Lawyers beware; caveat emptor!
By Jared Juma
The phrase caveat emptor arises from the fact that buyers often have less information about the goods or service they are purchasing, while the seller has more information. Defects in the good or service may be hidden from the buyer, and only known to the seller. Thus, the buyer should beware. This is called information asymmetry.
When a sale is subject to this warning, the purchaser assumes the risk that the product might be either defective or unsuitable to his or her needs. This rule is not designed to shield sellers who engage in fraud or bad-faith dealing by making false or misleading representations about the quality or condition of a particular product. It merely summarizes the concept that a purchaser must examine, judge, and test a product considered for purchase.
The modern trend in laws protecting consumers, however, has minimized the importance of this rule. Although the buyer is still required to make a reasonable inspection of goods upon purchase, increased responsibilities have been placed upon the seller, and the doctrine of caveat venditor (Latin for “let the seller beware”) has become more prevalent. Generally, there is a legal presumption that a seller makes certain warranties unless the buyer and the seller agree otherwise.
One such Warranty is the Implied Warranty of merchantability. If a person buys soap, for example, there is an implied warranty that it will clean; if a person buys skis, there is an implied warranty that they will be safe to use on the slopes.
One may actually wonder why these principles have become of interest today. Well, this is a general caution to lawyers.
Lawyers, beware! You will be vetted or punished for the type of client you represent. You will be vilified for the type of views of your client.
A Nairobi lawyer and Civil liberties crusader, Vincent Suyianka Lempaa was nominated by the President for vetting by the Parliamentary Departmental Committee on Justice and Legal Affairs, for possible appointment as Commissioner to the Kenya National Commission on Human Rights (KNHCR). Parliament rejected him on account of the views he held in a certain case involving his clients. That is why it becomes necessary to caution lawyers well in advance to beware of the implications of the cases they handle.
Lempaa alongside other applicants had been interviewed by a selection panel involving personnel from the Office of the President, civil society organisations and the Office of the Prime Minister heading into the 2013 March General Election. He qualified and as such his name along other seven applicants was recommended to the President. The selection panel had to interview 13 persons. Prior to giving their findings and recommendations, a lobby group went to the High Court to stop the appointment process citing exclusion of persons from marginalized communities.
In her judgment in that matter, Justice Mumbi Ngugi listed the names of the people who had been interviewed and the eight who had been nominated as a consequence of the interview. Vincent Lempaa was among the last preferred eight. She then held that the President should go ahead and complete the appointment process under Section 11(3) of the Kenya National Human Rights Act. All that took place between 2012 and 2013. At paragraph 43 of the Constitutional Petition No 385 of 2012, Justice Ngugi observed as follows:
“…Similarly, nothing has been presented before me by the petitioners on the basis of which I could find reason for impugning the decision of the Selection Panel in selecting the candidates that it did. As submitted by the respondents, the Selection Panel shortlisted 8 candidates who included, among others, the following: Vincent Lempaa, who is from a marginalized community; Mr. Robert Shaw from a minority community; Mr. Eric Ogwang who is a person with physical disability; and Dr. Samuel Kabue who has a visual disability.”
Come 2014 and the names of the persons who had been nominated were presented to the National Assembly. Mr. Lempaa appeared for the vetting and was taken through a process of checking his suitability for the position. At no one time during the interview did the Committee raise the question as to whether he had been nominated by the President so that when during the debate of the report that had recommended rejection of his name on grounds that he had not been nominated by the President, he found it curious why he had been taken through the interview in the first place.
This went against the rules of natural justice for which you cannot make some findings about someone and condemn them on the same if they have not been given a chance to face such findings. That is what the committee did.
But the most intriguing point came on account of a case that Mr. Lempaa had been handling on whether the MPs should be the patrons of the Constituency Development Fund (CDF) Committees in the constituencies in the face of Devolution. This coveted committee gives MPs a clear leverage on how to allocate resources in the Constituency and can thus reward loyalists and punish foes.
That was actually the elephant in the room, which brings me to where I began.
User beware; any lawyer now needs to be aware that Parliament is keen to punish them on account of an opinion they once held on behalf of their clients especially if that view is contrary to the interests of the lawmakers. Indeed Mr. Lempaa had represented the Katiba Institute, a Non Governmental Organisation that had challenged the constitutionality of MPs sitting as the Patrons to the CDF committee.
The vice chair of the Committee, Priscilla Nyokabi set the mood of the Committee. She asked Lempaa why Katiba Institute, the organization he works for, has been filing cases that bring Parliament and the Judiciary in confrontation and, or collision. Five out of the seven members who vetted Lempaa took cue henceforth. His plea to the chairman of the Committee Samuel Chepkonga that the matter was pending in court and was therefore prohibited from going into its substance, was ignored.
According to the National Assembly Hansard Report of March 4, 2014, Majority leader Adan Duale is captured animatedly supporting the motion to reject the Lawyer.
“Secondly, this member is the one who said – and I do not know what type of a lawyer he is – that Members of Parliament cannot be patrons of Constituency Development Fund (CDF). He said it is un-constitutional. He said it … so, he cannot be a very fair guy at KNCHR, if he is interpreting the law in the wrong way. He is saying that CDF should go to the governors. I think he should join the Judiciary and become a judge or a judicial officer and then he can interpret the law.”
This means essentially that lawyers are now at risk on account of arguments they may make in court.
Nonetheless, according to an Article by Erwin Chemerinsky, Protecting Lawyers From Their Profession – Redefining the Lawyer’s Role, a lawyer is a mere messenger who should not be vilified on account of a view he holds in a case.
“Traditionally, the attorney is viewed as an advocate for a client. The lawyer’s task is to zealously represent the client, and it is not for the attorney to decide which side is right or deserves to triumph. It is assumed that the conflict of arguments in the court will ensure that justice is done.
“This view of the lawyer’s role ignores the question of whether, and to what extent, an attorney’s personal beliefs should influence his or her professional conduct. Seldom discussed are the consequences to the attorney of arguing against his or her prior beliefs.”
In theory, attorneys are advocates for others. Many people understand that representing the person or issue does not equate with accepting or endorsing what a particular client does. In practice, however, even the most sophisticated client may have difficulty accepting representation of a known pedophile or racist hate group. It would appear therefore that the contribution of Adan Duale was intended to punish Lempaa for the views he held in the CDF case.
The trend set by the National Assembly is dangerous for legal practitioners because when a lawyer accepts the task of improving an argument in favour of a point of view at variance with his own personal convictions, he becomes temporarily motivated to think up all the positive arguments he can, and at the same time, suppresses thoughts about the negative arguments.
Lawyers do their work. That work involves representing clients. Punishing a lawyer for the type of client he represents, and views he or she holds in the course of his or her duty is absurd.