340909679 Professional Ethics Notes PDF

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M O I U N I V E R S I T YF A C U L T Y O F L A WP R O F E S S I O N A L E T H I C S A N D P R O F E S S I O N A L R E S P O N S I B I L I T YC H A P T E R O N EI N T R O D U C T I O NProfessional Ethics govern the conduct of advocates.A: WHO IS AN ADVOCATEAn advocate is defined in Section 2 of the A...

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MOI UNIVERSITY FACULTY OF LAW PROFESSIONAL ETHICS AND PROFESSIONAL RESPONSIBILITY CHAPTER ONE INTRODUCTIO INTRODUCTION N Professional Ethics govern the conduct of advocates. A: WHO IS AN ADVOCATE An advocate is defined in Section 2 of the Advocates Act pursuant to Act No.18 of 1989 as, any person whose name is duly entered upon the Roll of Advocates or upon the Roll of Advocates and having the rank of Senior Counsel and for purposes of part IX of the Act, includes a person mentioned in section 10. Part IX of the Advocates Act deals with the issue of remuneration of Advocates. Section 10 of the Advocates Act provides that as long as a person holds qualifications specified in Section 13 of the Act (Cap 16), then such a person may be entitled in connection with his duties to act as an advocate and shall not be deemed to be an unqualified person. This provision covers: a) An officer in the Attorney General’s office. b) The Principal Registrar of Titles and any other Registrar of Titles. c) Any person holding office in a local authority established under the Local Government Act1 The definition of an Advocate includes a Senior Counsel merely because of the introduction of Section 17 of Act No. 18 of 1989 of an appointment by the President of any person of irreproachable professional conduct, who has rendered exemplary services in Kenya conferring upon him the rank and dignity of Senior Counsel. Such conferment cannot however be made unless a person is an advocate of not less than 15 years standing or if he is a person to whom Section 10 applies he holds or has held a practicing certificate for a continuous period of not less than 15 years or one of the other qualifications in Section 13(1). The ranking of Senior Counsel has its roots in the English Practice where Barristers who have exhibited outstanding professional conduct conferred with the honour of the title of Queen’s Counsel. A Queen’s Counsel is referred to as a QC.

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B. QUALIFICATIONS Prior to the coming into force of the Act 18 of 1989, the Advocates Act provided a different mode of qualification for advocates. Act 18 of 1989 clearly defines an advocate as a person holding qualifications under section 13 of the Advocates Act. Section 13 provides that a person shall be qualified to be an advocate if he has passed examinations of any recognized University in Kenya and holds a Bachelor Of Law degree (LL.B.), or having passed the relevant examinations of such University as the Council of Legal Education may from time to time approve, he holds or has become eligible for conferment of a Degree in Law in the grant of that University or University College which the Council may approve. Thereafter, the person must have attended as a pupil and received from an advocate of more than five years standing, instructions in the proper business, practice and employment of an advocate and has attended and passed such examinations as prescribed by the Council Of Legal Education, at the Kenya School of Law. Section 13 1(c) further provides that a person shall be duly qualified if he has any other qualifications acceptable to and recognized by the Council of Legal Education. An amendment was introduced vide Act 2 of 2002 adding paragraph (d) to section 13 (1). This provides that a person would be duly qualified if for the time being he is an Advocate of the High Court of Uganda or the High Court of Tanzania. Section 13(2) empowers the Council of Legal Education to exempt any person from the requirements prescribed for admission upon such conditions as the Council may impose. The Council of Legal Education is a body established under section 3 of the Council of Legal Education Act (Act No.12 of 1995). The Council of Legal Education In accordance with section 3(1) of the Council of Legal Education Act, the Council of Legal Education (CLE) is composed of the following persons:(a) the Chief Justice who is also the Chairman (b) one judge of the Court of Appeal to be appointed by the Chief Justice (c) One judge of the High Court to be appointed by the Chief Justice (d) The Attorney – General or his representative (e) Five Advocates nominated by the Council of the Law Society of Kenya (f) The head (dean) of the faculty of law of any recognised university in Kenya whose law degree is approved by the Council (g) The head of any training institution established by the Council under section 6 of the Act Page 2 of 2

(h) A senior counsel appointed by the Attorney general. (i) One person associated with the teaching of law in Kenya appointed by the Attorney General (j) The Permanent Secretary of the Ministry for the time being responsible for higher education or his representative. Subsection (2) of the same section provides that the Council shall be a body corporate with perpetual succession and a common seal and shall in its corporate name be capable of suing and being sued; taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; borrowing or lending money; and doing or performing all other things or acts for the furtherance of the provisions of the Act as may be lawfully done or performed by a body corporate. The procedure for conducting and regulating the business and affairs of the Council is laid down in the First Schedule to the Act. The headquarters of the council is in Nairobi. Objects and Purpose of the Council These are enumerated in section 6 of the Act. The general object and purpose of the Council however is stated to be the exercise of general supervision and control over legal education in Kenya and to advise the Government in relation to all aspects thereof. Subsection (2) of the section lays down the specific objects of the Council one of which includes to:(a) establish, manage and control such training institutions as may be necessary for: (i)

(ii) (iii) (iv) (v) (vi) (vii) (viii)

organising and conducting courses of instruction for the acquisition of legal knowledge, professional skills and experience by person seeking admission to the Roll of Advocates in Kenya, in such subjects as the Council may prescribe; Organising and conducting courses in legislative drafting Organising and conducting courses for magistrates and for persons provisionally selected for appointment as such; Organising and conducting courses for officers of the Government with a view to promoting a better understanding of the law; Organising and conducting such courses for paralegals as the council may prescribe. Organising and conducting continuing legal education courses Holding seminars and conferences on legal matters and problems Organising and conducting such other courses as the council may time to time prescribe.

Other specific functions of the Council are to conduct examinations for the grant of Page 3 of 3

such academic awards as may be prescribed and to award certificates, fellowships, scholarships, bursaries and such other awards as may be prescribed. In order to achieve the objects and purposes outlined above, the Council has the power under section 7 of the Act to:(a) Control supervise and administer its purposes as best promote the purposes for which it is established. (b) Control and administer the legal education Fund established under section 16 of the Act. (c) Receive any grants, gifts, donations or endowments and make legitimate disbursements therefrom. (d) Enter into association with other bodies or organisations within or outside Kenya as the Council may consider desirable or appropriate and in furtherance of the purpose for which the Council is established. (e) Open a banking account or banking accounts for the funds of the Council. (f) Invest the funds of the council not currently required for its purposes in the manner provided under section 17 of the Article in securities in which for the time being trustees may by law invest trust funds or in any other securities approved by the Treasury or to deposit any such funds in a bank-account. The Council has also the power to delegate some of its functions to committees ot to any member, officer, employee or agent of the Council under section 9. The Council has wide powers to control the level of education of legal professionals in the country. Consequently section 14 of the Act empowers, the Council to make regulations for the purposes of giving effect to the provisions of the Act and in particular, the regulations may:(a) Make provision regarding the engagement and training of pupils by advocates and their respective, conduct duties and responsibilities. (b) Make different provisions for different circumstances. (c) Authorize the charging by the Council of fees (d) Make provision for the establishment of training institutions by the Council (e) Prescribe the requirements for the award of diplomas, certificates and other academic awards of the Council. (f) Provide for the description of diplomas, certificates and other academic awards of the Council. (g) Provide for the settlement of the terms and conditions of service including the appointment dismissal, remuneration and retiring benefits of the numbers of staff of the Council and; (h) Prescribe anything which may be prescribed under the Act. Clearly the powers of the Council are fairly wide as is indeed attested by the vague wording of the provisions of the Act. The Council can even make rules imposing obligations on members of the legal profession with a view to improving standards Page 4 of 4

e.g. the provisions of section 14 are fairly wide as to empower the council to require compulsory continued legal education of practising advocates and other legal professionals. The Council may recommend the imposition of a legal education levy on any or all services rendered by advocates. So far as accountability is concerned, the Act makes provision for the preparation of annual estimates of revenue and expenditure as well as for keeping of proper books and records of account of the income, assets and expenditure of the Council. After satisfying the qualifications as to the admission as an Advocate, Section 9 of the Advocates Act provides that an Advocate shall qualified if:a) He has been admitted as an Advocate. b) He has his name entered into the roll. c) He has in force a Practicing Certificate and an Annual License. Such certificate shall be deemed not to be in force if the Advocate is suspended by the disciplinary committee or the court where the Advocate is adjudicated bankrupt. It is therefore only after an Advocate has a Certificate, that he can be allowed to practice as an Advocate. Prior to Act 18 of 1989, articled clerks were admitted as Advocates. These were people who after passing their Form Four Examinations went straight to the School of Law for 5 to 7 years after which they qualified as Advocates. After that, their names were entered into the roll and they practiced. This mode of qualification is now defunct and every prospective advocate must now undergo university training. An Advocate whose name has not been entered into the roll and has not taken out a Practicing Certificate is not an Advocate and can be disciplined for practicing without a Certificate. In Republic v. Theuri , the accused was charged with the offence of practicing law while not an Advocate. The case against the accused was established on the basis that he got powers of attorney from litigants and purported to act as an Advocate. He was found guilty of an offence under Section 33 of the Advocates Act and sentenced to serve 2 years in jail. C. OR ORIGIN IGIN OF ETIQUE ETIQUETTE TTE The source of the rules of Professional Etiquette and Conduct, were self imposed by the bar in England way back in the 6th century and were developed as good manners among gentlemen. This was to correct the imbalance in relation to the profession and the client. They were meant to stop abuse hence the establishment of code of conduct. The legal profession in Kenya was developed by settler community in Kenya as a Page 5 of 5

reward for services in their 2nd world war. The initial entrants to the profession in Kenya were not properly qualified and not properly trained in law. The influence of the Arabic world was also felt at the coast where we had the ‘Vakils’ which was a term used to refer to Advocates amongst Arabs. The first recorded reference of a legal profession in England was in 1729, when the society of gentlemen practices rules was established. In 1825, the Law Society of England was established. In 1949, the Law Society of Kenya was established. D. CHARACTER CHARACTERISTICS ISTICS OF AN ADVO ADVOCATE CATE 1. Signing the roll: This basically signifies the entry into the legal profession under Section 9 (a) and (b). 2. Having special skills that the public needs and against which incompetence is tested. An Advocate must be able to present the client’s case in court and must have the sense of public service as opposed to private service. In England, Advocates never received remuneration. 3. Must be willing to serve the public at large. The need for legal representation is seen in the Provision of Advocates to persons facing the death sentence in cases of murder, robbery with violence and treason. The state provides representation and a person is likely to be or has been sentenced to hang. The black robe of Advocates has a pouch at the back for receiving a token when Advocates perform their duty. 4. An Advocate must voluntarily submit himself to the Code of Conduct governing Advocates. 5. An Advocate must comply with the rules of etiquette and must have personal responsibility to all he serves and liability to all his clients. E. OBJECTS OF THE LE LEGAL GAL PROFESSION 1. To maintain a form of conduct in which the client’s interest is paramount. 2. To always honestly serve clients and courts. 3. Honesty to professional colleagues, especially in undertakings as this may even bring financial loss. 4. To present yourself in a particular manner and always be properly dressed. 5. To control conduct and behaviour of Advocates.

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F. THE ADVOCATE AND THE CLIE CLIENT NT The Advocate must deal with his client with utmost honesty and frankness. No untrue representation should be made to the client nor should any fact be kept away from the client. In dealing with trust and legacies, an Advocate is required to be extremely careful, he must apply monies for specific purposes and must be prudent when dealing with his client. A client is defined under the Advocates Act, to include as any person who as a principal or on behalf of another, or a trustee or personal representative or in any other capacity has power express or implied to retain or employs and retains or employ or is about to retain or employ an Advocate, under any person who is or may be liable to pay an Advocate any costs. Contentious business refers to business done by an Advocate in court relating to proceedings or any tribunal or a panel. Non – contentious business refers to any business which is not contentious.

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CHAPTER TWO: THE ESSENTIALS OF ADVO ADVOCACY CACY ADVOCACY This is the science of pleading the cause of another. Advocacy is hence acting for a person, hence one need not assume:a) That the person’s cause is that of the represented. One needs to be broad minded and emotional sentiments held by the other. b) The pleading was supposed to take place before a legal or a legitimate body. c) The advocate is exclusively dependent in so holding himself out as an advocate. When you are pleading the cause of another, you need not plead in the client’s favour. One school of thought sustains that you should plead your client’s case in his or her own interest to the best of your ability. QUALITY a) Persuasiveness – you have to be able to move by argument a body of persons to be able to accept whatever cause you are pleading, so that you should have the ability to persuade and develop a technique. There is law and fact rule of a technique of persuasion. You must learn to think on your feet. b) It’s essential to command human psychology. This is necessary to understand people and their way of thinking. c) Sometimes the ability to be patient pays. If you are patient, you will learn what makes the person tick. Your instinct also to be loved and admired for what you do is important. There’s also the human desire for domination.

d) e) f) g) h) i) j)

In order to be persuasive it’s necessary to keep in check all these, since if you are not, then it’s not very right. Always ask yourself whether the fact that you disliked a member of the bench means you didn’t like his opinion. Humility – you must be humble. When dealing with members of the bench, one ought to know, these people are just like yourself hence one ought to be in the look out. Confrontation – avoid confronting a judge. This might be very devastating and might turn him against you. Reliability – you should be able to venture an air of reliability. It’s by showing that you know what you are talking about and its reliance. Aggression – one ought to have a certain amount of aggression but alongside this, there must be politeness. Remain firm but very frank in what you are pleading. Punctuality – these have been known to be a major factor in advocacy. Anger – this ought not to be displayed by advocates in advocacy. Anger is a way of detracting you. Avoid angering other people. Objectivity – one should always be objective. The advocate, should not be Page 8 of 8

k) l) m) n) o)

p)

quick to pass judgement or condemn in most of the heated exchanges, an advocate should keep his mouth shut. One should be very careful to join an argumentative discussion. Identification – avoid identifying with your client. Identify with his case as you plead it in the tribunal but ensure that you don’t make the client’s case. Negotiation – know your case very well when you go to court. It helps a great deal if you know your opponent’s position. You should not be dogmatic – be flexible to come out with the best deal. Settlement – its apt to develop an inclination to ask the clients to settle out of court. Litigation for the purpose thereof is an expensive exercise in terms of money and time. Bad settlement is often better than a good judgement. Relationship – relationship with a client must be carefully cultivated. A client as defined in S.2 of the Advocates Act is very fine. A professional must be alert when dealing with clients because it’s so definite that he’ll depend on you 1 for a number of consultations. See Groom v. Crocker Instructions – unless an advocate is obliged to instructions from any client, you need not refuse on account of colour, ethnic origin, creed, sex, race. However, decline instruction if:1. You don’t want to take that kind of work. 2. You don’t have enough time. 3. There is personal interest. 4. You have previously acted. 5. You are a Tribunal or a Commissioner and the case is triable by these tribunals. 6. You are practicing in partnership and your partner is likely to be called as a witness in that case. 7. Your client wants you to take a certain action purely to injure somebody else. 8. The instructions given are not clear. 9. A client does not want to pay fees.

Instructions should be preferably taken down in wr writing. iting. It should be done very clearly and exhaustively and a client should sign at the end of instructions. q) Interposing – this should not be done between client and the judge. When giving opinions to client, do so reasonably, in time and in writing. r) Do not degrade yourself as a professional just to benefit a client. s) Reply to correspondence promptly. t) Pleadings and documents should be drafted meticulously. u) If in doubt ask Law Society of Kenya Secretariat. v) Get familiar with court procedure and registries. w) It’s apt to have an organized office – have a diary, files etc. x) Take advantage of the technology available e.g. computers, Dictaphones. Etc. THE DUTY OF AN ADVOCATE The duty of an advocate is fivefold since in the discharge of his office as the Page 9 of 9

advocate, he has a duty to hiss client, a duty to his opponent, a dut dutyy to the Court, a duty to himself and a duty to the State. Duty to the professio...