to enter a profession which is under constant attack. 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 appreciated by your friends, by the public or even by your own clients... They go on to say that everywhere you look lawyers are under attack, they are attack in court, you will be under attack in the press, in the business world, banks for example have been trying to see if conveyance work can be done by other people other than lawyer. They are attacked in the legislature; parliamentarians will attack the profession, there is a scheme to remove lawyers from insurance claims the arguments being that lawyers are stealing clients money. The suggested two cheque system was an attack on lawyers so that the decretal amount could go directly to the client since a lawyer is likely to embezzle clients money.

Lastly they are also under attack in the political arena. President Moi was fond of attacking lawyers in public and is credited with a piece of legislation that was trying to do away with lawyers in land transactions. (Cap 300)

Lawyers are being constantly disciplined, sanctioned and sued. They are also constantly the butt of jokes. There are jokes about how to tell when a lawyer is lying. Many people want to attack the lawyers that they are always telling lies and it is for this reason that the profession is not very popular. This hatred these days for lawyers is not a 20 th or 21st Century problem. One of the earliest reported hostilities towards advocates related to the English peasant revolt of 1831. It is reported that more Judges and Lawyers were killed in that revolt than in any other single class of persons. One disappointed reporter described the escape of lawyers on the following terms it is marvellous to see how even the most aged and infirmed of these scrambled off with the agility of rats or evil spirits. In 1665 an English citizen observed of London Lawyers, The town is so full of lawyers that one can hardly go into the streets. They are the jest of the court and the hate of all people. Their clothes are much out of date as their speech which none can understand but when they ask their fees. lets kill all the lawyers. In the 18th Century some American States toyed with the idea of abolishing the legal profession. The trustees of the colony of Georgia for example founded the colony in 1732 without lawyers. This was It is about this time that William Shakespeare was writing the famous line he wrote that first thing

because they planned a happy flourishing colony free from that pest and scourge of mankind called lawyers.

Charles Dickens whose novels have also savaged the law and lawyers and has never had a kind word for lawyers. Read Pickwick Papers, Bleak House. Jonathan Swift another writer of the 13th century described lawyers as a society of men bred up from their youth in the art of proving by words multiplied for the purpose that white is black and black is white accordingly as they are paid.

Benjamin Disraeli is reported as saying that the legal mind consists of illustrating the obvious and explaining the self evident. Remarks of Sir John Simons the public regards the lawyer as an unprincipled wretch who is constantly engaged in the unscrupulous distortion of the truth by methods which are entirely discreditable and for rewards which are grotesquely exaggerated. He is expected to be a hypocrite and if he is a successful one he will be liberally paid for doing what was expected of him. If he is just, it is only because he has no temptation at that particular moment to be unjust.

WHY DO PEOPLE HATE LAWYERS? WHY IS THE IMAGE OF LAWYERS SO BAD?

This has something to do either with the nature of the lawyers profession or the workings of the legal profession or it has something to do with impropriety on the part of advocates or both. This is in the sense that when one is representing a criminal, not many people will understand why one is representing a murderer for example.

According to Lord Simon the law troubles only those who put themselves in trouble. Those who are in trouble will seek a lawyer and it is therefore not surprising that a painful prejudice would be created against those who appear to live on other peoples misfortunes. A lawyers work is therefore viewed as being rather dirty. Professor Robson calls it a lawyers dilemma; he says that a defeated client would abuse his own attorney for ineptitude and that the advocate for the opponent was deceptive. His successful antagonist on the other hand would resent having to pay for what he believed in the first place were his rights and he would have a grudge against the advocate for the other side for having subjected him to unnecessary delay and expense.

IS THERE ANY ROLE FOR LAWYERS IN SOCIETY IN VIEW OF THE ABOVE?

Lawyers certainly believe that they have a role in society but that what they do cannot be seen by the naked eye or what they do is not perceived as being very useful. In the words of an ex president of the American Bar Association we build no bridges, we raise no

towers, we paint no pictures and there is little of all that do which the eyes of men can see. But we soothe out difficulties, we relieve stress, we correct mistake and we take other peoples burdens and by our efforts we make possible the peaceful life of a man in a peaceful state. Lawyers have a duty and a responsibility to society. The lawyers very existence is service to society. The principles governing the legal profession require advocates or lawyers to provide service to clients of whatever class. They have no choice; they are not required to pick and choose clients.

Why are they not allowed to pick and choose clients? Everyone is entitled to access to justice. One may say that a client has a dream and it is the lawyers duty to help the client achieve that dream. The client doesnt know how to achieve his dream and advocates must help clients do things that they cannot themselves do. We help them draw complex documents of agreements that take care of all possible scenarios, documents that in the best possible way take maximum care of the interests of the client.

We also help them incorporate companies, create trusts, to cover debts, help in purchasing property. The lawyers role is the provision of technical know-how. Our role as lawyers is not limited to what we do for our clients; it extends beyond the lawyer client relationship. We are expected as lawyers to play a much larger role in society in various transactions. It is said that 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. We also notice that lawyers in Kenya have been very visible in the struggle leading to the so called second liberation. They have also been very vocal and active in pushing for the enactment of a new constitution. As lawyers we are expected to have a duty in public affairs. The profession itself should be seen as a public service and lawyers are expected to provide leadership in the management of human affairs. Therefore we should be very visible as members of our profession in the society in guiding leadership.

Justice Simmons once remarked that the lawyer must be a teacher of the law and government and that he must furnish the public with leadership in matters of government.

Another US Jurist by the name of Arthur Vanderbilt said that in a free society, every lawyer has the responsibility of acting as an intelligent and selfish leader of public opinion. Our training prepares for public service and leadership positions in society. The late Chief Justice Madan is on record as saying that the lawyers duty to the community and his role in national development is higher than that of the ordinary citizen because of the lawyers training and specialized knowledge. He says that the lawyer assumes the role of a leader in the economic and social life in the community and as a forerunner to being a political leader to manage the affairs of the nation and in his opinion legal education and strictness of ethics prepare lawyers for political leadership more than any other profession and he concludes by saying that inevitably more lawyers turn to politics than members of any other profession. Lawyers have a calling to the enforcement of human rights and advocates on admission to the bar take an oath swearing to defend the constitution and the rule of law. If there is any area where lawyers can be counted as true heroes, it is in the defence of human rights, it is where they speak out for the rights of others and the public in that respect views them as fearless champions of the rights of the individual. 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. A lawyer is expected to hold two fundamental beliefs: 1. That all social activity including politics has rules and limits, there is absolutely nothing without limits; and 2. Those lawyers have to participate in remedying injustice and the abuse of power.

By participating in fighting evils, not just by representing a client in court, but also by engaging in debates and issues of this kind. 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 1. To assist the government and the courts in all matters affecting legislation and administration of justice in Kenya; Note that we are talking of all matters affecting legislation and public administration. 2. To protect and assist the public in Kenya in all matters touching or incidental to law.

SEPARATION OF POWERS. It is argued that the full meaning of separation of powers can be achieved only with the help of lawyers through an independent bar

and the judiciary. The doctrine of separation of power cannot work without assistance of lawyers. independent bar and bench. The rule of law requires an

The Kenyan Constitution does not

expressly provide for the protection of the independence of the Bar or how the same should be protected. The Constitution at Section 77 provides instead for an independent and impartial court. The

independence of the bar is by implication protected by Section 77 of the Constitution and they say that an independent judiciary cannot exist nor come about without an independent bar.

Within the Common Law system, Judges are mainly drawn from senior advocates. The common law does not thereafter train the

newly appointed judges on how to be independent. They are not taken to any induction course on how to be independent; it is believed they will be independent judges because they have been independent practitioners for many years.

INDEPENDENCE OF THE BAR Features of an independent bar: Independence of the Bar entails four main things 1. 2. 3. 4. Independence from the Executive; Independence from the Judiciary; Independence from the Client; and Independence from wining at any cost. The effort to win all the cases is suggestive of the fact that you are not an

independent practitioner. One has to be independent from this temptation. PROFESSIONAL ETHICS LESSON TWO

The role of lawyers in society continued

Lawyers have a key role to play in making the principle of the rule of law having meaning and the principle of the rule of law is dependent largely on the bar and the judiciary.

INDEPENDENCE OF THE BAR The independence of the judiciary is actually dependent on the independence of the Bar because the judiciary is derived largely from the bar. The independence of the bar entails four factors: 1. 2. 3. 4. Independence from the executive Independence from the judiciary Independence from client Independence from the temptation to win at all costs.

INDEPENDENCE FROM THE EXECUTIVE An advocate is expected to be free from dependence on the executive or compliance with the wishes of the Executive or unable to resist its demands. The Executive is the strong arm of the government and has a lot of influence on the society including lawyers. There is a lot of

money to be made from working for the Executive and the temptation that one gets a lot of work from parastatals and government may tempt one to do things that are not prejudicial to the government. There are very many other corporations who give work to lawyers but most of the good briefs actually comes from parastatals i.e. KCB, KAA, and KPA etc.

Not just in respect to corporate work, the executive may also try to influence advocates so that they do not represent some persons and they may want their suspects not to be represented by a good lawyer and an advocate should be able to withstand such pressure from the Executive. The role of an advocate is to represent any person who goes to them for representation regardless of their background.

The professional requirements of the Advocates work necessitate that decisions relating to a clients case must be made in the best interest of a client based on the facts and the law applicable to the case.

This applies not only to practising advocate in private practice but also to members of the Bench that they should be able to resist pressure or influence from the executive. INDEPENCE FROM THE JUDICIARY With regard to independence from the judiciary it is important to note that the work of an advocate requires him/her to attend court on a daily basis. At least in most cases the busy advocates are in court

every day and appear before the bench on a daily basis. Judicial officers are persons in positions of authority over the advocate. They exercise authority over advocates and other people who appear before the courts, that is power they derive from the law. Whether, Magistrates Act or Judicature Act or other statutes governing conduct of judicial proceedings. An advocate is not subordinate to members of the bench they appear in equal capacity and therefore an Advocate should be careful not to regard the authority of the Judge or Magistrate so as to be reduced to a subordinate position. Advocates are expected to deal with the Advocates are expected to be

courts with respect and courtesy.

members of polite society and more so when dealing with members of the judiciary. This courtesy is said to be very important because it facilitates smooth operation of the judicial process. When an advocate is

courteous to the judicial officer they are likely to reciprocate and this is good. Advocates while expected to be courteous must retain their independence from the expressed or implied directions of the court.

Very often the courts will seek to lead advocates into decisions or directions in respect of a case and very often they want to lead an advocate in a particular direction, an advocate should gratefully and gracefully accept proper suggestions from the court. Where the

suggests are in ones client best interest it is advisable to accept them but it is not the function of the court to give such direction and the

final decision on the conduct of the clients case remains with the advocate.

INDEPENDENCE FROM THE CLIENT With respect of independence from the client the advocate has a duty to act strenuously in the clients best interest. The moment a client is seized of instruction they have a duty to always act in the best interests of the client at the same time remaining independent from the client. An advocate is not an employee of the client, the

Advocate/client relationship is not one of employer/employee but the fact remains that most clients see an advocate as nothing more than an employee to do as directed by the client. The client instructs you but he doesnt have to tell you what to do. An advocates fees do not therefore buy the advocate; they only buy his best independent advice, work and effort. An advocate is a clients adviser and his responsibility is to guide the client on matters touching on the law, therefore when a client instructs one to sue someone and an advocate is convinced that a client does not have a case, they should advice the client that there is not case if they so feel. Most client regard advocates as their hired guns.

What should an advocate do when the client wants things done in a certain way against the best interests of the client and the advocate feels different? The advocate should courteously reiterate their advice to the client and be ready to give up the brief if the client insists on a

course of action which an advocate believes is not in their best interests. It is advisable to have the client put his instructions in writing, to commit himself in writing. The best practice is before an advocate takes any decision to consult the client and ask them if they agree and put it in writing so if something goes wrong, they have the instructions in writing.

INDEPENDENCE FROM WINNING AT ALL COSTS: There is always the temptation on the part of the advocate to try to win all cases. Although we talk of legal practice as more of a public service, we should also understand that it is business and one is seeking to make money out of it. Clients are always looking for advocates who win cases. It is not just possible to win all cases. One party will win and the temptation to win encourages corruption where one discovers that they cannot win fairly one may be forced to use unorthodox means by buying the judge, magistrate or prosecutor or even the witnesses so they dont turn up to testify against ones clients. If one is tempted to win all the cases at all costs, then one is truly not being independent and that means that one has to be very honest with their clients. You must advice clients on the realistic chances of winning or losing cases so that they know and dont give the impression that it is an easy case to win because the client is likely to put one under pressure. So many advocates are not independent of this temptation and so many advocates are trying to win at all costs and engaging in all sorts of misconducts.

This is not to say that one should decline instructions in circumstances where one feels that they cannot win a case, the advocates responsibility is take all cases whether good or bad. An advocate should not get tempted to promise their clients wins in case they lose, they should only apply law to facts and give clients proper advise on their chances of success.

SUMMARY

Summary of role of advocates in society. What should be their role? The International Commission of Jurists in a Congress held in Rio de Janeiro in 1962 in Brazil defined the role of the lawyer in a changing world as follows: 1. They stated that the scale and knowledge of lawyers are not to be employed solely for the benefit of clients but should be regarded as held in trust for society that is why we are saying that the calling of a lawyer is to public service 2. It is the duty of lawyers in every country both in the conduct of their practice and in public life to help ensure the existence of a responsible legislature. They should help in ensuring a responsible legislature elected by a public process and an independent judiciary and to be always vigilant in the protection of civil liberties and human rights; 3. Lawyers should be concerned with the prevalence of poverty, ignorance and inequality in human society and they should take a leading role in providing measures which will help

eradicate these evils. This is of concern to lawyers because so long as these evils prevail in the society human beings cannot fully enjoy their civil rights and liberties; lawyers are therefore required to engage actively in promotion of legal aid providing services to poor free of charge so that the poor can have access to justice and enjoy their civil rights. 4. Lawyers should endeavour to promote knowledge of and to inspire the rule of law and an appreciation of all people of their rights under the law. Therefore the responsibility on the shoulders of lawyers is immense as society expects a lot from lawyers. This is because lawyers are called to perform

higher duties i.e. they have a higher duty than that of ordinary citizens and it is this higher duty which demands a higher degree of personal integrity on the lawyers part and it is failure to attain this high standard of integrity and discipline that exposes lawyers to failure;

THE LEGAL PROFESSION The practice of law is regarded as one of the oldest professions in the world and its origins are traced back to the Roman Empire Age; in the period before Christ. At that time, some people in society particularly persons of high social status often persuaded adjudicators in a tribunal to decide a case for somebody i.e. it was common for persons of high social status to speak up on behalf of those not articulate enough.

In England during the middle ages i.e. the period around the 12 th or 14th Century it was the Nobles who volunteered to act for those who were unable to have their cases heard before a jury they were people of higher social status stepping in to speak on behalf of those who could not speak for themselves. In these early stages, they acted free and later the practice developed into a social service and a fee was subsequently introduced. Law is considered to be one of the learned professions the others being Medicine and the Ministry/priesthood. Learned professions share common and differentiating characteristics: 1. 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; law degree, law schools for bar exams and trained and exposed to the procedures relevant to the profession and the bar exams should expose one to procedure and ethics; pupillage which equivalent to apprenticeship and where one is taught drafting of documents. The argument is that one is properly tested and certified as competent to practice that profession. In some countries one is not allowed to do law unless they have degree in another course so that one is properly learned. The objective of this education is to equip the professional with special knowledge and mental skills required for the tasks ahead. 2. 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 prospective advocate

services pupillage under a pupil master who should be an advocate of at least 5 years standing. should subject the pupil to testing. 3. Professionals specifically the small class of professions enjoy an advantage in social prestige on account of the following: (i) High Income because lawyers particularly doing well have a high income; (ii) On account of assumed wisdom other members of society dont enjoy. 4. 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. 5. 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. This is the usual method of exercising control and extends to creating and enforcing standards of admission and exclusion from the profession; includes defining the qualifications of competence and character required of a professional of good standing. These organised This pupil master

(iii) Nature of the work which gives social prestige that

groups can also be found in medicine, teaching, KNUT etc. Please note that the organized group works in tandem with the state to preclude anyone who is not a licensed professional from performing similar or competing work. The state through the police and other law enforcement agencies can prosecute those who purport to practice law when they are not qualified to do so. 6. 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 if regulated by law there is 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. This monopolistic control but with a touch of state support, the legal profession depends on the state for the purpose of exercising control on its own members. Advocates are admitted to the Bar by the Chief Justice who is the head of the Judiciary. The AG who is a member of the executive is the nominal head of the bar and advocates are admitted to the roll of advocates which is a register kept by the registrar of the High Court and upon and upon

admission they become advocates of the High Court of Kenya and they become officers of the court, by becoming officers of the court the court is able to exercise control over them. The

profession is able to use the state machinery of exercising control over members of the profession. The AG is involved in the discipline of Advocates. There are two main disciplinary bodies established under the Advocates Act for dealing with wayward advocates i.e. the Advocates Complaints Commission and the Disciplinary Committee. The Advocates

Complaints Commission is a department in the office of the Attorney General. While the Disciplinary Committee draws its membership from the AGs office and from the Law Society of Kenya. Both the Attorney General and the Chief Justice play a role in admitting advocates to the bar. Indeed when new advocates are being admitted the AG is expected to be present and is often represented by a senior official from his chambers. Before admission to the bar the candidates have to be cleared by the Council of Legal Education which again is a department in the office of the Attorney General and lastly practising certificates which authorise advocates to practice as such are issued by the registrar of the High Court. One applies to the LSK but it is issued by the Registrar of the High Court. There is a close working relationship between LSK and the State.