By Robin Nyore
Choosing the right lawyer is an important decision, regardless of the nature of representation required. Referrals can be great, but a potential client also needs to understand the workings of the system to have the right one for the job. This article targets the practising advocate and, by extension, the client who seeks legal services. Its main aim is to educate the public on what to do before soliciting the services of a lawyer, and what he or she needs to do before that happens.
For the advocate
The legal profession is a noble one, and as such it demands high standards of decorum, ethics, accountability and utmost professionalism. It is upon the advocate to ensure that he carries himself in a manner that inspires others to uphold these virtues for the benefit of the society s/he serves.
In addition, he should ensure that in the course of his duties, he follows the strict guidelines set out by the overseeing body of the profession (the Law Society of Kenya) to ensure quick delivery of justice, quality dispensing of services to clients and, most importantly, that the profession maintains the respect and reverence that it deserves.
An advocate, upon being admitted into the profession, assumes great responsibilities to ensure that the integrity, purpose, goals and values of that same profession are met in course of his duties. He must guard these values with skill and precision, with impartiality and equity. Most importantly, if he does not, not only will the society s/he serves suffer, but also might disrepute or harm to the profession in general.
For the client/public
Seeking legal representation is one of the most important decisions one makes in life. This is so because such a decision defines the seriousness one undertakes to ensure that their rights and obligations, from a legal standpoint, are upheld and defended. As such, it can be a very challenging experience if one does not know how to go about it.
Before one seeks to consult or retain an advocate, one needs to undergo a few steps to make sure that the stones that he intends to step on along the journey of legal representation are solid and true to the name of the legal profession.
Do you need a lawyer?
Ask yourself whether or not you need a lawyer. Define the issue at hand. Is it something that you can handle on your own, or do you need a skilled professional to assist you? For example, if you have been charged with a crime or have been served with a lawsuit, or need to institute divorce proceedings against your spouse, you will definitely need a lawyer. But if it were a simple task like buying accessories for your house or setting up a retirement fund, then most likely you wouldn’t need one.
Lawyers improve their clients’ quality of life by protecting them from situations that might later bring emotional and financial hardship, such being caught oblivious, in a civil suit, the charges preferred against you.
Find one that suits your needs
There are thousands of lawyers in Kenya, all practicing in different areas of law. It is prudent to do some research and find out which field your issue lies and who is the best advocate for that particular field. Do not rush into it. Think carefully and be prudent in your decision-making. One of the best and easiest ways to ascertain the area of practice of an advocate is to visit the Law Society of Kenya portal. It will provide you with up to date statistics of the areas of law a particular advocate specialises in. Also, you can inquire from the courts and its staff (since they interact on a daily basis with such advocates) that is best suited to represent you in your legal issue.
Ascertain that your advocate is qualified to practice
Once you have settled on one, the next prudent step is to ascertain whether or not the said person is qualified to practice as an advocate. There have been many stories of clients being duped by persons who pretend to be advocates but who are actually imposters who may speak legal jargon but have no business practising law.
Section 2 of the Advocate’s Act Cap 16 defines an advocate as any person whose name is duly entered upon the Roll of Advocates. A person who calls himself/herself an Advocate ought to have their name on this roll, which can be perused, free of charge, during office hours at the Registrar of the High Court offices.
Another way to confirm is to look online on the LSK website. Furthermore, you’ll find the advocate’s practicing status is indicated clearly as “active”, “inactive”, “suspended” or “struck off”.
If the named advocate status cites “active”, then the said advocate is qualified and competent to practise law in that year. If the named advocate status cites “inactive”, then the said advocate is not competent and qualified to practice law in that year. “Suspended” means the advocate is not allowed to practise until the suspension is lifted, while “struck off” means s/he is not an advocate anymore and is banned from practising law in Kenya indefinitely.
Finally, the utmost proof that the advocate is competent and qualified to practice is that s/he should have a valid current practising certificate as documentary evidence of his or her legibility to practise law in that current year. The client is free to ask to see a copy of the practising certificate. Practicing certificates are renewed on a yearly basis.
How much fees should you pay
The client and the advocate should agree on the standard fee for the service to be provided. In Kenya, Advocates’ fees are stipulated in the Advocates Remuneration Order. It is a guide as to how much the advocate should charge the client depending on the particular type of service being rendered. Typical expenses include court costs (fees for filing a lawsuit), copies of transcripts, expert witness fees, private investigators, postage, telephone, courier, photocopying, legal research, out-of-town air or car transportation and so on.
The advocate must clearly explain to the client the prescribed amount. It should be noted that it is prohibited and frowned upon for an advocate to charge less fees than is prescribed in the order. This is called undercutting. In this case, the advocate who charges less is breaching the code of conduct of the profession and it is likely down the line he may cut another corner to the detriment of the client.
Establish ground rules
At times, this step goes in hand while discussing the advocate’s fees. Legal matters can have a variety of outcomes, where none are predictable. Once you (client) has settled on an advocate and discussed the fees to be paid, you need to communicate your expectations to the advocate. The advocate needs to understand clearly the instructions given so that he can know so to speak the “dream outcome” for the lawsuit is or transaction he’s been retained to undertake.
Always ensure you have a record of the instructions given to the advocate so that there is no misunderstanding of the same down the line. When both the client and the advocate have a clear picture of what needs to be done pertaining on the legal issue(s), goes along way in ensuring that the endeavour is a success.
Always evaluate your lawyer
Once you have retained your advocate, make sure that you do not sit back. Always be proactive to ensure he is doing his work as instructed.
A good advocate/lawyer is, above all, a professional. In evaluating your lawyer, measure their ability to provide case updates regularly, return your phone calls within one business day, honour deadlines, with a reasonable amount of flexibility, maintain a loyalty to you while keeping honest, even while being critical of your wishes, respect confidentiality, discuss openly all billing matters while honouring the original agreement for services, refer you to talk to someone else when specialised expertise is needed, appear prepared at meetings or court appearances.
If you are happy or unhappy, do something to about it
The Law Society of Kenya (LSK) is the body that oversees all advocates’ activities in the country. It is tasked with ensuring that its members adhere to the code of ethics and conduct as prescribed.
If you are happy or unhappy with your advocate, do something about it. In case the advocate is incompetent, you are at liberty to fire him and get new representation. However, there are some instances where the advocate does the unthinkable, like skipping court appearances for hearings/mentions, using the client’s money without authority, lying and failing to provide updates, among other vices.
If one of these has happened to you, you are required to lodge a complaint with the Advocate Complaints Commission (ACC). The ACC is a department within the Attorney-General’s Office. It consists of commissioners whose main purpose is to inquire into complaints against any advocate or firm of advocates.
If it appears to the commission that there is indeed a genuine complaint against an advocate that constitutes a disciplinary offense, then it forwards the same to the Disciplinary Tribunal to act on the matter. Every advocate in Kenya is subject to the jurisdiction of the tribunal.
A complaint against an advocate is made in an affidavit by the complainant, setting out the allegations of professional misconduct. Where a case of professional misconduct on the part of the advocate has been proved, the Disciplinary Tribunal may order that the advocate be admonished, suspended from practice for a specified period, struck off the Roll of Advocates, pay a fine as the committee thinks fit, or pay the aggrieved person compensation or reimbursement.